DE KAUWE -v- WYATT [2026] WASC 85 (19 March 2026)

(a) the first defendant, Kenneth George Wyatt;

(b) the second defendant, Huw Christopher Wilkinson;

(c) the third defendant, Fiona Ann White-Hartig;

(d) the fourth defendant, Trent Wheeler; and

(e) the fifth defendant, EIPC Ourgrid Pty Ltd (EIPC).

(a) a notice of discontinuance pursuant to O 23 r 2(1) of the Rules of the Supreme Court 1971 (WA) (RSC) in relation to the third defendant; and

(b) a statement of claim.

1. The action is being case managed by a registrar. It was listed before me in the Master's List on 10 March 2026 for the return of the first defendant's application, by chamber summons filed on 9 February 2026, to strike out paragraphs 7 - 12 and 30 of the statement of claim pursuant to O 20 r 19(1) RSC.

The first defendant also seeks orders that the statement of claim as against him be dismissed and judgment entered in his favour pursuant to O 20 r 19(1) RSC. He also seeks summary judgment against the plaintiff pursuant to O 16 r 1(1) RSC (First Defendant's Strike Out and Summary Judgment Application).

1. The second, fourth and fifth defendants have also foreshadowed an application to strike out parts or the whole of the statement of claim, but no application has yet been filed by them.
2. On 9 March 2026, the day before the return of the First Defendant's Strike Out and Summary Judgment Application, the plaintiff made an application by letter for leave to issue a subpoena to Simon Llewellyn Owen pursuant to O 36B r 2(2B)(b)(ii) RSC (Subpoena Application). A draft of the subpoena is filed as folio 34.
3. In support of the Subpoena Application, the plaintiff relies on an affidavit of Alexander James Tharby affirmed and filed on 9 March 2026.
4. The Subpoena Application is opposed by each of the defendants.
5. I heard from the parties on 10 March 2026 in relation to their respective proposed orders concerning the First Defendant's Strike Out and Summary Judgment Application and in relation to the Subpoena Application. I said I would deliver my decision in relation to the Subpoena Application in the Master's List on 17 March 2026. That hearing was subsequently adjourned to today, 18 March 2026.
6. I have considered the submissions made by the parties in relation to the plaintiff's application for leave to issue the subpoena and the authority referred to and relied upon by the plaintiff, Aerison Pty Ltd v Innovent Engineering Group Pty Ltd,[1] which was handed up, and now deliver my reasons for decision.

1. The plaintiff alleges that, at all material times:

(a) The first defendant, Mr Wyatt, was the chairperson of EIPC.[2]

(b) The second defendant, Mr Wilkinson, was a director of EIPC, and held half of its issued ordinary shares.[3]

(c) The fourth defendant, Mr Wheeler, was the chief executive officer of EIPC.[4]

(d) Simon Owen, who has not been joined as a defendant, and to whom it seeks to issue the subpoena, was an Australian legal practitioner and, from at least May 2024 until about 21 August 2024, was engaged as general counsel for EIPC.[5]

1. Paragraph 7 of the SOC relates to a proposed funding transaction EIPC is alleged to have been a party to in about August 2024, by which:

(a) EIPC was the proposed manager of a fund to be established and used for humanitarian and philanthropic purposes (Fund);[6]

(b) a European provider would settle the Fund by way of €450 million in cash to be exchanged for USD$ Tether crypto currency (USDT);[7]

(c) the funds were to be released to and held by an intermediary (which funds were to be released to EIPC from time to time upon application for investments consistent with the Fund's purposes);[8]

(d) to facilitate the release of funds to the intermediary, EIPC would pay to the intermediary a facilitation fee of 3 bitcoin crypto currency (BTC) as part of the transaction (Facilitation Fee);[9] and

(e) Mr Wilkinson, who claimed to have 1,791 BTC held in a BTC wallet to which he did not have the password, but which he would be able to access in the near future, would provide the Facilitation Fee on behalf of EIPC.[10]

1. In paragraph 8 of the SOC, the plaintiff alleges that, by about 17 August 2024:

(a) Mr Wilkinson had not provided 3 BTC to EIPC;[11]

(b) EIPC was considering alternative sources for the 3 BTC;[12]

(c) Mr Wilkinson had pledged cash, the 1,791 BTC, antique motor vehicles and a rural property in the Yarra Valley, to EIPC to secure repayment of the Facilitation Fee to any investor who would provide it;[13] and

(d) Mr Wheeler had secured investors, the details of whom were and are unknown to the plaintiff, who collectively were to provide sufficient funds to secure repayment of the Facilitation Fee to any investor who would provide it.[14]

1. Paragraphs 9 to 12 of the SOC relate to information alleged to have been given by the defendants to Mr Owen on about 17 August 2024.
2. In paragraph 9 of the SOC, it is alleged that, on about 17 August 2024, Mr Wilkinson and Mr Wheeler informed Mr Owen of Mr Wilkinson's pledges and the investors secured by Mr Wheeler, and asked Mr Owen to find someone else to provide the Facilitation Fee, which would be secured by the pledges from Mr Wilkinson and Mr Wheeler's investors.
3. By way of particulars to paragraph 9, it is stated that Mr Wilkinson and Mr Wheeler informed Mr Owen of those matters by WhatsApp messages and by email, which are not in the plaintiff's possession and further particulars of which are not presently known to him and will be provided after discovery, inspection and the issue of subpoenas.
4. Paragraph 10 of the SOC pleads that, on about 17 August 2024, in a manner not presently known to the plaintiff, Mr Wilkinson and Mr Wheeler informed Mr Wyatt of the matters in paragraph 9.
5. In paragraph 11 of the SOC, it is alleged that, at all material times, Mr Wyatt, Mr Wilkinson and Mr Wheeler knew that EIPC did not have assets or binding commitments by which the Facilitation Fee could be secured.
6. By paragraph 12, it is alleged that, at no time did Mr Wyatt, Mr Wilkinson or Mr Wheeler inform Mr Owen that EIPC did not have recourse to the assets pledged by Mr Wilkinson and Mr Wheeler.
7. Paragraphs 13 to 16 of the SOC relate to information alleged to have been given by Mr Owen to the plaintiff between 13 August 2024 and 17 August 2024 in relation to the funding of the Facilitation Fee. I do not repeat the full content of those paragraphs in these reasons.
8. Paragraph 17 alleges that, on 17 August 2024, the plaintiff informed Mr Owen that he would be on standby in case he was needed to provide the Facilitation Fee.
9. Paragraphs 18 and 19 allege that in an exchange of WhatsApp messages between Mr Owen and the plaintiff on 18 August 2024, Mr Owen made an offer to the plaintiff on behalf of EIPC, which the plaintiff accepted.
10. The terms of the offer alleged to have been made are:[15]

(a) the plaintiff transfer 3 BTC to EIPC or its nominee by 5.00 pm on 18 August 2024 (AWST);[16]

(b) EIPC would transfer 9 BTC (or equivalent fiat currency in Euros) to the plaintiff on or about 22 August 2024;[17] and

(c) if the transaction did not complete for any reason, EIPC would fully reimburse the plaintiff, which is defined as the Repayment Term.[18]

1. It is alleged that Mr Owen informed the plaintiff that EIPC was able to reimburse him, if required.[19]
2. By paragraph 20 of the SOC, the plaintiff claims that in addition to the express terms pleaded in paragraph 18.1, it was an implied term of the agreement (although no agreement is expressly pleaded), that each of the parties would do all things reasonably necessary to enable the other to have the benefit of the agreement.
3. In paragraph 21 of the SOC, it is alleged that the plaintiff paid the Facilitation Fee by transferring 3 BTC to EIPC's nominated wallet.
4. Paragraphs 22 and 23 of the SOC plead, in effect, that EIPC breached the implied term of the agreement because the directors of EIPC and Mr Wheeler decided on 20 August 2024 not to apply for any funds from the Fund. It is alleged that this meant EIPC did not receive any funds from the Fund, could not pay and did not transfer to the plaintiff the 9 BTC by 22 August 2024, or at all.
5. In paragraph 24 the plaintiff claims that, by reason of EIPC's breach of the implied term, he has suffered loss and damage. Further and alternatively, in paragraph 25, he claims that in breach of the Repayment Term, EIPC did not reimburse him for the 3 BTC by 22 August 2024, or at all.
6. In paragraph 26, it is alleged that by reason of the matters pleaded in paragraphs 13 to 18 of the SOC, Mr Owen on behalf of EIPC represented to the plaintiff that:

(a) the proposed transfer of 3 BTC by the plaintiff would facilitate the implementation of a broader transaction from which EIPC could pay the plaintiff 9 BTC; and

(b) EIPC had secured sufficient commitments of assets from other investors to secure its obligation to reimburse the plaintiff under the Repayment Term.

1. It is pleaded in paragraph 27 that EIPC's conduct in making 'the representations' (which presumably refers to the representations pleaded in paragraph 26) was in trade or commerce.
2. Paragraph 28 of the SOC alleges that the representations were misleading or deceptive in that:

(a) the proposed transfer of the 3 BTC by the plaintiff was not and was not to be used as part of the transaction; and

(b) EIPC had not secured sufficient commitments of assets from other investors to secure its obligation to reimburse the plaintiff under the Repayment Term.

1. The plaintiff claims in paragraph 29 that he has suffered the loss of 3 BTC or the equivalent fiat currency by reason of EIPC's alleged misleading or deceptive conduct.
2. In paragraph 30 of the SOC, the plaintiff alleges that by reason of the matters pleaded in paragraphs 7 to 12, Mr Wyatt, Mr Wilkinson and Mr Wheeler were persons involved in EIPC's misleading or deceptive conduct. There is no further plea or particulars as to how it is alleged those parties were involved in the alleged conduct.
3. The plaintiff claims against Mr Wyatt, Mr Wilkinson and Mr Wheeler, compensation pursuant to s 236 of the Australian Consumer Law (Cth), which I take to be a reference to sch 2 of the Competition and Consumer Act 2010 (Cth), and interest pursuant to s 32 of the Supreme Court Act 1935 (WA).
4. The plaintiff claims against EIPC:

(a) payment or transfer to the plaintiff of 9 BTC, alternatively the value of 9 BTC as at the date of judgment in Euros or Australian dollars;

(b) alternatively, payment or transfer to the plaintiff of 3 BTC, alternatively the value of 3 BTC as at the date of judgment in Euros or Australian dollars;

(c) alternatively, compensation pursuant to s 236 of the Australian Consumer Law;

(d) alternatively damages;

(e) interest pursuant to s 32 of the Supreme Court Act to be paid in BTC alternatively in Euros or Australian dollars.

The proposed subpoena and evidence filed in support

1. The proposed subpoena the subject of the Subpoena Application is addressed to Simon Llewellyn Owen. As outlined, the statement of claim pleads that Mr Owen is an Australian legal practitioner and, from at least May 2024 until about 21 August 2024, was engaged as general counsel for EIPC. There is no evidence before the Court as to whether he still holds that position, but from the pleading, I infer he does not.
2. The documents sought to be produced by Mr Owen under the proposed subpoena are set out in the schedule of documents in the draft subpoena. In summary, they are documents recording or evidencing communications between Mr Owen, the first, second, fourth and fifth defendants or any combination of them, Fiona Ann White‑Hartig (formerly the third defendant), Mark Pascua and Lorenz Villafore, between 1 July 2024 and 31 August 2024, relating to:

(a) any proposed pledge of security made by Mr Wilkinson on behalf of EIPC;

(b) Mr Wheeler securing investors to provide security for a transaction involving EIPC; and

(c) the transfer or proposed transfer of 3 BTC by Mr Wilkinson or the plaintiff to facilitate a transaction involving EIPC.

1. There are no pleas relating to Mr Pascua and Mr Villafore in the SOC. They are referred to in the plaintiff's answers and objections to the first defendant's request for particulars, filed on 16 January 2026.
2. The proposed subpoena also requires production of minutes of board meetings of EIPC held between 1 July 2024 and 31 August 2024.
3. Mr Tharby's affidavit affirmed in support of the Subpoena Application incorporates a screenshot of a WhatsApp message said to be from Mr Owen to the plaintiff sent on about 17 August 2024.[20] That message does not refer by name to any of the people referred to in the proposed subpoena. The only name referred to is 'Vincent'.
4. Mr Tharby says, amongst other things, that he is informed by the plaintiff, and believes that, the plaintiff dealt at all material times with Mr Owen on behalf of EIPC and was not directly privy to internal communications between Mr Owen and the first to fourth defendants.[21]
5. Mr Tharby deposes that, before commencement of the proceedings, he received information from Mr Owen in relation to the 'loan' to EIPC and 'the involvement of the others in the process'. He says that Mr Owen informs him and he believes that:

(a) each of the defendants knew about the representations Mr Owen was making to the plaintiff to obtain the plaintiff's agreement to transfer the BTC and had supported them; and

(b) Mr Owen has documents relevant to that issue that he was willing to provide but only if subpoenaed or otherwise compelled to do so.

1. Mr Tharby deposes that he has provided a draft form of the documents to be sought from Mr Owen under subpoena to him and that, on 18 February 2026, Mr Owen responded to the effect that he did not object to its scope.[22] Mr Tharby states that, based on his knowledge of and involvement in the proceedings, he believes the documents sought from Mr Owen will assist the plaintiff to consider his claim as against the first defendant and be relevant to the claim as against all defendants. He does not elaborate.

Applicable legal principles The principles applicable to an application for leave to issue a subpoena

1. The Subpoena Application is brought under O 36B r 2(2B)(b)(ii) RSC. Leave is required because the issuing officer must not issue a subpoena to produce documents, in a proceeding in which a defence is required to be filed, before the defence has been filed, or the Court has given leave.
2. Relevantly, O 36B r 2(2D) RSC provides that the Court must not give leave under subrule (2B)(b) unless satisfied there are exceptional circumstances.
3. In Sandy v Yindjibarndi Aboriginal Corp RNTBC,[23] Le Miere J said '[t]he words 'exceptional circumstances' have their ordinary meaning. 'Exceptional' means 'out of the ordinary' or 'unusual', rather than 'unique'.'
4. His Honour also stated, in the context of an application for leave to issue a subpoena for production of documents for the purpose of an interlocutory hearing, that the applicant should be able to demonstrate that the documents are necessary for the applicant to fairly prepare and present its case.
5. The documents sought to be produced must be relevant to an issue or issues in dispute in the proceeding. There must be a legitimate forensic purpose for their production. As Le Miere J observed in Sandy v Yindjibarndi Aboriginal Corp,[24] the applicant should be able to demonstrate the precise issues in respect of which the documents are required.
6. A legitimate forensic purpose for the issue of a subpoena for a particular document will be established if the document gives rise to a line of enquiry which is relevant to the issues before the trier of fact.[25] There must be a reasonable possibility that the documents sought to be produced will materially assist the claim or defence of the proceeding, or are relevant to an issue in the proceeding.[26]
7. If the Court is satisfied that there is a legitimate forensic purpose for a party to seek production of specified documents, the question is whether there are circumstances which are out of the ordinary or unusual which justify the Court exercising its discretion to grant leave.[27] The plaintiff, as the party seeking leave to issue the subpoena, bear the onus of establishing there are exceptional circumstances.[28]
8. In considering whether there is a legitimate forensic purpose for the production of the documents sought or exceptional circumstances, it is necessary to consider the circumstances and the issues that arise in the proceeding. In this case, no defences having been filed, the matters in issue have not yet crystallised.

1. It was submitted on behalf of the plaintiff that, in essence, the plaintiff's case is that false representations were made to the plaintiff on behalf of EIPC by Mr Owen as its legal counsel.
2. It was submitted that Mr Owen has indicated that the first, second and fourth defendants are the individuals who are said to have been knowingly involved to some extent, either by passing on representations to him or being knowingly aware of the representations. Counsel explained that the difficulty for the plaintiff to date is that the documents which Mr Owen says he has, have not been provided and Mr Owen has said he will only do so under compulsion of an order to do so.
3. It was accepted that it was open to the plaintiff to make an application for pre‑action discovery in relation to any such documents. That was not done. However, it was submitted that the underlying substance of the cause of action persists based on what the plaintiff has been informed of by Mr Owen.
4. When asked what the exceptional circumstances were to justify a grant of leave to issue the proposed subpoena before a defence is filed, counsel referred to the decision of Aerison Pty Ltd v Innovent Engineering Group Pty Ltd, and in particular to paragraphs 54 of that decision, in which Seaward J stated she was satisfied that exceptional circumstances existed in that case by virtue of a combination of the factors referred to.[29]
5. That does not, in my view, answer the question as to what the exceptional circumstances are in this case. The case before Seaward J concerned a claim for alleged breaches of confidence and misuse of confidential information by a former employee of the plaintiff.
6. Of course, each case must be considered on its own facts and circumstances.
7. It was also suggested on behalf of the plaintiff that the early issue of the subpoena might serve as a short circuit to avoid potential strike out applications and will assist the defendants to plead their defences. I am not persuaded those are sufficient reasons to grant the Subpoena Application. The defendants have not suggested the documents sought are required to assist them to plead their defences.

The defendant's position in relation to the proposed subpoena

1. As stated, the defendants oppose the Subpoena Application. In essence, they say there are no exceptional circumstances to justify the issue of a subpoena prior to a defence being filed or early discovery. The plaintiff's counsel confirmed that early discovery is no longer pressed.
2. The first defendant submits, in effect, that there are no facts pleaded in the SOC as against him in relation to why any representations that may have been made by Mr Owen or the directors of EIPC can be relied upon by the plaintiff as representations made by the first defendant. The first defendant, Mr Wyatt, has deposed in his affidavit sworn and filed on 9 February 2026 that he is not and never has been the chairperson of EIPC.
3. It was submitted on behalf of the other defendants that it is unclear why it is not alleged that the plaintiff has been misled by EIPC or Mr Owen. No claim is made against Mr Owen. Rather, it is alleged that the first, second and fourth defendants were involved in the alleged misleading or deceptive conduct.
4. It was submitted on their behalf, in effect, that the plaintiff is effectively seeking to fix a defective case through the early issue of a subpoena in an attempt to obtain documents that may fill in the gaps, and to ascertain facts upon which a claim of the kind sought to be pleaded ought to have been based.
5. The defendants also submitted, in effect, that the plaintiff could have sought pre-action discovery, and did not do so. They say that it is inappropriate for the plaintiff to use the Court's resources to now seek leave to issue an early subpoena to obtain evidence that he should have sought to obtain, and have had, before commencing this proceeding.

1. In the circumstances of this case, the early issue of a subpoena is not, in my view, appropriate for the reasons articulated by the defendants.
2. In any event, I am not satisfied that the plaintiff has articulated what the legitimate forensic purpose is for the issue of a subpoena for production of the documents sought to be produced. Nor am I satisfied that the plaintiff has demonstrated that there are exceptional circumstances to justify the grant of leave to issue the proposed subpoena.
3. For these reasons, I have determined that the plaintiff's application for leave to issue a subpoena should be dismissed. I will hear from the parties in relation to the orders to be made, including to program the First Defendant's Strike Out and Summary Judgment Application, and the costs of the hearing on 10 March 2026.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Aerison Pty Ltd v Innovent Engineering Group Pty Ltd [2025] WASC 252 (Aerison).

[2] Statement of claim filed 19 September 2025 (SOC) [2.1].

[20] Affidavit of Alexander James Tharby affirmed on 9 March 2026 (Tharby Affidavit) [5].

[23] Sandy v Yindjibarndi Aboriginal Corp RNTBC [2019] WASC 322 (Sandy v Yindjibarndi Aboriginal Corp) [4].

[24] Sandy v Yindjibarndi Aboriginal Corp [4].

[25] Song v South Beach Management Pty Ltd (as trustee for South Beach Two Development Trust) [2020] WASC 402 (Song) [17] (Allanson J), citing Stanley v Layne Christensen Co [2004] WASCA 50 [9]. See also Simon Dirk Kenworthy-Groen as administrator of the estate of William Grove v Grove [2022] WASCA 120 [51].

[26] Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287 [11(b)] (Hill J) and the authorities referred to.

[28] Mineral Resources Ltd v Destec Pty Ltd [No 2] [2021] WASC 357 (Mineral Resources) [15].