Procedure - Civil Proceedings in State and Territory Courts - Discovery and interrogatories - Discovery and inspection of documents - Production and inspection - Grounds for resisting production - Privilege - Waiver of privilege - What constitutes - Conduct inconsistent with maintenance of privilege - Solicitor's instructions to expert - Witness statement of expert delivered - Documents referred to produced - No implied waiver of legal professional privilege.

Supreme Court Rules 2000 (Tas), rr 515 and 516.

Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 12; (2011) 21 Tas R 189 applied.

Procedure - Civil Proceedings in State and Territory Courts - Discovery and interrogatories - Discovery and inspection of documents - Discovery of documents - Better discovery.

Procedure - Civil Proceedings in State and Territory Courts - Procedural aspects of evidence - Subpoenas and notice to produce at hearing - Generally - Subpoena to produce documents - Production of documents prior to trial - Whether premature.

Judgment Number: [2017] TASSC 24

FINGAL PASTORAL PTY LTD v PAGE SEAGER LAWYERS (A FIRM)

1. By writ issued 24 October 2014 and amended 4 December 2014 the plaintiff, Fingal Pastoral Pty Ltd, claims damages for economic loss allegedly resulting from advice given to it by its firm of solicitors in December 2008. Amended particulars of loss and damage dated 28 July 2016 quantified the claim, as at 30 June 2015, in the sum of $5,601,675. By the time of the delivery of the particulars the plaintiff had delivered witness statements from all of its intended witnesses covering matters of fact and expert opinion. Witness statements for the defendants are yet to be delivered.
2. By interlocutory application filed 14 November 2016, the plaintiff applied for an order requiring delivery of the defendants' witness statements, as to fact and opinion, within 14 days and an order referring the dispute to mediation. The defendants say that the plaintiff should produce more documentation before the action progresses and by interlocutory application filed 12 December 2016 have applied for the following orders. The first order sought is an order compelling the production of letters of instruction and supporting documents provided by the plaintiff or its solicitors to the plaintiff's expert witnesses. The second order sought is an order pursuant to the Supreme Court Rules 2000, r 388, requiring the plaintiff to file and serve an affidavit stating whether specified documents or classes of documents are or have been in the possession, custody or power of the plaintiff. The third order sought is an order permitting several subpoenas directed to the plaintiff's witnesses and advisors to be made returnable in the near future, notwithstanding that the action is yet to be set down for trial.
3. It is convenient to deal with the defendants' application first. In doing so it is necessary to commence by considering the claim, the particulars of damage and the expert witness statements which have been delivered.

1. In its statement of claim the plaintiff makes the following allegations. The plaintiff owns and operates a farming property at Fingal. Between January 2009 and May 2010 the plaintiff entered into forestry rights agreements, covering a total area of land of about 1,700 hectares, with Gunns Plantations Ltd (Gunns) and Wesley Vale Engineering Pty Ltd (Wesley Vale), whereby in consideration of annual payments of $400 per hectare, the land would be used for forestry plantations. Plantations were established on approximately 1,400 hectares of the land, comprising about 500 hectares leased to Gunns and about 900 hectares leased to Wesley Vale. In September 2012 Gunns and Wesley Vale went into liquidation. Annual lease payments ceased and insufficient husbandry was provided with the result that part of the plantations became commercially unviable or at high risk of failure. Prior to entering into the forestry rights agreements the plaintiff sought advice from the defendant firm of solicitors and in particular, Mr David Shelley. The advice sought was as to risk associated with the possibility that Gunns or Wesley Vale might go into liquidation. The allegations as to the advice are contained in the statement of claim at pars 13 and 14 which are as follows:

"13 On or about 12 December 2008 Richard Talbot requested David Shelley to advise FPPL in relation to:

(a) the risks associated with either GPL or WVEPL, or both, going into liquidation;

(b) if some future person were to acquire that part of the GPL and/or WVEPL business that owns or manages any plantation on FPPL's land would that person be required to honour the existing arrangements?

(c) in that event the risk that a buyer for the Forestry Rights Agreements could not be found; and

(d) whether to minimise those risks a clause should be inserted in the Forestry Rights Agreements to ensure that ownership of the trees on the Plantation Land and the carbon rights reverted to FPPL in the event that GPL or WVEPL became insolvent.

1. In response to the request, pursuant to the Retainer, on or about 15 December 2008 David Shelley, on behalf of the Defendants, advised and assured FPPL to the effect that:

(i) the Forestry Rights Agreements would be a valuable asset which the liquidator would no doubt sell;

(ii) it was theoretically possible that the liquidator would disclaim the Forestry Rights Agreements and the trees would revert to FPPL's ownership; however,

(iii) in reality that would not occur as the asset is a valuable asset and the liquidator would invariably seek to sell the value of the Forestry rights Agreements; and

(b) as a result, it was not necessary to amend the proposed Forestry Rights agreements."

1. The statement of claim continues, that the advice was in breach of an implied term of the retainer that reasonable care, skill and diligence would be exercised in the provision of legal services, that the advice was negligent and that the advice was misleading contrary to s 14 of the Fair Trading Act 1990. But for the advice the plaintiff would not have entered into the forestry rights agreements. As a result of the impugned advice the plaintiff has and will suffer loss and damage and be put to expense.
2. Although not pleaded, I add that counsel for the plaintiff has advised that the plantation trees subsequent to the liquidation became the property of the plaintiff.

1. The plaintiff delivered amended particulars of loss and damage comprising losses calculated as at 30 June 2015 and adjusted to apply a net present value for future cash flows for forestry operations and for grazing operations. Incorporated with the particulars are a number of tables and detailed footnotes.
2. According to the particulars, the parts of the plaintiff's farm given over for timber plantations (with the exception of about 40 hectares which was native forest) were suitable for the grazing of livestock in the same manner that the balance of the farmland was and is used. About 400 hectares of the leased plantation land is now being restored to grazing land and the balance of the leased land, being about 1,300 hectares, is to be managed to the harvesting of the timber in 2025, with the timber then sold before the land is restored to grazing land.
3. Return to grazing operation, following harvesting of the trees, includes the following steps. Firstly, the removal and disposal of tree stumps. Secondly, the planting of a crop of wheat for weed control and soil replenishment. Thirdly, the establishment of pasture after the wheat crop has been harvested. Fourthly, the reinstatement of fences and a stock water supply system. Fifthly, the restocking of the land with cattle.
4. Income will be received from the sale of the timber and wheat, but expenses will be incurred in the management of the timber plantations, establishing the wheat crop, sewing pasture and reinstated fences and the stock water supply system.
5. The particulars go into high detail about income and expenditure and with respect to future income and expenses, as previously noted, include discount rates to assign present values to amounts to be received or spent up until 2029.
6. The stock carrying capacity per hectare of the plantation land is said to be 81% of the stock carrying capacity per hectare of the balance of the farmland. A "But For Case" based upon the financial outcome had the land been kept for grazing is produced. An "As Is" case based on the fact of the existence of the timber plantations is also produced.
7. The structure of the particulars is as follows:

(i) Firstly, there is the total amount claimed for the net income which would have been derived from grazing operations on the plantation land to 30 June 2015.

(ii) Added is the net income which would have been received from grazing activities on the area of about 1,700 hectares of plantation land from 1 July 2015 to 30 June 2029. Detailed calculations are provided and the amount calculated is adjusted to assign a present value.

(iii) A further amount is added for the cost to be incurred as a result of maintaining the plantation timber on the area of about 1,300 hectares until harvest in 2025 and the cost of restoring the whole of the 1,700 hectares of the leased land to grazing pasture with the amount adjusted to take account of income expected to be received to 30 June 2029 from the sale of the wheat to be planted in the first year after plantation land clearance and from grazing activity from 2017 on the area of about 400 hectares of the plantation land now being restored to pasture. The amount is further adjusted to take account of the income expected to be received from grazing activity on the whole area of 1,700 hectares between 2027 (the year of expected restoration of all of the plantation land to pasture land) to 30 June 2029. Detailed calculations are provided. The amount is adjusted to assign a present value.

(iv) A deduction, with detailed calculations, is then made for the benefit received by the plaintiff from the timber plantations to 2015. This comprises the fee of $400 per hectare paid in the early years before the insolvency of Gunns and Wesley Vale and the amount received from the sale of grazing stock in the process of converting the land from grazing land to timber plantation land. Deducted are the costs incurred to 30 June 2015 of maintaining the timber and undertaking work to commence conversion of the area of about 400 hectares back to grazing land.

(v) There is a further deduction from the total claim to take account of the plaintiff's savings on debt because of the benefits received under the forestry rights agreements between 2009 and 2015.

(vi) Finally, there is a claim for $2,161 for legal fees incurred for advice given in respect of the defaults under the forestry rights agreements by Gunns and Wesley Vale.

1. According to counsel for the plaintiff, the calculations in the particulars are based on information contained in the documents and the witness statements which the plaintiff has delivered.

1. The expert witness statements provided to me on the hearing were as follows:

(i) Mr Alex McEachern is an agricultural management consultant. He provides the opinion that the stock carrying capacity of the timber plantation land when returned to grazing land will be 81% of the retained grazing land on the balance of the farm and based upon this capacity and benchmarked management accounts for the plaintiff for the period 1 April 2009 to 31 March 2015 the earnings before interest, lease and tax costs per hectare would have been $215.

(ii) Mr Rob de Fégely is a forestry industry consultant. He concludes that as of December 2015 the price which would have been paid for mature timber ready for harvest would be $13 per green metric tonne, with a harvest yield of an average of about 265 green metric tonnes per hectare in respect of the land to be retained for plantation timber to 2025.

(iii) Mr de Fégely's harvest yield figures are based on figures provided to him in a report prepared by forestry consultant Mr Clive Wooldridge.

(iv) Mr Robin Dickson is a forest operations manager. He provides an estimate of the cost of managing the plantations and the cost of clearing the land post timber harvest, using 2015 rates.

(v) Dr Corey Hogarth is an agronomist. He provides the opinion that following timber clearance, a wheat crop should be established for weed management and to restore soil fertility prior to the establishment of pasture. In his opinion pasture would take about a year to reach full potential. He provides costings based on the pasture restoration process already being undertaken by the plaintiff on the area of approximately 400 hectares of former plantation land which has now been cleared and is being restored for grazing. He concludes using 2015 values, that the cost in the first year (including the establishment of the wheat crop) would be $1,237 per hectare and the cost of establishing pasture in the second year (following harvest of the wheat crop) would be $741 per hectare.

(vi) Mr Martin Rees is a business valuer and he has expressed an opinion as to the discount rates to be applied to produce net present values for future cash flows, assuming a continuing corporate tax rate of 30%.

The defendants' application for production of the documentation provided by the plaintiff or its solicitors to the authors of the plaintiff's expert witness statements

1. Paragraph 1 of the defendants' application is relevantly in the following terms:

"That within a time to be determined by this Court, the plaintiff must provide or cause to be provided to the Defendants copies of all letters of instruction, together with supporting documentation, provided by the Plaintiff and or its solicitors to the ... persons who have prepared expert witness statements on behalf of the Plaintiff in this action ..."

1. The submissions on behalf of the defendants assume that privilege exists unless impliedly waived by the delivery of the witness statements.
2. The parties were agreed, on the matter of the implied waiver of legal professional privilege by the delivery of witness statements, that the relevant principles are as set out in Porter J in Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58; (2011) 21 Tas R 189. The principles being as follows:

● "... the determining factor 'is the inconsistency between the relevant act of the holder of the privilege and the maintenance of the confidence that is essential, not a broad balancing process based on fairness', although fairness remains a relevant consideration in the assessment of inconsistency" [23].

● "If the appropriate inference to be drawn is that documents supplied as part of the brief to the witness have influenced the report the privilege will be lost. Privilege cannot be maintained in respect of documents used to form an opinion" [30].

● "... if an expert witness statement is based upon privileged material and the expert has not noted the assumptions of fact upon which the opinion is based the privilege will be lost with the delivery of the report, but where the assumptions of fact are set out the privilege is not waived" [52].

● "... where the associated material is necessary for a true understanding of the report or proof, or where the picture may be misleading or partial only if the associated material is not produced, waiver will be implied" [54].

1. Mr McEachern's report discloses that he has relied upon various documents which he has identified including the plaintiff's "benchmarked management accounts" for the period 1 April 2009 to 31 March 2015. He describes the way in which the accounts were prepared and how he has used them. There is no basis for inferring that documents supplied as part of the brief and which have not been produced have influenced the report and there is no basis for inferring that there is associated material which is yet to be produced and which is necessary to obtain a true understanding of the report. There is no basis for inferring that the picture contained in the report may be misleading or partial only because of undiscovered associated material supplied to the witness by the plaintiff or its solicitors.
2. Mr de Fégely identifies the documents provided to him namely: a map of the plantation area, an inventory of the trees, an "IFARM" report dated 10 December 2015, a table of growth curves and a formula for calculating yield. The map has been delivered. The growth curve table and the formula for calculating yield are set out in the witness statement of Mr Wooldridge which has been delivered. There is no assertion on the part of the defendants that the inventory of trees and the IFARM report have not been produced. There is nothing in the report from which I am able to draw an inference that the report was influenced by other material supplied by the plaintiff or its solicitors or that other material supplied by the plaintiff or its solicitors to the witness is needed in order to gain a proper understanding of the report or the documentation associated with the report. There is no basis for inferring that the picture contained in the report may be misleading or partial only because of undiscovered associated material supplied to the witness by the plaintiff or its solicitors.
3. Mr Wooldridge, in his statement, refers to being engaged by the plaintiff in 2013 with "no formal contract of engagement" and having a meeting with a director of the plaintiff in December 2013. Counsel for the defendants complains that the documents evidencing the engagement and the meeting have not been produced. I have no basis for concluding that such documents exist.
4. Mr Dickson has managed the plaintiff's timber plantations since September 2013. He has estimated the cost of managing the plantations and the cost of clearing the land following timber harvest using 2015 rates. No doubt he has charged the plaintiff for his services and his estimates of plantation management costs are based on his charges. Obviously, Mr Dickson's own accounts and records, upon which he has apparently relied, were not documents provided to him by the plaintiff or its solicitors.
5. Dr Hogarth at par [25] of his report refers to having been provided with "some information about the actual costs incurred in respect of establishing and maintaining the wheat crop (on the 400 hectares of land already being restored to pasture) to 19 January 2016". The documents containing this information have been produced to the defendants. There is no basis for inferring that there were other documents supplied by the plaintiff or its solicitors to the witness which have influenced the report or without which the report might be misleading.
6. Mr Rees has calculated the net present value of future cash flows. The plaintiff has produced letters of instruction issued to him and there is no evidence which might lead to a conclusion that there are further undisclosed letters of instruction. The letters of instruction disclose that Mr Rees was supplied with the other witness statements which have been delivered to the defendants. The complaint on behalf of the defendants is that the witness statements supplied to Mr Rees might have differed from the witness statements supplied to the defendants. There is no basis to permit a conclusion that Mr Rees was given witness statements which are different from those supplied to the defendants.
7. I am not persuaded that there are any undiscovered documents in respect of which privilege has been waived by the delivery by the plaintiff of its expert witness statements.

The defendants' application pursuant to rule 388

1. The second order sought by the defendants is in the following terms:

"That, pursuant to Rule 388, within a time to be determined by this Court, the Plaintiff, by its proper officer, is to make file and serve an affidavit stating whether any document, or class of documents, as specified below, either is or has been in the possession custody or power of the plaintiff.

1. By consent, on 14 July 2015 an order for discovery was made in the following terms:

"Each of the plaintiff and the defendant must make discovery, by list and electronic delivery of documents, limited as follows:

(a) all documents upon which a party intends to rely at the trial; and

(b) all documents which have a significant probative effect adverse to the case of the party."

1. No doubt the parties agreed to limit discovery and agreed not to require that the lists be verified by affidavit in the interests of practicality and efficiency. The litigation is complex and the discovery obligation is a continuing obligation. The documents which a party is required to discover are limited by an assessment of direct relevance and the requirement of "reasonable search". As the litigation progresses further documentation not originally assessed as being of direct relevance might be reassessed and further documents might be found. In this context it is understandable that the parties preferred to content themselves with reliance on the integrity of the opposite party and the legal advisors rather than pursue verifying affidavits which would not have been expected to add anything of value.
2. The nature of the discovery obligation, which no longer involves the expansive test identified in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55, is comprehensively set out in r 382, which is as follows:

"(1) For the purposes of this Division, but subject to any agreement between the parties or an order of the Court or a judge, the discovery obligation is a continuing obligation and the discoverable documents are documents -

(a) that are directly relevant to the issues raised by the pleadings; and

(b) of which, after a reasonable search, a party is aware; and

(c) that are, or have been, in that party's possession, custody or power.

(2) For subrule (1)(a), the documents must meet at least one of the following criteria:

(a) the documents are those on which the party intends to rely;

(b) the documents adversely affect the party's own case;

(c) the documents support another party's case;

(d) the documents adversely affect another party's case.

(3) For subrule (1)(b), in making a reasonable search, a party may take into account the following:

(a) the nature and complexity of the proceedings;

(c) the ease and cost of retrieving the document;

(d) the significance of any documents likely to be found;

1. The discovery regime agreed by the parties in July 2015 confines the test of relevance to the criteria specified in r 382(2)(a) and (b) with the further limitation that only these documents otherwise falling within criterion (b) which had "significant probative effect" need be discovered.
2. The plaintiff supplied a list and documents in purported compliance with the order. Only after request by the defendants and initial objection by the plaintiff, did the plaintiff provide a large number of other documents falling within each of the categories specified in the application. The defendants say that, in the circumstances, they should have an affidavit so as to verify, by reference to the classes of documents specified in the interlocutory application, that they now have all of the documents encompassed by the order made 14 July 2015.
3. Rule 388 is as follows:

"(1) If it appears to the Court or a judge that there are grounds for a belief that a discoverable document or class of discoverable documents may be, or may have been, in the possession of a party, the Court or a judge may order that party to make, file and serve an affidavit.

(a) whether that document or any document of that class is, or has been, in his or her possession, custody or power; and

(b) if the document is not in his or her possession, custody or power, when he or she parted with it and what has become of it.

(3) An order may be made under subrule (1), notwithstanding that the party against whom it is made has made, or has been required to make, a list of documents or an affidavit verifying a list of documents."

1. The pre-requisite to the making of an order under r 388 is satisfied. In particular, there are grounds for a belief that there are or have been discoverable documents in the possession of the plaintiff which fall within the specified classes. This is self-evident from the fact that since the filing of the application the plaintiff has produced documentation falling within all of the specified categories.
2. Satisfaction of the pre-requisite, however, does not mandate that an order must be made. The rules as to discovery empower the Court or a judge to dismiss or adjourn applications where discovery is not necessary or not necessary at the time of the application. Rule 389 is as follows:

On the hearing of an application for an order under rules 386 or 388 the Court or a judge may -

(a) dismiss the application if discovery is not necessary; or

(b) adjourn the application if discovery is not necessary at that stage of the proceeding; or

(c) refuse to make the order if discovery is not necessary for disposing of the proceeding fairly or for saving costs."

1. Subject to the outcome of the defendants' interlocutory application, the plaintiff says that the next step in the proceeding should be the delivery of the defendants' witness statements. The defendants do not dispute this. If the defendants' prospective witnesses are unable to finalise their witness statements without the provision of further documents, I would have expected that there would be evidence to this effect specifying the documents or classes of documents required and giving some basis for the requirement. No such evidence, postdating the substantial further discovery by the plaintiff following the filing of the discovery application, has been presented. As a result I infer and accordingly find that further discovery is not necessary before delivery of the defendants' witness statements and so is not necessary at this stage of the proceeding.
2. Further discovery not being necessary at this stage, the hearing of the application contained in par 2 of the defendants' interlocutory application should be adjourned.

The application for the issue of early return subpoenas

1. The Supreme Court Rules 2000, r 496(6) is as follows:

"The date specified in a subpoena must be the date of trial or any other date as permitted by the Court or a judge."

1. The action is not yet ready for trial. A trial date has not been set and the trial is unlikely to occur within the next several months.
2. The proposed subpoenas include six subpoenas which are directed to the persons who have supplied the expert witness statements which the plaintiff has delivered.
3. In deciding whether or not to permit the issue of an early return subpoena the Court will consider whether there is a legitimate forensic purpose to be served. This was confirmed in Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 where Steytler P said at pars [17] and [18]:

"17 In practice, subpoenas are sealed as of right when made returnable at the trial of actions (see, generally, Seaman Civil Procedure Western Australia at [36.12.1]). However, they may only issue returnable before trial with the leave of the Court. Order 36 r 12(4) of the Rules of the Supreme Court 1971 (WA) ('Rules') provides, in this respect that:

'With the leave of the Court a writ of subpoena duces tecum may require the person to produce the document or object concerned to the Court on a date before the date of the trial so that the party suing out the writ may inspect the document or object.'

The order made by Master Sanderson relied upon this rule.

18 It is not in dispute that, before the Master could make an order pursuant to O 36 r 12(4), he was required to be satisfied that the subpoenas were issued for a legitimate forensic purpose: see, for example, Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194 at 200 [29]; Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558 at [14] and Stanley v Layne Christensen Co [2004] WASCA 50 at [9]. In Australian Gas Light Co v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41-956 [8] (cited with approval in Darbyshire at [13]), French J, speaking of O 27 r 6 of the Federal Court Rules 1974 (Cth), said in this respect that:

'It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.'

' ... In concluding that a legitimate forensic purpose had been established for the first and second respondents to issue a subpoena requiring the production of copies of the affidavits in the Family Court proceedings the learned Master [who was Master Sanderson] identified the principles which regulated the decision which he was required to make as follows:

"There are, I think, four points of principle which emerge from the cases. They are:

(1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: see Apache Northwest Pty Ltd & Ors v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350 at 374; National Employers' Mutual General Insurance Association Ltd v Waind & Anor [1978] 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors [2000] NSWSC 138; (2000) 18 ACLC 609 at 613 - 614.

(2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforseen evidence-in-chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and [sic] fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: see Apache Northwest (supra) at 376. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: see Brand v Digi-Tech [2001] NSWSC 425.

(3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken: see Khanna v Lovell White Durrant [1995] 1 WLR 121 at 123_._

(4) There is no requirement that to avoid the stigma of fishing, a party must already by [sic] in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant: see Bailey & Ors v Beagle Management Pty Ltd & Ors [2001] FCA 60; (2001) 105 FCR 136 at 143 - 144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at [48]. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey (supra) at 143."

We agree, with respect, that the learned Master correctly identified and addressed the principles upon which a determination of whether or not the subpoena ... should be allowed to stand [sic].'"

1. A legitimate forensic purpose for an early return subpoena may exist where the parties are required to deliver witness statements prior to trial. In Lucas Industries Limited v Hewitt (1978) 18 ALR 555 an order had been made that "expert evidence in the action be by affidavit with the usual rights of cross-examination and affidavits of each party in chief be filed and served on or before ...". A further order was made contemplating the filing and service of affidavits in reply. An early return subpoena was issued requiring the production of documents and the defendant applied for an order setting the subpoena aside. The order in respect of expert evidence was akin to the current regime under rules of court which require expert witness statements to be delivered in advance of the trial. Smithers J, with whom Bowan CJ and Nimmo J agreed, said at 568 to 569:

"However, for purposes of considering production of documents at this stage pursuant to the subpoena under discussion, the important consideration is that what is required is performance of a step incidental to the implementation of the orders for "taking" the evidence of experts before the hearing. It therefore goes to a matter of substance, namely, the ability of the appellant to collect and formally deliver the complete expert evidence on which he relies before the hearing as contemplated by those orders. Orders of this kind are no doubt particularly appropriate for certain classes of litigation, including proceedings concerning letters patent, where considerations pertaining to cross-examining expert witnesses on grounds going to credit may not be regarded of primary significance. At any rate, if there is a conflict between preserving the ignorance of the appellant so that it may possibly be embarrassed in cross-examining witnesses and the collection, preparation, delivery and filing of the critical expert evidence before the trial in accordance with the procedure laid down by the relevant orders, the former must give way. It is an incident of the procedure laid down, it is a contribution to the proper presentation of the facts and, in my view, to the conduct of the litigation on a fair and just basis.

My conclusion is, therefore, that the issuance of the subpoena and the date it was made returnable were not premature in the relevant sense."

1. In circumstances where the parties are required to deliver their expert witness statements prior to trial, the fact that the document sought might have been the subject of an application for non-party discovery is not fatal to an application for the issue of an early return subpoena. In Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741 Merkel J said in a short judgment at [2] - [6]:

"2 No date has been fixed for the trial of the proceeding but directions were made which required the parties to file and serve the affidavits upon which they intend to rely. The documents sought to be produced pursuant to the subpoenas relate to a valuation made by Deloitte Touche Tohmatsu that is in dispute and is of particular relevance to the cross-claim in the proceeding. The mCOM parties are seeking the documents to enable them to prepare the affidavits they are required to file and serve prior to trial.

3 Plainly, the documents sought by the mCOM parties could have been, but were not, the subject of an application for discovery from a non-party under O 15A r 8. It would not be a legitimate use of the subpoena procedure to bypass that rule to obtain what would be in effect discovery against a non party: see The Commissioner for Railways v Small [1938] NSW StRp 29; (1938) 38 SR(NSW) 564 at 573.

4 However, counsel for the mCOM parties claimed his clients are not seeking to bypass O 15A r 8. Rather, he contended that the mCOM parties are merely utilising the subpoena procedure to procure the production of documents from a non-party for the purpose of preparing their evidence in chief to be used at the trial which, so it is said, is a proper use of that procedure. In support of that contention reliance was placed on the observations of Smithers J (with whom Bowen CJ and Nimmo J agreed) in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 565-569 to the effect that the subpoena procedure is appropriate to obtain documents in the possession of a non-party to litigation if the contents of the documents are reasonably required for the preparation of trial affidavits directed by a court to be filed and served prior to trial. Smithers J stated (at 566 - 567):

'I see nothing in any of the authorities to throw doubt on the principle that when, according to the nature of any particular proceeding, considerations of justice and convenience require production of relevant documents at some particular time, whether before or after trial, production should then be ordered. So far as this case is concerned, if there are relevant documents the contents of which would be proper material for expert comment and opinion and they are not produced before the trial, then when the documents are ultimately produced the experts would have to consider them at that stage and any comments and opinion arising in respect to them would have to be made the subject of further affidavits, presumably on leave being obtained.'

5 His Honour concluded that the issue of the subpoena for the production of documents to enable the preparation of expert evidence in reply in accordance with trial directions of the court was not premature or an improper use of the subpoena process.

6 In my view a similar situation has arisen in the present case. The documents the subject of the subpoenas appear to be relevant to a matter that is in issue in the proceeding and, accordingly, their production pursuant to a subpoena by a non-party for the purpose of enabling the mCOM parties to prepare the affidavits they were directed to file and serve prior to trial is not premature or improper."

1. Having examined the proposed subpoenas I am satisfied that there are legitimate forensic purposes to be served by them. However, there still remains discretion as to whether they should be made returnable at this stage in the action.
2. Production of the documents, the subject of the proposed subpoenas, goes to issues relating to both liability and the quantification of damages.
3. As to liability, use of some of the documents sought to be subpoenaed may assist the defendants in undermining the plaintiff's assertion that but for the impugned advice from the defendants, the plaintiff would not have entered into the forestry rights agreements with Gunns and Wesley Vale.
4. Two of the subpoenas are for the production of documents which go to this issue.
5. The first is to a director of the plaintiff company at the relevant time, namely Mr John Lord. The documents sought are as follows:

"1 Assessments or analysis undertaken by you within the period 1 January 2008 to 14 December 2008 relating to the prospective or actual establishment of plantation forestry on land owned and occupied by Fingal Pastoral Pty Ltd known as 'Malahide' at Fingal in Tasmania (the property);

2 Any advice or recommendation provided by you to any officer or employee of Fingal Pastoral Pty Ltd within the period 1 January 2008 to 14 December 2008 relating to the establishment of plantation forestry upon the property;

3 Documents received by you from any officer of the Plaintiff within the period 1 January 2008 to 14 December 2008 concerning decision-making by officers of the Plaintiff, or its Board, relating to the establishment of plantation forestry on the property."

1. The seeking of these documents is plainly for a legitimate forensic purpose and the scrutinisation of any such documents by the defendants prior to trial would not be premature in light of the plaintiff's application for an order referring the dispute to mediation.
2. The second is directed to the partner in charge of the plaintiff's firm of accountants. Item 3 of the schedule of documents to be produced is as follows:

"All files and other records maintained by KPMG, or any individual partner or employee, relating to advice given to the Plaintiff, or meetings attended with the Plaintiff within the period 1 January 2008 until 14 December 2008 and concerning any proposal by the Plaintiff to establish or to permit the establishment of plantation forestry upon the Plaintiff's land known as 'Malahide' at Fingal in Tasmania by Gunns Ltd or any of its subsidiaries."

1. The seeking of the documents referred to in item 3 is for a legitimate forensic purpose and is not premature at this stage when a referral to mediation is in contemplation.
2. Utilisation of the subpoena procedure rather than the non-party discovery procedure appears to be the most efficient way forward and in my opinion is not being used as an inappropriate attempt to bypass the rules relating to non-party discovery.
3. There will be an order permitting the issue of an early return subpoena to Mr Lord and permitting the issue of an early return subpoena to Mr Hine, confined to the documents specified in item 3 of the schedule.
4. I now turn to the subpoenas relating to the claimed damages. The issues on the quantification of the damages may become confined following the delivery of the defendants' expert witness statements. There may be no dispute as to some aspects. Disputed items might be resolved or refined through pre-trial procedures, such as directions requiring expert witness conferences and the provision of joint reports as provided for in cl 6 of the Expert Witness Code of Conduct contained in Practice Direction No 1 of 2016.
5. No evidence has been presented showing that the defendants' prospective expert witnesses require the documents, the subject of the proposed subpoenas, in order to understand, analyse or scrutinise the plaintiff's expert witness statements or the plaintiff's particulars of the quantification of its claim. No evidence has been presented showing that the defendants' prospective expert witnesses require the documents in order to furnish their own witness statements. I infer from the absence of such evidence that production, pursuant to the proposed subpoenas, is not needed for the defendants' witness statements to be prepared. In this respect the situation is distinguishable from that which applied in Lucas and in Temwell.
6. I conclude that the issue of the proposed subpoenas to the plaintiff's expert witnesses would be premature and accordingly permission to endorse them with an early return date at this stage of the proceeding should not be given.

Disposition of the defendants' interlocutory application

1. The defendants, firstly, sought an order requiring production of documents issued by the plaintiff or its solicitors to the persons who have prepared expert witness statements on behalf of the plaintiff. I have not been persuaded that there are any such documents which are undiscovered and which are not the subject of legal professional privilege.
2. The defendants, secondly, sought an order requiring an affidavit stating whether certain documents or classes of documents are or have been in the plaintiff's possession. There being no evidence that the defendants need further discovery at this stage of the proceedings, I have inferred that further discovery is not presently necessary and that this part of the application should stand adjourned.
3. The defendants, thirdly, sought permission to issue early return subpoenas. I have concluded that two of the proposed subpoenas ought to be permitted.
4. The defendants' application contained in par 1 of the interlocutory application should be dismissed, the hearing of the application contained in par 2 should be adjourned and the application contained in par 3 should be allowed in part.

The plaintiff's interlocutory application for a timetable for the provision of the defendants' witness statements and a referral to mediation

1. The plaintiff has applied for an order that the defendants deliver witness statements as to fact and opinion within 14 days and for an order that the action be referred for mediation pursuant to the Alternative Dispute Resolution Act 2001. By letter dated 10 February 2017 the Hon Ewan Crawford AC has agreed to accept the appointment as mediator.
2. On 14 July 2015 an order was made by consent in the following terms:

"The plaintiff is to file and serve witness statements from all persons intended to give evidence at the trial, as to fact and opinion evidence, by 4 pm on 2 October 2015.

The defendant is to file and serve witness statements of all persons intended to be called as witnesses at the trial, as to fact and opinion evidence, by 4 pm o 23 October 2015."

1. The timetable was later vacated. The plaintiff delivered seven witness statements on 29 February 2016 and a further two witness statements on 21 June 2016. Amended particulars of loss of damage were filed on 28 July 2016. Thereafter followed requests on behalf of the defendants for further information and documentation. In a letter dated 8 December 2016 from the defendants' solicitor to the plaintiff's solicitors the defendants' solicitor said:

"My experts have conveyed to me that they do not have sufficient information in order to answer the various questions which I have posed."

1. The defendants' interlocutory application was filed a few days later. Since then the plaintiff has produced a large number of additional documents. There is no evidence that since that supply the defendants' experts continue to require more material.
2. The defendants' application for documents at this point in the action now having been resolved the next step should be the delivery of the defendants' witness statements.
3. I doubt that the 14 day timetable for this, as proposed by the plaintiff, is realistic. There should be an opportunity for the defendants' solicitor to confer with the defendants' witnesses so that an achievable timetable can be imposed. Accordingly, I will defer making an order for the delivery of witness statements for a short time to enable the appropriate enquiries to be made of the defendants' prospective witnesses.
4. There was no submission on behalf of the defendants that a mediation following the delivery of witness statements would be premature. I will direct that a mediation is to occur no earlier than 28 days following the delivery of the last of the defendants' witness statements.

(1) The defendants' interlocutory application par 1 is dismissed.

(2) The hearing of the defendants' interlocutory application par 2 stands adjourned sine die.

(3) Subpoenas containing a return date to be specified by the practitioner for the defendants may be issued directed to Mr John Lord and to Mr Michael Hine in the form attached to the defendants' interlocutory application subject to the subpoena to Mr Hine being confined to the documents specified in item 3 of the schedule.

(4) The defendants are to deliver witness statements from all persons intended to be called as witnesses at trial, as to fact and opinion evidence, by a time to be agreed by the parties and absent agreement, by a time which I will specify upon the resumption of the hearing of the plaintiff's interlocutory application.

(5) The plaintiff's interlocutory application par 1, stands adjourned to be relisted on the request of the plaintiff on a date to be notified by the listing clerk, following consultation with the practitioners for the parties.

(6) The action is referred for mediation pursuant to the Alternative Dispute Resolution Act 2001, with the mediation to occur no earlier than 28 days following the delivery of the last of the defendants' witness statements.

(7) Any applications as to the costs of the interlocutory applications are to be set down for hearing upon the request of either of the parties on a date to be notified by the listing clerk, following consultation with the practitioners for the parties.