Frigger v Professional Services of Australia Pty Ltd

FEUTRILL J: 1 This is an application by the plaintiffs, Mr and Mrs Frigger, who without meaning to be disrespectful, I will refer to as the Friggers, for the production of 11 categories of documents, the subject of a notice to produce that was served on the defendants. 2 The Friggers commenced these proceedings in this Court under the Federal Court (Corporations) Rules 2000 (Cth) as a matter relating to the incorporation of Professional Services of Australia Pty Ltd (ACN 082 879 641) (PSA), the first defendant and Ms Sandra May Banning, the second defendant in these proceedings. The originating process seeks orders under s 1322(4)(b) of the Corporations Act 2001 (Cth) for a declaration that the registration of a company, Liberty Oil Australia Pty Ltd, which was the former name of PSA, was invalid ab initio and order that the Australian Securities and Investments Commission (ASIC) rectify the Organisation and Business Names Register by removing PSA from that Register. 3 On 12 October 2022, the Court made orders for pre-trial exchanges of evidence. On 9 December 2022, the Court made orders requiring the Friggers to give security for the defendants' costs of defending the originating application: Frigger v Professional Services of Australia Pty Ltd [2022] FCA 1477. That security has been provided and otherwise the parties have complied with the orders for the pre-trial exchange of evidence. On the defendants' application for security of costs, they relied on the affidavit of Mr Cameron Victor Eastwood sworn 26 October 2022. That affidavit was read upon the hearing of the defendants' application for security for costs on 29 November 2022. 4 On 1 February 2023, the Friggers filed an interlocutory application in which they seek production of documents purportedly mentioned in the affidavit by way of a notice to produce on the defendants under r 20.31 of the Federal Court Rules 2011 (Cth). The Friggers' interlocutory application is supported by two affidavits of Mrs Frigger. The first was sworn on 1 February 2023 and the second on 2 February 2023. Each of those affidavits has been read on this hearing. The second affidavit of Mrs Frigger exhibits a letter dated 1 February 2023 from the defendants' solicitors to the Friggers, responding to the notice to produce. 5 In that letter, objection is taken to producing most of the documents, the subject of the notice to produce. The objections fall into three categories: (1) Documents that are not relevant to any issue in the proceedings, and as such, it is said the notice is scandalous, vexatious or oppressive. (2) The document is privileged from production on the ground of legal, professional privilege. (3) Mr Eastwood's affidavit does not, in fact, mention the document identified in the notice. 6 In the case of one category of documents referred to in the notice, which is PSA's corporate volume, the defendants agree to the Friggers inspecting it, subject to the condition that inspection take place in the presence of a judge of this Court. 7 I will briefly outline the principles applicable on the application. Relevantly, r 20.31 of the Rules provides that a party may serve on another party a notice to produce for the inspection of any document mentioned in a pleading or affidavit filed by the party upon whom the notice is served. If the party fails to serve a notice stating a time when and place where the document may be inspected, the party serving the notice may apply to the Court for an order for the production and inspection of a document. 8 Rule 20.31, like any other civil practice and procedure provision, must be interpreted and applied and the power conferred by it must be exercised or carried out in a way that best promotes the overarching purpose of those provisions, namely, to facilitate the just resolution of a dispute, according to law, and as quickly and inexpensively and efficiently as possible, see s 37M of the Federal Court of Australia Act 1976 (Cth). The Rules of the Court that contain powers to order the production of documents are directed to ensuring that evidence relevant to the applicable hearing is brought before the Court. They are not to be used as a substitute for discovery which is the subject of rr 20.11 to 20.25 of the Rules and similar, but separate considerations apply to discovery. The question of whether the power of the Court to compel production of documents is to be exercised must be exercised as having regard to what the interests of justice dictate. Therefore, the production of manifestly irrelevant documents will not be ordered. 9 As already mentioned, Mr Eastwood's affidavit was filed and read in support of the defendants' application for security for costs, and that application was heard on 29 November 2022. Prima facie, the time for calling for production of any documents mentioned in that affidavit was before the hearing on the application to which it was relevant and had been filed. The defendants do not evidently rely on the affidavit in opposition to the Friggers' originating application. Nonetheless, if Mr Eastwood's affidavit mentions documents that are relevant to the issues on the originating application, it may be appropriate, subject to any issue of privilege, to order production of the documents. I will turn now to consider the notice to produce and the documents identified in that notice. 10 These fall into four categories: (1) Retainers, instructions and a costs estimate of the defendants' solicitors and counsel. (2) Tax invoices of the defendants' solicitors and counsel. (3) Costs certificates issued by officers of the Supreme Court of Western Australia. (4) PSA's original corporate volume. 11 Paragraphs 1 to 3 of the notice to produce concern retainers, instructions and a costs estimate. In these paragraphs, the Friggers identified the following documents purportedly mentioned in para 3 of Mr Eastwood's affidavit: (a) the defendants' retainer of Mr Eastwood; (b) the defendants' instructions to retain counsel; and (c) the estimate of costs provided to the defendants referred to in annexure CVE 1 of the affidavit. 12 None of these documents is mentioned in terms in para 3 of Mr Eastwood's affidavit. The paragraph refers to the defendants having retained Mr Eastwood and instructing the deponent of an intention to retain counsel. Neither para 3, nor annexure CVE 1 refers to the provision of an estimate of costs to the defendants. In any case, even if one or more of these documents were mentioned implicitly in the paragraph, none of them is relevant to the issues that arise on the plaintiffs' originating application. The originating application is concerned with the validity of PSA's memorandum of articles at the time of its incorporation, specifically whether the signatures on that document are those of the original subscribers or simulations of their signatures. 13 On the application, Mrs Frigger also mentioned that, as part of the defendants' defence to the application, they have raised as a defence potential prejudice to PSA in that it would not be able to pursue, if deregistered, costs awards in proceedings in the Supreme Court of Western Australia made in its favour against the Friggers. The documents sought in paras 1 to 3 of the notice to produce are not concerned with that issue. There will be no order for production and inspection of the documents identified in paras 1 to 3 of the notice to produce. 14 Paragraphs 5, 7, 8 and 11 of the notice to produce concern tax invoices of the defendants' solicitors and counsel. In those paragraphs, the Friggers identify the following documents purportedly mentioned in paras 4.5 and 4.9 of Mr Eastwood's affidavit: (a) In para 4.5, tax invoices issued by the defendants' solicitors and counsel for $160,000 to $200,000 in CACV 23 of 2012 and CACV 24 of 2013; (b) In para 4.9(c), tax invoices issued by the defendants' solicitors and counsel for $10,000 in an unknown proceeding; (c) in para 4.9(d), tax invoices issued by the defendants' solicitors and counsel for $1500 in an unknown proceeding; and (d) in para 4.9(g), tax invoices issued by the defendants' solicitors and counsel to the defence in WAD 607 of 2015 for $150,000. 15 No tax invoices are mentioned, in terms, in paras 4.5, 4.9(c), 4.9(d) or 4.9(g) of Mr Eastwood's affidavit. However, these documents do appear to have some relevance to the defence of prejudice raised on the originating application. They, at least, may provide some evidence of the strength of any claim that PSA may have against the Friggers' trustee in bankruptcy in the bankruptcy proceedings. Therefore, subject to a regime I will come to concerning claims to legal professional privilege in respect of documents in this category, there will be an order for production for inspection of those documents. 16 Paragraphs 6, 9 and 10 of the notice to produce concern cost certificates of officers of the Supreme Court. In these paragraphs, the Friggers identify the following documents mentioned in Mr Eastwood's affidavit: (a) in para 4.9(b), a costs certificate for $4284 in CIV 1727 of 2009; (b) in para 4.9(e), a costs certificate issued by the Supreme Court to PSA for $31,599.72; and (c) in para 4.9(f), a costs certificate issued by the Supreme Court to PSA for $43,328.65. 17 Certificates in these proceedings were attached to an affidavit of Mr Eastwood that is an annexure to an affidavit of Mrs Frigger, sworn 30 September 2022. Starting with the certificate mentioned in para 4.9(a) of Mr Eastwood's affidavit, that appears as CVE 1 to Mr Eastwood's affidavit of 10 January 2018 (2018 affidavit) and does not, on its face, involve PSA in these proceedings. Accordingly, that certificate is not relevant in the same way as tax invoices may be relevant to any claim of PSA in the bankruptcy proceedings. 18 Annexure CVE 2 of Mr Eastwood's 2018 affidavit is a certificate of taxation in CIV 1727 of 2009 for $4,284, which corresponds with para 4.9(b) of Mr Eastwood's affidavit of 26 October 2022. Again, it is a certificate that does not involve PSA and is not relevant. 19 Paragraph 4.9(e) refers to a sum of $31,599.72, which corresponds with the amount referred to in a certificate which is annexure CVE 3 of Mr Eastwood's 2018 affidavit. That certificate relates to the costs of the second defendant in those proceedings, which is not PSA, and again this certificate is not relevant to the issues in these proceedings. 20 Paragraph 4.9(f) refers to an amount of $43,328.65 ordered pursuant to an order of Simmonds J of the Supreme Court on 9 October 2015. That corresponds with the orders extracted at annexure CVE 4 of Mr Eastwood's 2018 affidavit and appears to be an order made in favour of, amongst others, PSA in those proceedings. Although a copy of that order appears to be in the possession of the plaintiffs through the affidavit of Mr Eastwood filed in other proceedings, it does appear to be a relevant document and there will be an order for its production and inspection. Otherwise, there will not be an order for production and inspection of the certificates mentioned in paras 4.9(b) and 4.9(e) of Mr Eastwood's affidavit of 26 October 2022. 21 That brings me to para 4 of the notice to produce which identifies PSA's original corporate volume, which is mentioned in para 4.1 of Mr Eastwood's affidavit of 26 October 2022. I have already indicated, the defendants have agreed to produce the documents in that corporate volume, subject to a court supervised inspection. 22 While it is unlikely that every document in that volume is relevant and no specific documents in it are mentioned in para 4.1 of Mr Eastwood's affidavit, given that the defendants do not oppose inspection and it is evident that parts of it, at least, will be relevant to the proceedings, I will make an order for PSA to produce the original corporate volume to the Court and an order permitting the parties to inspect that volume, subject to appointment being made with the West Australian District Registry of this Court and appropriate arrangements being made to supervise the inspection. There will also be provision for the parties to apply to uplift and (or) take copies of the documents inspected. These will be the subject of further order of the Court and will not be able to be done as a right. 23 I will craft those orders consistently with these reasons after the hearing as there will need to be some thought given to that production and inspection regime for the original corporate volume of the first defendant. 24 The last matter I want to raise, and I mentioned earlier that there would be an order for production and inspection of the tax invoices of the defendants' solicitors and counsel referred to in the notice to produce. Now, given that, in point of detail, they are not mentioned in the affidavits, therefore the objection taken to responding was appropriate. I do take the view, however, that, consistently with the case management principles in the Federal Court Act, that the Court should adopt a pragmatic approach to the application, bearing in mind also that the Friggers are self-represented, and that one should look to see what the substantive nature of the request is and that the request is the production of documents that they consider will assist them in their prosecution of their application when the matter comes on for hearing at the trial listed on 2 March of this year. 25 Therefore, subject to an appropriate mechanism for the defendants to take objection on the grounds of legal professional privilege or other privilege that may arise, I will make an order for the production and inspection of the tax invoices referred to in the notice to produce. As I said earlier, they do appear to have relevance, albeit quite remotely, but still relevance to the defence that the defendants wish to promote in the proceedings. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.