SAXBY CAPITAL INVESTMENTS PTY LTD (ACN 661 570 556), and ANOR

Procedure - Civil Proceedings in State and Territory Courts - Discovery and Interrogatories - Discovery and inspection of documents - Documents in possession of non-party - Subpoenas - Subpoena to produce - Considerations relevant to which is the appropriate process - Consideration of the exercise of the discretion whether to grant leave for an early return subpoena - Legitimate forensic purpose - Not a fishing expedition - Not premature - Subpoena is the more appropriate procedure - Non-party discovery is not the more appropriate procedure.

Judgment Number: [2025] TASSC 52

GOSHAWK MINING PTY LTD (ACN 657 704 446) v HELLYER METALS LTD (ACN 662 575 073) v SAXBY CAPITAL INVESTMENTS PTY LTD (ACN 661 570 556), and ANOR

1. These are my reasons for granting the plaintiff Goshawk Mining Pty Ltd leave to issue a subpoena to produce documents, with an early return date. I have concluded that in light of the issues raised by the pleadings, there is a legitimate forensic purpose for the issue of the subpoena. I am satisfied that the subpoena does not constitute a fishing expedition, is not premature, and is not designed to circumvent the rules of court relating to non-party discovery. In reaching this conclusion I am satisfied that procedural justice is not undermined.
2. A central question for determination is whether the pleadings sufficiently and relevantly raise the allegation that the proposed recipient of the subpoena imposed a condition on the purchase of two parcels of shares in the defendant Hellyer Metals Pty Ltd, requiring Hellyer to terminate its business sale agreement with Goshawk. This dispute relates to whether the documents sought to be produced are relevant; and if so, whether the early return subpoena or non-party discovery is the preferable procedure.

1. Goshawk has applied for leave to issue a subpoena to Mr Graham Cox requiring production of certain documents on an 'early return date' before the date of the trial. Hellyer was notified of that application and sought to be heard on its objection to leave being granted. Hellyer objects to the issue of the subpoena on the basis that (i) it serves no legitimate forensic purpose; and (ii) it circumvents appropriate discovery processes; and (iii) is premature. Each party has made submissions as to the appropriateness of issuing the subpoena. Mr Cox is now the CEO of Hellyer, but he was a stranger to that company between the dates referred to in the proposed subpoena. He has not been personally served with the subpoena.
2. I have had regard to Goshawk's correspondence to the Registrar dated 20 December 2024. In that letter, Goshawk sought leave to issue the subpoena and to specify a production date earlier than the trial date (six weeks from the date of issue), in order to facilitate efficient preparation for trial and to assist in the early resolution of the matter. The letter included the request for leave, a statement of the issues in the proceeding and the grounds upon which leave should be granted to issue a subpoena with an early return date. The letter briefly, but expressly, addressed the legitimate forensic purpose for the subpoena.
3. The principal proceedings between the plaintiff and the defendant were commenced by writ filed in December 2023. The pleadings are now closed. No trial date has been set. At the date of the hearing there were further interlocutory steps to be taken prior to trial. As far as I am aware, discovery has not yet occurred.
4. The principal proceedings concern a written business sale agreement (the BSA). Under the BSA, Goshawk agreed to sell, and Hellyer agreed to purchase the business and assets defined in clause 1.1 of the BSA, for a total purchase price of $25,000,000 inclusive of GST. It was a condition precedent to the completion of the BSA that by 31 October 2023, Hellyer would receive at least $15,000,000 in cleared investment funds. Those funds were never received. Goshawk pleads that the original due date for satisfaction of the condition precedent was varied by a deed of variation (dated 22 October 2023) to a new due date (see pars 5-7 of the statement of claim) being:

"21 days after receipt by Saxby Capital Investments Pty Ltd and/or any investor of all documentation respectively required by them (each acting reasonably) in connection with the raising of Investment Funds".

1. Goshawk pleads that on 21 November 2023 - ie before the new due date for satisfaction of the condition precedent - Hellyer repudiated the agreement in order to facilitate a sale of its shares to "Mr Graham Cox of a consortium called Gaston Group" (see pars 13 and 19 of the statement of claim). Goshawk pleads that Hellyer repudiated the BSA for reasons unconnected with any of its terms. Alternatively, Goshawk alleges that in all the circumstances, and by no later than 14 December 2023, Hellyer had repudiated the BSA because it failed to take steps to obtain the investment funds as required under the BSA (see par 20 of the statement of claim). Hellyer admits that it terminated the BSA but alleges that it was entitled to do so under its express terms. Further, Hellyer counterclaims seeking damages from Goshawk, alleging that it engaged in misleading or deceptive conduct by misrepresenting that it had investors ready to contribute the investment funds.[1]

1. The proposed subpoena seeks documents relevant to par 13 of the statement of claim, which pleads Hellyer's alleged repudiatory conduct:

"13 On 21 November 2023 the Defendant stated to the Plaintiff to the effect that it intended to terminate its Agreement with the Plaintiff so that the Defendant could proceed with facilitating a sale of shares held by shareholders in it, to Graham Cox of Gaston Group.

Conversation by telephone call held on 21 November 2023 between Quinten Villaneuva of the Plaintiff, Bradley Saxby of Saxby Capital and Karl Adolfsson director of the Defendant, where Adolfsson said words to the effect of:

Adolfsson: 'Graham Cox of a consortium called Gaston Group is submitting an offer to purchase Brian Blackman's and Khaled Baluch's shares, as major shareholder, in Hellyer. We want to proceed with this, but in order to proceed with this, Hellyer has to terminate the agreement with Goshawk. We have to terminate the BSA.'"

1. Par 13 of the defence filed 18 September 2024, pleads:

"13 In response to paragraph 13 of the SOC, the Defendant:

(a) admits that a telephone call was held on 21 November 2023 between Quinten Villanueva and Bradley Saxby, directors of the Plaintiff at the time, and Karl Adolfsson, a director of the Defendant.

(b) admits that on this telephone call, the Defendant notified the Plaintiff that it was going to proceed with facilitating a sale of shares in the Defendant to Graham Cox of Gaston group; and

(c) otherwise denies the allegations in paragraph 13 of the SOC."

1. On the basis of the pleadings as set out above, the plaintiff submits that at the trial of the action the Court will be called upon to adjudicate whether Hellyer terminated - and thereby repudiated - the BSA so that it could facilitate the sale of Mr Blackman's and Mr Baluch's shares in Hellyer to Mr Cox and/or 'Gaston Group', as stated by its director, Mr Adolfsson.

1. The proposed subpoena seeks that Mr Cox produce documents relevant to whether Hellyer terminated the BSA "in order to proceed with" the sale of Hellyer shares to Gaston Group. The schedule of documents is in the following terms:

"1 Any documents (as defined in the Evidence Act 2001 (Tas)), pursuant to which you, Gaston Resources Pty Ltd (Gaston) and/or its related bodies corporate (as defined in the Corporations Act 2001 (Cth) (the Act)) proposes or agrees to purchase shares in Hellyer Metals Pty Ltd (Hellyer) from Brian Blackman (Blackman) and/or Khaled Baluch (Baluch) (the Transaction).

1. Any correspondence (including emails, letters, notices, images, text messages or file notes of telephone conversations or meetings) between you, Gaston, and/or its related bodies corporate (as defined in the Act), and one, or more, of-

(a) Hellyer;

(b) Any related bodies corporate (as defined in the Act) of Hellyer;

(c) Karl Guillermo Adolfsson (Adolfsson);

(d) Tony Tran (Tran);

(e) Pierre Richard (Richard);

(f) Bradley Robert Monks (Monks)

(g) Stephen John White (White)

(h) Blackman; and/or

(i) Baluch -

1. Any correspondence (including emails, letters, notices, text messages or file notes of telephone conversations or meetings) between you, Gaston, and/or its related bodies corporate (as defined in the Act), and one, or more, of-

(a) Hellyer;

(b) Any related bodies corporate (as defined in the Act) of Hellyer;

(c) Adolfsson;

(d) Tran;

(e) Richard;

(f) Monks

(g) White

(h) Blackman; and/or

(i) Baluch -

in respect of the business sale agreement between Goshawk Mining Pty Ltd and Hellyer, dated 14 October 2023."

1. The period specified in relation to the documents is 31 August 2023 to 14 December 2023 (the day before Mr Cox became a director of Hellyer). I did not understand there to be any controversy relating to the spread of dates.

1. The rule 496(6) provides that:

"496 (6) 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. When considering whether to permit a subpoena to specify any other date than the date of trial, the applicable legal principles are:
   1. A subpoena returnable before trial may only be issued with leave of the court: Fingal Pastoral Pty Ltd v Page Seager Lawyers (a firm) [2017] TASSC 24 at [40].

1. 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: Weeding Party Hire Pty Ltd v Salters (Tas) Pty Ltd [2025] TASFC 4 at [52] per Brett J (Wood J and Pearce J agreeing), citing Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 per Bromberg J. The issuing party bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority (SA)[1996] SASC 5578; (1996) 66 SASR 38 at 52; Wong v Sklavos [2014] FCAFC 120 at [12].

1. The test for the existence of a legitimate forensic purpose is that of 'apparent relevance' to an issue in the proceeding: Weeding Party Hire at [52]; Sklavos v Australian College of Dermatologists [2014] FCA 476 at [5] per Jagot J.

1. Apparent relevance to an issue is demonstrated where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material might permit a case to be made: Weeding Party Hire at [52].

1. Relevance is not limited to the introduction of documents into evidence. Relevance of documents may lie in giving 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: Fingal Pastoral at [40], citing Stanley v Layne Christensen Co [2004] WASCA 50 at [9].

1. An object of the rule permitting an 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 purpose of a subpoena ought to be taken. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: Fingal Pastoral at [40], Stanley at [9].

1. The court must resolve the tension between the burden of locating and producing documents and the privacy of the non-party against the right of a litigant to access to those documents - even if held by a stranger - to pursue justice and fully present their case: Sklavos at [5] citing R v Barton [1981] 2 NSWLR 414 at 419-420 per Cantor J.

1. If it appears there is an issue in the proceeding to which the documents may relate, then the right of the litigant to access the documents should prevail over the right of the witness to their privacy: Sklavos at [5].

1. This is an action to which r 414A applies (see r 414(a) and Practice Direction No. 1 of 2015). The overarching purpose of case management is to ensure that proceedings are conducted and resolved justly and efficiently.[2] The Court's rules should be applied flexibly and fairly, considering the resources of the court and those involved in, and impacted by, the proceedings. The Court's approach to civil procedure should not be dogmatic or stagnant: much depends on the circumstances of each individual case. An issue in this case is which is the correct process to obtain access to the identified documents before the trial of the action: the early return subpoena, or non-party discovery? Goshawk submits that the subpoena is an efficient and commonly used procedure appropriate to the circumstances. Hellyer contends that the proposed subpoena "circumvents the process for non-party discovery, for which there is a prescribed procedure in the Rules, namely, r 403FA".
2. It is relevant to observe some key features of each of the procedures under consideration:
   1. Each process is governed by rules which facilitate pre-trial access to documentary evidence in the possession of a non-party. Non-party discovery in r 403FA is located in a part of the rules dealing with pre-trial steps. The rules relating to subpoenas appear in Part 19, Div 3 which deals with evidence. That conceptual boundary is illusory in the present context because of the rule permitting a subpoena to specify "any other date" than the date of trial: r 496(6).

1. The procedure for non-party discovery involves an interlocutory application supported by affidavit evidence which is filed and served on the non-party and other parties to the principal proceeding. It could be expected that after filing, the application would not be heard for several weeks. An application for a subpoena with an early return date is by letter to the registrar attaching the proposed subpoena setting out the request, an explanation of the legitimate forensic purpose and the grounds upon which leave ought be granted. It could be expected that, if all is in order, the subpoena might issue within a few days.

1. Non-party discovery involves the non-party from the outset, whereas an addressee of a subpoena is not notified until after it has issued. An order for non-party discovery may be revoked or varied by a subsequent order of the Court or a judge at or before trial: r 403E(5). A subpoena may be set aside in whole or in part on the application of a party or person having a sufficient interest: r 497.

1. The concept of relevance is common to each procedure, whether under the Peruvian Guano[3] test of relevance in r 403FA (a train of inquiry which will either advance the party's case or damage that of its adversary), or the 'apparent relevance' test (see par [14] above) for a subpoena under r 496(6).

1. Under a non-party discovery order, the non-party will be required to form a judgment about whether documents "relate to a matter in question in the proceeding" and make an affidavit verifying a list of those documents: r 403FA(1). By contrast, the party requesting leave to issue an early return subpoena must (a) specify the documents required to be produced with sufficient precision to enable the addressee to know what they are required to produce; and (b) satisfy the court that the documents have apparent relevance to an issue in the proceeding. Further, where the addressee of a subpoena is required to form their own judgment about whether a document is relevant to an issue, it is liable to be set aside as oppressive: J Boag and Son Brewing Ltd v Carlton and United Breweries Ltd and Cascade Brewery Co Pty Ltd [1996] TASSC 145 at [9]- [12].

1. Non-party discovery requires that the non-party make the documents in their list available for inspection, whereas the addressee of a subpoena is required to produce the documents to the court at or by the appointed time specified. If required by the registrar, the addressee of a subpoena must provide a list of the documents or items produced.

1. The rules in relation to each process confer power on the Court to order the applicant/issuing party to pay the non-party or addressee "the amount of any reasonable loss or expense incurred ... in complying with" the relevant process: see rr 403FA(4) and 500D.

1. Each process is compulsory: non-compliance without lawful excuse with either an order for discovery or a subpoena may be punishable by contempt, r 500E and rr 940-942 inclusive.

Reasons for concluding that the documents sought by the subpoena are relevant

1. For the following reasons, I determine that the documents sought by Goshawk are relevant to a fact in issue in the proceedings.
2. The relevant issue raised by the pleadings relates to the allegation that Hellyer's termination of the BSA (which is admitted) was a condition of the sale of Mr Blackman's and Mr Baluch's shares to Mr Cox of the Gaston group, and that Hellyer repudiated the agreement as pleaded in pars 13 and 19 of the statement of claim (none of which is admitted). Hellyer (relevantly) admits only that:

(a) there was a phone conversation on 21 November 2023 between Mr Villaneuva, Mr Saxby and Mr Adolfsson director of the defendant; and

(b) that the defendant was going to proceed with facilitating a sale of shares in the defendant to Graham Cox of Gaston group.

Hellyer denies that Mr Adolfsson said words to the effect that it had to terminate the BSA in order to proceed with that share sale.

1. The pleadings present a well-defined factual issue for the trier of fact and an identifiable line of enquiry for the purposes of the subpoena. Hellyer's central contention on this dispute - that the allegation in par 13 of the statement of claim is repudiatory irrespective of Hellyer's intent - may ultimately be determined to be correct. But I think that is a matter to be resolved at the trial. Hellyer's contentions that (a) its alleged termination was actuated by a particular purpose; and (b) whether that is relevant to the determination of the alleged repudiation of the BSA, are not matters which should weigh against a grant of leave to issue of the subpoena. The documents sought by the subpoena appear to be relevant to an objective determination of the context and effect of the pleaded conversation and they are generally relevant to the events giving rise to the termination of the BSA.
2. In my view, it is reasonable for Goshawk to focus on communications between Mr Cox and Gaston Resources Pty Ltd (and the related bodies corporate). In support of that conclusion: (i) Mr Adolfsson referred to "Graham Cox of the Gaston Group"; (ii) Mr Cox is now the CEO of Hellyer; (iii) the company extract tendered by Goshawk which shows that Mr Cox was a director of Gaston Resources Pty Ltd at the relevant time; and (iv) Gaston Resources Pty Ltd was, at 15 May 2025, the largest shareholder of Hellyer. It is apparent from the company extract that the individuals named in the schedule of documents in the subpoena are, or were, directors of Hellyer during the relevant period. It is alleged that Mr Blackman and Mr Baluch are the individuals who sold their shares. Therefore, it is not unreasonable to assume Mr Cox has documents in relation to the transaction and the BSA.
3. In relation to category 1 in the schedule of documents in the subpoena, it is reasonable to assume that the proposal or agreement to purchase the shares would be the subject of some documentation. In relation to categories 2 and 3, there is a reasonable basis beyond speculation that correspondence (as defined) might exist in relation to both the transaction (as defined) and to the events giving rise to the termination of the BSA as alleged by Goshawk (if that allegation is true).
4. I reject Hellyer's contention that the subpoena is a fishing expedition and that there is only a speculative possibility that any documents obtained would assist Goshawk's case. The analysis, above, provides reasonable grounds to think that 'fish of the relevant type are in the pond', or that it is 'on the cards' that relevant documents will be elicited by the subpoena: Weeding at [52]-[53]; Alister v R [1984] HCA 85 per Gibbs CJ at [7]; [1984] HCA 85; (1984) 154 CLR 404 at 414. It is reasonable to anticipate that documents in each of the three classes may actually exist.
5. I also reject Hellyer's submission that leave to issue the subpoena should be refused because the documents sought are relevant to credit alone. I understood Hellyer's submission in this regard to relate to the credibility rule in the Evidence Act 2001 s 102. The proposed subpoena does not seek documents relevant only to the credibility of a witness. The documents sought by the subpoena are apparently relevant to the transaction as defined in the subpoena, and/or the connection between that transaction and the termination and purported repudiation of the BSA. The documents might also be used in the cross-examination of a witness giving evidence about the transaction as defined in the subpoena or its connection with the termination of the BSA. The apparent relevance of the documents is the assessment of the credibility of the evidence relating to those issues which may be given by a witness. Hellyer submits that it is unknown whether Mr Cox or Mr Adolfsson will be called as witnesses on the trial, but that does not alter the assessment, at this stage, of the legitimacy of the purpose for which the documents identified by Goshawk are sought. While this proceeding is not the appropriate occasion to deal with questions of potential admissibility, it is apparent that there might well be purposes for which the documents might permissibly be used: Evidence Act 2001 s 101A(b). In any event, the documents sought by the proposed subpoena are likely to assist Goshawk in an appraisal of the strength or weakness of this aspect of its case at an early stage: Fingal Pastoral at [40], Stanley at [9].
6. On the foregoing analysis, the documents sought by the subpoena are relevant for the purposes of either the legitimate forensic purpose test for a subpoena or the principles governing non-party discovery. Under either procedure, the documents sought could materially assist the plaintiff and add, in some way, to the relevant evidence in the case in relation to the issues arising on the pleadings. The assessment of relevance is not unreal, fanciful or speculative.

Reasons for concluding that the subpoena will issue

1. I reject Mr Ng's submission on behalf of Hellyer that the subpoena is being relied upon as "an abuse of process, directed towards the avoidance of safeguards in connection with third-party discovery...including the possibility of security being ordered for the costs of a third party giving discovery". The Supreme Court Rules 2000 do not contain any rules making separate provision for 'security for costs' relating to either the subpoena process or the non-part discovery process. The court's jurisdiction to direct the issuing party to pay the reasonable loss and expense incurred in complying with the proposed subpoena is conferred by r 500D(1), which is expressed in terms materially identical to those of r 403G(1) concerning non-party discovery - which I assume to be the provision containing the safeguard Mr Ng submitted was being circumvented. Hellyer's point might be a fair one if Goshawk was intending to bypass any particular the rules of court, because that would not be a legitimate use of the subpoena process. But I cannot see that Goshawk intends to do that in this case. No 'safeguard' of the type identified by Mr Ng is being avoided. I cannot discern any improper purpose as contended by Hellyer.
2. I am satisfied that the proposed subpoena is not directed to documents that ought properly to be the subject of non-party discovery. Having regard to the description of the documents sought, Mr Cox will not be required to assess relevance to the pleadings, because the documents as described concern factual matters only, namely the transaction (category 1) and correspondence related to the transaction and the BSA (categories 2 and 3). It appears to me that Mr Cox will not be required to identify any documents to be produced on subpoena by judging whether they relate to 'a matter in question in the proceeding' for the purposes of r 403FA. Therefore, I conclude that non-party discovery is not the more appropriate procedure. There is no material presently before the Court showing that any 'extensive search' will be involved. However, even if I am mistaken that the documents ought properly to be the subject of non-party discovery, it appears inevitable that Goshawk would bring such an application, which would be highly likely to succeed. That course would not be an efficient use of resources. I accept Goshawk's submission that the subpoena is a practical and efficient means of facilitating access to relevant documents prior to trial in accordance with the rules.
3. Goshawk is granted leave to issue the subpoena addressed to Mr Graham Cox with an early return date of six weeks from the date of this order.

[1] See Goshawk Mining Pty Ltd v Hellyer Metals Ltd & Others [2025] TASSC 18.

[2] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [90]. See also Jackamarra (an Infant) v Krakouer (1998)195 CLR 516 per Gummow and Hayne JJ at 526-527, 539, 542 per Kirby J.

[3] The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company [1883] UKLawRpKQB 95; (1882) 11 QBD 55 at 62-63.