Health Administration Corporation v Toll Global Forwarding Pty Ltd

mall (1938) 38 SR (NSW) 564 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33 Dallas Buyers Club LLC v iiNet Ltd (2015) 245 FCR 129; [2015] FCA 317 Dallas Buyers Club LLC v iiNet Ltd (No 3) [2015] FCA 422; (2015) 327 ALR 695 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435; [2013] HCA 1 Green v Green (1912) 13 SR (NSW) 126 Harding v Bourke (2000) 48 NSWLR 598; [2000] NSWCA 60 Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 Hennessy v Wright (No 2) (1888) 24 QBD 445 Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338 Jacups v The Fidelity Fund Management Committee of the Law Society of NSW [2022] NSWSC 313 Johnson v Johnson (No 3) (2000) 201 CLR 488; [2000] HCA 48 Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd (2016) 49 WAR 374; [2016] WASCA 14 Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35 Liu v The Age Company Limited (2016) 92 NSWLR 679; [2016] NSWCA 115 Loulach Development Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465 Maddison v Goldrick [1976] 1 NSWLR 651 Malouf v Malouf (1999) 86 FCR 134; [1999] FCA 284 Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2) [2022] NSWCA 155 Norris v Kandiah [2007] NSWSC 1296 O'Connor v O'Connor [2018] NSWCA 214 Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 Pfizer Island Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; (2017) 351 ALR 103 Re Don [2006] NSWSC 1125 Reeves v Reeves [2024] NSWSC 134 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports and Recreation Association Inc v Karabay (2007) 69 NSWLR 669; [2007] NSWCA 96 Waind v Hill [1978] 1 NSWLR 372 Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393 Zong v Lin [2021] NSWCA 209 Texts Cited: Coles, Benjamin, "The confetti of the justice system - Subpoenas, justice and third parties" (2016) 42 Aust Bar Rev 385 Halsbury's Laws of Australia Paterson, Jeannie Marie, Corones' Australian Consumer Law (5th ed, 2023, Thomson Reuters) Category: Procedural rulings Parties: Health Administration Corporation (Plaintiff / Applicant) Toll Global Forwarding Pty Ltd (Defendant / Respondent) Representation: Counsel: H Younan SC with B Lloyd (Plaintiff / Applicant) P Knowles SC (Defendant / Respondent)

Solicitors: HWL Ebsworth Lawyers (Plaintiff / Applicant) Norton White (Defendant / Respondent) File Number(s): 2023/157823

Introduction

1. HIS HONOUR: These proceedings are an application by the plaintiff (HAC), a statutory corporation, for preliminary discovery of documents from the defendant (TGF), a prospective defendant, pursuant to r 5.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for documents.
2. The proceedings were commenced on 17 May 2023 by summons and almost 10 months later remain to be heard.
3. Each of the parties to the proceedings have filed and served evidence going to the substantive relief sought. Up until 5 February 2024, the matter had been listed before the Court for directions on four occasions.
4. On 5 February 2024, HAC proposed orders for the listing of the matter with a one to two day estimate and exchange of submissions. It is not evident to me whether that estimate includes cross-examination, although I admit of that possibility. The same day, TGF issued a notice to produce.
5. The application before the Court is a notice of motion, filed on 15 February 2024 by HAC, to set aside the notice to produce. Each party has filed affidavits in respect of the notice of motion. HAC relies upon two affidavits of Kristin Hibbard (Ms Hibbard) affirmed 14 February 2024 and 4 March 2024. Ms Hibbard is a Special Counsel with HWL Ebsworth Lawyers, who act for HAC. TGF relies upon an affidavit of Andrew Dunn sworn 1 March 2024. Mr Dunn is a solicitor employed by Norton White, who act for TGF. There is an exhibit AD-1 to Mr Dunn's affidavit. On 6 March 2024, TGF's solicitors issued an amended notice to produce.
6. On the application, Ms Younan SC appeared for HAC with Mr Lloyd and Mr Knowles SC appeared for TGF.
7. There had been some correspondence between the respective solicitors for the parties as to whether the amended notice to produce had been served with what was properly before the Court as the subject of the notice of motion. Following discussion with me as to whether I could proceed on the basis that the amended notice to produce was the issue to be contended with on the application, consistent with s 56 of the Civil Procedure Act 2005 (NSW) (CPA) senior counsel sensibly agreed that the application before the Court should (subject to the question of costs) properly address the amended notice to produce as the subject of the notice of motion.
8. In seeking to set aside the amended notice to produce, HAC relied upon filed written submissions (HACWS) and the oral submissions of Ms Younan SC. Likewise, in seeking to support the amended notice to produce, TGF relied upon filed written submissions (TGFWS) and the oral submissions of Mr Knowles SC. It is convenient to describe the submissions of the parties by reference to their senior counsel. I will cite the evidence in the proceeding by reference to the Court Book (CB) and transcript pages.

Background

1. The background to the claim for preliminary discovery arises out of commercial arrangements for importation of medical supplies, including personal protective equipment (equipment), into New South Wales during the COVID-19 pandemic.
2. As of July 2017, HAC had a contract with a supplier of goods for equipment used with the NSW health system. By deed of novation, a transport entity, Toll Transport Pty Ltd (Toll), replaced the supplier as the new contractor under the contract.

Toll amended contract for additional services

1. On or about 4 April 2020, HAC and Toll entered into an amended contract (amended contract) to enable HAC to engage Toll to provide HAC with freight forwarding and related services in respect of the urgent transportation of medical supplies from overseas to various sites throughout New South Wales. The freight forwarding services were described as being "additional services". The amended contract established a fee structure for the additional services which included cost price plus a 10% margin per additional service (excluding import and export duties and taxes), and cost price for import and export duties and taxes.
2. The amended contract contains a provision dealing with records and inspection, which relevantly provides that: a supplier must keep and maintain all necessary records for a period of time and ensure that subcontractors do so; and the supplier must make the records available for inspection or audit as reasonably required by the principal (HAC).
3. A business unit of HAC, HealthShare NSW (HealthShare), was tasked with securing the supply of the equipment. For present purposes, it is not necessary to specifically distinguish the precise roles played between HAC and HealthShare.
4. Toll engaged four subcontractors to provide services for the movement of goods acquired by HAC to Australia, being: Qantas, Singapore Airlines, Cathay Pacific and TGF: CB 71[12].

Toll's subcontractor & HAC's intermediary

1. In relation to Toll's engagement of TGF (as a subcontractor), TGF issued invoices to Toll. Toll, in turn, issued invoices to HAC attaching TGF invoices and charging HAC a margin of 10% calculated on the value of TGF invoices.
2. At some point seemingly contemporaneous with, or close to, the timing of the amended contract, PwC Australia (PwC) was engaged to assist HealthShare with managing the supply chain and importation of medical supplies, and PwC acted as an intermediary between HealthShare and Toll in relation to the additional services, essentially as a type of logistic consultant.
3. Broadly speaking, the mechanism for obtaining the additional services included HAC issuing tasking statements to Toll, with Toll providing quotes in relation to the services referred to in the tasking statements. HAC would then raise a purchase order for the services, based on the quotation received from Toll, and the purchase order was then sent to Toll.
4. HAC indicates that the invoices were paid in a context of urgency. However, seeking to ensure appropriate accountability of expenditure of public funds, HAC requested from Toll TGF's documentation to support many of the charges appearing in TGF's invoices.
5. In or about July 2020, Peter Melville (Mr Melville) became contracted to HealthShare as a program manager: CB 80[70].
6. Commencing in or around September 2020, HealthShare began reviewing some of the TGF invoices that had been issued and already paid by HAC under the cover of the Toll invoices: CB 23-24. From about then, Mr Melville corresponded with various persons on behalf of Toll, including Dominic Vigar, the General Manager, Finance and Commercial for Toll (Mr Vigar), and Shaun Aisen (Mr Aisen) (seemingly an aviation consultant to Toll: CB 72[15], 96). Mr Vigar also began copying the emails to the email address of Joseph Azzopardi, the Senior Vice President, Sydney, of TGF (Mr Azzopardi).
7. HAC says that, from September 2020 to February 2021, it made at least 15 requests to Toll for the supporting documentation. HAC did not receive the requested documents.
8. During June 2020 to February 2021, HAC raised approximately 11 purchase orders and Toll issued approximately 356 invoices to HAC, totalling more than $90 million for the additional services.

A sample of the contested charges

1. An example of the charges appears on one of the invoices contained at CB 35-36, being an invoice issued by TGF to Toll which was then provided by Toll to HAC (sample invoice).
2. The sample invoice describes certain charges by reference to three main charges, being origin charges, freight charges and destination charges, and three additional customs charges.
3. On this sample invoice, six charges are itemised under the origin charges, comprising a total of approximately $50,159 (AUD), as follows: Airport Terminal Fee - Origin - 27200 KG @ USD 0.15/KG USD 4,080.00 @ 0.630036 6,475.82 Cartage - Origin - 27200 KG @ USD 0.55/KG USD 14,960.00 @ 0.630036 23,744.67 Documentation Fee - Origin - 1 Shipment @ USD 50.00/Shipment USD 50.00 @ 0.630036 79. 36 Origin Handling Fee - 27200 KG @ USD 0.10/KG USD 2,720.00 @ 0.630036 4,317.21 Airport Transfer Fee - Origin - 27200 KG @ USD 0.18/KG USD 4,896.00 @ 0.630036 7,770.98 Warehouse In/Out Handling - Origin - 27200 KG @ USD 0.18/KG USD 4,896.00 @ 0.630036 7,770.98 Origin Charges 50,159.02

1. In addition, there is: 1. one item comprising the freight charges, being approximately $181,322; 2. five items comprising the destination charges of $27,957; and 3. three individual customs charges.
2. Broadly speaking, by reference to the sample invoice as an example essentially what HAC seeks are: on the one hand, the invoices (if any) referable to the itemised charges comprising the subtotals of origin charges, freight charges or destination charges and the additional customs charges; or, if there be no invoice, documents which explain what those charges are, how they have been calculated or how they otherwise support their inclusion as charges.

The preliminary discovery sought

1. The order sought by HAC for preliminary discovery, for the most part, seeks documents either substantiating or supporting charges (including, but not limited to, the existence, amount and calculation of such charges) for five categories of charges in specified TGF invoices and for all charges in a very large number of TGF invoices. The summons identifies a specific number of invoices in which those charges appear, by reference to unique invoice numbers specified in the six annexures (A-F) to the summons. In summary, charges the subject of challenge are as follows: 1. "Cartage" - 124 invoices; 2. "Detention - destination" - 47 invoices; 3. "Detention - origin" - 2 invoices; 4. "International freight" - 32 invoices; 5. "Truck holding" - 27 invoices; and 6. All charges - 763 invoices.
2. The total number of the above-mentioned invoices is 995.
3. TGF, in addressing the matter, has perceived the summons for preliminary discovery as seeking a substantiation of charges contained in approximately 900 invoices, with a total of more than 3,000 charges: CB 64[5].

The evidence

1. In connection with the substantive hearing, HAC has served affidavits from Alejandro Araujo, the Executive Director, Procurement and Supply Chain at HealthShare (Mr Araujo), and an expert report prepared by Simon Hardwidge. TGF relies upon affidavits from Mr Vigar, Mr Azzopardi and an expert report of Thomas Jensen in relation to freight forwarding.
2. Those main affidavits were not, per se, read on the hearing of the notice of motion. However, some of that evidentiary material was before me in the sense that the first affidavit of Ms Hibbard annexed the affidavit of Mr Araujo and the affidavit of Mr Dunn annexed the affidavits of Mr Vigar and Mr Azzopardi, though not the exhibits referred to in those affidavits.

The "claim" which HAC may be entitled to make against TGF

1. The evidence of Mr Araujo provides some commentary in relation to his expectation that TGF would retain some documentation in respect of each of the above-mentioned six heads of charges: CB 31[99]-34[120]. Mr Araujo states that one aspect of the obligation of HAC, in carrying out its duties, is to ensure that it obtains value for money in the exercise of its functions in relation to the procurement of goods and services, pursuant to s 176(2) of the Public Works and Procurement Act 1912 (NSW): CB 24[61]. In this respect, Mr Araujo indicates that the documentation sought is needed in order to assess whether the relevant services were actually provided and to ensure that the charges levied are substantiated and appropriate: CB 24[60], 30[95].
2. Mr Araujo states that HAC is concerned not to commence litigation unless it is satisfied that it has reasonable prospects of success and that the likely quantum of any claim would be sufficient to justify incurring the cost of litigation: CB 24[64], 30[95].
3. HAC apprehends that TGF misrepresented the charges that it incurred and that HAC has suffered loss by paying "fictitious charges" or, perhaps to use a broader and in any event more neutral term, "incorrect charges", giving rise to a claim for relief based upon negligent misstatement or possibly misleading and deceptive conduct: HACWS [11]; see also T 7.
4. Ms Younan SC submitted that Mr Araujo's affidavit (at CB 24[60]) makes clear that supporting documentation is sought to determine, in the first instance, whether the relevant services were actually provided and, in the second instance, to ensure that the charges are substantiated. She submitted that his use of the word "appropriate" is merely indicating his concern as a layperson of the basis of the charges that were incurred, and is not suggestive of a legal standard: T 26.32-.41.
5. The affidavit of Mr Araujo, in addressing whether the charges of TGF are "appropriate", expresses a concern that the reason why corroborating material has not been provided to HAC is that either such documentation does not support the charge levied or no such documentation exists in respect of the charges: CB 28[90]-[91].
6. In addition to the absence of supporting documentation, which alone Mr Araujo says causes him concern regarding the appropriateness of the charges, he outlined a number of other matters which indicated to him that HAC may be entitled to make a claim for relief. He set these out in his affidavit at CB 28-30[92].

Notice to produce

1. The notice to produce was purportedly issued pursuant to r 34.1 of the UCPR. The amended notice to produce seeks the following materials (the refined scope of the amended notice to produce is evident by strikethrough marking of the material no longer requested): [1] Definitions: In this Notice to Produce: i. a reference to Communications means letters, emails, file notes of telephone conversations and memoranda in hard copy or electronic format; and ii. a reference to the Contract means the deed dated 16 August 2016 between Health Administration Corporation and Toll Transport Pty Ltd entitled Contract Number 975 - Storage and Distribution of Vaccines and the amendment thereto dated 4 April 2020. You are required to produce the following documents or things to the court: 1. Communications with PricewaterhouseCoopers in respect of the Contract, concerning relation to the charges in the invoices referred to in paragraph 92 of the Affidavit of Alejandro J Araujo dated 15 May 2023 including communications referring to: a. tasking statements; b. quotations in respect of tasking statements; c. proposals for pricing in response to tasking statements; d. recommendations in respect of quotations or proposals for pricing in response to a tasking statement; and e. reports on increases or variations in prices for the transportation of goods for HAC. 2. Internal Communications in respect of the Contract, concerning: a. tasking statements; b. quotations in respect of tasking statements; c. proposals for pricing in response to tasking statements; d. recommendations in respect of quotations or proposals for pricing in response to a tasking statement; and e. reports on increases or variations in prices for the transportation of goods for HAC. 3. Reports by PwC to Health Administration Corporation ('HAC') relating to a. the rates charged by Toll Transport for services rendered under the Contract; and b. invoices rendered by Toll Transport to HAC and any supporting documentation which accompanied the invoices.
2. Each of the submissions on behalf of HAC and TGF addressed what may permissibly be the subject of a notice to produce. A number of the parties' submissions addressed formal aspects of notices to produce, and other submissions addressed what might be termed more substantive issues, including whether the notice to produce must have a legitimate forensic purpose.

The rule

1. Rule 5.3(1) of the UCPR provides: (1) If it appears to the court that - (a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
2. An applicant for an order for preliminary discovery is required to satisfy the elements in r 5.3(1) of the UCPR, which enliven a discretion to make an order.

Elements for enlivening the discretion to order preliminary discovery

1. In O'Connor v O'Connor [2018] NSWCA 214 (O'Connor), Simpson AJA stated that it can be seen from the terms of r 5.3(1) that an order may be made against a prospective defendant where certain things appear to the Court (O'Connor at [21] (McColl and Macfarlan JJA agreeing)), namely: (i) that the applicant may be entitled to make a claim for relief against the prospective defendant; (ii) that the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings; (iii) that, having made those enquiries, the applicant is unable to obtain sufficient information to make that decision; (iv) that the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; (vi) that inspection of such a document would assist the applicant to make the decision (that is, the decision whether or not to commence proceedings).
2. Once those matters are established, the Court may order the prospective defendant to give discovery to the applicant of all documents that are or have been in the prospective defendant's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief: chaussette to r 5.3(1) UCPR; O'Connor at [22].
3. The threshold set by r 5.3(1) of the UCPR is low: O'Connor at [23]. In O'Connor, Simpson AJA made reference to the summary of principles in relation to r 5.3(1) stated by McColl JA in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 (Hatfield) at [47]-[52], and those stated by Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 (St George Bank) at [26] (in relation to the former Federal Court counterpart).
4. Simpson AJA relevantly stated as follows: 27. In Hatfield v TCN Channel 9 Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 McColl JA stated the relevant principles as follows: "First, '[i]n order for it to 'appear' to the Court that the applicant 'may be entitled' to make a claim for relief, it is not necessary for the applicant to show a prima facie or pleadable case' … Secondly, while 'the mere assertion of a case is insufficient … [i]t will be sufficient if there is reasonable cause to believe that the applicant may have a right of action against the respondent resting on some recognised legal ground': … …the use of the word 'may' indicates the Court does not have to reach 'a firm view that there is a right to relief' … Fifthly, 'the question posed by [UCPR 5.3(1)(a)] … is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent [but]… whether the applicant has sufficient information to make a decision whether to commence proceedings in the court. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences' … Thus application of the rule will not be precluded by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief, as there might be matters of defence which could defeat a prima facie case … Sixthly, … 'the Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case'." (italics in original; internal citations omitted) I have again omitted references to authorities concerning those parts of the Federal Court Rule that impose a test of "reasonable cause to believe" as distinct from the presently applicable "it appears to the court" test. There is, in Rule 5.3, no requirement of "reasonable cause to believe" either that the applicant has or may have a cause of action, nor that the prospective defendant has or is likely to have or have had relevant documents. 28. All that is required by Rule 5.3 is that it appears to the Court that the applicant may be entitled to make a claim for relief and that the prospective defendant may have or have had in possession relevant documents. To that extent, Rule 5.3 imposes a lower threshold test than the Federal Court counterpart. 29. With that reservation, the principles stated by Hely J and McColl JA are uncontroversial. 30. It may be emphasised that there is no requirement that an applicant for preliminary discovery establish even a prima facie case for relief; nor is it necessary that an applicant specify with precision the cause of action proposed, although it will be necessary, in order to make it "appear to the court" the applicant "may be entitled to make a claim for relief" that the applicant provide some particularisation of the nature of the relief in contemplation. That is so, not only to enable the court to form a view about whether the applicant may be entitled to make a claim for relief, but also to enable the prospective defendant, if an order is made, to determine which, if any, documents in possession are to be discovered.

"entitled to make a claim" element

1. In emphasising the limited nature of the enquiry on applications under r 5.3(1) of the UCPR and, in particular, the "entitled to make a claim" element, Ms Younan SC referred to the comments of Simpson AJA in which her Honour referred to some observations by Allsop CJ in Pfizer Island Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; (2017) 351 ALR 103 (Pfizer) (which concerned a Federal Court counterpart of r 5.3 which was not the same as either r 5.3 or the Federal Court rule under consideration in St George Bank) which her Honour described as expressing "apt" caution: see O'Connor at [69]-[70]. In that case, Allsop CJ stated: 2. I have read the reasons of Perram J and Nicholas J. Subject to what follows, I agree generally with the reasons of their Honours. I express my views fully and separately, in part out of respect for the primary judge whose experience in this field is deep, and in part to highlight the way the existing authorities appear to have been influencing these applications into a form of mini-trial where a form of fact finding takes place, well beyond the mandate of the words of the rule. That is not a conclusion that any of the previous authorities is wrong. No argument took place to that effect. Rather, it is to emphasise at least two things. First, the words of the rule are the framework of analysis for deciding applications under the rule. Secondly, these are summary applications not mini-trials.

Nature of preliminary discovery applications

1. Case law in relation to preliminary discovery applications describe such applications in some instances as having a form of summary procedure, and in other instances as having an interlocutory character: e.g. Arnaout v Arnaout [2019] NSWSC 565 at [32(e)] per Lindsay J.
2. The weight of authority in intermediate appellate courts establishes that, properly understood, the legal effect of an order on preliminary discovery is interlocutory, with the consequence, for example, that there is no appeal as of right: Malouf v Malouf (1999) 86 FCR 134; [1999] FCA 284 at [18]-[36] per Beaumont, Lee and Dowsett JJ; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [104] per Bathurst CJ (Beazley (as her Excellency then was) and McColl JJA agreeing); Liu v The Age Company Limited (2016) 92 NSWLR 679; [2016] NSWCA 115 at [164]-[167] per McColl JA; Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd (2016) 49 WAR 374; [2016] WASCA 14 at [80] per Mitchell J.

Cross-examination

1. Depending on the jurisdiction in which the application for preliminary discovery is brought, different approaches have been taken to the question of whether cross-examination is permitted as a matter of general procedural fairness.
2. In some cases, cross-examination is undertaken without reference to any requirement for leave. In other cases, one sees references to judges permitting cross-examination by leave.
3. Leaving aside the niceties of the jurisdictional differences in statutory provisions which permit preliminary discovery, as a general proposition it has been said that applications for preliminary discovery ought not to involve the cross-examination of witnesses: Dallas Buyers Club LLC v iiNet Ltd (2015) 245 FCR 129; [2015] FCA 317 (Dallas Buyers Club - Principal judgment) at [6] per Perram J.
4. The procedure is intended to be brief and is not intended to devolve into a trial of the underlying potential claim. Thus, the evidence utilised is ordinarily in written affidavit form and does not involve any cross-examination of the witness who has sworn the affidavit: Dallas Buyers Club - Principal judgment at [6].
5. In preliminary discovery applications, cross-examination may be permitted (whether by leave or otherwise). However, the utility of cross-examination on such applications is not always obvious: see Dallas Buyers Club LLC v iiNet Ltd (No 3) [2015] FCA 422; (2015) 327 ALR 695 at [8] per Perram J (dealing with issues which required resolution following Dallas Buyers Club LLC v iiNet Ltd - Principal judgment, including costs).

Notice to produce principles

1. In HAC's written submissions, Mr Lloyd submitted that it is not sufficient to demonstrate that the documents are or may be relevant to an issue for decision, but rather it must be shown that it is likely that the documents will materially assist on an identified issue or that there is a reasonable basis, beyond speculation, that it is likely that they will materially assist: HACWS [7], citing Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620.
2. Ms Younan SC submitted that the defendant has failed to demonstrate that there is any contestable issue of fact and further that the documents sought are relevant to such contestable issue of fact: T 14.43-15.3, 15.36-.40.
3. Mr Knowles SC submitted that it was not necessary for TGF to demonstrate that the documents sought would be relevant to an issue, but only that they "may be relevant": T 23.47-.49, 24.19-.20.
4. The difference in the above submissions begs the question as to what basis the Court should act upon in determining whether to set aside the amended notice to produce.

Regulation of use of documents in proceedings

1. Understanding what may be permissible in terms of the issue of a notice to produce is fundamentally addressed by comprehending the system of justice in which documents are sought to be obtained under legal compulsion.
2. The development of the law's interest in having materials produced to a court is undoubtedly ancient. The expression "sub poena" was developed by Sir John de Waltham, while a clerk in Chancery in about 1375: see Benjamin Coles, "The confetti of the justice system - Subpoenas, justice and third parties" (2016) 42 Aust Bar Rev 385 (Coles) at 386 fn 4, citing B J Campbell, The Lives of the Chancellors and Keepers of the Great Seal of England, John Murray, 1845, vol I at 296-7.
3. The forensic character of subpoenas emerged at least by 1455 in Chancery to compel the attendance of witnesses as well as defendants, driven by the necessity that Chancery relied on evidence from witnesses and witnesses wished to avoid liability in tort for maintenance: Coles at 386.
4. Fundamentally, the power of the Court to compel production of documents is entrenched in the Court's armoury to administer justice and regulate its processes to that end: see Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (SDPIE) at [56] per Bell P (as his Honour then was), [83] per Brereton JA (as the Commissioner then was).
5. The compulsive power to order production of documents may be for purposes not necessarily limited to litigation. For example in Grant-title jurisdictions, the Court usually requires an original testamentary instrument to be delivered to it as part of the process to authenticate an executor's authority to administer an estate.
6. However, in the realm of modern civil litigation the Court's power to order production of documents is rightly said to be crucial to the ability of parties to investigate the facts and assemble evidence to prove or defend a case: SDPIE at [84] per Brereton JA.
7. The occasions for the Court to address issues of production of documents under compulsion in legal proceedings are legion in number. Indeed, one might be hard-pressed to find interlocutory processes so frequently invoked in legal proceedings as those processes used to compel production of documents in some shape or form.

"abuse of process" and "legitimate forensic purpose"

1. Because powers are appropriately analysed in context by reference to purpose, it is unsurprising that in the realm of the Court's powers to compel production of documents, whether pursuant to statutory provision or otherwise, the Court of Appeal has analysed the issue by reference to what are proper uses of the Court's processes and what are abuses of such processes.
2. In SDPIE, each of Bell P and Brereton JA observed that the power of the Court to set aside a subpoena, in whole or in part, is but an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process: SDPIE at [32], [60] per Bell P and [88] per Brereton JA.
3. The notion of "legitimate forensic purpose" may be seen as the converse of "abuse of process". Thus, a subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose: SDPIE at [88].
4. The expression "legitimate forensic purpose" is of uncertain origin in the context of applications to set aside a subpoena, although it seems to have been first used (at least as recorded in Australian authorised reports) by Samuels JA in Maddison v Goldrick [1976] 1 NSWLR 651 at 666D: SDPIE at [35] per Bell P.
5. As explained by Coles, the concept of a legitimate forensic purpose developed through two lines of caselaw. The first line of cases, such as Waind v Hill [1978] 1 NSWLR 372, concerned objections on the basis that the documents called to be produced were inadmissible. The second line of cases (see, for example, Commissioner of Railways v Small (1938) 38 SR (NSW) 564 at 575 per Jordan CJ) concerned objections on the basis that the subpoena constituted a "fishing expedition": Coles at 389-390.
6. The particular notion of a "fishing expedition", in terms of the seeking of information, has early uses in the context of courts assessing the appropriateness of specific interrogatories issued: e.g. Green v Green (1912) 13 SR (NSW) 126 at 140 per Street J; Hennessy v Wright (No 2) (1888) 24 QBD 445 at 448 per Lord Esher MR.

"apparent relevance"

1. In SDPIE, Bell P stated that there is a danger in using the language of "tests" for the setting aside of subpoenas, and suggested such terminology be eschewed: SDPIE at [60]. Brereton JA, in a similar vein, noted it may be undesirable to propound a test, at least at too specific a level, as to when a subpoena should be set aside, observing that nonetheless some general principles which inform the proper approach can be stated (to which I have already referred above): SDPIE at [88], see also [98] per McCallum JA (as her Honour then was).
2. Generally, a subpoena or notice to produce will have a legitimate forensic purpose if the documents sought to be produced have an apparent relevance to the issues in the case: SDPIE at [32], [44]-[50], [56], [60], [68]-[71], [80] per Bell P, [88]-[89] per Brereton JA. The corollary is that subpoenas should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court's general power to regulate and protect its own processes: SDPIE at [60] per Bell P. His Honour noted that such a power is not to be restricted to defined and closed categories: see CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392; [1997] HCA 33.
3. Leaving aside particular considerations that may inform any given case such as questions of immunities or privileges, in civil proceedings it will generally be sufficient, and prima facie evidence of a legitimate forensic purpose, if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case. Thus, the "apparent relevance" touchstone will be met where the material requested will likely add, in the end, in some way or another, to the relevant evidence in the case, including if any such documents are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are or might be inadmissible according to the rules of evidence: SDPIE at [80] per Bell P, [89] per Brereton JA.
4. Where it can be shown that the documents sought on subpoena are likely materially to assist the party that issued the subpoena, it will generally not be possible for the subpoenaed party (or some other interested party) to contend that the subpoena should be set aside on the grounds of abuse of process or that the issuing party lacked a legitimate forensic purpose. However, the converse does not follow. Thus, an inability to demonstrate that it is "on the cards" that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused: SDPIE at [32], [80] per Bell P.

Specification of a document or thing

1. Under the UCPR there are various rules which bear upon production of documents as between parties to proceedings. The UCPR distinguishes between (a) discovery of a class of documents and (b) production of specific or identified documents.
2. Production of classes of documents is permitted by discovery provisions, whereby the Court may order a party give discovery to another party of a class (or classes) of documents, or a sample (or samples) of documents within such a class, specified in sufficiently justified general terms, provided such documents are relevant to a fact in issue: r 21.2(1), (2), (4) UCPR.
3. Such a class of documents may be specified: (a) by relevance to one or more facts in issue; (b) by description of the nature of the documents and the period within which they were brought into existence; or (c) in such other manner as the Court considers appropriate in the circumstances: r 21.2(3) UCPR.
4. For the purposes of such discovery, a document is taken to be "relevant to a fact in issue" if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence (deemed relevance): r 21.1(2) UCPR.
5. Production of specified documents is permitted by a number of rules. Thus: 1. under r 21.10(1) of the UCPR - a notice to produce may be served requiring production of (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by another party, and (b) any other "specific document or thing that is clearly identified" in the notice and is relevant to a fact in issue. The deemed relevance provision applies in respect of such other specific document or thing: r 21.1(2); 2. under r 33.3(4) of the UCPR - a subpoena to produce may be served on a person or entity (including a party to proceedings) provided it "identify the document or thing" to be produced; and 3. under r 34.1 of the UCPR - a notice to produce may be served on a party to proceedings for production of any "specified document or thing".
6. Despite the headings in the UCPR, the main difference between a notice to produce under r 21.10(1)(b) and a notice to produce under r 34.1 is not that the former is served requiring production before a hearing and the latter is served requiring production on a hearing. This is evident from the terms of those rules.

Flexibility of the Court's powers to regulate production of documents and modify the form and content of notices to produce

1. The Court has an inherent jurisdiction to regulate its own proceedings so as to promote matters relating to convenience, expedition and efficiency in the administration of justice, which jurisdiction includes directing or ordering the parties to use certain procedures, if the benefits derived from the use of such procedures justifies the costs and will ensure that the trial proceeds quickly and efficiently: Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338 (Idoport) at [15] per Einstein J.
2. What may constitute a fair trial or hearing is the subject of rich and steeped caselaw, and aspects of it may be subject to statutory modification: e.g. GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [34]-[35] per Kiefel CJ, Gageler (as his Honour then was) and Jagot JJ.
3. However, generally litigants do not have vested rights in matters of procedure: Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ; [1957] HCA 7; Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports and Recreation Association Inc v Karabay (2007) 69 NSWLR 669; [2007] NSWCA 96 at [22] per Young CJ in Eq (Ipp JA and Handley AJA agreeing).
4. In New South Wales, statutory reform commencing on 1 March 2000 provided an overriding purpose into rules of Court to facilitate the just, quick and cheap resolution of the real issues in proceedings, which reform was the precursor to the civil reforms introduced in 2005 with the CPA, s 56(1), (2): Reeves v Reeves [2024] NSWSC 134 at [364].
5. It seems to me that once an issue regarding production of documents comes before the Court, the issue of what may be permissible is not restrained by the parties' contentions but in a sense becomes "at large" in that it is subject to the Court's power to actively manage cases to achieve the overriding objective: Idoport at [14], [78]; see also Johnson v Johnson (No 3) (2000) 201 CLR 488; [2000] HCA 48 at [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Such an active role is appropriate, provided it does not transcend into the Court impermissibly assuming the role of advocate in the proceedings: e.g. Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [220] per Ward JA (as her Honour then was).

Some concessions

1. Ms Younan SC submitted that the evidence is that: HAC received the TGF invoices once the Toll invoices were issued to it; Toll did not provide any further documentation to support the services provided by TGF; and there is no evidence that Toll provided the rate sheets of its subcontractors to either PwC acting as an intermediary for HAC at the time or otherwise: T 5.19-.25.
2. In response to a number of questions by me, Mr Knowles SC helpfully made a number of concessions for the purposes of the argument on the amended notice to produce, including: 1. The documents sought were relevant to whether HAC had met the threshold of the first of the r 5.3 criteria, being whether HAC "may be entitled to make a claim", as distinct from the other r 5.3 criteria: T 16.4-.26. In this regard, I note that this concession did not extend to what might be argued on the final hearing of the summons, which would include, for example, a submission that HAC has failed to make enquiries of its own record which may itself be a basis to resist the claim for preliminary discovery: T 24.5-.8. 2. It is substantially correct that neither HAC nor PwC have in their possession all the documents that evidence the charges in the invoices: T 21.8-.17. 3. PwC, working in the position of an intermediary, would not be in a position to give documents or give opinions on whether charges were in fact incurred. That is, whether they were fictitious or fraudulent: T 18.40-.42.
3. Ms Younan SC submitted that there is no contest (i.e. HAC accepts) that: 1. there were communications between PwC and HAC about the services and the proposed charges prior to the issuing of the invoices; and 2. the charges in the invoices issued by Toll were approved and paid by HAC: T 27.8-.11.

Issues

1. The debate on the motion between myself and counsel did not entirely follow conventional lines in which Ms Younan SC, on behalf of the applicant, would have made all her submissions first, with Mr Knowles SC, on behalf of TGF, responding and with Ms Younan SC having the opportunity to reply. Although, strictly speaking, HAC was the applicant on the notice of motion, I found that it was of assistance to understand from Mr Knowles SC the basis on which he contended that the documents were sought. That form of interaction with counsel elicited a number of issues bearing upon whether the amended notice to produce should be set aside or not.
2. The essential issues regarding whether the amended notice to produce should be set aside were as follows: 1. the apparent relevance of the documents to the r 5.3 criteria (relevance issue); 2. the form of the amended notice to produce (form issue); 3. whether compliance with the amended notice to produce was oppressive (oppression issue); and 4. whether the notice to produce undermines the function of preliminary discovery (undermining issue).

Aspects of the evidence

1. Because a degree of the debate regarding the relevance of the documents sought in the amended notice to produce focused upon paragraph 92 of Mr Araujo's affidavit, which addressed the "other matters" (referred to above), and the responses of Mr Vigar and Mr Azzopardi to that, it is convenient to set out that paragraph of Mr Araujo's affidavit. 92. While the absence of supporting documentation alone causes me concern, there are other matters which indicate to me that the Corporation may be entitled to make a claim for relief as regards the charges. For example: (a) TGF invoice TLAU00879291 includes "Truck Holding Charges" of $41,842.51 and states that "China customs held shipment additional fees due to cargo being held for 46 days". The same "Truck Holding Charges" were invoiced on TGF invoices TLAU00879305, TLAU00879353 and TLAU00879358. In my experience, truck waiting time is typically measured in minutes or hours, not days, and it would be extraordinary for trucks to be held for a period of 46 days. Aside from the statements made on the face of the invoices, no supporting documentation has been supplied to verify that trucks were held for 46 days as claimed, let alone that any additional charges were incurred. In the absence of any supporting documentation to corroborate the assertions on the face of the TGF invoices, it seems unlikely that trucks were held for 46 days. Thus, it appears to me that the TGF invoices and the Toll invoices through which they were charged to the Corporation may not be accurate. (b) TGF invoice TLAU00774478 includes an origin cartage charge of US$14,490 (which on that invoice converted to AU$23,744.67). The same USD charge appears on invoices TLAU00774492, TLAU00774507, TLAU00774521, TLAU00777405 and TLAU00779261. There is no information provided about the cartage, including the time and place of pick up or delivery, or the hours of cartage. Instead, the charge is described only as being USD 0.55/Kg x 27,200 kg. On their face, and based upon my experience, the charges are extraordinarily high for cartage in Vietnam. At say US$100 per hour, which I estimate as being on the high side for a shipment of 27,200 kg, the charges amount to more than 144 hours of cartage (being over 6 full days). In the absence of any supporting documentation, it seems unlikely that such cartage charges were in fact incurred. Thus, it appears to me that the TGF invoices and the Toll invoices through which they were charged to the Corporation may not be accurate. (c) TGF invoice TLAU00916006 includes a "container demurrage fee 20/8/2020 - 15/10/2020" of $7,553.56 and states that "invoice relates to 1 of the 10 containers held at origin due to customs inspection - cargo failed inspection and returned to sino protection". Similar container demurrage fees were charged on TLAU00915971, TLAU00915976, TLAU00915979, TLAU00915979, TLAU00916006 and TLAU00916014. Invoice TLAU00916006 on its face indicates that the container was 1 of 10 containers held for 56 days between 20 August 2020 and 15 October 2020. Aside from the statement made on the face of the invoice, no supporting documentation has been supplied to verify that the container was held for 56 days as claimed, or that any cargo was returned to the supplier, let alone that any additional charges were incurred. It is also surprising that there is no corresponding container storage charge. In the absence of any supporting documentation, it seems unlikely that the container was in fact held for 56 days. Thus, it appears to me that the TGF invoices and the Toll invoices through which they were charged to the Corporation may not be accurate. (d) TGF invoice TLA00774478 includes an international freight charge of $181,322.97. I am concerned that the chargeable weight on which the international freight charge is based is not correct. For instance, TLAU00774478 shows 1,500 packages with a chargeable weight of 27,200kg while TLAU00774507 and TLAU00774521 each show 1,600 packages of the same goods, but with the same chargeable weight of 27,200kg, If the chargeable weight on which the international freight charge is based is not correct, it appears to me that the TGF invoices and the Toll invoices through which they were charged to the Corporation may not be accurate. (e) In July and September 2021, TGF issued more than 500 invoices totalling the exact same amount of $12,500 (made up of identically charged components). See for example TGF invoices TLAU00809536, TLAU00809808, TLAU00815023, TLAU00818721, TLAU00827779, notwithstanding that these charges related to shipments on different dates and of different protective equipment, e.g. medical isolation gowns, surgical gowns, masks, face shields. The charges in those invoices do not seem to correlate with the relevant tariff sheet issued by TGF, save that the charges add up to an apparent cap for origin/freight/destination charges. For instance, invoice TLAU00809536 is dated 31 July 2020, and a tariff sheet of TGF marked version 16 and dated 20 July 2020 (annexed at pages 308 to 313 of Exhibit AA-1) includes the following statement "*BCN Shipments capped at AUD 12,500 - all in origin/freight/destination". Apart from that stated cap, I cannot ascertain by reference to the TGF tariff sheet how each of the charges appearing on invoice TLAU00809536 was calculated. The method of calculation is not apparent and has not been explained. Inexplicably, comparable charges became variable after 9 September 2020. See for example TLAU00829863 and TLAU00872412. As the charges levied do not appear to correspond to the tariff sheets issued by TGF for the relevant periods, and the charges are identical, it appears to me that the TGF invoices and the Toll invoices through which they were charged to the Corporation may not be accurate. (f) As regards (e), these charges were considered by the Corporation to exceed market rates. Annexed at pages 314 to 320 of Exhibit AA-1 is an email exchange between Peter Melville and Shaun Aisen of Toll between 3 August 2020 and 5 August 2020. To the best of my knowledge, the origin charges for ocean freight were reduced by TGF from $191.20 per cubic metre to $77.00 per cubic metre in September 2020, and then further reduced to $25.89 per cubic metre in October 2020.This also suggests to me that the charges in the over 500 invoices did not accurately reflect the cost to TGF of providing the services.

Mr Knowles SC's submissions

1. Mr Knowles SC made various submissions on the relevance issue.
2. First, he submitted that there is some ambiguity as to the nature of the claim of Mr Araujo that the charges are not appropriate. Specifically, whether that claim extends to whether the charges were incurred but somehow excessive, or whether they were not incurred and were in fact fictitious and fraudulent: T 16.43-.47, 19.28-.37.
3. Secondly, he submitted that: 1. communications as between HAC and PwC would be useful in informing whether or not the charges were in fact incurred, and shed light on whether the charges were incurred but excessive: T 16.47-.49, 17.37-.49; and 2. PwC in its capacity as an intermediary dealing with both HAC and Toll may have: 1. expressed views on whether or not the charges should or should not be paid (T 18.42-.46), and whether they were reasonable or unreasonable: T 19.24-.27; and 2. indicated to HAC that an explanation had been given for the charges which seemed reasonable: T 18.22-.38. If so, that information could bear upon whether or not HAC may be entitled to make a claim on a basis that the charges were inappropriate because they were unreasonable or excessive.
4. Mr Knowles SC noted that Mr Azzopardi has given some evidence that, for example in relation to the origin cartage charges and whether they are on their face extraordinarily high for cartage in Vietnam (as alleged by Mr Araujo: CB 28[92(b)]), that part of the context was that there was a relocation of supplier of goods from Wuhan, China to north-eastern Cambodia, and that arrangements were made for the goods to be collected in Cambodia and trucked to Vietnam, and from there shipped to Australia. The charges for trucking included all the costs associated in sending the trucks from Vietnam to Cambodia to collect the goods and deliver them to the airport and were included in the rate sheet (CB 88[28]-89[32]): T 18.22-.38.
5. Thirdly, Mr Knowles SC submitted that if one looks at the sample invoice (CB 35) and picks, for example, the airport terminal fee, it is insufficient for HAC to simply assert that it demands all documents justifying that fee because there is no basis put forward as to why that may give rise to a claim. He submitted that, in essence, it becomes a "fishing expedition". A fortiori, he submitted that it would be fishing if PwC had informed HAC that the fee seemed fair and reasonable. If that was the case, he submitted that that would be a basis for TGF to resist the substantive application for preliminary discovery on the basis that HAC had not met the threshold of whether it "may be entitled to make a claim": T 20.36-21.6.

Ms Younan SC's submissions

1. In summary, Ms Younan SC submitted as follows.
2. First, Ms Younan SC submitted that the amended notice to produce is pre-emptive in that it seeks to engage the merits of an action that may or may not be brought, specifically in relation to the first of the criteria as to whether the plaintiff "may be entitled to make a claim": T 15.40-16.2, 27.20-.21. She submitted that that is the very sort of "mini-trial" which the decisions in O'Connor and Pfizer (see above) suggest is inappropriate (T 24.44-25.13), and which, she submitted, Slattery J intimated in Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393 (Yes Family) was an abuse of process: T 25.15-.22.
3. Secondly, Ms Younan SC submitted that the "legal concern" (or claim) that Mr Araujo contemplates which HAC "may be entitled to make" for relief against TGF is negligent misstatement or misleading or deceptive conduct. She submitted that those claims involve a question of what was represented in the invoices that TGF provided to Toll and ultimately to HAC: T 24.38-.42. She submitted that it is not evident how any correspondence with PwC could possibly: 1. assist TGF in testing whether HAC has any basis for suggesting that the charges may not be appropriate and, in turn, whether HAC may be entitled to make a claim for relief against TGF (see TGFWS [19]): T 14.31-.37; 2. shed any light on the substantiation of the charges listed in the invoices (T 24.42-.43), or whether or not the charges were properly incurred or in fact incurred: T 25.29-.32; and 3. affect the matters required to be satisfied under r 5.3 of the UCPR as opposed to the substantive issues in the prospective proceeding: T 27.27-.30.
4. Further, Ms Younan SC submitted that, because there is no contest that HAC has approved the charges, the question is rather what underlies the charges: T 25.26-.36. She submitted that even if there is correspondence between PwC and HAC and even Toll, and in such correspondence Toll indicated or represented the basis of the charges, that would say nothing about what TGF is representing in its invoices: T 25.40-26.3.
5. Thirdly, Ms Younan SC submitted that it is unclear as to how Toll (in her hypothetical scenario that Toll indicated or represented the basis of the charges) would be able to "account for" (or perhaps explain) the disbursement-type charges when Toll itself has indicated that it does not have the supporting documentation (referencing Mr Vigar's evidence at CB 81[72]): T 26.3-.28.

Reply submissions

1. In reply, Mr Knowles SC disputed that the documents are being sought on the basis that they go to a defence on the substantive case of misleading or deceptive conduct, if it is ever brought: T 29.17-.27.
2. Mr Knowles SC submitted that TGF's amended to produce is "quite a different case" from the sort of case addressed by Slattery J in Yes Family: T 29.29-30.14. I did not understand Ms Younan SC to put such a submission.
3. It simply suffices for me to say there are occasionally cases in which the content of notices to produce are so broad that they are self-evidently a form of abuse of process. This includes where, for example, a notice to produce is issued in which the content of the notice to produce is in either form or substance identical to the document sought in the summons for preliminary discovery (or occasionally sometimes even more extensive than that sought in the summons): e.g. Yes Family at [4], [5], [13], [26]-[28], [30] per Slattery J. The amended notice to produce in these proceedings is not of that character.

Discussion

1. For the purposes of the hearing of the notice of motion, the parties did not elaborate on whether the potential claims that HAC may be entitled to make were limited to claims of negligent misstatement or misleading or deceptive conduct. Nor were particular submissions made regarding the necessary elements of such claims.
2. However, "apparent relevance" is assessed by reference to the facts in issue and, accordingly, it is of some moment to have an understanding of what might be facts in issue in respect of a claim in negligent misstatement or misleading or deceptive conduct.
3. Ordinarily a claim in negligent misstatement causing purely economic loss will involve reliance by the plaintiff on the statement given by the prospective defendant: Halsbury's Laws of Australia, 300 - Negligence at [300-10] (Halsbury's).
4. In order for a duty of care to exist, it must be reasonable in all the circumstances of the case for the plaintiff to rely on the information or advice given by the defendant: Halsbury's at [300-10], citing L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 at 231 per Gibbs CJ; [1981] HCA 59.
5. In claims of negligent misstatement, "[t]he nature of the subject matter, the occasion of the interchange, and the identity and relative position of the parties as regards knowledge actual or potential and relevant capacity to form or exercise judgment will all be included in the factors which will determine the reasonableness of the acceptance of, and of the reliance by the recipient upon, the words of the speaker": see Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [47] per Gleeson CJ, Gummow and Hayne JJ, quoting Barwick CJ in Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 571; [1968] HCA 74.
6. In an actionable claim for damages under s 236 of the Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law (ACL) for misleading or deceptive conduct contrary to s 18 of the ACL (or the relevant State equivalent), broadly speaking it is necessary to show a link between the loss and damage and the alleged contravention: see e.g. Jeannie Marie Paterson, Corones' Australian Consumer Law (5th ed, 2023, Thomson Reuters) (Corones) at 543-545. Causation is often established by showing reliance: Corones at 545. However, caselaw distinguishes between cases where the plaintiff passively suffers a loss from another's act, where proof of reliance is not required, and cases where the plaintiff is not passive but makes a positive decision to enter into a transaction based on a misrepresentation said to be material, which require proof of reliance: Corones at 545.

Form issue

1. Ms Younan SC submitted that the terminology in the chapeau to the one remaining paragraph of the amended notice to produce, in so far as it calls for communications with PwC in relation to charges in the invoices, lacked specificity in that r 34.1 (it was submitted) requires production of a specific document or thing: T 27.50-28.2.
2. Ms Younan SC submitted that the indication of Mr Knowles SC that what is sought is communications between HAC and PwC is not specified in the notice to produce or amended notice to produce: T 28.2-.8.
3. I reject the argument. I consider it is self-evident that what is sought is communications between HAC and PwC. I note that a similar form of argument was rejected by the High Court in Lane at 259-260 (as indicated above, when read with the subpoena schedule appearing at 251-252).
4. As noted earlier in these reasons, it is permissible to request all documents recording communications between A and B within a stated period referring to identifiable forms of documents such as, in this case, tasking statements, specific proposals or specific reports. It seems to me that the form of the amended notice to produce is close in form to a permissible request. However, it would be aided by specifying a time period (as to which I refer in the orders below).

Oppression issue

1. Ms Younan SC acknowledged that the efforts that would be required to respond to the amended notice to produce were made somewhat less onerous by its refining of the scope of the documents sought by the original notice to produce: T 28.29-.30.
2. Nonetheless, by reference to the second affidavit of Ms Hibbard, Ms Younan SC submitted (T 28.30-.38) that the search as envisaged by the amended notice to produce would still be very difficult for HAC to carry out as, in the words of Ms Hibbard (CB 61[8(d)]): i. the invoices were issued as one of the last steps in a purchasing process (see paragraphs 48 to 55 of Araujo), and a keyword search for documents generated before the invoices were issued, using invoice numbers, would not be possible; ii. the searches would require HAC to trace charges in the referenced invoices of TGF back to unidentified invoices issued by Toll Transport Pty Ltd, and unidentified tasking statements, quotations, proposals and reports; iii. the searches would require an unknown number of personnel hours to carry out, as it would likely be necessary to identify on a communication by communication basis, documents that fall within the scope.
3. Specifically, Ms Younan SC submitted that the amended notice to produce suffers from the false assumption that the charges that appear in TGF's invoices are somehow nominally or otherwise referenced in the tasking statements, quotations or pricing proposals. She submitted that there is no breakdown by reference to the various charges which ultimately appeared in the TGF invoices, and that this makes identification of documents in relation to those charges an onerous investigative exercise, if at all possible: T 28.46-29.4, 31.48-32.14.
4. TGF submits that the material sought identifies (about) six queries, relating only to about 20 invoices: TGFWS [20].
5. In relation to the evidence of Ms Hibbard addressing the difficulty for HAC to carry out searches envisaged by the amended notice to produce, Mr Knowles SC essentially submitted that the notion (as suggested by Ms Hibbard) that tracing "unidentified" tasking statements, quotations, proposals and reports by reference to invoices that are subsequently issued is not as onerous as Ms Hibbard suggests: T 30.14-.29.
6. In this regard, Mr Knowles SC referred to the sample invoice (which I had raised as an example for the purposes of the submissions on the notice of motion) and indicated that the invoice makes reference to "order numbers / owner's reference" and on the particular sample invoice contains the letters "PO" (followed by a specific number). He submits, and I accept, that it is highly likely that the letters "PO" is an abbreviation for a purchase order. He submits, and I accept, that this suggests the so-called difficulty of locating tasking statements, quotations, proposals and reports brought into existence prior to the issue of a final invoice, requiring the legal representatives and recipient of the amended notice to produce to "reverse engineer" what documents might be encompassed within the request, is not necessarily overly difficult: T 30.37-.44, 30.50-31.9.

Undermining issue

1. Ms Younan SC on the one hand accepted that the Court's ordinary processes, including the issue of a notice to produce, are available in an application for preliminary discovery: T 14.40-.42. However, she submitted that the (amended) notice to produce undermines the ostensible function of r 5.3 of the UCPR, which (she submitted) is to permit an applicant to obtain documents in order to decide whether or not to bring an action, and that the rule provides the applicant with an opportunity to assess at a preliminary stage whether or not the documentation sought justifies the commencement of proceedings. By affording this opportunity, Ms Younan SC submitted the rule preserves the resources of the parties and of the Court by not requiring them to engage in costly and time-consuming procedures that are best utilised once an action is brought: T 27.34-.41.
2. Clearly it cannot be the case, as a general proposition, that any notice to produce may not be issued in preliminary discovery proceedings because it undermines the function of r 5.3 of the UCPR.
3. The substance of Ms Younan SC's submission is that, in this particular case, the effect of the amended notice to produce is to undermine the summary nature of preliminary discovery proceedings. Conceptually there may be cases where a notice to produce might have that effect. However, in the circumstances of this case, I do not find that the amended form of the notice to produce (if modified to specify a time period) will give rise to such costly and time-consuming procedures as to be a basis (discretionary or otherwise) to set aside the amended notice to produce.

Costs

1. In relation to costs of the notice of motion, Mr Knowles SC did not wish to be heard in respect of my suggestion that the costs of and incidental to addressing the original notice to produce, up to the time of service of the amended notice to produce on 6 March 2024, ought to be paid by TGF: T 31.11-.15. I consider that is a proper order, with the costs to be assessed on the ordinary basis (which basis of assessment Ms Younan SC accepted: T 32.26-.35).
2. In relation to the costs of addressing the amended notice to produce, I have essentially found that, subject to the precise form of the request in respect of a time period, there is sufficient apparent relevance or capability of the documents requested casting light on the matters in issue to conclude that the notice to produce (modified to specify appropriate start and end dates) is not an abuse of process, and to decline to set aside the amended notice to produce.
3. In the circumstances, I consider that costs of and incidental to addressing the amended notice to produce, from the time of its service on 6 March 2024, should simply be costs in the cause.

Conclusion

1. The orders of the Court are as follows: 1. Direct the parties and their legal representatives to now confer with a view to, within 14 days of the date of these orders, specifying appropriate start and end dates in respect of the request for production of documents or things in paragraph 1 of the amended notice to produce dated 6 March 2024. 2. In the event that an agreed specification is not able to be reached within 14 days of the date of these orders, grant liberty to the parties to restore the matter for mention before me on three days' notice to the Associate to Meek J. 3. Order that the notice of motion filed by the plaintiff on 15 February 2024 be otherwise dismissed. 4. Order that the defendant pay the plaintiff's costs of and incidental to the notice of motion in respect of addressing the original form of notice to produce dated 5 February 2024 up to the time of service of the form of amended notice to produce on or about 6 March 2024. 5. Order that the costs of the parties in addressing the amended notice to produce for the period after service of that notice on or about 6 March 2024, of and incidental to the notice of motion, be the parties' costs in the cause.
2. I should make it clear that, in relation to order (1), I am not inviting the parties to further dispute over the nomination of a time period and I expect the parties (assisted by their capable legal representatives) to comply with the direction in a manner consistent with facilitating the just, quick and cheap resolution of that discrete matter.

Endnote

1. Readers should be made aware that the strikethrough in the extract can only be seen when viewing this judgment on the NSW Caselaw website. The strikethrough pertains to the following parts of the extract: the words "respect of the Contract, concerning" in the chapeau to paragraph 1; and paragraphs 1(d), 2 and 3. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2024