Leave to Applicant to file and serve proposed Further Amended Points of Claim including proposed joinder of Stellios and Margaret Constantopoulos is refused.

Applicant's subpoenas addressed to Respondent and Joined Party set aside.

Application by Respondent and Joined Party for summary dismissal pursuant to s.78 of the Victorian Civil and Administrative Tribunal Act 1998 is refused.

Question of ancillary orders, including costs, reserved.

Liberty to apply reserved.

Mr Aizen of counsel, instructed by Paul Egan & Associates.

1 This matter, which has a long and tortuous history, was again before me on 7th April last. It had previously been before me on 8th March. On that occasion, it was adjourned to 7th April so that the subpoena to produce documents served on Maryvell Investments Pty Ltd ("Maryvell") could again be called on. This would mark at least the fourth occasion upon which such subpoena had been called on, and I would refer to the detailed history of events set out in my Reasons for Decision of 26th April 2006 concerning the orders made on 8th April 2006.

2 On this occasion, Mr Scriva of counsel appeared on behalf of Maryvell. He was instructed by Hallett West, Solicitors. By my reckoning, Hallett West represent either the seventh or eighth firm of solicitors engaged by Maryvell since this litigation commenced. Mr Aizen of counsel, instructed by Paul Egan & Associates, again appeared on behalf of Sigma Constructions ("Sigma"), and the joined respondent Daniel Charisiou ("Charisiou").

3 Yet again, Maryvell was not in a position to answer the subpoena. Furthermore, it had issued two subpoenas of its own, these being addressed to Sigma and to Charisiou. These sought the production of various documents of a commercial or financial nature, the subpoena to Sigma also seeking that it should "produce evidence and particulars in regards to under what capacity Daniel Charisiou (the guarantor) has signed the agreement of 18th July 2002 sworn on behalf of Sigma Constructions (Vic) Pty Ltd re the rear land of Maryvell Investments Pty Ltd dated 18th July 2002". In addition, Maryvell sought leave to file and serve Further Amended Points of Claim these, inter alia, purporting to join as parties Stellios Constantopoulos and Margaret Constantopoulos, whom I shall refer to as "the directors", they allegedly being directors of Sigma at the relevant time. I had previously ruled on 3rd February 2006 that these persons could not be joined as parties on the basis of the proposed Amended Points of Claim then put before me. That proposed joinder was essentially refused because it was misconceived and doomed to failure, the directors having a complete defence pursuant to s.126 of the Instruments Act 1958. Of course, that ruling does not prevent Maryvell from again attempting to join these persons on the basis of different material and different proposed Points of Claim. Mr Aizen quite properly conceded that this was so. However, obviously any attempt to again join them on the basis of a guarantee, however described or disguised, would meet the same fate as the previous attempt at joinder.

4 Thus, as described by Mr Aizen, there are three principal questions to be determined. I am leaving to one side the fourth question raised by him, which concerns costs. Those three questions relate to the following:-

(1) The proposed Further Amended Points of Claim, and whether leave should be granted for the filing and service of this document. It involves the proposed joinder of the directors.

(2) Maryvell's subpoenas, and whether these should be set aside on the basis of their vagueness, width, and the irrelevance to the proceedings of the documents sought.

(3) Maryvell's non-compliance with Sigma's subpoena and whether the action should be summarily dismissed because of such allegedly wilful non-compliance.

Whilst I appreciate Mr Aizen's argument that the validity of Maryvell's subpoenas should be assessed on the basis of the existing Amended Points of Claim as opposed to the proposed Further Amended Points of Claim, it seems to me that issues (1) and (2) are related. It also seems to me to be preferable to deal with Sigma's application to set aside Maryvell's subpoenas after the question of leave to file the proposed Further Amended Points of Claim has been determined. It would not be particularly productive, for example, to set aside the subpoenas on the ground that the documents sought are irrelevant, then to grant leave to file and serve the Further Amended Points of Claim, and then be asked to reconsider the subpoenas in the light of the amendments. Whilst arguably there is technical merit in Mr Aizen's submission, this Tribunal is not a court of pleadings and it seems to me that a more practical and timely way of dealing with (1) and (2) would be to firstly determine (1). Whether Maryvell's subpoenas should be set aside can then be decided against the background of the Points of Claim upon which reliance is placed and which are ultimately before the Tribunal. Accordingly, I shall deal with (1) before dealing with (2). I shall then deal with (3).

(1) The Proposed Further Amended Points of Claim and Joinder

5 In relation to this issue, two matters should be stated at the outset.

6 Firstly, the Further Amended Points of Claim are not in a particularly satisfactory form. The numbering is at times difficult to follow, particularly when the document is compared with the Amended Points of Claim. There have been further alterations which are not shown as amendments - see, for example, the Particulars appended to paragraph 11(c) when compared with the Particulars in the previous and corresponding paragraph 14(c). Whilst this may not be a court of pleadings, to present a document in this form is not helpful. Further, some of the assertions in the Further Amended Points of Claim still smack strongly of reliance upon a guarantee - see, for example, paragraph 9A(a). Given the absence of any written guarantee, I have already refused joinder on this basis.

7 Mr Scriva effectively admitted that the Further Amended Points of Claim were far from perfect, and was given the opportunity of obtaining instructions as to whether Maryvell wished to redraft the document or whether what was before me represented, for the purposes of this ruling, the final form of the document upon which its leave application was based. The instructions obtained by Mr Scriva were that there would be no redrafting and I was to treat the document as being in its final form. Accordingly, I shall do so.

8 The second matter to be raised at the outset is that Mr Aizen made a statement, which I treat as an undertaking on behalf of Sigma, that, in the event of Maryvell succeeding against his client and obtaining a judgment for damages, and such judgment being unsatisfied, no point would be taken concerning any Anshun estoppel if Maryvell then commenced proceedings against the directors. Mr Aizen referred to a similar practice being adopted by Senior Member Vassie in the case of Linton v Creighton-Brown & Co Pty Ltd [2005] VCAT 813.

9 Particularly in the light of that undertaking, it seems to me that the joinder of the directors is not justified. I might say that I am far from convinced that such joinder should take place in any event. I am mindful of the provisions of s.60 of the Victorian Civil and Administrative Tribunal Act 1998, and the breadth of the discretion contained therein. However, that discretion must be exercised judicially. In so exercising it against Maryvell, I am bearing in mind the following factors:-

(a) As previously stated, at least part of the Further Amended Points of Claim, however expressed, are based upon the existence of a guarantee not reduced to writing. The same defence pursuant to s.126 of the Instruments Act 1958 is available as was previously successful - see my reasons of 26th April last.

(b) In relation to those paragraphs of the document which express reliance upon the Fair Trading Act 1999, the alleged breaches relate not to liability or loss and damage but to execution. What Maryvell is in fact alleging is this. The directors told Maryvell that Sigma was a company of substance and would be able to make good any loss or damage suffered by Maryvell. Relying upon this, Maryvell entered into the licence agreement. Sigma is not a company of substance. Therefore, if Maryvell succeeds against Sigma, a judgment in its favour may not be able to be satisfied. This seems to me to strongly resemble "putting the cart before the horse", to adopt the terminology of Mr Aizen. Firstly, Maryvell must succeed against Sigma on the question of liability. Secondly, it must establish that it has suffered loss and damage. Then, and only then, when the case is over and there is a judgment against Sigma, could its financial status become relevant. Even at that stage, it is then to be determined whether or not Sigma can satisfy any judgment debt. If it can, there is no necessity to take any proceedings against its directors regardless of what they may or may not have said.

In summary, I struggle to see that the financial position of Sigma or representations made concerning it by its directors are of sufficient relevance to a claim based either in tort or in contract by Maryvell against Sigma to justify the exercise of any discretion in favour of Maryvell by joining those directors as parties.

(c) The proposed Further Amended Points of Claim, insofar as they relate to joinder also are at least in part vaguely expressed, if not confusing. Paragraph 9A(b) reads as follows:-

"Prior to entering into the licence agreement, the third and fourth Respondents represented to the Applicant that -

(b) Sigma was a substantial company which owned assets and, in particular, real property, and would, in any event, be able to stand behind the licence agreement and make good any loss or damage suffered by the Applicant."

Whilst, as stated several times, this is not a court of pleadings, nevertheless this proceeding is moderately complex, involving, potentially, a large amount of money. The phrase "be able to stand behind the licence agreement" is scarcely a precise description of the alleged representation. Certainly, if it is meant to be a legal assertion advanced on behalf of Maryvell by the solicitors who have lent their name to the document, it is comparatively meaningless.

Furthermore, the allegations in paragraph 9C(a) can only be seen as referring back to paragraph 9A(a) - that is, to a guarantee. Paragraph 9C(b) asserts that Sigma is not a substantial company which owned assets and again uses the vague phrase "was unable to stand behind the licence agreement or make good loss and damage". In addition, this sub-paragraph is expressed in the past tense as if demand pursuant to a judgment has already been made and that the judgment has not been satisfied. Paragraph 9D refers to "representations", in the plural, and therefore, presumably, this also embraces reliance upon a guarantee, whilst purportedly relying only upon s.9 of the Fair Trading Act. Paragraph 9E, whilst referring to reliance upon s.4(1) of the Fair Trading Act, specifically refers back to paragraph 9A(a), the sub-paragraph which places ostensible reliance upon the existence of a guarantee.

(d) Mr Scriva has argued that it would be more convenient, and perhaps fairer, to join the directors as parties now, rather than later. He has asked me to draw the inference that Sigma is in fact insolvent, or close to it, and urged that I order joinder of the directors on the basis of a probability that a judgment could not be satisfied. I do not agree with these propositions. As I have previously stated, the proposed joinder of the directors relates to the execution of any judgment, rather than to questions of liability or loss and damage. It would scarcely be convenient or fair to order that the directors be joined only to find subsequently that no judgment was entered against Sigma, or that it could satisfy any judgment entered against it. This is not a situation where, as I understand it, there is any allegation that the licence agreement, or any other contract, was entered into between Maryvell and the directors personally, or that the directors personally caused any loss or damage of a tortious nature. Indeed, any reliance by Maryvell upon a contract with the directors has been specifically and clearly denied by it. Furthermore, even if the allegation of Mr Velissaris in his affidavit of 5th April 2006 is correct, and Sigma is "only a $2 Company and with a charge on it by Westpac Bank", that does not necessarily mean that it is insolvent or will be unable to satisfy any judgment. As I understand it, Sigma is a company which engages in building operations. The affidavit of Stellios Constantopoulos of 25th November 2005 indicates that Sigma has entered into a building contract for the construction of some 36 apartments and the renovation of retail premises in Sydney Road, Brunswick. I make no comment as to whether this project is successful or otherwise, or as to any revenue which Sigma might derive from it. However, I am not prepared to assume that Sigma is insolvent or close to it, or that it will be unable to satisfy any judgment should one be entered against it. In short, I am not persuaded by submissions that there should be joinder on the grounds of convenience or fairness.

(e) There is, of course, the statement made by Mr Aizen which I understand to be an undertaking. In Linton, Senior Member Vassie dismissed the proceeding, but specifically stipulated that the dismissal was without prejudice to the Applicant's right to commence a fresh proceeding, if she saw fit, for compensation for any loss which she had suffered because of allegedly misleading conduct by the Respondent in not informing a liquidator of a share transfer. An order of a similar kind, whilst in a different factual and statutory context, was made by Hansen J in Aircon Heating and Air Conditioning Pty Ltd (in liquidation) v Crane Distribution Ltd and the Registrar of Titles [2006] VSC 76. In paragraph 54 of the judgment in that matter, after referring to an undertaking given on behalf of the plaintiff, His Honour stated as follows:-

"The undertaking is that Aircon will not hereafter plead or otherwise assert that this proceeding gave rise to an issue estoppel that Crane had no caveatable interest or no equitable interest in the property the subject of the proceeding. That undertaking ... will protect Crane from any unfair assertion to the effect that the proceeding gave rise to an issue estoppel."

His Honour went on to order the removal of the caveat, at least in part making such order on the basis of the undertaking.

As stated, in the present case Mr Aizen simply stated (and in fact stated twice) as part of his submission that, should joinder not be allowed, Sigma would not raise a defence of Anshun estoppel if the circumstances previously described in paragraph 8 should arise. Mr Aizen is a very experienced counsel. Mr Constantopoulos was present when this statement was made. Whilst no written undertaking has been executed or placed before me, I am proceeding as if the statement were an undertaking. It was made in a clear and unambiguous fashion.

10 For the above reasons I am not prepared to grant leave to Maryvell to file and serve the proposed Further Amended Points of Claim that have been submitted. They are substantially concerned with the joinder of the directors. I am not prepared to order such joinder.

(2) Maryvell's Subpoenas Addressed to Sigma and to Charisiou

11 Mr Aizen has argued that these subpoenas should be set aside on a number of bases. These include their vagueness, width, oppressive nature, and irrelevance.

12 Particularly given that I am not prepared to grant leave in relation to the proposed Further Amended Points of Claim and I am not prepared to order joinder, the subpoena addressed to Sigma seems to me to be largely irrelevant. That is apart from its oppressive nature. I have no hesitation in saying that it should be set aside.

13 It is to be remembered that Sigma has no claim against Maryvell. It claims no trading losses, loss of goodwill or the like. Why should it then produce "all tax returns, bank accounts, all banking records, cheque books, bank statements, wages records, any bankcard records, annual returns, balance sheets, and profit and loss statements from the financial year of 1999 to the year June 2005"? Apart from the fact that, in accordance with its own claim, Maryvell did not enter into any agreement with Sigma until July, 2002, in the absence of any claim by Sigma the only possible purpose which I can envisage for the production of such documents would relate to satisfaction of any judgment debt or, possibly, security for costs. Of course, the situation is different in relation to Sigma's subpoena addressed to Maryvell. Maryvell is claiming damages for loss of trading profits, loss of goodwill and the like. Records of its financial performance both prior to, and after, entering into the licence agreement have the potential to be relevant.

14 In my opinion, on the basis of the Points of Claim as they currently stand, the financial position of Sigma is irrelevant. Furthermore, I am also of the view that such a subpoena should be set aside if it is no more than part of a fishing expedition preceding an application for security for costs. In any event, no such application has been made or foreshadowed.

15 That the real and irrelevant purpose of the subpoena addressed to Sigma is to ascertain its financial position is underlined by the fact that it also seeks the production of all documents which might prove what real estate assets are owned by Sigma and as to who are the beneficiaries of its assets. Such documents have no relevance to the claim as it now stands.

16 Further, in my opinion those parts of the subpoena addressed to Sigma and as described above are oppressive. They are of very considerable breadth, and extend over a period of several years over and above that which is relevant to the claim as it stands.

17 As previously stated, paragraph 2 of the subpoena requires production of "evidence and particulars in regards to under what capacity Daniel Charisiou (the guarantor) has signed the agreement of 18th July 2002". A person receiving such a subpoena would almost certainly be unsure as to what was required. The production of evidence and particulars as so described is not the proper subject matter of a subpoena of this type.

18 In summary, the subpoena addressed to Sigma is set aside.

19 The subpoena addressed to Daniel Charisiou should also be set aside. If anything, it reaches a greater height of invalidity. Apart from seeking "all banking records, cheque books, bank statements, any bankcard records, from the year 1999 until July 2005," it also seeks all taxation returns "filed and done in your full name ... and in your capacity as a builder and architect", again for a six year period, together with GST returns and "bus. statements".

20 The second paragraph of this subpoena also seeks the following:-

All Certificates of Title of all properties that you have owned in the last 10 years, and what real estate property you own at present, and a copy of the Certificate of Title of all or any properties you have owned, and you own now too, and any other assets you own including cars and furniture owned by you at present time".

21 For all of the reasons set out above in relation to the subpoena addressed to Sigma, this subpoena is also set aside. It is vague. It is oppressive. The documents sought are irrelevant to the claim and relate either to the financial capacity of Charisiou to satisfy any judgment, or are part of a fishing expedition relating to an unannounced application for security for costs.

22 The subpoena addressed to Daniel Charisiou is also set aside.

(3) The Summary Dismissal of Maryvell's Claim because of its Allegedly Wilful Non-Compliance with Sigma's Subpoena

23 On behalf of Sigma, Mr Aizen sought a summary dismissal of Maryvell's claim. Presumably the foundation for such is to be found in s.78 of the Act. I do not understand the application to be brought pursuant to s.75.

24 As stated in my Reasons for Decision of 26th April 2006, the patience of the Tribunal is wearing thin. However, as I also indicated, the shutting out of a litigant, except as a last resort, is something which I am reluctant to do. That last resort is rapidly being approached. The subpoena directed to Maryvell was first called on in November, 2005. Maryvell has since been called on to answer the subpoena on several occasions, but still has not done so. There have been a variety of excuses proffered. Certainly Mr Aizen's application, which presumably is made pursuant to s.78(1)(a), is not without merit.

25 It is also to be remembered that Maryvell is claiming substantial damages against Sigma. It is claiming for such things as loss of profit and goodwill. The type of documents which are referred to in Sigma's subpoena have the potential to be highly relevant. Whilst it may be said that, if Maryvell fails to produce adequate documentation at the hearing, it runs the risk of failing to make out its case, nevertheless Sigma is entitled to seek to obtain information about the case which it has to meet. The documents of which it is seeking production clearly have the potential to be relevant in this regard.

26 However, I am prepared to give to Maryvell a further opportunity to answer the subpoena in a satisfactory fashion. Maryvell should either have the documents available for production at the Tribunal so that they can be inspected, or argument can be heard in relation to them, or, if there are missing documents, it should provide on affidavit an adequate explanation of the absence of such documents, together with any material supporting its explanation for such absence.

27 At this stage I am not prepared to summarily dismiss Maryvell's claim. However, the ongoing non-compliance with the subpoena, and the delay which this causes, cannot be tolerated for much longer. In an endeavour to attempt to save some costs, which have doubtless been spiralling out of control, my Associate will contact the parties concerning a suitable date for Sigma's subpoena directed to Maryvell to be called on yet again. My present view is that a date something in the order of 4 weeks hence would be appropriate. That should give Maryvell ample opportunity to assemble what documents it can, and to provide an adequate explanation on affidavit, with supporting material, in relation to documents which are missing. This would also mean that it would be then some six months since the subpoena was first called on.

28 If the parties cannot agree upon a date for the subpoena to be called on yet again, I will have no alternative but to fix another directions hearing and, having heard from them, impose a date.

29 I shall reserve the question of any ancillary orders, including costs that are required, and I shall reserve liberty to apply.