Penrith Rugby League Club Ltd v Brown

Judgment (ex tempore) 1HIS HONOUR: By originating process filed on 4 November 2011, the plaintiff Jian Sheng Chen claims an order pursuant to (Cth) Corporations Act 2001, s 237, granting leave to commence proceedings in the name of the third defendant Wan Jia (Australia) International Development Pty Limited against the first defendant Jian Ying Chen (a brother of the plaintiff) and the second defendant Runa Chen (an employee of the company and daughter of the first defendant). The present application, brought by interlocutory process amended by leave granted at the outset of the hearing today, is essentially to set aside various notices to produce and subpoenas issued by or at the request of the defendants.

Background 2On 7 March 2012, the defendants served on the plaintiff's solicitor a Notice to Produce for Inspection under (NSW) Uniform Civil Procedure Rules 2005 (UCPR), r 21.10, which required production by 23 March 2012 of the following: 1The MYOB file for the period 1 July 2009 to date in respect of the business conducted by Wan Jia (Australia) International Development Pty Ltd. 2All invoices generated by by Wan Jia (Australia) International Development Pty Ltd on and from 6 May 2011. 3All order confirmation documents and sketches relating to orders made by customers of Wan Jia (Australia) International Development Pty Ltd on and from 6 May 2011. 4All packing slip documents relating to orders made by customers of Wan Jia (Australia) International Development Pty Ltd on and from 6 May 2011. 5All delivery slip documents relating to orders made by customers of Wan Jia (Australia) International Development Pty Ltd on and from 6 May 2011. 6All documents relating to: a.Your prior application (or applications) for a subclass 163 State/Territory Sponsored Business Owners Visa, including: (i)your preceding application for sponsorship from the Northern Territory Government (Department of Business and Employment or its relevant predecessor) together with all documents, notes and other writings in support of that application; and (ii)your actual application (or applications) for the said Subclass 163 Visa together with all documents, notes and other writings in support of that application. b.Your prior application (or applications) for a Subclass 892 State/Territory Sponsored Business Owner Visa, including: (i)your preceding application for sponsorship from New South Wales Government (Department of Trade and Investment or its relevant predecessor) together with all documents, notes and other writings in support of that application; and/or (ii)Your preceding application (or applications) for sponsorship from any other State or Territory government together with all documents, notes and other writings in support of that application; and (iii)your actual application (or applications) for the said Subclass 892 Visa together with all documents, notes and other writings in support of that application. 3On 19 March 2012, the defendants caused to be issued six subpoenas for production returnable on 27 March 2012, addressed respectively to Brett Slater trading as Brett Slater Solicitors; Brett Slater Migration Services Pty Ltd; Johninfo Lawyers Pty Ltd; Johninfo Group Pty Ltd; Director-General of the Department of Trade & Investment, Regional Infrastructure and Services; and, the Minister for Immigration and Citizenship. 4The subpoenas are not identical, but are substantially similar, and will be sufficiently represented for the purposes of the present application by that addressed to Brett Slater Migration Services Pty Ltd, the schedule to which is as follows: 1.All documents relating to any application (or applications) made to: (a)the Department of Business and Employment of the Northern Territory (or its predecessor); (b)the Department of Trade and Investment of New South Wales (or its predecessor); and/or (c)the Department of any other State or Territory, for and on behalf of Jian Sheng Chen for State/Territory Sponsorship for a Subclass 163 State/Territory Sponsored Business Owner (Provisional) Visa, including but not limited to any: (d)application forms; (e)supporting documents; and/or (f)submissions in support of any such application. 2.All documents relating to any application (or applications) made to: (a)the Department of Business and Employment of the Northern Territory (or its predecessor); (b)the Department of Trade and Investment of New South Wales (or its predecessor); and/or (c)the Department of any other State or Territory, for and on behalf of Jian Sheng Chen for State/Territory Sponsorship for a Subclass 892 State/Territory Sponsored Business Owner Visa, including but not limited to any: (d)application forms; (e)supporting documents; and/or (f)submissions in support of any such application. 3.All documents relating to any application (or applications) made to the Department of Immigration and Citizenship (or its predecessor) for a Subclass 163 State/Territory Sponsored Business Owner (Provisional) Visa for and on behalf of Jian Sheng Chen, including but not limited to any: (a)application forms; (b)supporting documents; and/or (c)submissions in support of any such application. 4.All documents relating to any application (or applications) made to the Department of Immigration and Citizenship (or its predecessor) for a Subclass 892 State/Territory Sponsored Business Owner Visa for and on behalf of Jian Sheng Chen, including but not limited to: (a)application forms; (b)supporting documents; and/or (c)submissions in support of any such application. 5.All correspondence passing between any representative of Brett Slater Migration Services Pty Ltd and/or Jian Sheng Chen and: (a)Department of Business and Employment of the Northern Territory (or its predecessor); (b)the Department of Trade and Investment of New South Wales (or its predecessor); (c)the Department of any other State or Territory; or (d)the Department of Immigration and Citizenship (or its predecessors), relating to any application (or applications) for and on behalf of Jian Sheng Chen for a Subclass 163 State/Territory Sponsored Business Owner (Provisional) Visa and/or a Subclass 892 State/Territory Sponsored Business Owner Visa. 6.All correspondence, notes, advices and memoranda relating to: (a) Brett Slater Migration Services Pty Ltd's engagement as a migration agent for Jian Sheng Chen; and/or (b)any application (or applications) for and on behalf of Jian Sheng Chen for a Subclass 163 State/Territory Sponsored Business Owner (Provisional) Visa and/or a Subclass 892 State/Territory Sponsored Business Owner Visa. 5By letter dated 20 March 2012, the defendants' solicitors informed the plaintiff's solicitor, enclosing copies by way of service, of each of the subpoenas issued, and observed that they were returnable on 27 March 2012. As required by the rules, each of the subpoenas contained a proposed access order, the consequence being that in the absence of opposition that order would be made. 6On 23 March 2012, the date for compliance by the plaintiff with the Notice to Produce for Inspection passed without any objection having been taken to it. 7On 27 March 2012, the subpoenas were returnable before the Court. There was no appearance on behalf of the plaintiff. Brett Slater produced documents to the Court, and an order for access was made. The other subpoenas were adjourned to 17 April 2012. On 28 March 2012, the defendants' solicitors sent to the plaintiff's solicitors a letter noting that they had appeared before the Registrar at the return of subpoenas the previous day, and that there was no appearance on behalf of the plaintiff, advising that general access orders were made in relation to materials produced under the subpoena issued to Brett Slater Solicitors, and noting that the subpoenas issued to New South Wales Trade and Investment and the Department of Immigration and Citizenship had been stood over until 17 April 2012. 8On 29 March 2012, the plaintiff's solicitor wrote to the defendants' solicitors taking objection to the Notice to Produce for Inspection on the ground that it did not comply with UCPR r 21.10(1)(b), that the documents sought were not relevant and that the Notice amounted to a fishing expedition. 9On 13 April 2012, the plaintiff's solicitors wrote to the defendants' solicitors pressing for the defendants to file any further affidavits on which they proposed to rely. 10On 17 April 2012, the date to which the subpoenas had been adjourned, there was no appearance on behalf of the plaintiff. General access was granted to documents produced by Johninfo Group Pty Ltd and by the Minister for Immigration and Citizenship. Subpoenas to the Minister for Immigration and Citizenship and to the Director General of the Department of Trade and Industry were stood over to 1 May 2012. On this occasion, the defendants' solicitors did not give notice of the adjournment to 1 May 2012 to the plaintiff's solicitors. 11On 18 April 2012, the defendants' solicitors responded to the plaintiff's solicitors' letter of 13 April 2012, confirming that a further affidavit was to be filed, but asserting that they were not in a position to do so until documents called for by the notices to produce and subpoenas had been produced. Contemporaneously, the defendants served a further Notice to Produce, dated 18 April 2012, seeking, relevantly: 1All documents relating to your prior application (or applications) for a Subclass 845 Established Business in Australia Visa, including: a.Your actual application (or applications) for the said Subclass 845 Established Business in Australia Visa together with all documents, notes and other writings in support of that application; and b.All correspondence and/or other documents relating to your prior application (or applications) for a Subclass 845 Established Business in Australia Visa: (i)sent by you (or any solicitor or migration agent acting on your behalf) to the Department of Immigration and Citizenship or any other Department of the government of the Commonwealth of Australia; (ii) received by you (or any solicitor or migration agent acting on your behalf) from the Department of Immigration and Citizenship or any other Department of the government of the Commonwealth of Australia; (iii)sent by you to any solicitor or migration agent acting on your behalf; or (iv)received by you from any solicitor or migration agent acting on your behalf. 12The matter was before the Court for directions on 23 April 2012, when the Court made directions that the plaintiff, by 27 April 2012, either file and serve a notice of motion and supporting affidavits seeking to set aside paragraphs 1 to 5 inclusive of the defendants' Notice to Produce dated 7 March 2012 (paragraph 6 apparently no longer being pressed) - any such motion to be returnable on 30 April 2012 in the Corporation Judge's list - or otherwise produce the documents called for in those paragraphs of the Notice to Produce. Also on 23 April 2012, the defendants exercised access to the documents that had been produced by the Minister pursuant to the leave that had been granted on 17 April 2012. 13By letter of 24 April 2012, the plaintiff's solicitors first asserted that the subpoenas were an abuse of process and not for a legitimate forensic purpose. That day, they filed the interlocutory process claiming, relevantly, orders setting aside the notices to produce and the subpoenas. 14On 26 April 2012, the defendants exercised access to the documents produced by Brett Slater and by Johninfo pursuant to the leave that had been granted respectively on 27 March 2012 and on 17 April 2012. 15The Motion came before Hammerschlag J, sitting as Corporations Judge, on 30 April 2012. In the course of the proceedings that day, the defendants' counsel informed the Court that instructing solicitors had inspected the documents, and in response to a question from his Honour, to the effect "So you say the horse has bolted?", responded "Yes, the horse has bolted." 16On the defendants' application, the Motion was adjourned to today for hearing of claims 1 (which sought an early hearing of the originating process), and claims 4 to 7 (which concerned the notices to produce and subpoenas). Directions were made for the service of affidavits, and the originating process was provisionally fixed for hearing on 21 June 2012. No application was made for any interlocutory relief or undertakings in connection with the subpoenas. 17When the remaining subpoenas were next returnable on 1 May 2012, there was - on this occasion understandably, because no notice of the adjournment was given - no appearance on behalf of the plaintiff. The Minister produced further documents, to which access was granted, and inspection occurred the following day, a matter which was advised to the plaintiffs only subsequently. Nonetheless, it is worthy of note that this was a further production by the Minister who had already produced documents on a previous occasion, to which access had been granted.