Plaintiff v Defendant

2 By summons filed on 20 March 2019, the defendant applied for each subpoena to be set aside in whole or in part under rule 42.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) on the grounds that they are an abuse of the process of the court, vexatious and oblique or oppressive.

3 There are other applications to be heard after the determination of the application to set aside the subpoenas. They are an application by Mrs Perton to remove a caveat registered by Mrs Walters over the title of the property situate and known as 17 Odenwald Road, Eaglemont, Victoria[2] (the Eaglemont property), which application is made by the same summons filed on 20 March 2019, and an application by Mrs Walters for the trial of separate questions pursuant to r 47.04 of the Rules. There are a number of affidavits that have been filed by both Mrs Walters and Mrs Perton that relate to those applications, some since the hearing of the application to set aside the subpoenas.

4 The defendant is sued in two capacities. First, as trustee of the Port Eagle Investment Trust (PEI Trust) and second as executrix of the Will and Trustee of the Estate of Donald Graeme Warring (deceased). The deceased died on 4 February 2017 leaving a Will dated 20 October 2015. Probate of the Will was granted to the defendant on 28 March 2017. She is the executor and trustee named in the Will of the deceased.

(a) declarations that she is the sole beneficial owner of the Eaglemont property, alternatively that she has a one-half beneficial interest in it;

(b) that the title to the Eaglemont property, alternatively a one-half interest in it, be transferred to her;

(c) alternatively, that the estate of the deceased is the beneficial owner of the Eaglemont property;

(d) to remove Mrs Perton as executrix and trustee of the deceased's will and estate and appoint an independent person; and

(e) injunctions restraining the defendant from encumbering the Eaglemont property and a property at 80 Bell Street Heidelberg Heights, Victoria (Bell St property) which was an asset of the estate of the deceased;

(f) accounts and inquiries to determine amount due to the estate of the deceased for unpaid rent under a lease of the Bell St property to Mobile Communications Systems Pty Ltd, a company established by the deceased in 1985 to conduct a telecommunications business (MCS Digital), but now controlled by the defendant, and for unpaid entitlements due to the deceased as a shareholder and creditor of MCS Digital.

I shall return to give an account of the basis for this relief shortly.

6 The estate of the deceased is the subject of three proceedings in this Court. First, proceeding S CI 2017 02159 in which the plaintiff claims further provision from the estate of the deceased pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (Part IV Proceeding). Second, proceeding S CI 2017 2326 in which the defendant (Mrs Perton) sought to recover possession of the Eaglemont property from the plaintiff (Mrs Walters) (Eviction Proceeding). Third, this proceeding.

7 By order of the Court made on 18 February 2019 in this proceeding, the defendant was restrained, until further order, from proceeding with an application in the Federal Circuit Court of Australia for the administration of the estate of the deceased in bankruptcy (bankruptcy proceeding).[3] The further hearing of the summons by which that application was made was adjourned to 21 March 2019. That was the date of the return of another application of Mrs Walters for orders for the trial of the separate question pursuant to r 47.04 of the Rules that Mrs Perton be removed as the executor of the estate of the deceased.

8 At the outset of the hearing on 21 March 2019, Counsel for Mrs Perton informed the Court that she proposed to apply to withdraw the application in the bankruptcy proceeding. That was a course of some uncertainty, as Counsel for Mrs Walters submitted, because of the right of other creditors to apply to be substituted as the petitioner (applicant). Nevertheless, insofar as the subpoenas were justified by the need to see documents to maintain the injunction (documents relating to the facilities granted to the NAB secured against the Bell Street property, which was the major debt of the estate making it allegedly insolvent, as to which see below at [27(f)] - [27(p)]) Counsel for Mrs Perton conceded that the injunction should be maintained and, further, gave an undertaking on behalf of Mrs Perton to use all reasonable endeavours to discontinue th[4] bankruptcy proceeding.4

9 Notwithstanding this undertaking, the injunction was in force and it remained the fact that there was a risk that the bankruptcy proceedings would continue, so Counsel for Mrs Walters contended there was still a legitimate forensic purpose for subpoenaed documents that were relevant to whether the deceased estate was insolvent. Argument on 21 March 2019 therefore proceeded on that basis.

10 Subsequent to the hearing on 21 March 2019, Mrs Perton was granted leave to discontinue the bankruptcy proceeding and the Court was informed of this on 5 April 2019 (by email) and again when the parties sought to have the matter re-listed for further directions concerning the hearing of the application for removal of Mrs Walters' caveat over the Eaglemont property, and the preliminary question as to the removal of Mrs Perton as executor of the deceased estate.[5]

11 In this account of the background I draw upon the facts as summarised by me in the reasons for judgment in the Eviction Proceeding.[6]

12 In the Eviction Proceeding Mrs Perton claimed possession of the Eaglemont property on the basis that she was the registered proprietor, as trustee of the Trust, and that Mrs Walters had no lease or agreement with Mrs Perton entitling Mrs Walters to possession. Mrs Walters initially defended the claim on the basis of an oral agreement between the deceased, as the putative owner of the Eaglemont property, and her son, Sean, as conferring a right of residence.

13 Mrs Walters applied to amend her amended defence and to raise a counterclaim. In support of the proposed counterclaim Mrs Walters deposed to an oral agreement between her and the deceased made in about July 1996 that she would move with him to Melbourne and continue to look after him for the rest of his life, and he would buy a house for them to live in together in joint names. She deposed to the sale of his New Zealand house and the purchase of the Eaglemont property as their home in 2002 where they lived until his death on 4 February 2017.

14 Mrs Walters' affidavit in the Eviction Proceeding, and her proposed further amended defence and counterclaim, claimed: that the deceased provided $600,000 from the proceeds of sale of the New Zealand house towards the purchase of the Eaglemont property, giving rise to a purchase money resulting trust; that the deceased had represented to Mrs Walters that she would have a beneficial interest in the Eaglemont property, which was their common intention; that the deceased had asked her whether she would look after him if they moved to Melbourne, which she said she would and did for the rest of his life; that in about July 2002 the deceased had said to Mrs Walters that they would buy a house together in joint names when they moved to Melbourne; that the deceased made the same statements to Mrs Walters orally in November 2002; that in about November 2002 they agreed to buy the Eaglemont property as their home, and the deceased said that he would use the $600,000 from the proceeds of sale of the New Zealand property for the purpose; and that their common intention in buying the Eaglemont property was that it would be their jointly owned home where they would live together for life.

15 The relief claimed included that the Eaglemont property formed part of the deceased's estate, and that Mrs Walters was entitled to live in the property until the hearing of her application in the Part IV Proceeding.

16 In opposition to the application for leave to serve the new pleading, and in support of her application for summary judgment for possession of the Eaglemont property, Mrs Perton swore an affidavit in which she deposed that she had disclosed all documents that could be found 'showing the funding of the PEI Trust... for its acquisition of the Property', that the statement by Mrs Walters 'that the deceased provided $600,000 towards the purchase of the Property ... is false'; that the 'Trust paid in full for the purchase of the Property which was for a purchase price of $900,000'; and that the deceased 'did not contribute to the purchase of ... the Property'.[7] Mrs Perton also swore an affidavit stating that the 'trust paid in full for the purchase of the Property' funded as to a loan of $400,000 from the NAB and a loan of $660,880.19 from Mrs Perton.[8]

17 The application for leave to file the amended defence and counterclaim and Mrs Perton's application for summary judgment came on for hearing on 31 October 2017. Counsel for Mrs Perton contended that the evidence was 'overwhelming that the purchase price was paid in full by the Trust'.[9] It was further submitted that Mrs Walters' reliance on a joint endeavour or common intention constructive trust must fail, because the deceased was not the owner of the Eaglemont property, and had no interest in the Property.

18 I considered that a trust in favour of the deceased was no answer to the claim for possession. After some debate Counsel for Mrs Walters no longer pressed the application to file an amended defence and counterclaim, and the opposition to the application for summary judgment.[10] An order for possession was made in favour of Mrs Perton.

19 Mrs Walters then vacated the Eaglemont property. In the course of unpacking, Mrs Walters found a one page agreement between the deceased and the vendor of the Eaglemont property.[11] The agreement was between the vendor, Charnley Glen Pty Ltd, and 'Donald Warring and/or nom' as purchaser. It was dated 26 November 2002 and recited that the parties had entered into a contract dated 26 November 2002 for the sale by the vendor to the purchaser of the Eaglemont property for the sum of $900,000 and had agreed that at settlement the purchaser will also pay $100,000 'for the cost of additional works to be completed by the vendor prior to settlement'. It was plainly a 'side agreement' to the contract of sale. This tended to contradict Mrs Perton's evidence that she, as trustee of the Trust, was the purchaser of the Eaglemont property.

20 Counsel for Mrs Perton defended her statement that the PEI Trust purchased the Eaglemont property by reference to the fact that the deceased was the purchaser with a right to nominate a substitute purchaser, which must have happened as Mrs Perton as Trustee of the PEI Trust was registered as sole proprietor in January 2003, and she shows that the moneys for the purchase all came from the bank account of the Trust[12] and a great deal of that came from her personal bank account.[13]

21 In the course of a taxation of Mrs Perton's costs in the Eviction Proceeding Mrs Walters' costs consultant requested an inspection of Mrs Perton's solicitor's file.[14] After an unsuccessful mediation, Mrs Perton's costs consultant suggested that limited inspection may be allowed if Mrs Walters were to provide a list of documents to be produced. In consequence, the costs registrar ordered a list to be produced and inspection to occur.[15] This was done. Two particular documents were revealed. First, an email which showed that a deposit of $658,000 into Mrs Perton's bank account was the proceeds of the sale of the deceased's New Zealand property, and which was used by Mrs Perton to fund various investments, including an investment by the PEI Trust and by MCS Digital, a company operated by Mrs Perton. Secondly, an email from Mrs Perton's solicitor to her barrister asking him to settle an affidavit of Mrs Perton and stating in effect that the plaintiff's legal advisors do not need to be concerned with how the deceased spent the proceeds of the sale of the New Zealand house.[16] I shall call these documents the 'disputed documents'.

22 Mrs Walter's solicitor complained that these documents showed that the decision to give judgment to Mrs Perton for recovery of possession of the Eaglemont property involved a substantial miscarriage of justice and asked for an explanation. An explanation was given and a claim for client legal privilege was made in respect of the documents.

23 Application was made in the Eviction Proceeding to stay the further hearing of the taxation of costs, to permit Mrs Walters to rely on the disputed documents in this proceeding and to require Mrs Perton to produce the disputed documents.[17] There were three matters for determination:

(a) a stay of the Costs Court proceeding in the Court, or a stay of execution of the costs order made on 31 October 2017;

(b) a release of the implied undertaking (the Harman undertaking) not to use documents produced under compulsion in one proceeding for some other purpose or proceeding;

(c) production of the particular documents, which involved a consideration of whether there had been a waiver of client legal privilege.

24 The application was heard on 2 August 2018 and, in reasons published on 14 August 2018 I concluded that there should be a stay of execution of the costs order made in the Eviction Proceeding against Mrs Walters, that the disputed documents are not subject to any client legal privilege, that they should be produced by Mrs Perton to Mrs Walters and the disputed documents are not subject to the implied undertaking, or if they are, the undertaking should be released and they could be used in this proceeding.[18] Orders were made to give effect to these findings on 17 August 2018.

25 Mrs Walters commenced this proceeding on 5 July 2018. The basis of the constructive trust claim is broadly as follows (with a summary of the amended defence in square brackets):

(a) Mrs Walters and defendant first met in 1996 in Hobart, where the plaintiff lived. The deceased was then living in New Zealand in a house he owned at 4 Dilworth Terrace, Parnell Auckland (New Zealand House) [admitted];

(b) Mrs Walters and the deceased lived together as husband and wife from July 1996 until his death [admitted lived together]. From August 1996 the plaintiff and the deceased made the New Zealand house their home [admitted];

(c) there was a relocation agreement entered into between Ms Walters and the deceased in July 2002 pursuant to which it was agreed that, in consideration of Mrs Walters looking after the deceased (who did not enjoy robust health) the deceased would sell the New Zealand House and buy a family home in Melbourne which would be jointly owned [denied, and further facts alleged that are not presently relevant];

(d) in 2002 the New Zealand house was sold [admitted] and the proceeds ($658,967.50) was paid into Mrs Perton's ANZ bank account [admitted but paid to her as a gift], and together with a further amount deposited by the deceased ($61,400) [denied] used by the deceased to buy the Eaglemont property, with the balance of the purchase price borrowed from the National Australia Bank Ltd (NAB) [admitted borrowing, denied deceased purchased the Eaglemont property as the Trust purchased it for the deceased to live in];

(e) The NAB loan was subsequently repaid by monthly instalments made by the deceased directly to NAB [denied, payments made to the PEI Trust as rent];

(f) unbeknown to Mrs Walters, the deceased directed the transfer of the title to the Eaglemont property into the name of Mrs Perton (then Jane Warring) as trustee of the PEI Trust [denied, the deceased nominated the PEI Trust as purchaser];

(g) the deceased and Mrs Walters lived together as husband and wife, Mrs Walters caring for the deceased, until he died [not admitted];

(h) in the result, Mrs Walters claims to be an equitable joint tenant, alternatively a tenant in common, with the deceased in the Eaglemont property so that she claims the whole of the equitable estate by survivorship, or an equal half part or share with the deceased's estate [denied, no standing to make, estoppel and laches];

(i) alternatively, the purchase of the Eaglemont property was wholly or substantially funded by the deceased, and it was not intended to be beneficially owned by Mrs Perton, in consequence of which Mrs Perton holds the Eaglemont Property on trust for the estate of the deceased [denied, not standing to make, estoppel and laches].

26 The claims for a constructive trust in this proceeding rely on the evidence of Mrs Walters in the Eviction Proceeding that the deceased and Mrs Walters had a common intention about the purchase of the Eaglemont property and the use of the proceeds of the sale of the New Zealand property in the purchase. The discovery of one of the two agreements that constituted the deceased's agreement to purchase the Eaglemont property and the evidence that the deceased's money had funded the purchase of the Eaglemont property are relied upon to show that the oral agreement made between the deceased and Mrs Walters in about July 2002 was carried into execution, and duly performed, save that the title was registered in Mrs Perton's name.

27 Both in its original form and as a result of amendment, Mrs Walters' claims include the removal of Mrs Perton as executor of the deceased's estate and claims in relation to the Bell St Property and MCS Digital. In summary it is alleged Mrs Perton has misconducted herself as executor because of the following matters:

(a) in her application for probate, Mrs Perton swore her affidavit on 17 March 2017. The inventory of assets of the deceased included the Bell Street property, which was valued at $1.75 million, against which were liabilities of some $43,000 [admitted];

(b) by lease dated 1 January 2014, the deceased let the Bell Street property for an initial term of five years to MCS Digital. The starting rent under that lease was $67,000 per annum. The Bell Street property has been the principal place of business of MCS Digital for over 25 years [admitted];

(c) the deceased and Mrs Perton were the directors of MCS Digital for many years until the resignation of the deceased as a director on 3 February 2014, and since then the Mrs Perton has been the sole director [denied, further facts pleaded];

(d) as at 28 June 2015, the ordinary shares in the capital of MCS Digital were held as to 53,401 by the deceased and as to 35,900 by Mrs Perton [not admitted]. On or about 29 June 2015, Mrs Perton caused a cancellation of all the deceased's ordinary shares in MCS Digital without payment, and a cancellation of all but 100 ordinary shares held by Mrs Perton, as a result of which Mrs Perton has since been recorded as the sole shareholder of MCS Digital [not admitted and further facts pleaded];

(e) shortly after the death of the deceased on 28 March 2017, the plaintiff gave Mrs Perton notice of her intention to apply for further provision under Part IV of the Administration and Probate Act 1958 (Vic) [admitted];

(f) the day after Mrs Walters gave that notice to Mrs Perton, Mrs Perton caused to be lodged at the office of titles two applications, first a transmission application of the title to the Bell Street property from the deceased to Mrs Perton as executor; and secondly a transfer of the Bell Street property by Mrs Perton as executor to herself personally, by way of a partial distribution of the estate of the deceased. These dealings were registered on 3 May 2017. [denied, process to transfer started in March because NAB as mortgage so demanded]. Thereafter Mrs Perton granted a mortgage of the Bell Street property to the NAB to secure liabilities of herself and MCS Digital, which mortgage was registered on 16 May 2017 [admits and pleads further facts concerning the reason for encumbering the Bell Street property];

(g) by letter dated 29 May 2017 Mrs Perton's solicitors contended to Mrs Walters solicitors that there was no utility in Mrs Walters making a Part IV claim because the Bell Street property was at the date of the death of the deceased encumbered by a mortgage in favour of NAB securing a liability of approximately $2.8 million of MCS Digital [admitted]. The Part IV Proceeding was nevertheless commenced by Mrs Walters on 5 June 2017 [admitted];

(h) on 31 October 2017 this Court ordered in the Eviction Proceeding that Mrs Perton recover possession of the Eaglemont property from Mrs Walters, with costs. That judgement for possession was obtained, substantially, upon the sworn evidence of Mrs Perton denying that the deceased had provided $600,000 towards the purchase of the Eaglemont property and denying that the deceased had contributed to the purchase of that property, stating it that it was Mrs Perton who was the purchaser of that property [denied with qualifications];

(i) on 8 December 2017, Mrs Perton made an affidavit in the Part IV Proceeding to which she exhibited an updated inventory of the assets and liabilities of the deceased's estate (updated inventory). That disclosed that the Bell Street property was an asset of the estate valued at $1.75 million, disclosed further liabilities totalling $122,898.28, but did not disclose the receipt of any rent in respect of the Bell Street property since the death of the deceased or any interest of the deceased in the Eaglemont property as an asset of the deceased' estate [not admitted and no rent payable as the Bell St Property is beneficially Mrs Perton's];

(j) in fact, the deceased purchased the Eaglemont property and the deceased provided $600,000 towards the purchase of it, alternatively the deceased contributed substantially to the purchase price of the Eaglemont Property. This is alleged to be shown by the document referred to above at [19] and the disputed documents [denied];

(k) by the order made in the Eviction Proceeding on 17 August 2018, a mediation of this proceeding and the Part IV Proceeding were ordered to take place by 31 October 2018. That order also required, for purpose of the mediation, that Mrs Perton, as executor of the deceased estate, file and serve an affidavit setting out the financial position of the estate as far as it was then known to her, fully explaining and verifying all changes to the composition and value of the estate since the updated inventory [admitted];

(l) on or about 19 October 2018, the parties agreed that the mediation should take place on 30 October 2018 before an agreed mediator [admitted]. Mrs Perton did not, however, provide the affidavit as to financial position of the estate as required by the order of 17 August 2018 either before or at the mediation, in consequence of which it was adjourned to a date to be fixed after Mrs Perton had provided the affidavit as to financial position [admitted];

(m) on 29 January 2019, Mrs Perton caused an affidavit (the January 2019 affidavit) to be delivered to Mrs Walters' solicitors. That affidavit purported to set out the financial position of the estate and revealed that it contained no real estate, because the Bell Street property had been fully mortgaged by Mrs Perton to NAB and transferred by Mrs Perton to herself as beneficiary under the will of the deceased and the estate was bankrupt having liabilities of $182,467.88 and total assets of $16,962.32, including an outstanding debt of Mrs Perton of $12,500 [admitted];

(n) the January 2019 affidavit did not comply with the 17 August order because it did not disclose or verify any debt of the deceased which encumbered the Bell Street property, nor any other justification for not treating the Bell Street property as an asset of the estate, it did not explain or verify any of the changes made in respect of the assets of the estate or their alleged value and did not explain or verify any of the changes in the liabilities of the estate since the updated inventory [denied and further facts pleaded including that at the date of the death of the deceased the Bell Street property secured $2.8 million of debt of MCS Digital and associated companies to NAB];

(o) the Bell Street property is encumbered by two mortgages to the NAB, the first registered on 3 December 2012 and the second on 16 May 2017. Each secure indebtedness to the NAB which the debtors have the means to discharge [admit mortgages otherwise not admitted]. At the date of death of the deceased, he was not indebted to the NAB [denied];

(p) the Bell Street property forms part of the estate and its value as such is its own encumbered market value [denied]. At all material times the value of the estate exceeded $1.3 million [denied];

(q) late on Friday, 15 February 2019, Mrs Perton caused to be served on the solicitors for Mrs Walters an application in the Federal Circuit Court of Australia for the administration of the deceased estate in bankruptcy (bankruptcy application) [admitted];

(r) the bankruptcy application was based on a statement of affairs verified on oath by Mrs Perton premised on the liabilities of the estate substantially exceeding its assets in consequence of the deceased owing $2.8 million to NAB by reason of guarantees secured by the mortgages, which is not the case in circumstances where MCS Digital and Mrs Perton have the means to repay, and an obligation to indemnify, the estate in respect of the indebtedness secured over the Bell Street property [denied];

(s) by reason of the matters referred to in paragraphs (h), (j) and (l) to (r) above, Mrs Perton has contravened her obligations under ss 16, 17, 18, 19, 20 and 21 of the Civil Procedure Act 2010 (Vic) (CPA)[denied];

(t) by reason of the use of the proceeds of the sale of the New Zealand house to purchase the Eaglemont Property, and the matters described in subparagraphs (a) to (q) above:

(i) there are conflicts between Mrs Perton's duties as executor of the will and trustee of the estate of the deceased to get in the full estate and to administer it impartially in accordance with the will, and her personal interest to maximise the financial position of MCS Digital or herself, or the beneficiaries of the Trust [denied];

(ii) Mrs Perton is unfit to act in the office of executor of the will and trustee of the estate of the deceased and ought to be removed and another person appointed [denied].

28 Another matter pleaded, but now of only incidental relevance, is that Mrs Perton was separately represented as trustee of the PEI Trust and executor of the estate of the deceased until 30 November 2018, when the solicitor acting for her as executor filed a notice of ceasing to act. There was no solicitor acting for Mrs Perton as executor until 7 March 2019 when one solicitor began to act for Mrs Perton in both her capacities.

29 Rule 42.04, provides that the Court may, of its own motion, or on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part or grant other relief in respect of it.

30 The following principles govern the application to set aside the subpoena:

(a) the subpoena process under Order 42 should not be used as a substitute for discovery or non-party discovery;[19]

(b) it is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;[20]

(c) except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;[21]

(d) however, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is 'on the cards'[22] or that there is a 'reasonable possibility'[23] that the documents will materially assist the case of the party.[24]

(e) the subpoena must sufficiently describe the documents to be produced so as to not require the recipient to make a judgment about the documents being sought and must not be oppressive or fishing (a 'fishing expedition' is not a legitimate forensic purpose and will not be permitted);[25]

(f) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose.[26] There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case.[27] The test of relevance, however, may be a general one, particularly where the Court has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness;[28]

(g) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough - the criteria set out in paragraph (c) must be satisfied; and

(h) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.[29]

31 Further to the principle identified in paragraph 30(a), it has been held in several cases that it is the duty of the court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identificat[30]n is made.30

32 It is relevant to observe that when the 1986 Rules were introduced (General Rules of Procedure in Civil Proceedings 1986, SR 99 of 1986), r 42.01 included a definition of 'subpoena for production', which provided it to mean 'an order in writing requiring a person named to attend as directed by the order for the purpose of producing a document or thing for evidence' [emphasis added].

33 The current Order 42 does not have the 'for evidence' qualification. Rule 42.01 defines 'subpoena to produce' to mean 'a subpoena requiring the addressee to produce the subpoena or a copy of it and a document or thing'.[31] It is nevertheless well established that for a subpoena to be justified there must, at least, be a legitimate forensic purpose for which access to the documents is sought, and this requires both relevance to the issues, and that it is reasonably possible, or 'on the cards', that the document will assist in the claim or the defence the issuer seeks to establish.

34 A useful test to determine whether a subpoena to produce documents is 'for evidence' is to ask whether the subpoena would have been objectionable if it was made returnable at trial.[32] In this the observations of Nettle J (as he then was) in Skrijel v Mengler,[33] are apt. That case concerned subpoenas to produce documents returnable at trial under Order 42.[34] His Honour held that the relevant test to be applied in determining whether documents may be subject of a subpoena to produce documents is whether, having regard to the issues as defined in the pleadings, the documents are either directly relevant to matters in issue or might come within the second leg of the test in Peruvian Guano,[35] as documents that could lead the plaintiff upon a path of inquiry either to advance his own case or to impeach the case which is made against him.[36]

35 Although the authorities are not entirely consistent, the better view, in my opinion, is that the expression 'for evidence' encompasses both direct and indirect relevance or use and the expression 'for evidence' is as wide as Bongiorno J suggested in Atlas v Director of Public Prosecutions.[37] There his Honour noted in the context of considering the then Evidence (Confidential Communications) Act 1988:

Although a subpoena for production is defined by reference to documents produced "for evidence" (rule 42.01, Rules of Civil Procedure)[38] persons producing documents pursuant to a subpoena will often not be witnesses and the documents they produce will often not be tendered or, to use the words of s.32C, not "be adduced in a legal proceeding" unless that phrase has a much wider meaning than the words suggest. In many instances the documents will not be "evidence" as that word is properly understood. They may be no more than documents containing information which the party who issued the subpoena may have (or alleges he has) a legitimate forensic purpose in having produced.

36 I propose, therefore, to approach the question of whether the subpoenas in this case are within the Rule by reference to the wide approach adopted by Nettle J in Skrijel v Mengler[39] and Bongiorno J in Atlas v Director of Public Prosecutions.[40]

37 Counsel for Mrs Perton submitted that both subpoenas should be set aside as an abuse of process because:

(a) they had been issued for the purposes of determining the changes in the indebtedness of Mrs Perton and/or the deceased to the NAB for the purposes of the bankruptcy proceeding;

(b) they sought documents that will or are likely to fall within discovery to be provided by Mrs Perton in this proceeding. It was submitted that the appropriate course was to await the discovery of documents and if there is a dispute regarding the breadth of the discovery, to deal with the dispute in that context;

(c) the categories of documents set out in each subpoena were too wide and amounted to fishing.

38 In particular, it was submitted on behalf of Mrs Perton in relation to the subpoena to her:[41]

(a) the documents sought in paragraphs 1 to 5, 8 and 10 (NAB documents) relate to financial accommodation from the NAB concerning the Bell Street property. The amended statement of claim makes these documents relevant for the purposes of discovery;

(b) in relation to the NAB documents, the subpoenas were fishing because Counsel for Mrs Walters made it clear that the issue of a subpoena was the only way she could get an adequate explanation whether the deceased owed anything secured on the Bell Street property (this was said at the time of the application to McMillan J for an injunction restraining the bankruptcy application and for leave to issue the subpoenas);

(c) the document sought by category 6, being the financial statements of MCS Digital, are likely to fall within the discovery of documents because the amended statement of claim refers to the activities of MCS Digital and the deceased and Mrs Perton's roles in it as directors and shareholders;

(d) the documents sought in paragraphs 7 and 9, being statements of her assets and liabilities will be discovered in the proceeding to the extent that they concern ownership of the Eaglemont property, the Bell Street property and shares in MCS Digital. Otherwise these documents are irrelevant and there is no legitimate forensic purpose for their production;

(e) the description of the documents in the subpoenas is too wide.

39 It was submitted on behalf of Mrs Perton that in relation to the subpoena to the NAB:

(a) the documents in categories 1 to 5, 7, 8 and 10, which relate to financial accommodation made by the NAB secured against the Bell Street property, are in the same category as the NAB documents referred to in the subpoenas to Mrs Perton and will be the subject of discovery;

(b) the documents sought in paragraphs 6 and 9, which relate to the financial position of MCS Digital, will also be the subject of discovery as will the documents in paragraphs 11 and 12 concerning the financial position of Mrs Perton.

40 Counsel for Mrs Walters contended that the documents sought by the subpoenas are centrally relevant to the issues in this proceeding and to the maintenance of the injunction granted on 18 February 2019 to restrain the bankruptcy application in the Federal Circuit Court. The two mortgages registered over the title to the Bell Street property are said by Mrs Perton to secure debt in the order of the $2.8 million. It is unclear who is the primary obligor in respect of the this debt. Presumably it is MCS Digital.

41 The inventory of assets exhibited to Mrs Perton's affidavit in support of application for probate of the will of the deceased makes no mention of any debt secured over the Bell Street property. In contrast, in the letter of 29 May 2017 from Mrs Perton's solicitors, after Mrs Walters had given notice of her intention to make a claim under Part IV, it was asserted that the Bell Street property was encumbered by a mortgage in favour of NAB securing about $2.8 million lent to MCS Digital.

42 In the Part IV Proceeding, Mrs Perton made an affidavit on 8 December 2017 exhibiting an updated inventory of the assets and liabilities of the deceased estate which disclose the Bell Street property (with a value of $1.5 million), as an asset of the estate, and liabilities totalling $122,898.28. On 29 October 2018, Mrs Perton's solicitors sent to Mrs Walters' solicitors an unsworn affidavit of Mrs Perton updating the assets and liabilities of the estate. That affidavit was to be made pursuant to the orders of 17 August 2018. It did not include the Bell Street property as an asset of the estate. On 29 January 2019, when Mrs Perton was unrepresented as executor of the deceased estate, she sent a sworn version of the previously unsworn affidavit to Mrs Walters' solicitors.

43 In her statement of affairs in the bankruptcy proceeding, Mrs Perton discloses that the Bell Street property was an asset of the estate, had been transferred to her as beneficiary, and that the deceased owed to creditors the sum of $2.8 million secured over the Bell Street property. Mrs Perton also reveals that the Bell Street property was rented to 'tenants' for the sum of $1,288.46 per week, but does not reveal who are or were the tenants. It is common ground in this proceeding that MCS Digital occupies the Bell Street property.

44 In relation to the submission on behalf of Mrs Perton that both subpoenas were an abuse of process because they were issued for the purposes of the bankruptcy application, I disagree. The application to restrain the further prosecution of the bankruptcy application was made in this proceeding on the basis of the statement of affairs filed in the Federal Circuit Court which conflicts with inventories filed in this Court, and:

(a) the bankrupting of the estate would stultify this proceeding;

(b) in circumstances where this proceeding involves first, the investigation of the estate of the deceased and what property is a part of its assets, second, whether Mrs Perton ought to be removed as executor and, third, the relief sought in the constructive trust claim;

(c) the statement of affairs in the bankruptcy proceeding raises further questions regarding the assets in the estate of the deceased for the purposes of this proceeding and the Part IV Proceeding;

(d) the issues in the bankruptcy proceeding, in this proceeding and in the Part IV Proceeding overlap, but that does not mean that it is illegitimate to seek the production of documents that may also be relevant to other proceedings if they are also relevant in this proceeding.

45 There is another aspect of this matter that impacts on the validity and purpose of the subpoenas. This proceeding involves a claim in the probate jurisdiction of the Court, and this proceeding is, or is likely, to be heard and determined at the same time as the Part IV proceeding, which is also a proceeding in the probate jurisdiction of the Court. The Court in its probate jurisdiction has an inquisitorial role that requires a greater supervision and control of proceedings than adversarial common law proceedings.[42] This consideration provides both an explanation for the order permitting the issue of the subpoenas made by McMillan J (subpoenas are not automatically issued in the probate jurisdiction as the proceedings are generally commenced by originating motion) and frames its purpose, as noted by McMillan J in the quotation below (see [47]).

46 The orders made on 17 August 2018 for a mediation of this proceeding with the Part IV proceeding required an affidavit to be filed by Mrs Perton as to the financial position of the deceased estate. In particular, in 'Other Matters' in that order I noted that:

In the Family Provision Proceeding the plaintiff swore an affidavit on 8 December 2017 to which she exhibited an updated inventory of the estate of the deceased comprising assets with a total gross value of $1,933,902.32 and total identified liabilities of $122,898.28 ('the updated inventory').

47 That order requiring Mrs Perton to file an affidavit as to the financial position of the estate specifically required the affidavit to 'fully explain and verify all changes to the composition and value of the estate since the updated inventory'. This was not done. McMillan J noted in the course of the application for an injunction to restrain the prosecution of the bankruptcy proceeding and for leave the to file the subpoenas, that she would grant leave for the subpoenas to be issued but -

I am disturbed that your client hasn't filed a fulsome inventory of assets when ordered by the court to do so and thereby has avoided mediation being held on it at an early stage of the proceeding.... When court orders are made, they should be complied with to the best of everyone's ability. Now, putting in a new inventory that raises more questions than ever is not the way forward..... I think they [the subpoenas] have to be issued anyway because there is a lack of confidence in your client providing the accurate material.[43]

48 Counsel for Mrs Walters submitted before me that the subpoenas were issued in order to protect the process of the court in relation to whether the Bell Street property should or should not be a part of the estate and was or was not relevantly encumbered with the debt now asserted by Mrs Perton.

49 The objection, usually correct, that subpoenas should not be issued by one party to a proceeding to another party to that proceeding, where discovery is available, has less force in the context of this case and the circumstances in which McMillan J granted leave, specifically, for the issue of a subpoena directed to Mrs Perton. This is particularly called for in this case because Mrs Perton has sworn diametrically opposed affidavits as to the assets of the estate and has engaged in strategies (Counsel for Mrs Walters described the strategies as 'game-playing' of the highest order), in particular:

(a) having separate solicitors representing her as trustee of the PEI Trust and as executor of the deceased estate, where there is no apparent justification for that course;

(b) in consequence, filing two defences where one would have sufficed. Then abandoning that course;

(c) transferring the Bell Street property out of the estate to herself within six months of probate (although she has an explanation for that being necessary in order to secure the finances necessary for business conducted by MCS Digital);

(d) failing or refusing to abide by the 17 August 2018 order, and thus delaying the holding of any mediation and the further conduct of the proceeding, and then complaining about the holding costs of the Eaglemont property;

(e) terminating the solicitor acting for her as executor of the estate in later November 2018 when the affidavit ordered in the 17 August 2018 orders was outstanding, not employing another solicitor for some time, and personally delivering to the solicitors for Mrs Walters the sworn affidavit whilst at the same time her solicitors were representing her in the bankruptcy proceeding;

(f) seemingly, evading service of process as set out in the affidavit of Peter Nedovic sworn 18 February 2019;[44]

(g) commencing the bankruptcy proceeding on 19 December 2018 using the solicitor who went off the record on 30 November 2018 in this proceeding as solicitors acting for Mrs Perton as executor;

(h) giving notice to Mrs Walters' solicitors of the bankruptcy proceeding on 15 February 2019 'by way of courtesy';

(i) discontinuing the bankruptcy proceeding after injunctive relief is sought and obtained.

50 The affidavit made by Mrs Perton purportedly in compliance with my order of 17 August 2018 requires further mention. That affidavit is the January 2019 affidavit and it was delivered by registered post to Mrs Walters' solicitors when Mrs Perton, as executor of the estate of the deceased, was supposedly unrepresented by lawyers (even though her present solicitors were acting for her at that time in the bankruptcy proceeding). The affidavit is expressed to be made in accordance with the orders I made on 17 August 2018 and purports to set out the financial position of the estate in accordance with which:

(a) the estate contains no real estate, the Bell Street property having been fully mortgaged by Mrs Perton to the NAB and transferred to Mrs Perton as beneficiary;

(b) the estate is bankrupt having liabilities of $182,467.88 and total assets of $16,962.32.

51 The January 2019 affidavit does not disclose or verify any debt of the deceased which encumbers the Bell Street property, or provide other justification for no longer treating the Bell Street property as an asset of the estate, does not explain or verify any of the changes made in respect of the assets of the estate or their alleged value, nor does it explain or verify any of the changes in the liabilities of the estate since the updated inventory.

52 At the time of the application for the grant of leave to issue the subpoenas (18 February 2019), Mrs Walters' legal representatives were faced with the bankruptcy proceeding founded on the sworn material of Mrs Perton that the estate of the deceased was insolvent in consequence of the deceased owing, at the date of his death, $2.8 million pursuant to guarantees. The statement of affairs, verified by Mrs Perton, states that to the best of her knowledge the deceased first had difficulty paying his debts in February 2017, (I note that the deceased died on 4 February 2017). In Part D of the statement of affairs, Mrs Perton identifies that at the date of his death, the deceased owned the Bell Street property valued at $1.5 million and that he owed creditors who held security over that property $2.8 million. The creditor is the NAB. These matters stand in stark contrast to the inventory of assets to which Mrs Perton vouched her oath in support of the application for a grant of probate and the updated inventory. Not only did those inventories disclose no debt in the estate secured against the Bell Street property, they valued the property at $1.75 million. My inspection of the documents produced by the NAB suggests it may have a greater value than that.

53 By engaging in the above mentioned strategies in her conduct of this proceeding, a question arises whether she is acting in accordance with the overarching obligations prescribed by the CPA. This is a matter, as I have pointed out above, that is raised in the claims made by Mrs Walters (see above at [27(s)].

54 In the affidavit of Mrs Perton in support of her application to remove the caveat, sworn the day before the hearing (20 March 2019), Mrs Perton gives evidence about the history of the Bell Street property and the borrowings made by MCS Digital in 2012, secured against that property, and the increase of that debt by May 2017 to the sum of $2.8 million. There is no reference in that affidavit to any borrowing by the deceased secured against the Bell Street property. All the borrowings appear to be business borrowings and if that is so the result may well be that MCS Digital would be obliged to indemnify the deceased as a guarantor, so that the Bell Street property should be in the inventory of assets of the estate (at least notionally) for its full value without any debt.

55 Thus, at the time of the issue of the two subpoenas, and at the date of the hearing, there were legitimate forensic purposes for the production of the documents described in them.

56 In a partial answer to this, Mr Bick QC, Counsel for Mrs Perton, pointed out that in the Eviction proceeding Mrs Perton had made an affidavit in which she described how the NAB had imposed requirements in relation to the refinancing of the debt over the Bell Street property and had issues in relation to the Eaglemont property being security, as well. In Mrs Perton's affidavit sworn on 20 March 2019 in support of her application for the removal of the caveat over the Eaglemont property, she gives an explanation, or history, of the debt secured against that property. But it is not a complete history.

57 On the day of the hearing of Ms Perton's application to set aside the subpoenas, orders were made for the filing and service of the amended statement of claim, an amended defence, any reply and for discovery of documents. Each party has filed affidavits of documents in accordance with that order (on 16 April 2019). Orders were also made on that day for the filing of affidavits in relation to Mrs Perton's application for the removal of Mrs Walters' caveat over the Eaglemont property.

58 On 9 April 2019, Mrs Perton filed an affidavit sworn that day in further support of her application to remove the caveat. It also responded to an affidavit sworn by Mrs Walters on 1 April 2019. Further evidence is provided in that affidavit regarding the debt secured against the Eaglemont property. The evidence she gives relating to the Bell Street property principally concerns the reason for the transfer of that property to herself, at the insistence of the NAB, for the purpose of securing the debt of MCS Digital and the reasons why the probate inventory and the updated inventory did not mention any debt secured against the property. It is significant that the particular facilities' documentation and any guarantees are not produced.

59 Mrs Perton explains that the probate inventory was prepared by her solicitor in circumstances when the NAB was pressing for security for MCS Digital's debt. She says:

the Probate Inventory was prepared the day after my meeting with the NAB manager and in circumstances of pressing need to immediately restructure MCS's security as required by the NAB. In making the Probate Inventory at that point in time, I omitted to include the liabilities to the NAB secured by the personal guarantees which my father had given to the NAB and neither my solicitor nor did I have time to review all the securities and determine the precise amount secured by the personal guarantees or to consider how best to disclose those liabilities.[45]

60 In relation to the updated inventory and why no debt was reflected in it, she says

In providing the updated inventory I again omitted the liabilities secured by the personal guarantees which my father had given to the NAB. I did this because on 3 May 2019 Bell Street had been transferred to me pursuant to the Will and my father's personal guarantees were no longer secured on Bell Street. I had not had a reason to calculate the exact amount secured by the personal guarantees at that time and I omitted the amount secured by the personal guarantees.

61 There are no personal guarantees exhibited to the affidavit nor any facility or other accommodation documentation.

62 On 18 April 2019, Mrs Perton filed an affidavit of documents sworn by her that day. There are a number of documents referred to in Part 1 of Schedule 1 to that affidavit that clearly relate to an NAB financing, but no document specifically described as a guarantee. The documents described in the table in that Part include some bundles, but none that seem to relate to guarantees to the NAB in respect of the debt of MCS Digital secured against the Bell Street property.

63 Mr Bick QC contended that the fact that McMillan J had given leave to Mrs Walters to seek the issue of the subpoenas did not affect in any way the usual embargo upon the issue of subpoenas as a form of discovery, and so the fact of the making of the order did not affect the application to set the subpoenas aside as an abuse of process. The essential feature of the prohibition against the use of subpoenas as a form of discovery of documents is that it requires the subpoenaed person to make a judgment as to which documents relate to issues between the parties.[46] That is not the case with the two subpoenas before me. Nevertheless, it is ordinarily inappropriate to subpoena the other party when discovery procedures are available.

64 The particular features of this case, however, take it out of the ordinary and, for the reasons given above and those which moved McMillan J to grant the leave, I am not disposed to set aside the subpoenas.

65 In relation to the submission made on behalf of Mrs Perton that each subpoena was fishing, I disagree. Putting aside for the moment the breadth of the description of the documents, those relating to the financial facilities and accommodation granted by the NAB to MCS Digital are clearly relevant and there is a legitimate forensic purpose for their production by the NAB. This arises out of the inconsistent evidence given by Mrs Perton as to whether the Bell Street property, as an asset of the deceased estate, was in any way encumbered with debt and who was the primary obligor in relation to that debt. Further, in relation to the financial position of Mrs Perton, this is relevant to what debt is secured over the Eaglemont property, how it arises and who is the primary obligor.

66 A fishing expedition is, of course, an attempt to find out whether the person to whom the summons is addressed has or has not any documents relevant to an issue and, if so, what those documents are. In The Commissioner for Railways v Small,[47] Jordan CJ described fishing as endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all, or to discover the nature of the other side's evidence. In a sense, the requirement that it is 'on the cards' that the documents sought will materially assist the prosecution of the plaintiff's case at trial is the counterpart of a 'fishing expedition'. There are some concrete grounds for the contention that the documents will assist in the legitimate forensic purpose advanced.[48] This is not a case where Mrs Walters is dragging the pool in order to see whether there are fish of a particular kind in it. It is known that there are fish of a particular kind in the pool and the subpoenas seek to identify them.[49]

67 In this case, if the documents sought in the subpoenas (as set out in the appendix to these reason) include some that are not relevant, case management principles point to the appropriate course being to manage the process of inspection. The NAB has produced documents in response to the subpoena as has Mrs Perton, in part. The course pressed by Mrs Perton of wholly setting aside the subpoenas is wasteful of everyone's resources. It also elevates form over substance.[50]

68 Having identified a legitimate forensic purpose for the production and inspection of documents within the description in the subpoenas, I note that the authorities point to it being desirable that the judge should normally inspect the documents for the purpose of making a final decision as to whether access should be granted. I have inspected the documents produced by both the NAB and Mrs Perton. It seems to me that the documents produced are relevant and inspection of them by the parties should be permitted, subject to the comments made below.

69 In relation to the subpoena to Mrs Perton, it was contended by Mrs Perton that the documents sought in a number of paragraphs were too wide or not supported by an legitimate forensic purpose. At the hearing on 21 March 2019 I determined that Mrs Perton must produce only the documents in categories 1-6 and 8. Counsel for Mrs Perton contended, however, that category 6 and 8 were too wide and were not needed for any legitimate forensic purpose. The submission and my response is as follows:

(a) The documents in paragraph 6 (The financial statements of Mobile Communication Systems Pty Ltd in respect of any financial period since 30 June 2014) are not relevant to any issue and go back too far. I disagree that they are not relevant but agree they go back in time too far. They are relevant to the ability of MCS Digital, as principal debtor, to indemnify the deceased estate as guarantor under guarantees given by the deceased and secured against the Bell St property. I do not, however, see why they need to go back to 2014. It would be sufficient if they include the financial statements for the financial years ending 30 June 2016 to 30 June 2019;

(b) The documents in paragraph 8 (Communications with National Australia Bank Ltd in relation to the grant of financial accommodation and security formalised in the grant of the mortgages over Bell St property registered in dealings AK057846M and AN832933V) is a very broad category and is not relevant to any issue. Again I disagree. A common sense approach to its meaning should be taken and on that basis it relates to communications between NAB and Mrs Perton that precede and are for the purpose of obtaining the financial accommodation subsequently granted and secured over the Bell St property by the two mortgages mentioned. These are relevant to the issue of whether the estate of the deceased is indebted to the NAB for $2.8 million;

70 On further reflection, however, I consider that there is a legitimate forensic purpose for documents in categories 7, 9 and 10, and that with modifications the descriptions in those categories are not too wide. The submission in respect of these categories and my conclusion is as follows:

(a) The documents in paragraph 7 (Statements of assets or of assets and liabilities prepared in respect of the defendant since 31 December 2016) must be fishing as they cannot relate to the mortgage accommodation over Bell Street. I disagree. Mrs Perton as a director of MCS Digital was a guarantor of the facility granted by NAB and secured against the Bell Street property. Her financial position is relevant to the position of the deceased estate and its liability under guarantees given by the deceased and secured by the Bell Street property. It is also relevant to what debt is secured over the Eaglemont property, how it arises and who is the primary obligor;

(b) The documents in paragraph 9 (Documents identifying assets of a value of $50,000 or more held by, and debts or liabilities in an amount of $50,000 or more owing by, the defendant in any capacity as at 31 December 2018) was described as outrageously too wide and fishing, and not relevant to any issue. I now disagree. On the basis that Mrs Perton is a guarantor of the MCS Digital debt to the NAB secured against the Bell St property, her financial position and whether she is 'good for the money' does make this category relevant and there is a legitimate forensic purpose for production and inspection of the documents. It is 'on the cards' that Mrs Perton's financial position will be relevant to whether Bell St property is truly burdened with the debt she asserts, and also whether the Eaglemont property is properly encumbered with debt that relates to its acquisition or maintenance. It may be that the documents lead to a chain of inquiry or are relevant to cross-examination of Mrs Perton, but that is sufficient according to the test I have outlined above;

(c) The documents in paragraph 10 (Any application for finance or re-finance made by the defendant to National Australia Bank Ltd since 31 December 2016 (whether or not in her own right)), is far too broad. In my view, this category is in the same position as category 9, as it relates to Mrs Perton's financial position. An application for finance or refinance by Mrs Perton will reveal material relevant to her financial position.

71 The applications to set aside the subpoenas to the National Australia Bank Ltd and to Mrs Perton will be refused. Orders will be made that limit inspection of some documents produced by Mrs Perton (as set out in the above reasons) but also requires production of other documents omitted from the orders made on 21 March 2019 (as referred to in the above reasons). I will ask the plaintiff's lawyers to submit draft minutes of order to give effect to these reasons.

72 I presently see no reason why the costs should not follow the event, but will hear the parties as to costs should that be necessary.

The documents and things you must produce are as follows:

1. Copies of facility agreements governing financial accommodation extended by National Australia Bank Ltd (or any related entity) to any person (natural or legal) which is currently secured against the land known as 80-82 Bell St, Heidelberg Heights, Victoria, 3182, being the land comprised in certificate of title volume 10357 folio 769, "the Bell St property").
2. Documents identifying the person (natural or legal) to whom or to which the accommodation referred to in paragraph 1 was extended and when, the character of that accommodation, its term, and the initial and current amounts of that accommodation.
3. Documents identifying any security granted for the accommodation referred to in paragraph 1.
4. Any demands for payment or notices of default served in respect of the accommodation referred to in paragraph 1 since 31 December 2016.
5. Documents recording the payments and repayments made in respect of the accommodation referred to in paragraph 1 since 31 December 2016.
6. The financial statements of Mobile Communication Systems Pty Ltd in respect of any financial period since 30 June 2014.
7. Statements of assets or of assets and liabilities prepared in respect of the Defendant since 31 December 2016.
8. Communications with National Australia Bank Ltd in relation to the grant of financial accommodation and security formalised in the grant of the mortgages over Bell St property registered in dealings AK057846M and AN832933V.
9. Documents identifying assets of a value of $50,000 or more held by, and debts or liabilities in an amount of $50,000 or more owing by, the Defendant in any capacity as at 31 December 2018.
10. Any application for finance or re-finance made by the Defendant to National Australia Bank Ltd since 31 December 2016 (whether or not in her own right).

The documents and things you must produce are as follows:

1. Copies of facility agreements, loan agreements, letters of offer and acceptance thereof, and guarantees governing any financial accommodation extended by National Australia Bank Ltd (or any related entity) to any person (natural or legal) which is currently secured against the land known as 80 - 82 Bell Street, Heidelberg Heights, Victoria, 3182, being the land comprised in certificate of Title Volume 10357 Folios 769, currently registered in the name of Jane Elizabeth Perton.
2. Documents identifying the person (natural or legal) to whom or to which the accommodation referred to in paragraph 1 was extended and when, the character of that accommodation, its term, and the initial and current amounts of that accommodation.
3. Documents identifying all personal and proprietary security held for the accommodation referred to in paragraph 1.
4. Documents recording the most recent estimation or assessment of the value of the personal and proprietary securities referred to in paragraph 3, and recording the most recent estimation or assessment of the security margin enjoyed by the bank in respect of the financial accommodation referred to in paragraph 1.
5. Documents recording the credit and debit balances of all accounts held by National Australia Bank limited as at 19 December 2018 in the name of Jane Elizabeth Perton (in any capacity).
6. Documents recording the credit and debit balances of all accounts held by National Australia Bank Ltd as at 19 December 2018 in the name of Mobile Communication Systems Pty Ltd (in any capacity).
7. Any demands for payment or notices of default served in respect of the accommodation referred to in paragraph 1 since 31 December 2016.
8. Printouts recording the payments and repayments made in respect of the accommodation referred to in paragraph 1 since 31 December 2016.
9. Financial statements held in respect of Mobile Communication Systems Pty Ltd in respect of any financial period since 30 June 2014.
10. Communications with Jane Elizabeth Perton in relation to the grant of financial accommodation and security formalised in the grant of the mortgages over the land referred to in paragraph 1 registered in dealings AK057846M and AN832933V.
11. Statements of assets or of assets and liabilities in respect of Jane Elizabeth Perton received since 31 December 2016.
12. Any application for finance or refinance received since 31 December 2016 from Jane Elizabeth Perton (whether or not in her own right).

[1] The documents required to be produced in each subpoena are set out in an appendix to these reasons.

[2] Being the land more particularly described in Certificate Title Vol. 10515, Folio 218.

[3] In the Matter of Donald Graeme Warring (Deceased) (Federal Circuit Court of Australia, MLG3867/2018, commenced 19 December 2018).

[4] Transcript of Proceedings, Walters v Perton (Supreme Court of Victoria, S ECI 2018 00225, Derham AsJ, 21 March 2019) 64.

[5] Transcript of Proceedings, Walters v Perton (Supreme Court of Victoria, S ECI 2018 00225, Derham AsJ, 21 March 2019) 11.

[6] Perton v Walters [2018] VSC 445.

[7] Affidavit of Jane Elizabeth Perton, made 5 October 2017 in the Eviction Proceeding, [5]-[7], [11].

[8] Affidavit of Jane Elizabeth Perton, made 28 October 2017 in the Eviction Proceeding, [4].

[9] Plaintiff, 'Outline of submissions in relation to application for summary judgment', Submission in the Eviction Proceeding, 17 October 2017, [26], [41a].

[10] Perton v Walters [2018] VSC 445, [14]-[18].

[11] Affidavit of Lynne Walters, made 6 July 2018, exhibit LW-1.

[12] Affidavit of Jane Elizabeth Perton, made 5 October 2017 in the Eviction Proceeding.

[13] Affidavit of Jane Elizabeth Perton, made 28 October 2017 in the Eviction Proceeding.

[14] Affidavit of Annabel Alice Speirs, made 5 July 2018 in the Eviction Proceeding, [3].

[15] Perton v Walters [2018] VSC 445, [22].

[16] Perton v Walters [2018] VSC 445, [23].

[17] Summons in the Eviction Proceeding filed by the Defendant on 9 July 2018.

[18] Perton v Walters [2018] VSC 445, [82].

[19] Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 ('Small'); Burchard v MacFarlane; Ex Parte Tindall and Dryhurst [1891] 2 QB 241; National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 ('Waind').

[20] R v Saleam (1989) 16 NSWLR 14, 18 (Hunt J for the Court) ('Saleam'); R v Mokbel [No 1] [2005] VSC 410, [45]; Re Tastan (1994) 75 A Crim R 498, 504 ('Tastan'); R v Sergi [1998] 1 Qd R 536 ('Sergi'); NSW Commissioner of Police v Tuxford [2002] NSWCA 139, [22] (Brownie AJA for the Court); Re Don [2006] NSWSC 1125, [26] ('Re Don').

[21] Woolworths Ltd v Svajcer, [2013] VSCA 270, [40]-[47] ('Woolworths').

[22] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 414 (Gibbs CJ) ('Alister').

[23] DPP v Selway [No 2] [2007] VSC 244; (2007) 16 VR 508, 514 [10]; Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300, 323-4 [96].

[24] A-G (NSW) v Chidgey [2008] NSWCCA 65, [62], [64] (Beazley JA for the Court) ('Chidgey'); R v Mokbel [No 1] [2005] VSC 410, [45]; R v Saleam [1999] NSWCCA 86, [11] (Simpson J for the Court) ('Saleam No.2'); Alister (n 22) 414 (Gibbs CJ); Saleam (n 20) 18 (Hunt J for the Court); Woolworths (n 21).

[25] Alister (n 22); Saleam (n 20) 17 (Hunt J for the Court); Small (n 19) 575 (Jordan CJ for the Court); Re Don (n 20) [26].

[26] Chidgey (n 24) [59] (Beazley JA for the Court).

[27] Carroll v A-G (NSW) (1993) 70 A Crim R 162, 181 (Mahoney AP).

[28] Yunghanns v Candoora No. 19 Pty Ltd [2000] VSC 505, [11]-[12].

[29] Saleam (n 20) 18 (Hunt J for the Court). See also Sergi (n 20); Saleam No.2 (n 24) [11] (Simpson J for the Court).

[30] Tastan(n 20) 504; Saleam (n 20) 18 (Hunt J for the Court).

[31] There is also a definition of 'subpoena' which refers to it being an order in writing requiring the addressee to, amongst other things, to produce the subpoena or a copy of it and a document or thing.

[32] Burchell v Hill [2010] VSC 96, [20].

[33] [2003] VSC 55, [5], [14] ('Skrijel').

[34] Rule 42.01 then provided that 'subpoena for production' means an order in writing requiring a person named to attend as directed by the order for the purpose of producing a document or thing for evidence.

[35] Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 62-3.

[37] [2001] VSC 209; (2001) 3 VR 211, 221-2 [43] ('Atlas').

[38] The requirement that the production be 'for evidence' arose from the definition of 'subpoena for production' in r 42.01. It meant an order in writing requiring a person named to attend as directed by the order for the purpose of producing a document or thing for evidence.

[41] See the descriptions of the documents in the appendix to these reasons.

[42] See, e.g., Re Fuld; Hartley v Fuld [1965] P 405, 409F-411B; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786, [264]; Re Przychodski; Przychodski v Przyschodski [2016] VSC 781, [14] (McMillan J).

[43] Transcript of Proceedings, Walters v Perton (Supreme Court of Victoria, S ECI 2018 00225, McMillan J, 18 February 2019) 16-7.

[44] Affidavit of Peter Nedovic, made 18 February 2019, [21].

[45] Affidavit of Jane Elizabeth Perton, sworn 9 April 2019, [78].

[46] Small (n 19) 573-5 (Jordan CJ for the Court); Waind (n 19) 381-2 (Glass JA for the Court); Finnie v Dalglish [1982] 1 NSWLR 400, 405.

[48] Matthews v SPI Electricity Pty Ltd (No 12) [2014] VSC 131, [37].

[49] This refers to the descriptive metaphor used by Owen J (for the Court) in Associated Dominion Assurance Society Pty Ltd v Sir John Fairfax & Sons (1952) 72 WN (NSW) 250, 254; see also Lyons v Kern Constructions (Townsville) Pty Ltd [1983] FCA 33; (1983) 47 ALR 114, 130; Webb v Wheatley [2015] VSC 153, [53].

[50] See the observations of Sundberg J (in a different context) in Wimmera Industrial Minerals Pty Ltd v RGC Mineral Sands Ltd (1997) 40 IPR 110, 116_._