Plaintiff v Defendant

(a) JPMorgan Chase Bank, National Association (ARBN 074112011), dated 2 July 2025;

(b) Citibank, N.A. (ARBN 072814058), dated 2 July 2025;

(c) National Australia Bank Ltd (ACN 004 044 937) ('NAB'), dated 2 July 2025 and 5 September 2025; and

(d) Commonwealth Bank of Australia (ACN 123 123 124) ('CBA'), dated 25 August 2025 and 5 September 2025,

1. The documents to be produced under all but two of the Subpoenas include documents received by the addressee financial institutions in connection with letters of credit issued by them for the benefit of the defendant or his companies. Two of the subpoenas, being those issued to the NAB and CBA on 5 September 2025, require production of bank statements for accounts held in the name of the defendant or his companies between 1 July 2017 and 30 June 2024 ('Bank Statement Subpoenas'). The defendant has filed notices of objections in respect of the Subpoenas. The defendant objects to certain information in the documents produced in response to the Subpoenas being disclosed to the plaintiff and has applied his own proposed redactions to protect that information. These redactions are pressed on the basis that the information is confidential and commercially sensitive to the defendant. The Court is informed by the defendant that the information redacted includes:

(a) customer contact information, primarily email addresses;

(b) supplier information;

(c) invoice number prefixes;

(d) personal banking information of the defendant;

(e) product types;

(f) what is described by the defendant as 'other business information', which is information which would identify key individuals in his professional network; and

(g) 'proprietary information' of his supplier, which may disclose his supplier's identity and, on the defendant's evidence, is also sought to be kept confidential at the behest of his supplier.

1. The defendant has also filed a summons on 9 February 2026, seeking orders in respect of a confidential affidavit of Mr Nayak, sworn on 5 February 2026. At the conclusion of the hearing, counsel for the defendant confirmed that the defendant did not read that affidavit in the application, and sought orders that the summons be dismissed. The plaintiff indicated that it may wish to be heard on the costs of the summons and the question of costs has been reserved for hearing and determination at the next directions hearing.
2. The following material was relied upon by the parties in respect of the subpoena objections:

(a) affidavit of the defendant, Nilkamal Nayak, sworn 22 August 2025 ('First Nayak Affidavit');

(b) submissions of the defendant, filed on 25 August 2025;

(c) affidavit of Mr Nayak sworn 30 January 2026 ('Second Nayak Affidavit');

(d) submissions of the plaintiff dated 13 February 2026;

(e) affidavit of Srikanth Matam, general manager of the plaintiff, affirmed 13 February 2026 ('Matam Affidavit'); and

(f) affidavit of John Alexander Lancefield, solicitor for the defendant, sworn 13 February 2026 ('Lancefield Affidavit').

1. I was also assisted by helpful oral submissions from counsel for both parties at the hearing.
2. For the reasons which follow, I have determined that there shall be orders for the plaintiff to uplift and inspect the documents produced in response to the Subpoenas.

1. The principles which govern subpoena objections were uncontroversial between the parties and are most usefully summarised in the decision of the Court of Appeal in Woolworths Ltd v Svajcer[1] ('Woolworths') at [16], including, relevantly:

(a) the plaintiff must expressly and precisely identify the legitimate forensic purpose for which access to the documents is sought;

(b) a 'fishing expedition' is not a legitimate forensic purpose and will not be permitted;

(c) the documents must be relevant, or adjectivally relevant, to the issues in dispute; and

(d) it must be 'on the cards' or there must be a 'reasonable possibility' that the material sought will assist the resolution of the issues in dispute.

1. It was accepted by both parties that confidentiality is not ordinarily a sufficient reason to deny inspection by the opposite party, having regard to the protections provided by way of the implied Harman undertaking.[2] However, in the decision of Mobil Oil Australia Ltd v Guina Developments Pty Ltd[3] ('Mobil Oil') it has been recognised that other considerations arise where the party obtaining access to the documents is a 'trade rival of the person whose secrets it is proposed should be revealed by ... inspection'.[4] In Mobil Oil the Court observed (at 38):

Once the documents are inspected by the principals of the trade rival the information which is revealed is known to the trade rival and cannot be forgotten. Confidentiality is destroyed once and for all (at least so far as the particular trade rival is concerned). To say that the trade rival is bound not to use the documents except for the purposes of the action concerned is, in a case such as this, to impose upon that trade rival an obligation that is impossible of performance by him and impossible of enforcement by the party whose secrets have been revealed. How is the trade rival to forget what internal rate of return the competitor seeks to achieve on a new investment of the kind in question? How is the party whose hurdle rate has been revealed to know whether the rival has used the information in framing a tender? Thus, if the trade rival may inspect the documents concerned, the confidentiality of the information in them is at once destroyed. Is that necessary for the attainment of justice in the particular case?

2. In Bidvest Australia Ltd v Auzcorp Pty Ltd [No 2],[5] ('Bidvest'), the Western Australia Court of Appeal observed that additional protections (such as redactions) may be required where 'the parties are trade rivals and the documents discovered by one party contain confidential information of use to the other party in that trade rivalry'. Such information is 'commercially sensitive' if 'a rival in the marketplace who obtains access to it may use it to the advantage of that rival and to the disadvantage of the party who seeks to keep it secret' (at [43]).
3. In the usual course, the fact that relevant documents are confidential is not a proper basis to restrict disclosure of those relevant documents to an opposing party. Circumstances of trade rivalry may warrant an exception to that usual position. It follows from the cases set out above that the defendant must demonstrate that:

(a) first, the documents are confidential, and must remain confidential;

(b) second, the parties are 'trade rivals'; and

(c) the party who obtains access to the documents may use the information in the documents to its advantage and to the disadvantage of the other party, in that trade rivalry.

1. There was some confusion throughout the hearing as to the precise categories of documents over which the defendant's objections were maintained. In pressing for the proposed redactions, the defendant is seeking to protect multiple categories of documents and information, set out in detail in paragraph [3] above. The defendant opposed the disclosure of product information, cost price and volume of sales but, while pressing the objection to inspection of those categories of documents, at the hearing counsel for the defendant accepted that those categories may inadvertently have been disclosed through other means (such as in documents produced in response to subpoenas issued to other addressees earlier in the litigation, to which no objection has been made), and the confidentiality of those documents may have been lost as a consequence.
2. At the hearing counsel for the defendant submitted that the defendant's principal concern is to protect the identity of his suppliers, on the basis that the plaintiff and defendant are trade rivals in the sense recognised in Mobil Oil. The defendant is concerned that the plaintiff, in seeking the documents sought under the Subpoenas, is engaging in a fishing expedition for information to identify his suppliers, in order to damage the defendant's business and benefit its own.
3. The defendant submits that, if as suggested in submissions the plaintiff seeks supplier information in order to quantify its claim, having regard to the information already available to the plaintiff obtained through other means the plaintiff may quantify its claim without needing to know who the defendant's suppliers are. In that context, the defendant submits, to the extent the documents are sought to establish the identity of the defendant's suppliers to obtain information that may be or have been obtained by other means, pursuit of that information does not serve a legitimate forensic purpose. Invoice prefixes, invoices, packing lists and certificates of origin have also been redacted on the basis that those documents disclose the defendant's supplier information.
4. The defendant also seeks to keep confidential information produced under the Bank Statement Subpoenas including BSB numbers, account numbers, and banking reference identifiers, on the basis that the information is personal, not relevant and unnecessary disclosure may expose him to risk of fraud, identity theft and unauthorised access to his accounts.
5. The defendant submits that the plaintiff has pleaded expressly both in the heading before paragraph [7] and in paragraph [8] of its Amended Statement of Claim that the defendant is 'trading in competition with the plaintiff' and that, from at least 2019, the defendant has 'sold goods, or alternatively caused goods to be sold, in Bangladesh in competition with the plaintiff, including to the existing customers of the plaintiff'. The question as to whether the parties are trade rivals should therefore be uncontroversial.

1. The plaintiff submits that the documents it seeks by way of the Subpoenas serve a legitimate forensic purpose. First, the documents already available to the plaintiff indicate, on the plaintiff's case, that the defendant was operating a business in competition with the plaintiff while an agent of the plaintiff up to May 2023. So much is pleaded by the plaintiff. The Subpoenas were issued following the defendant's failure to discover documents the plaintiff expected might have been in the defendant's possession. These documents, the plaintiff submits, are critical to the plaintiff being able to prove its case.
2. The plaintiff submits that it needs to know the identity of the defendant's suppliers to prosecute its claim. The plaintiff believes that the defendant has only one supplier, who is also a supplier of the plaintiff, AHA International Co Ltd ('AHA'). The plaintiff submits that the defendant has not discovered any documents that evidence any sales to competitors. If the identity of the supplier is obtained or confirmed, the plaintiff may be able to obtain such evidence through the supplier, by reference to other documents and information produced by the Subpoenas. The plaintiff expects that information about the defendant's suppliers will be used by the plaintiff to quantify its claim for damages and an account of profits. The plaintiff submits that the legitimate forensic purpose in accessing the information produced under the Subpoenas is to identify the defendant's supplier, who may be a potential witness and give evidence for the plaintiff in the proceeding.
3. Also, the plaintiff submits, for those reasons the information sought to be protected, in particular the supplier information, is not, in fact, confidential. The plaintiff has identified the entity it believes to be the defendant's supplier. The defendant has not explained in that context how the identity of the defendant's supplier is said to be confidential, and must remain confidential. Nor has the defendant particularised how use of that information (the identity of the supplier) by the plaintiff would be damaging to the defendant and his business.
4. The plaintiff submits that the defendant has not specified, with sufficient level of particularity, the bases for the redactions sought. The Court was not provided with a copy of the full set of redactions. Exhibited to the Lancefield Affidavit are examples of the redactions applied by the defendant, which demonstrated that some redactions mask whole pages in sequence. The plaintiff submits that it is incumbent on the defendant to establish that each piece of commercial information sought to be redacted for confidentiality has a confidential character which requires protection.[6]
5. The plaintiff submits that, once a legitimate forensic purpose is established, the defendant must demonstrate a basis for the Court to order that the information should be redacted and not inspected by the plaintiff. The defendant, the plaintiff submits, has not demonstrated confidentiality in the name and details of the supplier. The fact the information in the hands of the plaintiff might be damaging to the defendant's business does not give it the character of confidential information.
6. As to trade rivalry, the plaintiff submits that it and the defendant were and are not 'trade rivals' such that the exception to disclosure for confidentiality recognised in Mobil Oil might apply. The plaintiff points to the defendant's own description of his business, set out at paragraph [14] of the Second Nayak Affidavit, as follows:

I have worked as a technical consultant assisting clients to facilitate the purchase of chemicals for processing and manufacturing textiles in Bangladesh since at least 2009. Since I started working in that role, I have developed many relationships with numerous business contacts, both involved in businesses that produce chemical products and those that require those products for use in their textile manufacturing business.

7. The plaintiff contends that the defendant's business provides services to customers of chemical products, to assist them in purchasing the chemical products required for their manufacturing and processing. The plaintiff submits that there is no suggestion in his evidence that the defendant's business currently provides services to suppliers such as the plaintiff. The plaintiff relied on the decision of Bidvest (discussed at [10] above) to submit that the defendant has not met the evidentiary burden that the parties are trade rivals, or that the plaintiff may use the information for its benefit and to disadvantage the defendant in that trade rivalry.
8. The defendant pleads in paragraph [8] of his Defence that the term of his engagement that he would not, without prior consent, be involved with a business which is in competition with the plaintiff was not operative after 26 August 2018. He has otherwise denied the allegations in paragraph [8] of the Amended Statement of Claim. The plaintiff submits that in any event, and irrespective of the parties respective pleadings, the onus is on the defendant in this application to prove that he is a direct competitor and 'trade rival' of the plaintiff, such that the exception in respect of confidential documents articulated in Mobil Oil ought to apply.
9. As to the documents produced in response to the Bank Statement Subpoenas, appreciating the concerns of the defendant as to the disclosure of his personal information, much of which might not be relevant to issues in dispute, the plaintiff is willing to accept a confidentiality regime where inspection of those documents in unredacted form is limited to counsel and the solicitors acting for the plaintiff.

1. I accept the plaintiff's submission that the documents are sought for a legitimate forensic purpose, whether or not those documents disclose supplier information. Save for the Bank Statement Subpoenas, the legitimate forensic purpose identified by the plaintiff did not vary as between different types of documents or having regard to the information disclosed in them. The evidence of Mr Matam and the submissions of the plaintiff is that the information sought under the Subpoenas will be used to verify conclusions it has drawn regarding the identity of the defendant's suppliers, and will provide critical documents for it to obtain such further evidence as it is able to obtain from those suppliers, to assist it to quantify its claim - in circumstances where it had expected that such information would be, but was not, discovered by the defendant in the proceeding. That is the legitimate forensic purpose identified by the plaintiff. It is not clear how (as submitted by the defendant) that purpose identified by the plaintiff can be said to be a legitimate forensic purpose for documents that do not disclose the identity of the supplier, but is not a legitimate forensic purpose for those that do. That the plaintiff might be able to verify its claim by different means is not to the point. How the plaintiff puts its case is a matter for the plaintiff.
2. The defendant has not particularised the redactions he has sought to make, the particular basis for each redaction, or why he says that confidentiality over that document or any specific part of it ought to be maintained. The scope and extent of the redactions sought by the defendant is not apparent to the Court on the material before it. As articulated in Cargill Australia Ltd v Viterra Malt Pty Ltd[7], such particularisation will ordinarily be required, subject to the Court's and parties' obligations under the Civil Procedure Act 2010 (Vic) ('CPA') to give effect to the overarching purpose to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.[8] Some explanation was given by counsel from the bar table to support specific redactions in the examples of redacted documents exhibited to the Lancefield Affidavit. Otherwise, no specific explanation for the individual redactions was provided.
3. Further, I consider the information provided by the defendant was insufficient to demonstrate the 'stringent standard'[9] of necessity required to support a claim of confidentiality and the redactions proposed by the defendant. The defendant must demonstrate that there is a 'real risk that significant harm may be caused to [the defendant] beyond what is justified in the circumstances of the case'.[10] The evidence of the defendant in support of the proposed redactions is that:

(a) the plaintiff may be able to use the redacted information to try to cut the defendant out of his business relationships with his clients and supply them with products he has been supplying, in his place;[11]

(b) the defendant's customer contact details are not publicly available and it is important for him to keep his contacts confidential, as his relationships with them are a key part of his business;[12]

(c) the defendant's suppliers are 'highly confidential' to his business. The plaintiff could use this information to cut him out of his business relationships or otherwise seek to interfere in his relationships with his clients, or obtain information regarding product formulations and pricing about competitor products not otherwise accessible to the plaintiff;[13]

(d) the inspection of information regarding the consultants who work with the defendant would expose his professional network, enabling the plaintiff to approach or poach those individuals, or seek to replicate the 'specialised expertise' relied upon by the defendant;[14] and

(e) he has been informed by one of his suppliers that certain proprietary information of the supplier needs to be kept confidential.[15]

1. I accept that the defendant may have a real concern about the potential impact that access to this information by the plaintiff may have on his business. Nonetheless, that subjective concern, however real and meaningfully felt, is not sufficient to found an order for redaction of that information in a civil proceeding.[16] It is not clear to me how obtaining information as to the identity of the defendant's suppliers could be used by the plaintiff to interfere with business relationships the defendant maintains with his clients. Nor is it material, without more information about the need to maintain that confidentiality, that the defendant's customer contact details have to date been kept confidential by the defendant. The defendant has not explained how the redacted information could be used by the plaintiff to cut the defendant out of his relationships with his clients and suppliers. Nor has the defendant explained how the plaintiff having access to details of his consultants, and even approaching those consultants or establishing a professional relationship with them, will cause damage to the defendant and his business. I raised squarely with the defendant's counsel at the hearing the question of how disclosure of proprietary information of a third party could be prejudicial to the defendant in this proceeding. The defendant's counsel accepted that the harm to the defendant is limited to the disclosure of the identity of his supplier.
2. In the course of the hearing the defendant referred to the case of Wright v Gasweld Pty Ltd,[17] ('Wright') in support of the proposition that the identity of a supplier is recognised to be confidential information. Counsel for the defendant properly acknowledged at the hearing that the conclusion in that case was drawn having regard to the particular circumstances of that case. The defendant submitted that, in the circumstances of this case, the Court should draw the conclusion that the identity of the defendant's supplier in this case is also confidential information that ought to be protected.
3. In Wright the question for the Court was whether information about suppliers of an employer, used by the employer at the time an employee ceased his employment with the employer, was confidential and as such liable to be protected by an express agreement between the parties. In reaching the conclusion that information concerning the employer's suppliers was confidential, the New South Wales Court of Appeal separately concluded that the supplier information was not a 'trade secret' which would attract equitable protection in the absence of an express covenant. It was the specific characteristics of the individual suppliers, and of the relationship between the supplier and employer, which gave the employer's supplier information the character of confidential information such that it was captured by the relevant provisions of the agreement between employer and employee.[18]
4. I do not consider that the conclusions in Wright assist me in determining whether the supplier information of the defendant is confidential information in this case. Those conclusions are, as the defendant properly conceded, confined to the very particular circumstances of that case. Other than that he has sought to keep it confidential, as explained above, no other explanation is provided as to why this information is confidential information of the defendant that ought not be disclosed to the plaintiff.
5. In light of the above, I consider that the defendant has failed to demonstrate that the redacted information is confidential information, and that the defendant has not articulated in sufficient detail the use to which the information might be put by the plaintiff, once it is known, such that he is at real risk of significant harm. For those reasons, I have determined that there is no basis for refusing access to the documents produced in response to the Subpoenas. Subject to what I have said below about the Bank Statement Subpoenas, there shall be an order for the plaintiff to have access to uplift and inspect the documents produced in response to the Subpoenas.
6. Having reached that conclusion, it has not been necessary for me to consider whether the plaintiff and defendant are 'trade rivals' as contemplated by Mobil Oil, and I have not considered that question further. As set out above at [14], the plaintiff pleads in its Amended Statement of Claim that the defendant is trading in competition with the plaintiff and has sold goods in competition with the plaintiff, and at [24] above I record that the defendant denies that allegation in his defence. On this application, the defendant submits that he and the plaintiff are trade rivals and the plaintiff denies it. I observed to the parties at the hearing that there was some inconsistency on the part of both parties in respect of the positions they had taken in their pleadings and on this application, and I remain of the view that there is a question for the parties to consider as to whether their respective approaches on this application, having regard to their respective pleadings, are consistent with the parties' obligations under the CPA to give effect to the overarching purpose.
7. As set out at [25] above, in respect of the Bank Statement Subpoenas, the plaintiff is content for orders to be made for inspection of those documents in unredacted form to be limited to counsel and the solicitors acting for the plaintiff. The Court indicated its view to the parties that this appeared to be a sensible course, having regard to the likelihood that at least some personal information not relevant to the dispute (such as personal credit card statements and home loan statements) might have been produced in response to the Bank Statement Subpoenas. Counsel for both parties indicated that a sensible negotiated outcome ought to be able to be reached between the parties in respect of the documents produced under the Bank Statement Subpoenas without further Court intervention. The parties were invited to submit consent orders in the event an agreed form of order was negotiated in respect of inspection of documents produced under the Bank Statement Subpoenas. No such proposed consent orders have been provided.
8. The Court remains of the view that inspection subject to a confidentiality regime of that kind is appropriate for the Bank Statement Subpoenas. There shall be an order to that effect, with the precise terms of any undertaking to be agreed between the parties. The parties shall have liberty to apply in respect of the ongoing application of that confidentiality regime, and the form of any undertaking. Any outstanding dispute in respect of the Bank Statement Subpoenas may be raised with the Court at the next directions hearing.
9. During the course of this proceeding there have been occasions where the Court has proposed that a confidentiality regime might be implemented for access to inspect documents to be limited to solicitors and counsel, to address disputes about confidential documents. Save for the documents produced in response to the Bank Statement Subpoenas, in which detailed information about the defendant's business is unlikely to be disclosed, the defendant has opposed any such regime. The defendant's concern is that the individual solicitor with the care and conduct of this proceeding on behalf of the plaintiff was appointed a director of the plaintiff on 8 May 2025.
10. It is a matter for any party as to the legal practitioners they choose to engage to represent them. However, when access to mechanisms of case management that may facilitate the just, efficient and cost-effective resolution of the dispute are otherwise impeded as a consequence of these choices, it is a matter of concern for the Court. The law firm engaged to act for the plaintiff is a well-resourced commercial law firm with numerous principals and senior lawyers. The Court's expectation, going forward, is that the solicitors for the plaintiff will take whatever steps necessary in resourcing the matter on behalf of their client to ensure that the proceeding may be case managed effectively to trial, without limiting the available case management procedures that may be open to the Court to employ in the efficient conduct of this dispute.

1. At the conclusion of the hearing I indicated to the parties the Court's expectation that, following delivery of this ruling, the parties are to attend a directions hearing where a timetable may be made for the future conduct of the proceeding including listing the matter for trial. Orders have been made accordingly for a directions hearing in the Employment and Industrial List.
2. The question of costs of and incidental to both the subpoena objections and the defendant's summons has been adjourned for further hearing and determination at that directions hearing. As indicated at the hearing, to the extent there remains any dispute between the parties on costs following delivery of these reasons, the Court is content to receive limited submissions in writing so that the question of costs may be determined on the papers, or for there to be a hearing on costs at the listed directions hearing. The parties are asked to confer and consider the most efficient and cost‑effective approach and inform the Court accordingly.

WINRA PTY LTD (ACN 006 583 044) TRADING AS OXFORD TECHNOLOGIES AUSTRALIA

[1] [2013] VSCA 270 ('Woolworths').

[2] Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34 at 38 (Hayne JA) ('Mobil Oil').

[5] [2017] WASCA 23 at [42].

[6] Cargill Australia Ltd v Viterra Malt Pty Ltd [2019] VSC 417; (2019) 58 VR 611 at 624-625 (Elliott J) ('Cargill').

[8] See the observations of Ball J in ICAP Australia Pty Ltd v Forrest Moebes [2010] NSWSC 738 at [8]-[11].

[10] IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [No 2] [2016] VSC 594 at [10].

[12] Second Nayak Affidavit, [25]-[26].

[13] Second Nayak Affidavit, [28]-[29].

[16] Cargill at 623, citing John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 477.

[17] (1991) 22 NSWLR 317.