Plaintiff v Defendants

1 By his summons filed 28 May 2024 (Summons) the plaintiff seeks leave to uplift and inspect forthwith specified documents (Documents) over which the defendants claim legal professional privilege (Documents Application), an order varying an interlocutory costs order previously made against him (Costs Application), and some related relief (collectively, Applications). The Applications are made in circumstances where the eight-day trial in this proceeding concluded in mid-December 2023, judgment is reserved, and lengthy reasons for judgment are scheduled to be delivered mid-next week.

2 The prospect of the Applications being made was first raised with the court on 17 May 2024,[1] when the court was provided with a draft summons and an affidavit of the plaintiff's solicitor, Ms Whiting, sworn 17 May 2024 (May Whiting Affidavit). The matter was urgently listed for mention on 24 May 2024, where both parties were represented by senior and junior counsel who appeared at the trial. At that hearing an issue arose between the parties as to whether or not it was necessary for the plaintiff to seek and obtain leave to reopen his case in order to have the Applications heard and determined. The defendants contended that such leave is required, which the plaintiff disputed.

3 Given that I was the trial judge and the application to uplift and inspect the Documents relates to documents over which a claim of legal professional privilege is made, it was common ground that I should not hear the Applications. However, the parties each considered that I should determine the narrow question of whether or not leave to reopen the plaintiff's case is required to be obtained before the Applications can be heard and determined (Issue). Directions were made on 28 May 2024 to facilitate the hearing and determination of the Issue on a date suitable to the parties. This hearing took place on 11 July 2024, and these reasons address the Issue.

4 For the reasons that follow, I have determined that the plaintiff is not required to first obtain leave to reopen his case in order for the Applications to be heard and determined.

5 The plaintiff relied upon the May Whiting Affidavit and his written submissions filed 11 June 2024, which were supplemented by oral submissions of senior counsel for the plaintiff during the hearing. The defendants did not file any affidavit material and relied upon their written submissions dated 23 May and 3 June 2024, which were supplemented by oral submissions made by the defendants' senior counsel at the hearing.

6 Some brief context is necessary. The plaintiff seeks to pursue the Documents Application to enable him to uplift and inspect the Documents even though they are subject to a claim of legal professional privilege by the defendants. In substance the plaintiff contends that the Documents are not privileged because the so-called 'fraud/crime' exception applies by reason of the engagement and operation of s 1307(1) and 1308(1) of the Corporations Act 2001 (Cth) (Act). These sections relevantly relate to offences associated with falsification of books affecting or relating to the affairs of a company (s 1307(1) of the Act), and the authorising of the making of materially false or misleading statements in certain documents required by the Act to be kept by a company (s 1308(1) of the Act).

7 The Documents Application is related to a previous application made by the defendants that addressed almost entirely the same issue, which was heard and determined by Hetyey AsJ (Related Application). I say 'almost entirely the same issue' because the current Applications seek to uplift and inspect two additional documents that were not the subject of the Related Application[2] and the plaintiff now also relies upon s 1308 of the Act which, for procedural fairness reasons, he was not permitted to do so at the hearing of the Related Application.

8 The Related Application was made by the defendants in circumstances where the plaintiff had alleged that he was entitled to uplift and inspect the documents the subject of the Related Application, notwithstanding the claim of privilege, because the crime/fraud exception applied by reason of the operation of s 1307(1) of the Act. The defendants sought orders that the documents the subject of the Related Application were the subject of legal professional privilege and should not be uplifted or inspected. This was a little unusual because in the ordinary course one might have expected the plaintiff to have made an application for an order allowing the relevant documents to be uplifted and inspected, which the defendants would then have opposed given their contention that the documents were the subject of legal professional privilege. In any event, the application was heard on 13 September 2022 and detailed reasons were delivered by Hetyey AsJ on 31 July 2023.[3]

9 In the Related Application it was submitted by the plaintiff that the relevant documents were communications in furtherance of a fraud or crime, namely the falsification of the minutes of the board meetings of National Tiles in April, May and August 2020. Very briefly, the plaintiff contended that the April 2020 board minutes were false because the minutes:

1. failed to record a particular resolution was passed at the April 2020 board meeting (Morphet Shareholders' Agreement Resolution); and

2. recorded that a different resolution regarding a Shareholders' Agreement was passed at the April 2020 board meeting (Walker Shareholders' Agreement Resolution), when in fact that resolution had not been passed at the meeting.

10 The May and August 2020 board minutes were said to be false insofar as they confirmed and ratified that the Walker Shareholders' Agreement Resolution had been passed at the April 2020 board meeting, and that the April 2020 board minutes were an accurate record of the April 2020 board meeting.

11 The plaintiff was not successful in his attempt to uplift and inspect the documents the subject of the Related Application because Hetyey AsJ determined that, on the evidence before him, it did not suggest on a prima facie basis that the board minutes had been falsified. His Honour concluded that the likely inference available on the evidence was that the board minutes were the subject of a genuine dispute between the parties. His Honour made orders on 7 August 2023, that the documents the subject of the Related Application were subject to legal professional privilege and could not be uplifted or inspected by the plaintiff.

12 Until the last day of oral closing submissions at trial the defendants had pleaded in their defence and maintained throughout the interlocutory stages[4] and the trial of the proceeding, that the Walker Shareholders' Agreement Resolution had been passed at the April 2020 board meeting. During an exchange between senior counsel for the defendants and the Bench on the last day of oral closing submissions the Court was informed that the defendants' position had changed. In short, the defendants no longer contended that the Walker Shareholders' Agreement Resolution was passed at the April 2020 board meeting but contended that it had been passed at the May 2020 board meeting, and only at the May 2020 board meeting.[5]

13 The oral closing submissions and the trial concluded later that day and judgment was reserved. After the trial concluded nothing further was raised by the parties with the Court about the defendants' change of position until the prospect of the Applications being made was raised with the Court on 17 May 2024, in the manner referred to in paragraph 2 above.

14 When the matter was listed for mention on 24 May 2024, senior counsel for the plaintiff informed the Court that further consideration had been given to the defendants' change of position in closing submissions, observing that prior to the change of position the entire proceeding had been conducted on a particular basis by the defendants, which it was submitted was now known to be false. It was submitted that the proceeding unfolded in a particular way, and that decisions were made by the plaintiff, including forensic decisions, because of the false position that had been adopted by the defendants. The plaintiff contended that there would be a range of consequences as a result. One of the 'important' consequences was said to be that the Related Application was pressed and argued by the defendants before Hetyey AsJ on a false position.

15 In the light of the changed position, the history of the proceeding, and the hearing and outcome of the Related Application, senior counsel for the plaintiff informed the Court that this explained and gave context as to why the Applications were now being made by the plaintiff at this late stage. The Court was also informed that the plaintiff will be contending on the Documents Application that the documents are not privileged because the relevant communications were made in furtherance of a crime or fraud, namely, contraventions of ss 1307(1) and 1308 of the Act.

16 No consideration was given by the Court to the merit or otherwise of the substance of these contentions at the mention. The observations were made by senior counsel for the plaintiff by way of the background to, and explanation of, the timing of the proposed Applications.

17 The defendants submitted that although the plaintiff was entitled to file and serve the summons, he first had to obtain leave to reopen his case before the Documents Application could be made, and that this was so notwithstanding that the application was a step antecedent to any reopening application that might be made to adduce further evidence. The broad and narrow questions that the defendants said were before the court were:

1. whether leave is required where a party seeks to take a step in the proceeding following trial and reservation of judgment which is antecedent to applying to adduce further evidence in the trial; and

2. more narrowly, whether leave is required where a party seeks to take a step in the proceeding following trial and reservation of judgment, to obtain documents for the purpose of possible tender at the trial, but which is antecedent to applying to adduce further evidence in the trial.

The defendants submitted that the answer to both questions was 'plainly yes'. It was further submitted that the steps being taken were for a trial purpose and they amounted to a reopening application or something akin to it.

18 The defendants submitted that it was orthodox that the need to obtain leave to reopen following the closing of a case and reservation of judgment was not confined only to a circumstance where a party seeks to adduce further evidence. It was contended that the closest analogy to the present application was where a party seeks leave to issue a subpoena for production of documents, and it was submitted that courts have required parties to obtain leave to reopen their case in order to issue a subpoena in such circumstances. The cases referred to included Alonso v SRS Investments (WA) Pty Ltd (Alonso),[6] and Société des Produits Nestlé SA & Anor v Christian & Anor (No 2) (Nestlé SA).[7] It was also submitted that the decision of Rangiah J in Matson v Attorney-General (Matson)[8] was wrongly decided.

19 To illustrate what was said to be the breadth of matters which require leave of the court to reopen a party's case, the defendants referred to a decision of Jackson J in Frigger v Trenfield (No 7),[9] which involved an application to reopen the case in order to object to evidence which had already been admitted. Reference was also made to Westgem Investments Pty Ltd v Commonwealth Bank of Australia (No 5),[10] which involved an application following trial to amend pleadings to withdraw admissions and make new claims. The defendants submitted that this application was heard and determined in accordance with the principles about leave to reopen.

20 The defendants contended that, consistently with the cases referred to, a careful reading of the authorities reveals that leave is required to 'reopen the case or the proceeding', not merely to reopen to adduce evidence. Whilst it was acknowledged that most cases concern the circumstance in which further evidence is sought to be adduced, it was emphasised that this is not the limit of the requirement. In so doing, reference was made to what was said to be the seminal statement of principle regarding reopening made by Kenny J in Inspector-General in Bankruptcy v Bradshaw (Bradshaw),[11] which was said to have been approved and applied by the Court of Appeal in Spotlight v NCON Australia (Spotlight)[12] and in Ezra Abrahams Pty Ltd v Milburn.[13] That statement of principle referred to the four well-recognised classes of case in which a court may grant leave to reopen, noting that the classes overlap and are not exhaustive. The four classes mentioned were: (1) fresh evidence; (2) inadvertent error; (3) mistaken apprehension of the facts; and (4) mistaken apprehension of the law. It was also emphasised that one of the cases cited in support of the fourth class involved an application to reopen in order to make further submissions.

21 The defendants contended that the principles as to why leave is required for a party to reopen to adduce evidence following reservation of judgment apply with equal force to the circumstance in which a party seeks to take a step antecedent to applying to adduce evidence following reservation of judgment. Reference was made to the following frequently cited passage in Spotlight:[14]

There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.

22 The same considerations were submitted to apply equally to the circumstance in which a party seeks to take any other step in the proceeding for the purpose of advancing their case at trial, including to obtain documents which a party may then seek to tender as evidence after their case has closed. The defendants emphasised case management considerations, the need for finality, and what was described as the inevitable decline in discipline if such applications could be made without first obtaining leave to reopen.

23 So far as power was concerned, the defendants submitted that the powers to grant leave to reopen were broad and concerned general trial management in a court's inherent jurisdiction, contending that the circumstances in which they may be exercised were not confined to powers concerning adducing evidence. In this context, reference was made to Elliott J's decision in Cargill Australia Limited v Viterra Malt Pty Ltd (No 25)[15] where the sources of power were identified as including the court's inherent jurisdiction, rr 40.05 and 49.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) and ss 9, 47 and 49 of the Civil Procedure Act 2010 (Vic) (CP Act).

24 During oral submissions the defendants placed further emphasis on Alonso and Nestlé SA, also emphasising that the Documents Application was for a trial purpose and that no other purpose had been identified by the plaintiff. The defendants submitted that if the principles relevant to reopening were not applied it would be unjust because at least the Documents Application was, in substance, a reopening application. It was submitted that the time to evaluate the plaintiff's position by reference to the reopening principles was now. Whilst it was acknowledged that various factual matters relevant to reopening might be able to be raised on the hearing of the Applications in a 're-badged' way, it was legally incoherent to approach the matter in this way given that the plaintiff's application was, in effect, a reopening application.

25 Submissions were also made regarding the Court's power to hear the Applications, the absence of an appeal against the orders made on the Related Application, and the inappropriateness of the procedural mechanism adopted by the plaintiff to seek to bring the Applications before the Court. However, and as was appropriately acknowledged, these matters were not germane to the narrow Issue for determination in these reasons.

26 The defendants submitted that it was consistent with the CP Act and principles of case management to require a party to obtain leave of the court to take further steps in the proceeding after the trial has been conducted and judgment is reserved; and a fortiori, where the application concerned the obtaining of documents for the purpose of possible tender at the trial. This was said to well serve the overarching purpose in s 7(1) of the CP Act, and it was contended that it would be an anathema to proper case management if parties were able to take steps in a proceeding to advance their case after trial and before judgment was delivered without any oversight by the court or the presiding judge. In this context the defendants outlined what the Documents Application would involve including, so it was said, filing of evidence, submissions, a hearing potentially involving cross-examination of witnesses, and a judge hearing and deciding the application. The defendants submitted that the plaintiff's position is that the trial judge has no necessary role in or specific power to manage the process unless and until the plaintiff succeeds in the Applications.

27 The defendants disputed the plaintiff's contention in paragraph 19 of his written submissions that it was accepted by the defendants that the minutes of the National Tiles board meetings in April, May and August 2020 were falsified, also contending that these and the related submissions in that paragraph were irrelevant to the determination of the narrow Issue before the Court.

28 When concluding, the defendants submitted that, after a case is closed where judgment is reserved, leave to reopen is required for a party to take a further step in the proceeding - or more narrowly, leave to reopen is required to take further steps in the proceeding to secure documents for the prospect of tender at trial, which is a 'trial purpose'.

29 The plaintiff submitted that it does not require leave to reopen to make the Documents Application or the Costs Application, contending that the authorities do not support the defendants' contention that a party requires leave to reopen its case before it can take any step after judgment is reserved, or a step to obtain documents for possible tender at trial. It was submitted that the question has been considered and the authorities show that leave to reopen is not required. Senior counsel for the plaintiff emphasised that no reopening application is being made by the Applications, and that if the plaintiff seeks to reopen his case that will be an application made at a later date after the Documents Application has been heard and determined and any documents to which access is obtained have been considered.

30 In so contending reference was made to a number of authorities, including Matson,[16] in which it was said the Court concluded that an application for discovery made after judgment was reserved was not an application to reopen the case because the applicant was not seeking, at that stage, leave to present further evidence. This was said to have been cited with approval by Solomon J in Hongkong Xinhe International Investment Company Limited v Bullseye Mining Limited [No 6] (Hongkong Xinhe),[17] which was also a case in which further discovery was sought after judgment was reserved and reopening was foreshadowed for the purposes of adducing further evidence and advancing further submissions. It was said that a similar view was reached in Condoleon v Director of Professional Services Review (Condoleon),[18] where Logan J drew a distinction between the discovery orders sought on the one hand and an application for leave to reopen the case on the other. This was also said to be consistent with the approach taken by Robson J in Slea Pty Ltd v Connective Services Pty Ltd (Slea).[19] The plaintiff submitted that I should follow Matson unless I am satisfied that it was plainly wrong, which it was said it is not.

31 The plaintiff submitted that the cases make clear the distinction between a step on the reconsideration of a matter relevant to judgment (often, though not always, by adducing further evidence) and antecedent steps such as the production of documents. It was contended that reopening relates to the former but not the latter, and that so much is consistent with how reopening is described in various cases. During oral submissions the plaintiff addressed what a reopening entails by reference to a number of authorities,[20] submitting that at this stage the Applications did not in any way involve a review, reconsideration, re-hearing, or revisiting of the matters the subject of the trial.

32 The plaintiff further submitted that the defendants' contention that leave to reopen in order to inspect documents would, if accepted, lead to radical and absurd outcomes. First, it was said that it would result in the plaintiff having to make an application to reopen to seek inspection of the Documents and then, following inspection, and if so advised, the need to make a second application for leave to reopen in order to tender such documents. This was said to be inconsistent with a modern approach to efficient litigation as reflected in the overarching obligations.

33 Second, it was submitted that several factors relevant to the discretion on an application for leave to reopen to adduce further evidence were inapposite. By way of example, the plaintiff referred to the fact that submissions could not currently be made about the degree of relevance and probative value of the further evidence until the inspection of the Documents had occurred. This was said to have been the very submission made by the successful applicant in Matson.[21]

34 Third, although acknowledging the classes were not closed, reference was made to the four established classes of cases in which a court may grant leave to reopen, being fresh evidence, inadvertent error, mistaken apprehension of the facts, and mistaken apprehension of the law. It was said to be 'telling' that taking an interlocutory step to obtain the production and inspection of documents is not a recognised or general category of reopening, noting that the present circumstances are not novel and that if seeking production or inspection of documents constituted a reopening of hearing then such steps would by now be a recognised category.

35 Finally, it was submitted that if the defendants were correct, the plaintiff would be unable to seek to vary any interlocutory costs order without the leave of the court to reopen, which was said to be a proposition for which there was no justification.

36 With respect to the defendants' submissions, the following points were made:

1. Much of the defendants' submissions were a distraction because they raised and addressed non-issues, including the well-accepted proposition that reopening is not limited to adducing further evidence.

2. The decision in Alonso[22] does not support the broadly expressed proposition that the courts have required a party to obtain leave to reopen in order to issue a subpoena after a trial has concluded, referring also to Slea[23] as an example of a court not imposing such a requirement.

3. The facts in Alonso[24] were quite different. It was said that Alonso was dealing with a situation where leave was sought to issue a subpoena for production of a document, the content of which was known with precision and a copy of which had been the subject of evidence at trial, in circumstances where what submissions would be made in relation to an application for leave to reopen were readily ascertainable at the time. That is to say, it was possible for the Court to apply the principles applicable to reopening to adduce fresh evidence. It was also submitted that, in substance, in Alonso Edelman J was really hearing the subpoena application and reopening application together. The plaintiff contended whilst it may be appropriate in a case like Alonso to deal with an application to reopen to adduce fresh evidence and leave to issue a subpoena together, such an approach was inapposite where the content of the documents was unknown, as was said to be the case here and was the case in Matson.[25] In short, it was contended that the decision in Alonso[26] was distinguishable and of little relevance to the facts of this case.

4. The decision in Alonso[27] was not authority for the proposition that a party is required to seek leave to reopen to issue a subpoena and then, separately, seek leave to reopen to adduce fresh evidence.

37 In concluding, the plaintiff contended that it was not now in dispute that the minutes of the board meetings of National Tiles held in April, May and August 2020 were falsified, and that there was no doubt that from April 2020 until the last moment of trial this was sought to be concealed by the defendants. Thus, so it was said, it was this alleged dishonesty that had caused the need for the plaintiff's application. It was further emphasised that the authorities do not support the defendants' contention and the case management principles do not warrant any different conclusion. The plaintiff submitted that the most efficient course is to allow the Applications to be heard and determined without imposing a requirement that he apply for leave to reopen. That way, so it was said, the time and resources of the parties and the courts will only need to be applied to one reopening application if it occurs.

38 I emphasise that these reasons deal only with the narrow question of whether the plaintiff needs to obtain leave to reopen his case in order to have the Applications heard and determined. For the reasons that follow, the short answer to this question is no.

39 In my view it is plain that, in the particular circumstances of this case, the pursuit of the Applications, including the Documents Application, does not involve or constitute an application by the plaintiff to reopen his case or anything akin to it. I accept the plaintiff's submission that it is not necessary for the plaintiff first to obtain leave to reopen his case in order to have one or more of the Applications heard and determined. I elaborate below as to why.

40 Although the trial has been held, judgment is reserved, and reasons for judgment are scheduled to be delivered in a few days, the proceeding remains on foot as a proceeding. As the plaintiff made clear, the plaintiff seeks to take a step in the proceeding in connection with the uplift and inspection of Documents previously produced during the interlocutory phases of the proceeding, and have the interlocutory orders in the Related Application revisited.

41 I accept that at this stage the plaintiff does not seek to reopen his case, but seeks to gain access to documents that he contends he was deprived of obtaining access to during the interlocutory stages of the proceeding by reason of the Related Application being conducted by the defendants on a false premise. Whether there is any substantive merit to that contention, and what might or might not follow from it, remains to be seen. It is a matter for another day and is not a matter for me to consider or decide here.

42 Senior counsel for the plaintiff frankly but appropriately made it clear that the plaintiff is not seeking to reopen his case at this point, and that the Applications are steps antecedent to the possibility or prospect that such a reopening application might be made in the future. So much is readily apparent. It is possible, but not yet known, whether the plaintiff will seek leave to reopen his case in the future, and the basis upon which any such application might be advanced is also not yet known. Whether or not such an application is later made may be influenced by a variety of known and unknown matters, including, for example: whether reasons for judgment and/or judgment is delivered in the meantime; the outcome of the Applications; which, if any, documents the plaintiff is permitted to access; the content of those documents; forensic and other decisions made in light of the outcome of the Applications; and any advice given to, or instructions received from, the plaintiff.

43 The defendants' emphasis on the fact that the need to obtain leave to reopen a party's case is not confined to a circumstance where the party seeks to adduce further evidence does not assist them. So much is well known and well rehearsed in the authorities, including those referred to by the defendants. Although the authorities typically refer to four recognised classes of case in which the Court may grant leave to reopen, the categories are not closed and the overriding principle is that the Court considers whether, taken as a whole, the justice of the case favours the grant of leave to reopen.[28] However, in the circumstances of the present case, the short point is that the Applications sought to be made by the plaintiff do not at this stage involve or constitute an application to reopen his case or anything akin to it, and therefore the principles governing such applications do not engage.

44 It also does not relevantly assist the defendants in the present case that in other cases an application for leave to reopen a party's case has been required in order to make further submissions on the matters the subject of the trial, to make objections to evidence admitted at trial, or to withdraw admissions made at trial. So much is unsurprising and that is not what is occurring here, or anything like it.

45 To the extent that it was contended that the principles relevant to a reopening application necessarily apply equally to steps antecedent to any such application if it is directed towards what was described as a trial purpose, I do not accept that submission or that the authorities referred to provide support for it. There is no such general principle and in my view nor should there be. Each case must necessarily depend on its own facts and circumstances and, of course, questions of fact and degree may be involved. In each case it is appropriate and necessary for the Court to examine the substance of the relevant proposed step or application sought to be taken or made, and make an assessment as to whether the relevant step or application amounts to the reopening of a party's case or something akin to it. That is not the case here, and the reference by the defendants to the frequently cited passage in Spotlight[29] does not relevantly assist; noting also that in Spotlight the applicants had expressly sought leave to reopen their case for the purpose of pursuing the quantification of their loss, which they had made a conscious decision not to do at trial.

46 Whilst it may be accepted, as the defendants observed, that a court's power to grant leave to reopen a party's case may be described as a relatively broad power, and one springing from more than one source, any such discretion is of course to be exercised judicially and on a principled basis. But for present purposes this is also not germane because the steps sought to be taken by the plaintiff through the Applications do not constitute or amount to the plaintiff seeking to reopen his case.

47 I do not consider there is force in the defendants' contention that the plaintiff's position is that the trial judge has no necessary role in the management of the process unless and until the plaintiff succeeds in the Applications. I also do not accept that this is an accurate characterisation of the plaintiff's position. In any event, it is not the case. To date the process is being and has been managed by me as the trial judge. If the Applications are pressed then part of that management will see the Applications referred to a different judicial officer in the then prevailing circumstances. This was requested by the parties because of the legal professional privilege issues involved, which was an appropriate request to make in the circumstances.

48 To the extent that it was submitted that the Court or the parties' obligations or case management considerations under the CP Act mandated or supported the need for the plaintiff first to obtain leave to reopen his case in order to have the Applications heard and determined, I do not accept that submission. A number of points may be made.

49 First, the principles relevant to the grant of leave to reopen a party's case apply to a circumstance where that is what a party is seeking to do. It would not be just to apply those principles when that is not what the plaintiff is seeking to do at this time.

50 Second, it is just that the parties are each free to pursue or oppose the Applications on such arguable grounds as they consider appropriate. If the defendants consider that considerations regarding the Court's power or procedure under the CP Act, delay, finality of litigation, abuse of process, revisiting applications previously determined, or other matters, are appropriate to employ in opposition to the Applications, they will no doubt do so. The Applications will be justly determined upon their merits by a judicial officer of this Court after taking into account the relevant evidence and submissions made by each of the parties.

51 Third, it is not time or cost efficient to require the plaintiff to address the Court and adduce evidence relevant to an application to reopen the plaintiff's case at this stage in circumstances where that is not what the plaintiff is seeking to do. The point is underscored by the fact that the plaintiff does not yet know whether he will or will not apply in the future to reopen his case, or the basis on which any such application may be made. That being so, it is also not possible for the Court properly to assess and apply the considerations relevant to an application for leave to reopen a case at this point in any event.

52 Fourth, if an application is later made by the plaintiff to reopen his case then the basis upon which that application is made and the evidence relied upon will be made clear to the Court and the defendants, enabling the defendants to respond as they may be advised having regard to the then prevailing circumstances. In that circumstance, the reopening principles and considerations will fall for consideration at what is the appropriate time for their consideration.

53 Fifth, and as was pointed out by the plaintiff, if the defendants were correct in their contention that leave to reopen must be obtained at this point, it would potentially require two applications for leave to reopen the plaintiff's case. First, the application for leave to reopen the case in order to have the Applications heard and determined. Second, if leave was granted and the result of the Applications led to a desire or need on the plaintiff's part to seek to reopen his case, then a further reopening application would follow. This does not well serve the overarching purpose under the CP Act or the Court's or the parties' obligations in relation to the same.

54 Although I have considered all the authorities referred to by the parties, in my respectful opinion the authorities relied on by the defendants do not materially assist the defendants' position on the narrow question before me in the circumstances of this case. None of the cases relied upon by the defendants stand for the proposition that an application of the kind now before me constitutes a reopening of the parties' case, and none can in my view be said to be close to being on all fours with the facts of the present case. They also do not stand for a proposition that leave to reopen a party's case needs to be obtained before an application to uplift and inspect documents produced during the interlocutory stages of the proceeding can be heard and determined. In any event, the fact remains that the steps sought to be taken by the plaintiff do not amount to an attempt by the plaintiff to reopen the plaintiff's case or anything akin to it.

55 The decisions in Alonso and Nestlé SA each dealt with different factual circumstances, with each case involving a party seeking leave to issue a subpoena after the conclusion of the trial for the then known purpose of reopening the party's case to adduce the subpoenaed documents as evidence at trial. Further, in Alonso, the content of the document the subject of the proposed subpoena was known because a copy of it that omitted the word 'Director' under a signature had been addressed at trial, and therefore the basis upon which the reopening application was to be made was also known.[30] Consequently, it is readily apparent why Edelman J considered it appropriate for the reopening application to be addressed at the same time as the application for leave to issue the subpoena, which in my view is what in substance occurred. But even if I am wrong about that, the position remains that the Applications in this case do not constitute or amount to a reopening application.

56 The facts in Nestlé SA were quite unusual and also materially different to the facts of the present case. The respondent was seeking leave to subpoena documents after the conclusion of the trial in the Federal Circuit Court and, relevantly, Judge Manousaridis proceeded on the basis that the respondent was in fact seeking to reopen his case, which is why his Honour dealt with the leave to issue the subpoena application and the leave to reopen the application together.

57 Neither Alonso, Nestlé SA or any of the other cases referred to by the defendants stands for a more general proposition that where a party seeks leave to issue a subpoena after the trial of a proceeding it is also necessary to obtain leave to reopen that party's case to have the subpoena application heard and determined. Indeed, in each of Alonso and Nestlé SA it is readily apparent why the subpoena applications and reopening applications were addressed together, noting also that in each case that relevant parties were seeking to reopen their cases or knew that they would be doing so, and they knew the basis for so doing, which is not yet the case here.

58 I add that if in this case it was already apparent that an application to reopen the plaintiff's case is to be made, and the basis on which it is to be made was known with sufficient precision to enable it to proceed and be properly considered by the Court, then, as a matter of case management, it would be open to the Court to direct that the reopening application be made at the same time, or prior to the Applications being heard.[31] However, that is also not the case here.

59 The facts in Matson[32] are closer to the facts in this case. Matson was a case where '... the determination of the substantive proceeding [had] been delayed by a series of interlocutory applications brought by [the applicant] after the hearing had been completed and judgment reserved'.[33] Relevantly, the applicant made an application for further discovery after the conclusion of trial to obtain redacted copies of certain documents that were produced in a heavily redacted form by way of discovery. The respondent contended that the application was, in effect, a reopening application and that the relevant principles therefore applied. The applicant disputed this and submitted that there was no reopening application at that point, noting also that because of the heavily redacted documents the applicant was not in a position to be able to determine whether or not a reopening application would be made, or the basis upon which any such application would be made. Rangiah J accepted that the applicant's position 'appeared to be correct'[34] and did not treat the application as a reopening application. He also observed that '... some of the principles applied in an application for leave to reopen appear relevant to an application for discovery made after judgment has been reserved, including the "principle of finality of litigation" referred to by Kenny J ...'[35] in Bradshaw.[36] The decision in Matson was followed in Hongkong Xinhe.[37]

60 I do not accept the defendants' submission that Matson was wrongly decided, noting also that the defendants did not expose why that was said to be so. In any event, having regard to the facts in Matson, and with respect, I consider it to have been correctly decided, and plainly so.

61 A number of cases were cited by the defendants to illustrate the breadth of matters which it was said required leave of the Court to reopen. To the extent these were relied upon to submit that the Documents Application requires leave to reopen to be granted before it can be heard and determined, I do not consider they assist the defendants. These cases included: Frigger v Trenfield (No 7), in which an application for leave to reopen was made in order to strike out evidence previously admitted, and Westgem Investments, in which an application to re-open the matter was made, and leave was sought to amend pleadings by withdrawing admissions in order to make new claims. In neither case is there any similarity to the facts of this case or any appropriate analogy to be drawn with the present narrow question before me with respect to the Documents Application, in circumstances where the plaintiff has not yet, and may not, make an application for leave to reopen his case, and the basis upon which any such application might be made is not yet known.

62 I emphasise again that in these reasons I have determined only the narrow question before me. Nothing in these reasons is intended to expressly or impliedly make any observations about the merits or otherwise of any of the Applications, or the assertion that the Related Application was run on a false premise by the defendants. If the Applications proceed these matters will fall to be considered by another judicial officer of this Court. Each of the parties will remain free to raise such matters as they wish to raise in support of their respective positions on the Applications,[38] including considerations such as power, procedure, discretion, finality of litigation and so on.

63 To date there has been no application by any party for a stay of the delivery of reasons and at the commencement of the hearing on 11 July 2024 the parties were informed that I anticipated being in a position for the reserved reasons for judgment to be delivered on 16 or 17 July 2024. The defendants submitted that, in the absence of a stay application, the Court should proceed to deliver its reasons, and that this would not prevent the Applications being pursued if the plaintiff wished to pursue them. I allowed a short time for the plaintiff to consider his position, and the plaintiff is to inform the Court and the defendants by 4:00pm on 15 July 2024 whether he wishes to apply for a stay of the delivery of reasons pending the hearing and determination of the Applications.

64 The Applications sought to be pursued by the plaintiff do not involve or constitute an application by the plaintiff to reopen his case or anything akin to it. The plaintiff is not required first to obtain leave to reopen his case in order to have the Applications heard and determined.

65 I will hear from the parties regarding the precise form of orders to be made, including the directions to be made to facilitate the hearing of the Applications, and the question of costs.

[1] Having been raised between the parties by letter dated 9 April 2024.

[2] The documents referred to in sub-paragraphs 2(a), (b) and (c) of the Summons filed 17 May 2024 were also the subject of the Related Application. The documents referred to in paragraph 2(d) of the summons were not; being '... documents numbered 1 and 2 in the Schedule at pp14-24 of Exhibit PJH‑4 of the affidavit of Peter Holloway affirmed 12 September 2022.'

[3] Selak v National Tiles Co Pty Ltd [2023] VSC 446 (Selak No 1).

[4] Including on the Related Application.

[6] [2012] WASC 168.

[7] [2014] FCCA 1867.

[8] [2020] FCA 1558.

[9] [2020] FCA 1740.

[10] [2019] WASC 310 (Tottle J).

[11] [2006] FCA 22.

[12] (2012) 46 VR 1 at [24]-[26] (Spotlight).

[13] [2017] VSCA 355 at [47] (Kyrou, Kaye and McLeish JJA).

[14] (2012) 46 VR 1, [17] (Harper and Tate JJA and Beach AJA).

[15] [2020] VSC 172, [46].

[16] [2020] FCA 1558 (Rangiah J).

[17] [2023] WASC 131, [20].

[18] [2010] FCA 1510 (Logan J).

[19] [2017] VSC 609.

[20] These included: Smith v New South Wales Bar Association (1992) 176 CLR 256, 263 (Brennan, Dawson, Toohey and Gaudron JJ); Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 (Gibbs CJ, Mason, Murphy and Brennan JJ); and Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 302 (Mason CJ).

[21] [2020] FCA 1558, [360]-[361].

[22] [2012] WASC 168.

[23] [2017] VSC 609.

[24] [2012] WASC 168.

[25] [2020] FCA 1558.

[26] [2012] WASC 168.

[28] See, for example, Bradshaw [2006] FCA 22, [24]-[26] (Kenny J); Spotlight (2012) 46 VR 1, [24]-[26] (Harper and Tate JJA and Beach AJA); Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355, [45]-[58] (Kyrou, Kaye and McLeish JJA); and Cargill Australia Limited v Viterra Malt Pty Ltd (No 25) [2020] VSC 172, [46]-[56] (Elliott J).

[29] (2012) 46 VR 1 at [24]-[26].

[30] Namely, to tender the document containing the word 'Director'.

[31] Although if that was contemplated in the present circumstances the parties would be given an opportunity to be heard on the point, noting also that the Documents Application involves documents over which privilege is claimed.

[32] [2020] FCA 1558 (Rangiah J).

[36] [2006] FCA 22, [25] (Kenny J).

[37] [2023] WASC 131.

[38] Except for the contention that the plaintiff is required to obtain leave to reopen his case in order to have the Applications heard and determined, because this issue arising from paragraph 1 of the Summons has now been determined.