Plaintiff v Defendants

(a) the contract of sale;

(b) the final statement of adjustments;

(c) the final settlement statement;

(d) documents recording the recipient of any part of the purchase price paid for the Land (including any deposit), including documents that identify any bank account to which any part of the purchase price was paid.

1. The subpoena issued to Satterley sought the production of:

The following documents in relation to the purchase by Satterly Tarneit Derrimut Pty Ltd of the property at or about 800 Derrimut Road, Tarneit, in the State of Victoria (Land), in or about 2021:

(a) the contract of sale;

(b) the final statement of adjustments;

(c) the final settlement statement;

(d) documents recording the recipient of any part of the purchase price paid for the Land (including any deposit), including documents that identify any bank account to which any part of the purchase price was paid.

1. In their Objection Letter, the defendants objected to the Subpoenas on 6 grounds, namely that the Subpoenas were:

(a) an abuse of process, including the defendants' objection to the Supreme Court of Victoria's jurisdiction to hear the proceeding ('ground 1');

(b) fishing ('ground 2');

(c) not for a legitimate forensic purpose ('ground 3');

(d) not relevant ('ground 4');

(e) oppressive ('ground 5'); and

(f) not served on the defendants in compliance with r 42.05(2) of the Rules ('ground 6').

1. At the hearing before me, the defendants conceded that they no longer pressed grounds 5 and 6 and otherwise did not advance any oral argument in respect of ground 4.[2] As to ground 2, it was submitted by the defendants' counsel that until a legitimate forensic purpose was established, the Subpoenas were fishing.[3] Reliance was primarily placed on grounds 1 and 3, albeit that both the written and oral submissions of the defendants diverged somewhat from the strict terms of the Objection Letter.

1. The general requirements of an application to set aside a subpoena are well known and settled.[4]
2. Rule 42A.01(1) of the Rules which provides:

(1) This Order applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before -

(a) the hearing of an interlocutory or other application in the proceeding; or

1. Steffensen AsJ considered the phrase 'for evidence' in Warwryk v Mercedes-Benz Australia/Pacific Pty Ltd ('Warwryk'),[5] finding that:

The phrase 'for evidence' means that a document sought under subpoena may potentially be required for evidence, either in-chief or in cross examination. That means it must have some potential relevance to the issues in dispute in the proceeding or interlocutory application. That is, it must be relevant to an issue for decision by the court in the litigation.

1. In Volunteer Fire Brigade Victoria Inc v Country Fire Authority,[6] J Forrest J made the following observations concerning the Order 42A procedure:[7]

The distinction between a subpoena issued under O 42A and discovery is important ... The obligation on the party subject to a subpoena has been considered in a number of decisions ... The leading decision is that of the NSW Court of Appeal in National Employers' Mutual General Association Ltd v Waind and Hill:

...

There is also a point to be noted about subpoenas issued under O 42A, which was made by Kaye J in Newnham v Davies:

Subparagraph (1) of that rule specifically provides that the rule applies where a party seeks to require a person, not a party, to produce any document "for evidence" before the hearing of an interlocutory or other application in the proceeding, or before the trial of the proceeding. Thus, by its express terms the rule only authorises the issue of such a subpoena where the document, the subject of the subpoena, may potentially be admissible as evidence in the proceeding. Obviously, in order to be admissible, the document, of which production is sought, must have at least some potential relevance to the issues defined in the proceedings.

The words 'may potentially be admissible' are important. In coming to his conclusion, Kaye J cited Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd, in which Gillard J emphasised this qualification:

On a plain and literal interpretation of r42.10, aided by the definition and the forms, it is inescapable that the procedure under s42.10 is only available where the document is potentially required for evidence at the trial of a proceeding.

That is not to say that the procedure is not available if in the end result the document is not adduced into evidence but it is available to enable a party to inspect a document in order to make a decision whether or not to adduce it in evidence.

The purpose for the rule was also considered by Beach J in Belsart Pty Ltd v Man Po Holdings (Australia) Ltd. His Honour held that the rule was introduced to remove the inconvenience and injustice that could result from possible evidence produced on subpoena only being produced at trial. As the above authorities indicate, the real question is not 'admissibility' at large - which is determined at trial - but rather relevance.

It follows then that in determining whether documents are to be produced under subpoena pursuant to O 42A, a court must be satisfied that the documents sought to be produced are potentially relevant (in the sense of s55 of the Evidence Act 2008 (Vic): 'the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'). But this Court on an interlocutory application should go no further.

1. It is the duty of the Court, where an objection to a subpoena to produce documents is raised, to require the party calling on the subpoena to identify, with precision, the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identification is made. The party issuing a subpoena bears the onus of demonstrating:

(a) that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings;[8] and

(b) to satisfy the Court that it is 'on the cards', or that there is a 'reasonable possibility' that the documents sought will materially assist their case,[9] or that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case.[10]

1. Where, as here, the Subpoenas have been issued prior to the close of pleadings, the authorities establish that:

(a) the Court's power to issue a subpoena is not limited to issue of the subpoena at a particular point in time or at a particular stage in the proceeding. Thus, there is no reason why, in principle, a subpoena cannot be issued prior to the close of pleadings;[11]

(b) there is not an inflexible rule as to when a subpoena is valid or amounts to an abuse of process;[12]

(c) there is a distinction between a permissible purpose for which a subpoena may be issued (for the gathering of evidence to support a case which has been 'set up', or 'stated' by a party), and an impermissible purpose, being to seek documents for the purpose of putting forward or pleading a case;[13] and

(d) it is possible to determine whether a subpoena has a legitimate forensic purpose without recourse to pleadings.[14] There are other means, besides pleadings, by which the legitimate forensic purpose of the documents sought by a subpoena can be evaluated. [15]

1. Additionally, in considering whether the set aside a subpoena, the Court must have regard to the overarching obligations imposed upon it by the Civil Procedure Act 2010 (Vic) ('CPA') and the associated powers, to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[16]

1. The plaintiff submitted that there were eight key reasons why the Subpoenas should not be set aside.
2. First, in determining whether documents are to be produced under subpoena, the Court need only be satisfied that the documents sought to be produced are potentially relevant in the sense of s 55 of the Evidence Act 2008 (Vic). Here, the purpose of the Subpoenas is to seek to ascertain what the joint venture profit was and what has happened to the joint venture assets. That, it was submitted, is directly relevant to the relief sought in paragraphs C, D and E of the prayer for relief. The plaintiff submitted that this was not a case where he was looking to set up a claim - rather a lengthy and detailed statement of claim had been filed and amended. From that statement of claim, the issues in dispute can be readily identified including what became of the sale proceeds of the Derrimut Road and Sayers Road Properties. These properties were owned by New Sky and the subject of one of the joint venture agreements pleaded in the plaintiff's statement of claim. The Subpoenas seek evidence which goes directly to that issue. Moreover, the refusal of Ms Gu and New Sky to answer the information requests leads to the inescapable inference that the alleged misuse of funds will not be admitted and/or that the information will not be provided.
3. Second, the addressees are not parties to the proceeding and there is no realistic prospect that they will become parties. Accordingly, it follows that the subpoena process does not seek to subvert the usual discovery process.
4. Third, it was not submitted by any addressee that the effect that compliance would be oppressive or the cost of compliance substantial. No addressee has opposed the subpoenas.
5. Fourth, Ms Gu and New Sky have repeatedly refused to provide the plaintiff with any information regarding the sale proceeds of the Derrimut Road and Sayers Road properties, which were sold for approximately $110 million. The documents sought by the Subpoenas are directed at information that is clearly in the defendants' possession but which they have failed to provide without any justification. Senior counsel for the plaintiff noted that three requests for information dated 1 August 2025, 11 August 2025 and 19 November 2025 had been sent to the defendants' solicitors, each of which had been ignored.
6. Fifth, the delay in the progression of this proceeding, which it was submitted was at the feet of Ms Gu and New Sky in still not having filed defences and only very recently making their stay applications, is to the substantial prejudice of the plaintiff. It was submitted that the defendants could and should have made their application for a stay in August 2025 and had only done so in late December 2025.
7. Sixth, upholding the Subpoenas and allowing the plaintiff to uplift the documents, is consistent with the overarching purpose of the CPA in facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute. Senior counsel observed that as the proceeding is not presently the subject of any stay, the obligations under s 26 of the CPA are ongoing. Senior counsel contended that, at best, there is a possibility that the proceeding may be stayed however that is no more than speculative. Whilst senior counsel for the plaintiff acknowledged that it was not appropriate for me to express any view about the merits of the stay application, he nonetheless submitted that it would not be improper to form an impression about the application without prejudging. In inviting me to draw an impression, senior counsel emphasised that:

(a) New Sky is not a party to the written joint venture document. Equitable claims are pursued against New Sky;

(b) the amended statement of claim pleads three agreements relating to substantial sums of money which do not contain any jurisdiction clauses being the March 2017 loan agreement, the July 2017 loan agreement and the repayment agreement all entered between Ms Gu and the plaintiff; and

(c) it is optimistic, even at this early impressionistic stage, to think that the claims will be stayed in their entirety as there are additional statutory pleas under the Australian Consumer Law that cannot simply be excluded by contract.

1. Seventh, in relation to prejudice, the plaintiff submitted that it was difficult to see any prejudice to the defendants if the plaintiff is able to understand what happened to the funds. There is however, prejudice to the plaintiff in not knowing what has happened to a very large amount of money that has been invested. Senior counsel noted that the defendants had not, for example, offered to provide the information on terms such that it not compromise the defendants' right to press their stay application, or had not offered to preserve the funds in an account pending the outcome of any stay application. The defendants have made a forensic decision not to provide the information sought by the plaintiff and, having now sought that third parties provide that information, the defendants are seeking to restrict the plaintiff's access.
2. Relatedly, the plaintiff submitted that he has the contractual right under the joint venture agreement to receive information including in relation to the funds pursuant to the following express terms provided for in clauses III(1) and III(2) of that agreement:[17]

III(1)

The joint investors each entrust a representative to represent all joint investors to execute daily operations;

III(2)

Other investors have the right to check the execution of the daily operations, and have the obligation to report the operating and financial status of the joint investment to other investors.

1. Finally, it was contended that real issue for the Court is whether it ought to permit the plaintiff to uplift the documents produced in response to the Subpoenas now pending the determination of the stay application. In pressing for uplift and inspection now, senior counsel for the plaintiff submitted that:

(a) at this point in time, the proceeding has not been stayed and the stay application will not be determined for several months, resulting in delay;

(b) Ms Gu and New Sky are singularly responsible for the delay. They have now known for many months that they intend to bring a stay application but only filed it on 23 December 2025. They chose to fragment the appearance withdrawal application from the stay application with the obvious inference that they are pursuing a strategy of delay. That inference is strengthened given that they are withholding information to which plaintiff, as beneficiary under the joint venture agreement, is clearly entitled;

(c) the delay gives rise to obvious prejudice to the plaintiff, who is presently unable to identify how, and how much of, his property has been applied; and

(d) even if the proceeding was to be stayed (which is not conceded and will be opposed) in favour of litigation in China, Ms Gu and New Sky will still need to disclose how they have applied the joint venture funds.

1. There would, accordingly, be no error in the exercise of the discretion to permit uplift and inspection in the context of the present facts. Equally however, it was conceded by senior counsel for the plaintiff that there would be no error in the exercise of discretion to allow the Subpoenas to stand and to defer inspection until shortly after the determination of the stay application in line with what Daly AsJ ordered in HungryPanda AU Pty Ltd v Fantuan Australia Pty Ltd ('HungryPanda').[18]

1. The defendants submitted that there were seven key reasons why the Subpoenas should be set aside.
2. First, the defendants contended that the Subpoenas were premature as they had been issued:

(a) prior to the close of pleadings or the provision of discovery; and

(b) after the defendants communicated their intention to make an application for a stay.

1. The defendants submitted that the subpoena process should not be used as a substitute for non-party discovery. The defendants relied on the decision in Universal Press Pty Limited v Provest Limited ('Universal Press')[19] where Hill J, in setting aside a subpoena issued prior to the close of proceedings, held that it does not follow from that that it will ordinarily be appropriate in the interests of justice for a subpoena to be made returnable before discovery itself has been given by the parties to each other or before the defendant has even filed a defence noting that it will be a rare case where the interests of justice will require a subpoena to be issued until the ordinary interlocutory steps have been completed. The defendants submitted that it is for the plaintiff to point to 'exceptional circumstances that justify the early invocation of the coercive subpoena process.'[20] In oral submissions before me, the defendants further contended that 'the test is whether there's exceptional circumstances for the Court to allow the Subpoenas to go forward.'[21] When that proposition was challenged, counsel for the defendants did not withdraw that submission[22] - rather it was further submitted that Wawryk[23] and Universal Press[24] supported the submission and, when further challenged,[25] there was not a 'capital-T test for exceptional circumstances'.[26] It was further contended that a legitimate forensic purpose needs to be established, 'for evidence', in the absence of pleadings or any other steps having been taken in the proceeding.[27]
2. Second, the defendants contended that the Subpoenas should be set aside on the basis of the doctrine of forum non conveniens. In this regard, they submitted:

(a) that the requirement that a subpoena be 'for evidence' was axiomatic. If a subpoena is not 'for evidence' then, by definition, it is an abuse of process. The Subpoenas cannot be properly characterised as 'for evidence' unless and until the proceeding is jurisdictionally valid. Here, the Subpoenas can only be 'for evidence' if the proceeding is not stayed under either the contractual or forum non conveniens grounds as agitated by the defendants. If the Court enforces the exclusive jurisdiction clauses or stays the matter then the Subpoenas will constitute an abuse of process. The requirement that subpoenas be 'for evidence' is fundamental and cannot be established unless and until the plaintiffs overcome the defendants' jurisdictional objection;

(b) the plaintiff had sought to invoke the power of the Court to compel third parties to produce documents in circumstances where:

(i) the Chinese-language agreements, but especially the joint venture agreement (which the plaintiff springboards to plead an implied trusteeship and breaches of trust), invoke the laws and regulations of China and contain exclusive jurisdiction clauses;

(ii) the plaintiff and his legal representatives were aware of the contents of those Chinese-language agreements and, further aware that the content of Chinese law is very different to Australian law; and

(iii) the plaintiff has been on notice, since at least 8 September 2025, that the defendants intended to seek a stay of the proceeding to allow it to be litigated in China.

1. Third, it was submitted that documents produced to the Prothonotary should not be released to the parties in circumstances where the proceeding may be permanently stayed. It was asserted by the defendants' counsel that there would be no prejudice to the plaintiff but that there would be no curing that prejudice should the defendants succeed on the stay application. Precisely what the alleged prejudice to the defendants was, was not identified.
2. Fourth, to the extent that there has been criticism directed towards the defendants of delay, those criticisms are unfounded. The defendants point to the fact that the plaintiff consented to the 'fragmentation' of the appearance application and say that it was not until two days prior to the hearing of the appearance application that the plaintiff changed tack and submitted that the notice of appearance was not a bar to bringing a stay application. In those circumstances, the submissions that the defendants are 'pursuing a strategy of delay' is unfounded.
3. Fifth, it was submitted the defendants were not the party that is in breach of contract (which was alleged to be a deliberate and defiant breach). The defendants' counsel contended that the plaintiff had chosen to sue in this forum knowing that the bargain that was struck with the defendants was to be governed by Chinese law and litigated in Chinese courts. The defendants' counsel argued that it was not apparent why the plaintiff continues to submit that 'trust property' is being dealt with when, on expert evidence, it may be established that the variety of 'trust property' being alluded to does not exist under Chinese law and that this was a typical example of the forensic advantage that the plaintiff is trying to obtain by litigating in Australia. Further to the extent that the plaintiff complains that documents have not been provide in circumstances where there is an obligation to disclose how 'joint venture funds' have been applied, the defendants contend that this presupposes the application of Australian law instead of Chinese law, in circumstances where the Court will hear expert evidence on this topic on 4 and 5 May 2026.
4. Sixth, it was submitted that there was a simple solution ready to hand, which will preserve the status quo and prevent incurable prejudice. The defendants' counsel urged on me that I should adjourn the hearing of the objections to the Subpoenas to a date to be fixed after the hearing and determination of the defendants' stay application noting that a similar approach was adopted by Le Miere J in Marshall v Smith ('Marshall').[28] In Marshall, Le Miere J held that, 'as a general rule a defendant should not be entitled to issue a subpoena before putting on his defence'[29] and that 'a party seeking to obtain documents by subpoena must be able to show some connection between the documents sought by the subpoena and the issues raised in the proceedings. As a general rule, that cannot be demonstrated until the defendant has put on his defence'.[30] Le Miere J ultimately adjourned the application to set aside a subpoena until after a defence was filed concluding that it was not appropriate to determine whether a subpoena had a legitimate forensic purpose until the pleadings had resolved and crystallised the issues in dispute. The defendants' counsel submitted that this approach had merit on the present facts as a defence had not yet been filed and the issues not crystallised, and there were significant questions to be determined by reference to expert evidence as to whether various of the causes of action pleaded by the defendants are maintainable under Chinese law.
5. Seventh, and alternatively, it was suggested that it was open to me to uphold the Subpoenas, but postpone their inspection until after the hearing and determination of the stay application consistently with the approach taken by Daly AsJ in HungryPanda. However, the defendants urged that the decision in HungryPanda was distinguishable as that proceeding was far more progressed with the parties having filed amended points of claim, points of defence, there had been orders for particulars and general discovery and the defendant had filed a counterclaim. Further, the defendant in HungryPanda did not seek a permanent stay on contractual grounds or forum non conveniens. The stay was instead sought on the basis of parallel proceedings (which had been commenced after the Australian proceeding).
6. The defendants submitted that, on the present facts, the adjournment approach was more consistent with the interests of justice but conceded that the postponement approach would also preserve the status quo and prevent any incurable prejudice, since the documents will not be inspected if the proceeding is permanently stayed. By contrast, it was contended that the only prejudice to the plaintiff would be a 'short delay,'[31] which is not incapable of being remedied.

1. Having regard to the concessions made at during the hearing, and despite the wide ranging Objection Letter, I consider that the grounds for objection are necessarily limited to grounds 1 and 3, and by extension ground 2.
2. I do not consider the Subpoenas to be premature or an abuse of process. Nor do I consider that the Subpoenas are 'fishing' or lack forensic purpose. The basis for my view is as follows.
3. First, although the defendants placed some weight on the remarks of Le Miere J in Marshall, and the fact that the defendants are yet to plead, I am satisfied that the plaintiff's amended statement of claim is specific so as to create a sufficient connection between the issues in the action and the documents sought to be produced. The pleading clearly provides a forensic basis for the documents sought. The plaintiff seeks to know what has become of various loan funds and monies invested in a joint venture. Those funds are at the centre of the plaintiff's claim.
4. When LeMeire J expressed the view that, as a general rule, a party only be able to obtain by subpoena documents which are relevant to an issue on the pleadings, he did so by reference to Compagnie Financiere du Pacifique v Peruvian Guano.[32] The 'Peruvian Guano test' allowed discovery of documents which were indirectly relevant or which might lead to a train of enquiry, but such test has since been consigned to the dust bin.[33] The CPA requires, in the context of discovery, that the Court cut through the layers of interminable argument and which had traditionally accompanied discovery contests.
5. Le Miere J also considered Buswell v Charles[34] where, in the context of defamation proceedings, the plaintiff sought production of documents relating to the publications sued upon. Le Miere J observed that McKechnie J held in effect that the indorsement of claim was sufficiently specific to create a sufficient connection between the issues in the action and the documents sought to be produced. Le Miere J held:

The non-party puts great store on the fact that the plaintiff has yet to plead. Until a statement of claim is pleaded, the cause of action is not defined so it is asserted.

However, the indorsement of claim establishes the four corners of the cause of action. It is specific and the subpoena relates directly to the claim.

That is, his Honour found that to be an exceptional and specific case. Importantly the party issuing the subpoena was not seeking documents before giving particulars of a plea of justification.[35]

1. Second, there is no hard and fast rule to the effect that a subpoena is not able to be maintained prior to the filing of defences.[36] As Daly AsJ held in Hungry Panda:

...it is possible to determine whether a subpoena has a legitimate forensic purpose without recourse to pleadings, and the authorities relied upon by the subpoena recipients do not lay down any inflexible rule as to when a subpoena is valid or amounts to an abusive process.[37]

1. In reaching that conclusion, Daly AsJ observed that the requirement of establishing a legitimate forensic purpose was relatively low.[38] Her Honour further observed that, to the extent that authorities relied upon by subpoena recipients where subpoenas were set aside prior to the closure of pleadings as being premature, these authorities refer to a distinction between a permissible purpose for which a subpoena may be issued (for the gathering of evidence to support a case which has been 'set up', or 'stated' by a party), and an impermissible purpose, being to seek documents for the purpose of putting forward or pleading a case. I respectfully adopt her Honour's observations. Before me, the plaintiff was not seeking documents for the purpose of pleading a case. Rather, a detailed pleading had been filed on 17 April 2025 and amended on 13 January 2026.
2. Third, the phrase 'an exceptional and specific case' referred to by Le Miere J ought not be misunderstood as to require a party seeking to uphold a subpoena as being required to demonstrate 'exceptional circumstances'. The 'exceptional circumstances' test propounded by counsel for the defendants is not one known to the law in the context of applications to set aside a subpoena. There is no obligation to demonstrate exceptional circumstances. Contrary to the submission of the counsel for the defendants, it was not the test recognised by either Steffensen AsJ in Warwryk or Hill J in Universal Press. Moreover, and contrary to the submission of counsel for the defendants, there is no lower case 't' test either. It is not a correct statement of the applicable law and I reject the defendants' submission.
3. Fourth, I reject the defendants' submission concerning prejudice. Clause III(2) of the joint venture agreement makes it clear that the joint venture investors are entitled to information concerning the operating and financial status of the joint investment. The defendants did not address the application of this clause other than to suggest that consideration of the joint venture agreement and other loan agreements would need to await the stay application. I reject that submission. The letters requesting information dated 1 August 2025, 11 August 2025 and 19 November 2025 each seek details which are now the subject of the Subpoenas. Whether the causes of action which are pleaded, such as trust and fiduciary claims, are known to Chinese Law or whether there is a forum non conveniens argument to be advanced is not the point. The simple point is this - property that was the subject of the joint venture agreement or cooperative joint venture or however else you might describe the agreement has been sold. The plaintiff seeks an accounting in respect of the proceeds of sale. The plaintiff says the he is entitled to that information under the terms of the joint venture. It was not suggested to me that the clause which provides for an entitlement to information was somehow voidable under Chinese Law. No information has been provided in response to the plaintiff's repeated requests. Moreover, no explanation has been offered by the defendants as to why this information will not be provided.
4. Fifth, to the extent that the defendants submitted that I should defer inspection of the documents pending the outcome of the stay application, I reject that submission. I am not persuaded that I should defer inspection or that by allowing inspection the defendants would suffer an irredeemable prejudice. The plaintiff seeks to understand what has happened to the joint venture funds. He does so in the procedural context where, by 15 July 2025, the defendants had been served. On 25 July 2025, unconditional appearances had been filed. On 1 August 2025, the first request for documents was made by the plaintiff's solicitor. The request was made pursuant to s 26 of the CPA. That request was ignored. On 11 August 2025, a second request for information was made by the plaintiff's solicitors. That request was also ignored. On 8 September 2025, the defendants' solicitors informed the plaintiff's solicitors of the intention to make a stay application. On 19 November 2025, a third request for information was made. That request was also ignored. At the time of each of the three requests for information:

(a) the proceeding had not been stayed and no application had in fact been filed. The application for a stay was filed on 23 December 2025;

(b) no interim stay had been sought;

(c) the defendants had appeared in the proceeding and the appearance had not been withdrawn; and

(d) the obligations under the CPA continued to apply.

1. There is, in my view, the potential for real prejudice to be suffered by the plaintiff if he is denied information as to what has happened to a very large amount of money that has been invested. Senior counsel noted that the defendants had not, for example, offered to provide the information on terms such that it not compromise the defendants' right to press their stay application, nor had not offered to preserve the funds in an account pending the outcome of any stay application. In my view there is substantial weight to that submission. I accept senior counsel for the plaintiff's submission that the defendants have made a forensic decision not to provide the information sought by the plaintiff and, having now sought that third parties provide that information, the defendants are seeking to restrict the plaintiff's access. I further accept senior counsel for the plaintiff's submission that, having regard to paragraph 34 of the defendant's written outline, the defendants have no intention of providing information to the plaintiff as to what happened to the joint venture funds. That paragraph of was in the following terms:

...Further, the Plaintiff complains that documents have not been provide in circumstances where there is an obligation to disclose how 'joint venture funds' have been applied. Once again, this presupposes the application of Australian law instead of Chinese law, in circumstances where the Court will hear expert evidence on this topic on 4 and 5 May 2026.

1. Sixth, the parties and their legal representatives have a statutory obligation pursuant to s 23 of the CPA to narrow the issues in dispute and to resolve by agreement any issues in the dispute which can be resolved in that way. As I have indicated, there were options available to the defendants whereby the information which has been sought pursuant to the Subpoenas could have been provided with a reservation of rights. That has not occurred.
2. Further, the parties and their legal representatives are bound by the overarching obligation in s 25 of the CPA to use reasonable endeavours in connection with a proceeding such as this to act promptly and to minimise delay. Additionally, for the purpose of avoiding undue delay and expense, a person to whom the overarching obligations apply must not take any step in connection with any claim or response to any claim in a civil proceeding unless the person reasonably believes that the step is necessary to facilitate the resolution or determination of the proceeding.
3. The mere filing of the stay application, in this case over three months after it was first foreshadowed, does not relieve the defendants or their legal advisors of the obligations under the CPA. Before me, there was no explanation offered by the defendants' counsel as to why the subpoena dispute was not raised before the Trial Judge at the directions hearing on 19 December 2025 where timetabling orders were being made in respect of the stay application. If it was the case that the defendants wished to press the adjournment of the subpoena dispute , the time to do so was before his Honour. Similarly, there was no explanation offered by the defendants' counsel as to why, if their clients wished to press an adjournment or if their clients were seriously concerned as to any prejudice which might arise from the plaintiffs inspecting the subpoenaed documents, they did not seek an interim stay of the proceeding before the Trial Judge on 19 December 2025. No such application was made.
4. The Courts have recognised that an appropriately targeted subpoena may advance the overarching purpose in a particular case, even though it may not be able to be shown that the documents subpoenaed either will or will be likely to assist the case of the party that has issued the subpoena.[39] That is undoubtedly the case here.
5. Finally, and whilst not material to the exercise of my discretion, I otherwise reject the defendants' analysis of delay. On 8 September 2025, the defendants first notified of their intention to make an application for a stay. That application was filed on 23 December 2025. Whether there was an agreement concerning the application relating to the notice of appearance is not the point. The defendants have taken more than three months in which to file the summons seeking a stay.

(a) I am able to identify the issues in dispute from the amended statement of claim;

(b) I conclude that the subpoenas were appropriately targeted to those issues, such that the 'for evidence' requirement was satisfied; and

(c) I consider that the just and efficient resolution of the issues in dispute is for the subpoenaed material to be produced and accessed immediately despite the otherwise early timing or availability of discovery. I am fortified in my view by the absence of any interim stay having been raised by the defendants either before the Trial Judge on 19 December 2025 or in the period in which my reasons have been reserved.

1. On 19 September 2025, the first and third defendants notified the Prothonotary of their objection to four subpoenas issued by the plaintiff.
2. On 21 October 2025, the plaintiff requested that the Prothonotary provide a date for the hearing of the first and third defendants objection to the inspection of the subpoenas.

1. The plaintiff did not press one of the subpoenas issued to the Commonwealth Bank of Australia, by reason of which order 2 below is made by consent.

(a) The first and third defendants' objections to the plaintiff's subpoenas to Westpac, AW Bidco and Satterley (collectively, 'Subpoenas') are dismissed.

(b) The plaintiff's subpoena to the Commonwealth Bank of Australia is set aside.

(c) The plaintiff is permitted to inspect the documents produced under the Subpoenas.

1. It is my preliminary view that costs should follow the event and that the appropriate disposition in respect of costs is that the defendants pay the plaintiff's costs of the subpoena dispute on a standard basis to be taxed in lieu of agreement. If either party wishes to be heard in relation to costs they should notify my chambers within 7 days and I will list this matter for a short oral hearing absent which, I will make an order as to costs on the terms foreshadowed.

[1] [2025] VSC 730.

[2] Transcript of Proceedings (22 January 2026), 19.10-20.19.

[4] Webb v Wheatley [2015] VSC 153, [55]-[56].

[5] [2024] VSC 120, [12] (citations omitted).

[6] [2016] VSC 573 ('Volunteer Fire Brigade').

[8] Seven Network (Operations) Ltd v Fairfax Media Publications Pty Ltd [2023] FCAFC 185, [36] citing S_antos Ltd v Pipelines Authority (SA)_ [1996] SASC 5578; (1996) 66 SASR 38, 52.

[10] Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, [58] (Bell P) (Brereton and McCallum JJA agreeing at [98] and [101]) ('Blacktown').

[11] Kenquist Nominees Pty Ltd v Campbell [2016] FCA 354, [22].

[12] HungryPanda AU Pty Ltd v Fantuan Australia Pty Ltd [2022] VSC 448 ('HungryPanda'), [29].

[14] Ibid, [29] (Daly AsJ); Buswell v Carles [2012] WASC 509 (McKechnie J).

[15] British American Tobacco Australia Ltd v Peter Gordon & Anor [2006] NSWSC 1473, [7] (Brereton J); Harrison v Bauld [2021] VSC 73, [24]-[26] (Derham AsJ).

[16] Fuller v Fletcher Building Limited [2024] VSC 712, [30] (Delany J).

[17] Transcript of Proceedings (22 January 2025) 25.24-25.29. See also, Amended Statement of Claim filed 13 January 2026, [21](k).

[18] HungryPanda (n 12); Transcript of Proceedings (22 January 2026), 29.27-30.13.

[19] [1989] FCA 402, [38] (Hill J).

[20] Defendants' outline of submissions filed 22 December 2025, [23] ('Defendants' Outline'); see also Transcript of Proceedings (22 January 2026) 6.17-6.20.

[21] Transcript of Proceedings (22 January 2026) 6.9-6.11, 6.21-6.27.

[27] Re Sleeping Duck Pty Ltd [2023] VSC 541, [83].

[28] [2013] WASC 432 ('Marshall').

[32] (1882) 11 QBD 55.

[33] Volunteer Fire Brigade (n 6), [46].

[34] [2012] WASC 509.

[36] Hungry Panda (n 12); see also Kenquist Nominees Pty Ltd v Campbell [2016] FCA 354, [21]-[24] (Yates J).