Wingstar Holdings Pty Ltd v Point Capital Group Pty Ltd [2025] FCA 1553

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AsstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549

Wingstar Holdings Pty Ltd v Point Capital Group Pty Ltd [2025] FCA 1553 | Case summary | Zoe

[61]

The Wingstar Parties submitted that the Respondents' conception of relevance was incorrect. It was submitted that a factor being decisive in a previously decided case does not make that case authority that such a factor will universally be relevant or determinative to all security for costs applications. It is the evidence in a particular matter, so the submission was advanced, which may or may not render the factor decisive. That is, the Wingstar Parties submitted that the list of factors complied by the Respondents from decided cases do not necessarily mean that the same factors will be relevant to the Respondents' security for costs application.
The Wingstar Parties submitted that the Subpoenas were based on generic speculation, or a guess of what would be relevant and, not a proper prediction, of the issues involved and therefore what would be relevant.
The correct approach, so it was submitted, would have to await consideration of what were actually the issues which would arise in the security for costs application. The Wingstar Parties submitted that the Respondents cannot assert whether certain documents are relevant in the security for costs application as, at this stage, they do not know what will be the issues upon which the application will be contested. Furthermore, documents may be produced now which ultimately are not relevant, but the documents cannot be 'unproduced'.
This is in a context where the Wingstar Parties have accepted that the Respondents have met the prima facie burden and jurisdictional threshold in relation to the making of an order for security for costs.
It was submitted by the Wingstar Parties that the documents sought were confidential and sensitive as they were financial documents which stated the Wingstar Parties current financial position.
The Wingstar Parties also submitted that the position of Wingstar Trading was different as it was not an applicant/plaintiff but only a cross-respondent, joined to the proceedings by the Respondents. This, it was submitted, meant that there was no proper basis to seek the financial documents of Wingstar Trading.
Finally, it was submitted by the Wingstar Parties that the use of a subpoena was inappropriate by way of seeking to circumvent discovery. This was relevant in the context of these proceedings as the Respondents also had a discovery application, yet to be heard.

[62]

It was uncontroversial that the subpoenas were directed to the Respondents' security for costs application, which is yet to be heard. That security for costs application is made pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) (FCA), r 19.01 of the FCR or s 1335 of the Corporations Act 2001 (Cth) (Corporations Act).
Section 56 of the FCA provides the Court with a broad and unfettered power to order an applicant/plaintiff in a proceeding to give security for the payment of costs that may be awarded against them of such amount, at such time and in such manner and form as the Court directs, depending on the particular circumstances of the case: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1; [1984] FCA 34 at 4 (Sheppard, Morling and Neaves JJ); Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61 at [6] (Allsop CJ, Jessup and Middleton JJ). Unlike s 1335 of the Corporations Act, s 56 does not expressly impose any threshold to be met before the Court considers various discretionary matters. However, an applicant/plaintiff's inability to pay the costs of a respondent/defendant remains an important discretionary consideration: All Class Insurance Brokers Pty Ltd (in liquidation) v Chubb Insurance Australia Limited [2020] FCA 840 at [41] (Allsop CJ). Both s 56 of the FCA and s 1335 of the Corporations Act contain broad, unfettered discretionary powers, which must be exercised judicially. That is, whether the applications for security for costs relied on only s 56 of the FCA, or s 56 of the FCA and s 1335 of the Corporations Act in the alternative, it is unlikely to produce a different result. This is because the discretionary considerations are the same and the threshold requirement of s 1335 will remain an important discretionary consideration under s 56 of the FCA: General Trade Industries Pty Ltd (in liquidation) v AGL Energy Limited (No 2) [2023] FCA 556 (Derrington J) at [22].
The Subpoenas were each addressed to Wingstar and Wingstar Trading, seeking the following documents (the same documents were sought from each of the Wingstar Parties):

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a. 2026 financial year;

b. 2025 financial year; and

c. 2024 financial year.

All balance sheets for [the Wingstar Parties] issued for the whole or any part of the:

a. 2026 financial year;

b. 2025 financial year; and

c. 2024 financial year.

All profit and loss statements for [the Wingstar Parties] issued for the whole or any part of the:

a. 2026 financial year;

b. 2025 financial year; and

c. 2024 financial year.

All statement of cashflows for [the Wingstar Parties] issued for the whole or any part of the:

a. 2026 financial year;

b. 2025 financial year;

c. 2024 financial year.

All documents which record in whole or in part any arrangement, or the details of any arrangement, under which:

any shareholder, director, officer, employee, or agent, provides funding for [the Wingstar Parties] to commence or maintain litigation in respect of Federal Court Proceeding No. QUD750/201 (Proceeding);

any third party, including a third party litigation funder, provides funding for [the Wingstar Parties] to commence or maintain litigation in respect of the Proceeding;

All statements issued by ADI showing the amounts that [the Wingstar Parties], in any capacity, has or had to its credit with ADIs during the Period, excluding any statements which have already been produced in the Proceeding.

All statements issued by ADIs showing the amounts that [the Wingstar Parties], in any capacity, has or had borrowed from ADIs during the Period, excluding any statements which have already been produced in the Proceeding.

All statements issued by ADIs showing the amounts of that [the Wingstar Parties], in any capacity, owes in credit card accounts or has otherwise expended by credit card excluding statements that required to be produced by Order 7 of this subpoena.

Your [being, the Wingstar Parties] four most recent Activity Statements lodged with the Australian Taxation Office.

Your [being, the Wingstar Parties] two most recent company tax returns lodged with the Australian Taxation Office, together with any schedules to those tax returns.

All documents you intend to rely upon in the hearing of the security for costs application filed on 1 October 2025 to establish your capacity to meet any adverse costs orders made in this Proceeding.

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Although in the context of a notice to produce, the Full Court in Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136; [2001] FCA 60 at [13]- [14] (Heerey, Branson and Merkel JJ) referred to the principles articulated by Jordan CJ in Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 575 that a party is not entitled to use a subpoena for the purposes of 'fishing', that is, to discover whether there is a case at all. That is to be distinguished from endeavouring to obtain evidence to support a case. If the subpoena is too wide and oppressive, that can also support it being set aside: Bailey at [31]-[32]. The same principles applicable to a subpoena where also applied to a notice to produce. The Full Court endorsed the observations of the primary judge in Bailey relevantly as follows (at [14]):
1. ...the documents which are sought in the notices to produce are relevant to the issues raised on the respondents' motions. They go to the financial position of the applicant. The financial position of the corporate applicant, Equuscorp Pty Limited, speaking broadly, is a relevant issue on these applications for security for costs. As senior counsel for the applicants rightly pointed out, accounts and documents of the type sought may not necessarily provide a true and proper view of the financial position of the corporation to which they relate. Nevertheless the documents which are sought to be produced are relevant to a determination of the financial position of the corporate applicant. I recognise that there is no onus on a security for costs application, such as those before me, for any party to establish issues such as solvency, ability to pay debts, or insolvency. If an order is made for the production of documents pursuant to a notice to produce I do not regard such an order as establishing, or being predicated upon there being, any onus upon the corporate applicant in any way.
In Bailey, the documents sought were financial documents for a security for costs application. The Full Court observed at [26] the following:
1. In the present case it can be safely assumed that the documents sought by the notices to produce in fact exist, they being standard financial documents which the law and proper accounting practice would require companies of any substance to generate. Likewise, as already mentioned, there can be no doubt that these documents contain information relevant to the issues which arise on a security for costs application. The only uncertainty is whether that information would help or hinder the security application. But unpredictability of response has never been a bar to the pursuit of relevant evidence, as many a hapless cross-examiner who received an unexpected answer will attest.
The party issuing the subpoena has the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120 at [12] (Jacobson, White and Gleeson JJ). A subpoena will be presumed to have been issued for a legitimate forensic purpose if, amongst others, the documents sought are "apparently relevant" to the issues in the proceedings: McEwan v Rains (2023) 15 QR 251; [2023] QCA 135 at [46(e) and (f)] (Bond JA, with whom McMurdo JA at [1] and Callaghan J at [53], agreed). Further, it has been described as being evidence which could reasonably be expected to "throw some light" on some of the issues in the proceedings: McEwan at [46(f)(i)], Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [67] (Bell P, with whom McCallum JA agreed, see also similarly Brereton JA at [89]).
The concept of "apparent relevance" is broader than substantive relevance and was described by Bond JA as one where the evidence would tend to prove or disprove a fact in issue: McEwan at [46(f), fn 12]. Bell P described the concept further that the documents are apparently relevant to the issues that have or are likely to arise or have some evidential value to establish a legitimate forensic purpose: Blacktown at [70]. Further, a document "bearing on the issues in the case and may well have evidentiary value" will not amount to fishing and would fall within the description of apparent relevance: Blacktown at [69]; Carter v Hayes (1994) 61 SASR 451 at 453 (King CJ, with whom Bollen and Mullighan JJ agreed). Brereton JA in Blacktown explained at [89] that the issuing party is not required to show that it is "likely" that the documents will materially assist its case, but that there is a reasonable basis for supposing that the documents will likely add, in the end, in some way or another, to the relevant evidence in the case. The documents sought, viewed realistically, have a bearing on an issue which is not unreal, fanciful or speculative: Wong at [12].
To consider what will be apparently relevant, in the context of the security for costs application, it is necessary to consider the principles applying to such an application. Some of the common factors to be considered by the Court on a security for costs application were cited by Edelman J (then of this Court) in Concrete Mining Structures Pty Ltd v Cellcrete Australia Pty Ltd (No 2) [2016] FCA 360 at [13], as follows:
1. Some of the common factors to be considered by the Court in the grant of security for costs were recently summarised by Collier J in Hii v Federal Commissioner of Taxation (No 3) [2016] FCA 58 [9] - [10]. Those factors, and others which are often referred to, include:

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These factors are not limited to a specific fact scenario or a particular case. The weight of any factor and whether any factor is decisive, will be determined by the particular circumstances of the case under consideration. However, as the determination of whether security for costs should be ordered is a broad discretionary judgment, exercised judicially, these factors inform the exercise of the discretion. None is determinative on its own, however, that does not mean that such factors are not relevant.
Although Wingstar has accepted that the Respondents have met the prima facie burden and jurisdictional threshold, that does not shift the onus on a security for costs application, to the Wingstar Parties. While the Wingstar Parties will bear an evidentiary burden, the overall persuasive onus from first to last, to persuade the Court that security should be ordered remains with the Respondents: General Trade at [23]-[24]; Cellcrete at [12]. Therefore, in so far as it was submitted that this concession by the Wingstar Parties shifted the onus to them, that submission cannot be accepted. The onus remains on the Respondents to persuade the Court to make an order for security for costs. It is on this basis that the Respondents seek the documents it has by way of the Subpoenas.
Furthermore, the main submission advanced by the Wingstar Parties was in relation to relevance and on the basis that factors which may have been relevant in previous cases in a specific context could not then be used as a factor of universal application, as it is not known whether such matters are determinative. This submission cannot be accepted. It conflates the concept of a matter being relevant with a matter being determinative and does not correctly apply the requirement of "apparent relevance" to the documents being sought by way of the Subpoenas.
Furthermore, the principles governing the granting of security for costs are well settled. The factors which are often considered are those as set out in Cellcrete. Of course, what weight, if any, is to be afforded in any particular case, will turn upon the particular circumstances of that case: Derma Pen LLC v Biosoft (Australia) Pty Ltd (Security for Costs) [2022] FCA 885 at [2]- [6] (Perram J). However, in the context of considering whether the documents sought by the Subpoenas have apparent relevance to an application for security for costs, the question is not whether such documents have substantive relevance, or whether such documents are likely to materially assist the Respondents' case. The documents need only have apparent relevance. The documents need to "throw some light" on or have some evidential value and bear on the issue of the Respondents seeking to persuade the Court to exercise the broad discretion and order Wingstar to provide security for costs. The documents sought do not need to be determinative of this issue, simply that they will likely add, in the end, in some way or another, to relevant evidence on the security for costs application.
On this basis, the Wingstar Parties' submissions as to relevance cannot be accepted. The proper approach is as outlined above.
Wingstar, the Applicant in these proceeding is the parent company of Wingstar Trading and Wingstar Software Pty Ltd. Wingstar Software is not a party to the proceedings, and no documents are sought from it.
Wingstar Trading is described in a document informing potential investors as the "Revenue-Share Capital" entity, being an asset holding company with no business activities. This document states that Wingstar covers all operational expenses for Wingstar Trading. Wingstar only has two issued shares held by Mr Frank Johnson. Wingstar Trading has 68,600,291 class B shares issued and 103,596,000 ordinary shares issued.
Further, there is a single page of a bank account statement of Wingstar which shows a balance on 30 September 2025 of $47.69, a deposit of $249,993.14 on 7 October 2025 and a closing balance on 23 October 2025 of $155,686.83. This is in a context whereby Wingstar retained new lawyers who filed a notice of acting in the proceedings on 9 October 2025 and the security for costs application was lodged on 1 October 2025, and the subject of a case management hearing on 10 October 2025.
The Respondents submitted that the 7 October 2025 deposit was evidence of, or at least an inference can be drawn that, someone was standing behind Wingstar, who is likely to benefit from the litigation. The descriptor of the transaction on 7 October 2025 is redacted. It was redacted without a Court order permitting such a redaction to be made. Such a process of applying redactions without the consent of the other party or a Court order is inappropriate. In this regard I agree with the observations, although in the context of a discovery application, of Wheelahan J in Esso Australia Pty Ltd v Australian Workers Union (No 3) [2020] FCA 316 at [14]- [18]. However, as it is not possible to ascertain the underlying basis of the deposit transaction, the inference said to be available is too tenuous. The deposit also occurred proximate to the bringing of the security for costs application and case management hearing and perhaps it was done to counter a submission of an inability to pay an adverse costs order at the end of the proceedings. However, again, such an inference is speculative. As such, I do not draw any inference from the deposit being made on 7 October 2025.
What is relevant to the security for costs application is that Wingstar is a company with a paid-up share capital of $2, at the beginning of October it had less than $50.00 in its bank account and the Wingstar Parties accept that the Respondents would have reason to believe that Wingstar would be unable to pay an adverse costs order.
If required, that would be at least sufficient to give rise to the exercise of the discretion on the security for costs application. On the exercise of that discretion and noting the corporate structure of the Wingstar Parties, the usual factors as outlined above, would be considered. However, the Court in Bailey eschewed a rigid formulation, preferring not to unnecessarily fetter the Court's broad discretionary power in relation to the just determination of a security for costs application. Generally, the Court must be satisfied that the documents are specified with reasonable particularity and are properly being sought: Bailey at [19]-[24].
Before considering the documents sought in the Subpoenas in detail, it is also necessary to consider the Applicant's argument that this is being used to circumvent discovery. This is not permissible. As Greenwood J observed in McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233 at [35(b)] (cited with approval in Wong at [12]):

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There could be some overlap between some of the documents sought pursuant to the Subpoenas and that are sought on the discovery application. The first category of documents on the discovery application is:
1. All financial statements, including management accounts, profit and loss statements, cash flow statements, balance sheets, of Wingstar Holdings Pty Ltd or Wingstar Trading Pty Ltd since 2020.
The Respondents submitted that the documents sought by way of the Subpoenas are focused upon the issues relating to the security for costs application. The financial material from the Wingstar Parties, it was submitted, for the last two to three years would likely add in some way or another to the relevant evidence of whether Wingstar could pay an adverse costs order. The Respondents also relied on the scope of the documents considered in Bailey.
Furthermore, the Respondents referred to the pleadings and the date of the representations relied on, being May and June 2023. Whereas the documents sought pursuant to the Subpoenas are for the financial years 2024, 2025 and 2026. Therefore, the documents which would be relevant for the purposes of the Respondents' substantive case, it was submitted, were different to those sought by way of the subpoena, which were of apparent relevance to the security for costs application.
The discovery application is yet to be heard, and this application was not the hearing of, or combined with, the hearing of the discovery application.
The Subpoenas do not appear to be used as a substitute for or to disguise an application for discovery, in the sense of seeking to circumvent or not engage with the discovery process. A separate discovery application has been brought.
The Subpoenas precisely identify the documents sought: Greyhound Australia Pty Ltd v Deluxe Coachlines Pty Ltd (1986) 11 FCR 592 at 596 (Pincus J), - where his Honour refers to Re Tallebudgera Estates Pty Ltd (1970) Qd R 63 at 74E (Lucas J, with whom Hanger and Kneipp JJ agreed). The Subpoenas, generally, are not presented in a way to seek categories of documents (as the discovery application is drafted) but seek specific current financial documents which will have a bearing on the security for costs issue. The Wingstar Parties have complied with the terms of the Subpoenas. Neither the Setting Aside Application, or written submissions in support, sought that the Subpoenas be set aside on the basis that they were oppressive. Given the compliance, it can be accepted that the Wingstar Parties understood what was required by the terms of the Subpoenas. This supports a finding that the documents identified in the Subpoenas was done so with precision.
The Subpoenas are not 'fishing' (in the sense described in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 (Owen J, with whom Street CJ and Herron J agreed)) or effectively seeking discovery as the subpoenaed documents are identified in a reasonably focused way: Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [35] (Wigney J).
Before considering each of the numbered documents sought, it is well to record the three steps of having documents brought to Court under a subpoena and the use of the documents thereafter, as was conveniently summarised by McKerracher J in Koboko Mining Limited v Van Heerden [2016] FCA 1532 at [11]:

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These documents are sought for each of Wingstar and Wingstar Trading. The more current financial information, by way of these managements accounts, is likely to "throw some light" on, (1) the likelihood of Wingstar being unable to pay the Respondents' costs, (2) the characteristics of the Wingstar Parties and the wealth of Wingstar, and (3) whether Wingstar Trading is a person standing behind Wingstar, and likely to benefit from the litigation.
However, as these issues will be considered on the security for costs application, the 2024 financial year documents are too remote. The documents must have apparent relevance. Internal management accounts and other financial documents from 18 months prior (or more during the 2024 financial year), will not assist in assessing the financial position of and characteristics of Wingstar and related Wingstar Trading at the time of the hearing of the security for costs application and assessing the position of Wingstar to meet an adverse costs order.
The documents the subject of the matter in Bailey were "the latest" balance sheet, forecast balance sheet, consolidated profit and loss, forecast profit and loss, monthly accounts for the last 12 months, last two set unaudited accounts and income tax returns for three years, (the last, if available). These documents, being the latest financial information, would best inform the issues on the security for costs application. The assessment of Wingstar's financial position, the characteristics of the Wingstar Parties and whether Wingstar Trading is a person standing behind Wingstar and likely to benefit from the litigation at the end of the trial will be best drawn from the current financial documentation. On this basis, the material from the 2024 financial year will not provide the required evidentiary value. In this regard, it is also relevant that the bank statements sought are only for a period of six months.
As such, from paragraphs 1, 2, 3 and 4, the Respondents will not be granted access to the 2024 financial documents sought. However, access will be granted to documents as described in these paragraphs for the 2025 financial year and so much of the 2026 financial year as is available.

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These documents are also sought for each of Wingstar and Wingstar Trading. The documents sought under paragraph 5(a) are likely to "throw some light" on (1) the characteristics of Wingstar and the Wingstar Parties, (2) whether there are persons standing behind Wingstar who are likely to benefit from the litigation, and (3) whether the persons standing behind Wingstar have offered any security or personal undertaking to be liable for costs and the value of the offer (if or when it is made). This is because documents which record any such arrangement as between a shareholder, director, officer, employee or agent which provides funding to commence or maintain this litigation, viewed realistically, will have a bearing on these three factors usually considered on a security for costs application.
However, in so far as documents are sought under paragraph 5(b) of any third party litigation funding, there was nothing in the material which suggests or supports a submission that the Wingstar Parties have actually engaged a third party litigation funder. In this way, the Subpoenas may be fishing, in the sense of seeking documents to discover if third party litigation funding will be an issue on the security for costs application, not that third party litigation funding is already an issue, and evidence is being sought in relation to it. The Respondents submitted that Wingstar's ability to be able to pay an adverse costs order may be affected by such an agreement, if there is provision for such under a third party litigation funding agreement. In this way, the Subpoenas were not fishing for whether there was a litigation funder in and of itself, but were seeking evidence as to the issue of Wingstar's ability to pay any adverse costs order. In this way, there is apparent relevance.
The Wingstar Parties submitted consistent with their submission that some of the documents were confidential, that for example, having to provide a litigation funding agreement potentially provides the Respondents with highly prejudicial information. This submission was not expressly made as a concession that such third party litigation funding existed, the submission but was advanced by way of example. The substance of the submission is presumably a reference to what is commonly referred to as the "war chest" and may provide insight into the Wingstar Parties' litigation strategy: Green v CGU Insurance Ltd [2008] NSWSC 390 at [26] (Einstein J); Idoport Pty Ltd v Anor v National Australia Bank Ltd & 8 Ors; Idoport Pty Ltd and Market Holdings Pty Ltd v Donald Robert Argus; Idoport Pty Ltd "JMG" v National Australia Bank Ltd [2001] NSWSC 648 at [19]- [20] (Einstein J). However, in circumstances where a security for costs application has been made, a redacted version of any litigation funding agreement may be appropriate: Hancock liquidator of South Townsville Developments Pty Ltd (in liq) (No 2) [2019] FCA 622 at [6]- [17] (Griffiths J); Kingsheath Club of the Clubs Limited (in liq) [2003] FCA 1034 at [33]- [34] (Goldberg J). Redactions may be permitted to protect confidential information, that being information which if disclosed would confer a tactical advantage on the opposite party: Coffs Harbour City Council v Australian And New Zealand Banking Group Ltd (t/as Anz Investment Bank) [2016] FCA 306 at [18]- [22] (Rares J); Allen v G8 Education Limited [2021] VSC 173 at [7]- [10] (Nichols J).
Subject to the issues of confidentiality, the Respondents would be entitled to documents described in paragraph 5(b) of the Subpoenas. In the first instance, the parties should confer and try to reach agreement over the redactions to be applied to any document answering the description of a document in category 5(b). Should agreement not be reached, the parties will be granted liberty to apply. This issue can be brought back to the Court for further argument, should that be necessary.

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The documents produced on the Subpoenas are subject to the implied undertaking not to be used, without leave of the Court, for any purpose, other than that for the which the documents were provided, that being for the purpose of the proceedings: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [1]- [3] (Gleeson CJ) and [95]-[97] (Hayne, Heydon and Crennan JJ). This was with reference to Harman v Secretary of State for Home Department [1983] 1 AC 280, commonly referred to as the Harman Undertaking.
The Wingstar Parties also raised issues of confidentiality. However, even if the documents were confidential, that is ordinarily not sufficient to deny inspection by the opposite party: Gall v Dimon's Pizza Enterprises Ltd [2019] FCA 1799 at [11] (Murphy J); Cadbury Pty Ltd v Amcor Limited (No 2) [2009] FCA 663 at [6]- [7] (Gordon J, then of this Court). Although it was broadly submitted that the Respondents and Wingstar Parties were competitors in the sense of people who deal in and analyse securities, the submission was not put that the parties are trade rivals, whereby it is appropriate to maintain the secrecy of commercially sensitive information.
The Respondents' access to, and taking copies of, the subpoenaed documents would be subject to the Harman Undertaking and that will usually provide sufficient protection.
In AsstraZeneca AB v Medis Pharma Pty Ltd [2014] FCA 549 at [10], Besanko J set out the principles to be applied in relation to the balancing exercise required to be undertaken in deciding whether it is appropriate to make orders, in addition to those provided by the implied undertaking. The Wingstar Parties did not address such matters. It is unnecessary to set out all of these matters as the first is that the onus for establishing a claim of confidentiality rests on the party making that claim. The Wingstar Parties have failed at this first hurdle. They have presented no cogent arguments or evidence to support the position that additional orders (that is, additional to the requirements of the Harman Undertaking) should be made, regarding the use and confidentiality of the documents produced and for which access will granted (for the most part).

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The Wingstar Parties brought the Refusal Application and they have had some, albeit limited, success in the application. The Respondents will be granted access to all but the 2024 financial documents and any litigation funding documents, which will be subject to appropriate redactions.
Section 43 of the FCA provides the Court with a "broad and ample" discretionary power to award costs: DSE (Holdings) Pty Limited v InterTAN Inc (2004) 51 ACSR 555; [2004] FCA 1251 at [14] (Allsop J); Tenser v Quigley [2016] FCAFC 178 at [26] (Nicholas, Katzmann and Markovic JJ). The power "must be exercised judicially, not arbitrary or capriciously or on grounds unconnected to the litigation" but having regard to the relevant principles and justice of the particular circumstances of the case involved: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105 at [4] (Markovic, Thawley and Cheeseman JJ). The Court must take "into account any failure by a party to comply with the overarching purpose of the civil procedure provisions", being to "facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible": s 37N(4) and s 37M(1) of the FCA Act; LFDB v SM (No 2) [2017] FCAFC 207 at [7] (Besanko, Jagot and Lee JJ); see also Australian Competition and Consumer Commission (ACCC) v Colgate-Palmolive Pty Ltd (No 5) (2021) 151 ACSR 26; [2021] FCA 246 at [6]- [9] (Wigney J).
Usually, but not by way of a rigid rule, costs follow the event, such that the discretion to award costs is exercised in favour of a successful party: Malone v B&M Aboriginal Corporation (In Administration) (No 2) (2025) 309 FCR 35; [2025] FCAFC 51 at [6] (O'Bryan, Halley and Horan JJ). A successful litigant will usually receive their costs, in proportion to their degree of success, which can result in a successful party being deprived of costs on issues failed upon or ordered to pay some of the costs of an unsuccessful party, on that issues approach: Hughes v Western Australia Cricket Association (Inc) [1986] ATPR 40-748; [1986] FCA 465 at 48,136, (Toohey J); Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127; [2015] FCA 750 at [37] (White J); Tenser at [27]. However, the mere fact that a court does not accept all of a successful party's arguments on costs does not necessarily make it appropriate to apportion costs on an issues basis: Impiombato v BHP Group Limited (No 2) [2025] FCAFC 28 at [13] (Beach and O'Bryan JJ).
Costs are compensatory in nature, not punitive: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543 (Mason CJ), 563 (Toohey J) and 567 (McHugh J); Seven Network Ltd v News Ltd (2009) 182 FCR 160; [2009] FCAFC 166 at [1099] (Dowsett and Lander JJ); Hockey at [37]; Tenser at [27]. Costs are usually awarded by way of partial indemnity for professional costs actually incurred, they are not intended to be a full and comprehensive amount of compensation for any loss suffered by the litigation: Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 at 410-411 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ); Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 at [22] (Kiefel CJ, Bell, Keane and Gordon JJ); Birketu Pty Ltd v Atanaskovic (2025) 99 ALJR 321; [2025] HCA 2 at [14] and [17] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).
The ordinary position is also reflected in r 40.01 of the FCR, that costs are on a party and party basis.
Effectively, the Respondents sought 20 documents or document types by way of the Subpoenas to each of Wingstar and Wingstar Trading. Broadly, by way of the 2024 financial year, access will not be granted to four documents or document types. Further, each party enjoyed some success in relation to the document or documents in 5(b).
Although the Respondents have been for the most part successful, the 2024 financial documents should not have been sought. However, having said that, the Wingstar Parties' arguments enjoyed very limited success. The Wingstar Parties also proceeded in a way which was not the most efficient, in terms of considering the overarching purpose of the civil procedure provisions. First they sought to contest the Subpoenas and appeared before the Registrar, where ultimately, despite the Registrar being able to hear that contest, the matter was adjourned and the costs thrown away were ordered against Wingstar. Second, they were provided with a short extension to comply with the subpoena, and rather than press the application to set it aside, they complied with its terms. Third, however, the Wingstar Parties then sought to resist leave being granted to the Respondents to have access to the documents produced. Fourth, the Setting Aside Application was dismissed and the Wingstar Parties then filed the Refusal application.
It is not always appropriate to apportion costs on the basis reflecting the ultimate success of a particular party. However, this is also not a situation where each party has had some success and costs should simply be in the proceedings: Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664 at [177] (Austin J). The Respondents have been, for the most part, successful in seeking access to the documents produced under the Subpoenas.
In all of the circumstances, however, it is appropriate to apply some discount to the Respondents costs, reflecting that it has not enjoyed complete success.
Therefore, the costs orders will be that the Wingstar Parties pay 90% of the Respondents' costs of and incidental to the Setting Aside Application (such costs which were reserved on 19 November 2025) and the Refusal Application, on a lump sum basis (in accordance with GPN-Costs) to be fixed by a Registrar, if not agreed.

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (17)