ANALYSIS
5 For the reasons that follow, the Notice to Produce should be set aside. First, although it takes the form of a notice to produce, it is in fact an application for discovery. Second, the documents sought by way of discovery are, in my view, wide, oppressive and constitute fishing. Those conclusions require further explanation.
6 Before turning to the terms of the Notice to Produce, it is necessary to understand the bases on which the Respondent seeks to have the creditor's petition adjourned. There are two - that the applicant creditors' petition is an abuse of process and, further, that he has an off-setting claim not yet finally determined. I will deal with each in turn.
7 The first basis - that the applicant creditors' petition is an abuse of process is unparticularised. As Counsel for the applicant creditors' submitted, you are left to speculate as to what constitutes, or might constitute, the abuse. That is inappropriate.
8 In relation to the second basis - the alleged off-setting claim - that is more difficult in one sense. An aspect of the question of the alleged off-setting claim came before the Court of Appeal of the Supreme Court of Victoria in Shaw v Yarranova Pty Ltd [2014] VSCA 48. The Court of Appeal noted that "the serious nature of the allegations which the [Respondent] wishes to make mandates that his application to set aside the earlier orders be made by writ with a properly particularised and detailed statement of claim". Two matters should be noted. No proceeding has been filed in the Supreme Court dealing with those issues and, secondly, to some extent, those issues have already been the subject of proceedings in this court before Tracey J and dismissed.
9 It is against that background, that the Notice to Produce needs to be addressed.
10 Mr Fary, Counsel for the applicant creditors, divided the documents sought into two categories. I propose to adopt those categories for the sake of convenience. The first are those identified in paragraphs 1, 2, 4, 5, 6, 7, 9 and 10 of the Notice to Produce. Mr Fary submitted that those categories appeared to be an attempt to fish for evidence to be used to seek to set aside the earlier orders. That is, they were seen to be directed to issues raised by the Respondent in the past and which were the subject of the observations of the Court of Appeal: see [8] above. Whether that is an accurate description or not may be put to one side. What is self-evident is that, on the material currently before this court, none of the materials referred to in those paragraphs appear to be directly relevant to, or pertain to, issues before this court. Even taking the second basis on which the Respondent seeks to have the creditor's petition adjourned at its highest, the documents sought fall outside a proper discovery request.
11 That leaves the second category of documents sought by the Notice to Produce - those referred to in paragraphs 3 and 8: see [3] above. On their face, they appear to seek documents of the most general kind relating to the applicant creditors' belief about the insolvency of the Respondent. There are two answers to those contentions. The Respondent bears the onus of establishing that he is solvent, not insolvent. Second, the applicant creditors' belief is irrelevant.
12 For those reasons, the Notice to Produce should be set aside. Those conclusions may seem harsh. They are not. The fact that they are not harsh is borne out by statements by Jordan CJ as long ago as 1938 in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 to 575. This often repeated passage is important. It reminds us all that it is inappropriate in a case of this nature, especially in the conduct of modern litigation, for parties to seek to use procedures before the court, whether by way of notice to produce, subpoenas or the like:
1. as a substitute for an application for discovery of documents;
2. in fishing for information or materials to support a case which has not yet been formulated; and / or
3. to obtain to evidence to determine whether one exists at all.
13 As Mr Fary submitted there are proper procedures before the court for pre-application discovery. And, of course, for the purposes of proper disclosure, exchange of documents and information relevant to disputed questions of fact and law in existing proceedings remains part of the adversarial nature of litigation. However, each is subject to particular rules and other case management considerations. In the circumstances of this case, the Respondent's Notice to Produce does not satisfy those rules and is inconsistent with proper case management principles.