In the matter of Wetherill Park Holdings Pty Ltd [2020] NSWSC 982

In the matter of Wetherill Park Holdings Pty Ltd [2020] NSWSC 982

The impugned notice to produce and subpoena categories were largely not shown to have a legitimate forensic purpose because they were directed to matters not properly connected to the issues in the winding up proceeding, were overly broad or amounted to fishing, or were framed to require documents likely to be subject to legal professional privilege. However, categories seeking documents expressly referred to in affidavits were permitted. Accordingly, the notice to produce was set aside except for paragraphs 5(a)-(c), and paragraphs 1-6 of the subpoenas to Mr Werry and BSC2 were set aside, with paragraph 7 permitted and no order as to costs.

Jurisdiction
Australia
Judgment Date
11 June 2020
Procedural Posture
Corporations Winding Up Proceeding; Interlocutory Application to Set Aside Notice to Produce and Subpoenas / Interlocutory Application
Outcome
Certain paragraphs of the notice to produce and subpoenas were set aside; no order as to costs.
Legal Topics
['notices to Produce' 'subpoenas to Produce' 'legitimate Forensic Purpose' 'relevance to Issues in Proceedings' 'legal Professional Privilege' "creditor's Statutory Demand" 'winding Up Application' 'corporations Act 2001 (cth), S 459 S']
['civil Procedure' 'corporations Law' 'evidence'] ['notices to Produce' 'subpoenas to Produce' 'legitimate Forensic Purpose' 'relevance to Issues in Proceedings' 'legal Professional Privilege' "creditor's Statutory Demand" 'winding Up Application' 'corporations Act 2001 (cth), S 459 S']

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Procedural Posture

Corporations Winding Up Proceeding; Interlocutory Application to Set Aside Notice to Produce and Subpoenas / Interlocutory Application

Legal Issues

  1. 1 ['Whether the notice to produce dated 8 May 2020 should be set aside in whole or in part for lack of relevance or legitimate forensic purpose.' 'Whether paragraphs 1-7 of the subpoenas to produce issued to Mr Graham Werry and Bridge Street Capital No. 2 Pty Ltd should be set aside for lack of legitimate forensic purpose, excessive breadth, or fishing.' 'Whether categories seeking documents recording the seeking or obtaining of legal advice should be set aside because they are likely to require production of documents subject to legal professional privilege.' 'Whether documents referred to in affidavits should be produced notwithstanding uncertainty about whether the evidence advances matters properly in issue.']

Ratio Decidendi

The impugned notice to produce and subpoena categories were largely not shown to have a legitimate forensic purpose because they were directed to matters not properly connected to the issues in the winding up proceeding, were overly broad or amounted to fishing, or were framed to require documents likely to be subject to legal professional privilege. However, categories seeking documents expressly referred to in affidavits were permitted. Accordingly, the notice to produce was set aside except for paragraphs 5(a)-(c), and paragraphs 1-6 of the subpoenas to Mr Werry and BSC2 were set aside, with paragraph 7 permitted and no order as to costs.

Court Disposition

Certain paragraphs of the notice to produce and subpoenas were set aside; no order as to costs.

Orders

  • ['The notice to produce dated 8 May 2020, other than paragraphs 5(a)-(c), was set aside.' 'Paragraphs 1-6 of the subpoenas to produce issued to Mr Werry and Bridge Street Capital No. 2 Pty Ltd were set aside.' 'No order as to costs.']