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In the matter of One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491

by Martha.Ware 27. January 2011 11:13


The substantive proceedings consisted of claims for an order that Paul Gerard Weston be removed as special purpose liquidator of One.Tel Ltd (pursuant to s 503 of the Corporations Act) and for an order for an inquiry into his conduct as special purpose liquidator (pursuant to s 536 of the Corporations Act).


This judgment concerns separate applications by opposing parties seeking to set aside notices to produce.


Ward J summarised the factual matrix at [13]–[20]. Of particular relevance to the applications before her Honour were [19]–[20].


At [19], her Honour referred to key aspects in the Points of Claim. These largely related to disputes about remuneration claimed by and expenses incurred by Mr Weston, and to the question of whether he had carried out work beyond his court ordered powers.


At [20], her Honour referred to key aspects in the Points of Defence, in which Mr Weston denied the matters noted above.




Authorities on test in relation to setting aside a notice to produce were considered at [21]–[31]. It was held that the "on the cards" test "has not been broadly embraced" in civil proceedings: [30]. "A careful consideration is required of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena": [31].


"Whether a party has cause to believe that particular documents exist is thus a relevant factor … in determining whether the subpoena (or notice to produce) is oppressive and/or constitutes 'fishing'": [36].


Ward J noted the requirement that a subpoena or a notice to produce "must identify with 'reasonable particularity' the documents sought": [40].


"It is necessary that a person receiving a notice to produce, just as it is for a person served with a subpoena, be in a position to form a view having regard to the terms of the notice as to what documents are required to be produced in order to comply with the order for production. If subjective judgment is required to be applied, or there is ambiguity in that regard, then the subpoena/notice to produce should be set aside": [45] (see also [121]).


Her Honour proceeded to consider the challenged paragraphs of the notices to produce.


Fee or retainer agreements may be relevant to a question of potential and/or actual conflict of interest: [73]. The same cannot be said for memoranda of fees (at [74]) or communications about a proposed retainer (at [79]).


"Communications in relation to the drafting of affidavits (just as draft affidavits themselves) are not likely to be relevant to the ultimate issue (unless they suggest some form of concealment of evidence)": [94].


It is "oppressive to require what is in effect a discovery process (by means of a list of privileged documents) in the context of the notice to produce procedure provided under the rules": [101] (see also [113]).


Where an issue is central to proceedings, and the number of documents required is relatively limited, it is not oppressive to require the production of those documents: [109].


That a point of pleading or point of claim is broadly framed does not mean that it has been made without a genuine belief that it is sustainable and has only been pleaded in order to sustain a notice to produce, and that the notice to produce is therefore an abuse of process: [137]–[138].


Where documents are sought in relation to an issue that has already been determined, the notice to produce will be oppressive: [168].


A distinction may be drawn between a fact and the consideration which led to that fact. For example, in the case at hand, "the fact of nondisclosure in the circumstances" was relevant, but "not the consideration of what was or was not disclosed". This affected Ward J's assessment of the notices to produce: [184] (see also [143]–[147]).



Relevant paragraphs of Ford

[27.180], [27.183], [27.184]


Ford's Principles of Corporations Law


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