FEDERAL COURT OF AUSTRALIA Plastec Australia Pty Ltd ACN 093 513 467 v Plumbing Solutions and Services Pty Ltd ACN 128 873 629 (No. 2) [2010] FCA 670 Citation: Plastec Australia Pty Ltd ACN 093 513 467 v Plumbing Solutions and Services Pty Ltd ACN 128 873 629 (No. 2) [2010] FCA 670 Parties: PLASTEC AUSTRALIA PTY LTD ACN 093 513 467 v PLUMBING SOLUTIONS AND SERVICES PTY LTD ACN 128 873 629, TONY GREGORY PURDON and RALPH T MARTIN File number(s): QUD 272 of 2009 Judges: GREENWOOD J Date of judgment: 25 June 2010 Catchwords: PRACTICE AND PROCEDURE – consideration of an application to set aside a subpoena Legislation: Federal Court Rules, Order 27, rule 4, rule 6 Evidence Act 1995 (Cth), s 55(1) Cases cited: McIlwain v Ramsey Food Packaging Pty Ltd and Others (2006) 221 ALR 785 - cited Trade Practices Commission v Arnotts Limited (No. 2) (1989) 88 ALR 90 - cited Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 – cited Commissioner for Railways v Small (1938) 38 SR (NSW) 564 - cited Spencer Motors v LNC Industries [1982] 2 NSWLR 921 – cited Mandic v Phillips (2005) 225 ALR 760 - cited Date of hearing: 25 June 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 51 Counsel for the Applicant: Mr C Johnstone Solicitor for the Applicant: Bennett & Philip Lawyers Counsel for the First and Second Respondents: No appearance Solicitor for the First and Second Respondents: No appearance Counsel for the Third Respondent: Mr G Coppola Solicitor for the Third Respondent: D'Angelo Kavanagh IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 272 of 2009 BETWEEN: PLASTEC AUSTRALIA PTY LTD ACN 093 513 467 Applicant AND: PLUMBING SOLUTIONS AND SERVICES PTY LTD ACN 128 873 629 First Respondent TONY GREGORY PURDON Second Respondent RALPH T MARTIN Third Respondent JUDGE: GREENWOOD J DATE OF ORDER: 25 JUNE 2010 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The scope of a subpoena issued by the Court on 5 May 2010 is varied by deleting any reference in the subpoena to Mrs Jenny Bennett. 2. The time for compliance with the subpoena by the addressee of the subpoena is extended until 2.15pm on 14 July 2010 at the place nominated in the subpoena. 3. The third respondent shall pay 80% of the costs of Plastec Australia Pty Ltd of and incidental to the Notice of Motion filed 24 May 2010. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 272 of 2009 BETWEEN: PLASTEC AUSTRALIA PTY LTD ACN 093 513 467 Applicant AND: PLUMBING SOLUTIONS AND SERVICES PTY LTD ACN 128 873 629 First Respondent TONY GREGORY PURDON Second Respondent RALPH T MARTIN Third Respondent JUDGE: GREENWOOD J DATE: 25 JUNE 2010 PLACE: BRISBANE REASONS FOR JUDGMENT 1 By notice of motion filed on 24 May 2010 the third respondent in the principal proceeding, Mr Martin, seeks an order pursuant to Order 27, rule 4 of the Federal Court Rules that a subpoena issued on 5 May 2010 addressed to Paul Gerard D'Angelo and Terrence Peter Kavanagh trading under the firm name of D'Angelo Kavanagh, Solicitors of 179 Goodwood Road, Millswood, South Australia, be set aside. 2 The subpoena was issued at the request of the solicitors for the applicant in the proceeding, Plastec Australia Pty Ltd ("Plastec"). The documents and things required to be produced by the addressees of the subpoena are these: Copies of all correspondence (including, without limitation, copies of all e‑mails) passing between: 1. any partner or employee of D'Angelo Kavanagh Barristers and Solicitors, or otherwise for or on behalf of D'Angelo Kavanagh Barristers and Solicitors; and 2. Storm Plastics Drainage Division Pty Ltd [SP DD P/L], Storm Plastics (SA) Pty Ltd [SP (SA) P/L], Storm Plastics Admin Pty Ltd [SP (Admin) P/L] and Storm Plastics (QLD) Pty Ltd [SP (Qld) P/L], any other entity through which the business known as "Storm Plastics" (or any aspect of that business) trades, or any other of Mr Martin Bennett or Mrs Jenny Bennett (or any entity of which either (or both) are directors or controllers) or any employee of any of the foregoing entities, relating to: (a) the Applicant; and/or (b) the Respondents or any of them; and/or (c) these proceedings including, without limitation: (i) copies of any fee agreements or documents (including printouts or any e‑mails) relating to the manner in which invoices or fees or disbursements incurred in these proceedings are to be raised and paid; and (ii) any invoices for fees and/or disbursements relating to these proceedings; and (iii) any receipts for payment of such invoices. 3 That conjunction of words seems to address documents of the following class: All correspondence (including emails) passing between any partner or employee of D'Angelo Kavanagh "or otherwise" (which seems designed to capture any other person who might be engaged by the firm in some other capacity), and A. SP DD P/L SP (SA) P/L SP (Admin) P/L SP (Qld) P/L; B. any other entity through which the business of "Storm Plastics" (or any aspect of that business) trades; C. Mr Martin Bennett or Mrs Jenny Bennett; D. any entity of which either (or both) of Mr or Mrs Bennett are directors or controllers; E. any employee of any of the entities or persons nominated at A, B, C and D; relating to Plastec, any of the respondents to the principal proceeding or the principal proceeding itself, and the field of documents is said to include (without limitation) copies of any fee agreements or documents relating to the manner in which invoices or fees or disbursements incurred in the principal proceedings are to be raised and paid; any invoices or fees or disbursement notes relating to the proceedings; and any receipts for payment of such invoices. 4 Neither of the addressees as partners in the firm of solicitors seeks to set aside the subpoena. No documents have been produced to the Court by the addressees by the time and date or at the place nominated in the subpoena in compliance with the subpoena's command. The date and time for compliance with the subpoena was 2.15pm on 25 May 2010 at the Federal Court of Australia, Level 6, Commonwealth Law Courts, 119 North Quay, Brisbane. 5 Order 27, rule 6(4) provides that the addressee must comply with a subpoena to produce by attending at the date, time and place specified for producing the documents or things called for by the subpoena (rule 6(4)(a)) or by delivering the documents and things to the Registrar at the specified address not less than two clear days before the date specified for attendance and production (rule 6(4)(b)). A copy of the subpoena must also be produced. Order 27, rule 12(1) provides that failure to comply with a subpoena without lawful excuse is a contempt of Court. It follows as a matter of well‑accepted and orthodox practice that where an addressee of a subpoena, especially in the case of a solicitor, believes that he or she cannot comply with the subpoena's command to produce the nominated documents and things, the addressee is to promptly apply to the Court to set aside the subpoena identifying the grounds relied upon in support of such an order. Alternatively, where documents required to be produced are thought to require particular treatment or ought to be produced subject to conditions such as a confidentiality order or where the production of the documents is said to be subject to questions of legal professional privilege attaching to the documents, the addressee ought to comply with the subpoena by isolating the relevant documents and answering the subpoena when called upon to do so by seeking the appropriate orders qualifying or excusing production of particular documents or a class of documents. 6 In this case, Mr Martin as third respondent in the proceeding, moved to set aside the subpoena addressed to D'Angelo Kavanagh. That firm represents Mr Martin in the principal proceeding. Mr Martin has standing to make the application under Order 27, rule 4 of the Federal Court Rules. The motion is supported by an affidavit sworn by Mr Terrence Peter Kavanagh filed on 24 May 2010. 7 The subpoena compels the production of correspondence and emails all said to be relevant to the issues in the proceeding. 8 By the Further Amended Statement of Claim filed on 27 April 2010 pursuant to leave granted on 20 April 2010, Plastec asserts these things. Plastec carries on the business of manufacturing and supplying plastic plumbing pipes and pipe fittings manufactured from substances known as acrylonitrile-butadiene-styrene ("ABS") and acrylonitrile-styrene-acylate ("ASA"). Those fittings include fittings called "swivel and expansion joint fittings" made from ABS and ASA and, in particular, four fittings designed for connection to pipes laid underground to provide drainage for sewerage and waste water and designed to enable underground pipes laid in unstable soil to move with the soil without causing a break in the fitting or the pipe. 9 The first respondent (Plumbing Solutions) carries on the business of supplying plumbing inspection and certification services to local governments in Queensland. The second respondent, Mr Purdon, is its secretary and sole director. Mr Purdon is said to be knowingly concerned in the relevant conduct of Plumbing Solutions the subject of the action. That conduct consists of Plumbing Solutions, by Mr Purdon, sending an email on 9 September 2009 to particular addressees in which, put simply, statements or representations are made concerning ABS flexible joints (and therefore Plastec's ABS flexible fittings) and the requirements or otherwise of a particular Standard. Those statements are said to be misleading and deceptive or likely to mislead and deceive the addressees in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("TPA"). Plastec relies upon another email of 9 September 2009 the sending of which by Mr Purdon is also said to constitute conduct in contravention of s 52 of the TPA. Plastec also relies upon the sending by Mr Purdon of a document called in the amended pleading the "Purdon Report" in September 2009 to addressees including "Standards Australia" and the "National Plumbing Regulatory Forum" which is said to contain representations described in paras 16(a) to (q) of the amended pleading all of which are said to be misleading or deceptive or likely to mislead or deceive in contravention of s 52 of the TPA. 10 Plastec says the Purdon Report incorporated and adopted as its own a letter dated 13 July 2009 written by Mr Martin called in the amended pleading the "Martin Report". The Martin Report is said to contain at least five representations that Plastec has supplied throughout Australia and New Zealand many ABS or ASA fittings which are defective. The Purdon Report is said to contain many representations to the same effect. Both reports in that regard are said to be misleading. Mr Martin is said to have sent or caused to be sent (that is, "distribute[d] widely") the Purdon Report incorporating the Martin Report on and after 26 October 2009 to addressees including "manufacturers of plumbing products and plumbing inspectors". In engaging in this conduct Mr Martin is said to have contravened s 52 of the TPA and to have knowingly published injurious falsehoods thus engaging in tortious conduct. 11 As to whether Mr Martin has engaged in the contended conduct in trade or commerce, Plastec contends that Mr Martin was retained, for reward, by a group of companies referred to collectively as "Storm Plastics" ("SP") to promote their products. The SP group of companies comprises SP DD P/L, SP (SA) P/L, SP (Admin) P/L and SP (Qld) P/L. Their products comprise "PVC" piping and associated items used in the building and plumbing industries. SP was at all relevant times a direct competitor of Plastec. Plastec says that Mr Martin, for reward, attended important industry forums as a representative of SP; attended trade shows as SP's representative to promote its products; provided consultation services concerning the preparation of promotional documentation for SP; rendered invoices to SP for services; and engaged with SP (and thus assisted SP) in receiving a technical report from CRT Laboratories Inc. ("CRT") in the United States dated 26 January 2010 concerning "an investigation analysis on ABS & PVC Solvent Cement/Bonding compatibility review" relating to matters in issue in the proceeding. The instructions were given to CRT by SP on 28 December 2009. 12 Plastec also pleads that SP was partly owned and/or operated by Mr Martin Bennett who was a close friend of Mr Martin. 13 At para 4 of the amended pleading, Plastec says that Mr Martin carried on the business of providing consultancy services to the plumbing industry in South Australia including SP and carried on the business of SP by promoting SP's products and by representations to regulatory authorities and other bodies addressing the standards and qualities of SP's products. Plastec contends that it follows from Mr Martin's engagement in these pleaded activities that in the matters alleged against him in the amended pleading, Mr Martin engaged in trade or commerce either as a consultant on his own behalf or in the trade or commerce of SP. 14 Mr Martin filed and served a defence to Plastec's Statement of Claim on 25 February 2010 and an Amended Defence to the Further Amended Statement of Claim on 21 June 2010. As to the pleaded contention that Mr Martin engaged in the relevant conduct in trade and commerce, Mr Martin said this in his Defence filed on 25 February 2010: 4. As to paragraph 4 of the Statement of Claim [that is, engaging in the matters alleged against him in trade or commerce], Martin: 4.1 denies that at any of the times material to the matters alleged in the Statement of Claim he carried on the business of providing consultancy services to the plumbing industry in South Australia; 4.2 further denies that at any of the times material to the matters alleged in the Statement of Claim he provided consultancy services to [SP (SA) P/L]; 4.3 says that at no time material to the matters alleged in the Statement of Claim did he carry on any business; 4.4 says that at no time material to the matters alleged in the Statement of Claim was he engaged in trade or commerce within the meaning of the Trade Practices Act 1974 (Cth) ("TPA") section 4 or otherwise; 4.5 says that on the 30th day of October 1998 he retired and has been in receipt of an aged pension since 2005; 4.6 in the premises of the matters pleaded at 4.1 to 4.6 above, says that the TPA has no application to him or to the matters alleged against him in the Statement of Claim. 15 On the question of whether Mr Martin in engaging in the conduct alleged against him, engaged in trade or commerce, Mr Martin deposed to these matters in his affidavit sworn 17 March 2010: BACKGROUND 4. I am 69 years of age and retired on the 30th day of October 1998. I am an aged pensioner and have been since 2007. I am not employed or otherwise paid by any business, firm, company or person. At the time of my retirement I was the Plumbing Products Officer for SA Water which is the principal water authority for South Australia. … TRADE AND COMMERCE 13. I do not conduct a business and am no longer engaged in any trade. After I retired from SA Water in 1998 I found that people would call upon me for assistance in respect to plumbing products. Generally I was happy to assist and most of the time I did not charge for my time. 14. Between about 1999 and mid 2007 I occasionally charged a consultancy fee for my advice but in this whole period I would not have earned more than a total of about $8,000.00. I never applied for an Australian Business Number (ABN). 15. I have not provided any consultancy services or worked for anyone for payment since mid 2007. 16. Since then I have maintained my personal interest in the plumbing industry and developments that occur but I have not been involved in any paid capacity. My involvement is limited to my personal interest in plumbing standards and plumbing products and to improving training and standards within the plumbing industry. I deny any allegations to [the] contrary made by the applicant in its pleadings and affidavits. 16 In the Amended Defence filed 21 June 2010, Mr Martin admits that SP carries on the business alleged; admits that SP entities are direct competitors of Plastec although information asymmetries in the relevant market affect the question of whether Plastec's own conduct constitutes misleading or deceptive conduct or conduct likely to mislead or deceive; admits that SP promotes its products; and as to the question of Mr Martin's engagement for remuneration or otherwise with SP entities in the promotion of its products, says: 3A.4.1 from time to time he has accepted invitations by Storm Plastics to attend trade functions to promote the need for flexibility in underground plastics drainage pipe systems; 3A.4.2 he provided technical advice and assistance as to general inquiries but has no involvement in or knowledge of Storm Plastics' sales procedures; 3A.4.3 at no time material to the preparation and distribution of the so‑called Martin Report was he engaged for remuneration or otherwise in trade and commerce; 3A.4.4 at no time material to the preparation and distribution of the so‑called Martin Report was he an agent for or otherwise authorised by Storm Plastics to express those opinions or pose the questions contained in the so‑called Martin Report. 17 Mr Martin admits that the Storm Plastics entities were at the material times partly owned and/or operated by Mr Martin Bennett who was a close friend of Mr Martin. Otherwise, the allegations of engagement between Mr Martin and the SP entities is denied. As to the conclusion arising out of the contentions of engagement between Mr Martin and the SP entities that Mr Martin at all material times was, in the matters alleged against him, engaged in trade or commerce, Mr Martin pleads in the Amended Defence the matters pleaded at para 4 of the earlier Defence (as quoted) and adds these additional matters: 4.6 says that at no time material to the matters alleged in the Further Amended Statement of Claim did he carry on business but that on occasions he from time to time assisted Storm Plastics such assistance was not being rendered in trade or commerce; 4.7 denies the allegation pleaded at paragraphs 4(b)(ii)(A) and 4(b)(ii)(B) of the Further Amended Statement of Claim that at any time material to the matters pleaded in the claim he made any representation to regulatory authorities or to members of State or Federal Parliament in relation to the matters alleged; 4.8 says that at all material times he expressed opinions and posed questions to the recipients of the so‑called Martin Report in relation to the matters alleged; 4.9 says that all of the opinions which are expressed or the questions so posed were in his own right and on his own behalf and not on behalf of or as agent of Storm Plastics or any other person or entity; … 18 Otherwise, Mr Martin denies the allegation that he engaged in trade or commerce at any material time. 19 Plainly, there is a controversy on the pleadings as to whether Mr Martin engaged with any entity in the SP group of entities in the field of activities alleged in the Amended Statement of Claim and whether those activities together with other activities give rise to the conclusion that Mr Martin engaged in trade or commerce on his own account as a consultant or in the trade or commerce of SP entities, in the matters alleged against him, in the proceedings. 20 In his affidavit, Mr Kavanagh says that he was served with the subpoena on 10 May 2010. He says he was first consulted by Mr Martin in August 2007. At that time, Mr Kavanagh was aware that Mr Martin was familiar to the directors of the Storm Plastics group of companies. Mr Kavanagh has been retained by Mr Martin in connection with the present proceedings. Mr Kavanagh has also been consulted by Storm Plastics (SA) Pty Ltd in relation to the same issues, that is, the issues arising in the proceedings. Mr Kavanagh says that SP (SA) P/L has sought his advice in relation to potential proceedings against Plastec and whether SP (SA) P/L ought to apply to be joined as a respondent in the present proceedings. He says that SP (SA) P/L is concerned as to the fitness for purpose of Plastec's ABS products and the consequences of what he describes as the inappropriate joinder of Plastec's ABS draining fittings to PVC drainage fittings and subsequent leaking. SP (SA) P/L is also concerned about particular certification issues. All of these matters are the subject of advice from Mr Kavanagh to SP (SA) P/L. Mr Kavanagh says that he has no instructions from Mr Martin or any company within the Storm Plastics group of companies to waive privilege. Mr Kavanagh asserts that "documents of the class sought by the subpoena issued in this matter and directed to my firm are subject to legal professional privilege". No other matter is deposed to concerning the basis for a claim of legal professional privilege and counsel for Mr Martin conceded that the affidavit in that regard is entirely inadequate and, in substance, no submissions were made in reliance upon the claim. 21 Mr Kavanagh says that the subpoena is very broad both as to the class of documents it seeks and due to the fact that the subpoena is framed with no limitation in time. 22 Mr Kavanagh says that it will be "a very difficult and time consuming task to locate documents that may relate to advice provided more than thirteen (13) years ago". Mr Kavanagh says that it would be necessary to locate and inspect "every file in relation to every Storm Plastics group of companies matter upon which I have been instructed. That would include searches of two previous firms at which I worked, prior to the establishment of D'Angelo Kavanagh. It would involve searching files, or searching for files, that were brought into existence as early as the late 1980s". Mr Kavanagh then says he cannot provide any reasonable estimate of the length of time or the efforts that such inspection and consideration may take and that it will involve the cooperation of other law firms over which Mr Kavanagh now has no control. 23 The reference to a time period of 13 years cross‑relates to a statement contained in para 6 of Mr Kavanagh's affidavit in which he says that he has acted for SP (SA) P/L for a number of years dating back prior to 1997 when the firm D'Angela Kavanagh was formed. 24 Mr Kavanagh says that the subpoena requires the production of documents by 25 May 2010 and "[I]t simply will not be possible to undertake the exercise … outlined within such a short period of time". He also says that no inquiry was made of him or anyone else in the firm as to whether documents sought by the subpoena existed or to supply such documents and that no time either before or after service of the subpoena has Mr Kavanagh been "provided with any explanation as to the reasons for the documents being sought or their relevance to the within proceedings". 25 On 12 May 2010, the subpoena having been served on 10 May 2010, Mr Kavanagh sent an email to the solicitor for Plastec in which he said: Before I proceed further in respect to the subpoena issued to this firm please indicate in writing what it is you are fishing for and its relevance to this matter. 26 Mr Kavanagh was served with the subpoena on 10 May 2010 and swore his affidavit on 24 May 2010 the day before the time of compliance with the subpoena the next day at 2.15pm saying that it was simply not possible to identify the documents by 25 May 2010. Apart from sending the email on 12 May 2010, it is clear that nothing was done to isolate the documents that might be responsive to the subpoena. The subpoena does not call upon or require Mr Kavanagh to locate and inspect every file in relation to every one of the Storm Plastics group of companies over 13 years and inspect files or conduct searches at two previous firms or search for files dating back to the 1980s. The subpoena calls for the production of correspondence passing between the firm and nominated SP companies (and others) which relate to Plastec or Plumbing Solutions and Mr Purdon or Mr Martin or the proceeding. 27 Mr Kavanagh says that he was consulted by Mr Martin in August 2007 and was then retained by him upon service of the proceedings to represent him in the action which was commenced by Plastec on 13 November 2009. Mr Kavanagh was retained by one of the SP group of companies, SP (SA) P/L (although Mr Kavanagh does not identify the date) to advise SP (SA) P/L whether to seek joinder in the proceeding and to advise whether separate proceedings should be commenced against Plastec and heard together with the present proceeding. The separate proceedings must therefore have been thought to raise common issues to those in the present proceedings and would address the concerns SP (SA) P/L held relating to the fitness or otherwise of Plastec's ABS or ASA fittings and the other matters previously mentioned. 28 It follows that if Mr Kavanagh was retained by Mr Martin in August 2007 and retained at some later time (probably in late 2009) by SP (SA) P/L to consider matters relating to Plastec, Plumbing Solutions and Mr Purdon, Mr Martin or "issues of concern" to SP (SA) P/L in the proceedings or issues which might be made the subject of separate proceedings, the earliest boundary of inquiry is likely to be August 2007. Further, the field of inquiry is directed in the way described and the only firm addressed by the subpoena is D'Angelo Kavanagh. 29 Mr Kavanagh does not say that he or the firm has been retained by any other company in the SP group of companies. Mr Kavanagh says he holds instructions from SP (SA) P/L in the matters identified and it is that company that has raised questions concerning joinder, possible separate proceedings and concerns as to the fitness of Plastec's fittings and related matters. 30 The general principles governing when leave ought to be granted to issue a subpoena and the considerations governing when a subpoena ought to be set aside are set out in McIlwain v Ramsey Food Packaging Pty Ltd and Others (2006) 221 ALR 785 [2005] FCA 1233 at [35]. In this case, Mr Martin seeks to set aside the subpoena on these grounds. First, he contends that the subpoena is oppressive and operates as an abuse of process as the pleadings have not closed, disclosure has not occurred and the subpoena serves no legitimate forensic purpose. Secondly, he contends that the documents sought to be produced are not relevant to any issues raised in the proceeding and the documents would be inadmissible in any event. Thirdly, he contends that the subpoena is being used as a substitute for non‑party discovery. Fourthly, he contends that the terms of the subpoena are too broad especially having regard to the phrase "relating to … these proceedings". Fifthly, he submits that the documents are subject to legal professional privilege. 31 I do not accept that it was a difficult or burdensome matter for D'Angelo Kavanagh to determine between 10 May 2010 and 25 May 2010 over the course of a 14 day period the number of documents that passed between D'Angelo Kavanagh and SP (SA) P/L that relate to Plastec or Plumbing Solutions and Mr Purdon or Mr Martin or the present proceedings which, in substance, concern whether representations going to the fitness of Plastec's ABS and/or ASA fittings are accurate or misleading and related matters of ASA certification. Further, searches could readily have been undertaken to determine whether any person in the firm had opened any file for any other SP entity. The "reference fields" relating to any file opened on behalf of an SP entity could have been checked or the file (if one had been opened) examined to determine whether the file touched upon any question concerning Plastec, Plumbing Solutions and Mr Purdon, Mr Martin or the proceeding or the broad issue of the fitness or otherwise of Plastec's ABS or ASA swivel and expansion joint fittings. A second question would then arise as to whether any of the relevant particular communications between the firm and SP (SA) P/L or any other SP entity are subject to legal professional privilege. The ground of that privilege would need to be identified and whether the client asserts the privilege. If a ground of legal professional privilege is to be asserted, an affidavit dealing with that question would need to be properly formulated in support of an appropriate order in responding to the subpoena or in seeking to set it aside. 32 Similar searches could have been undertaken to isolate any files for Mr Bennett or companies known to the firm of which Mr Bennett is a director to determine whether any such file relates to the field of inquiry, that is, Plastec, Plumbing Solutions and Mr Purdon, Mr Martin or the proceeding. The SP (SA) P/L file and any file for any other SP entity could have been examined to determine whether it contained communications addressed to Mr Bennett relating to the field of inquiry. 33 It is not a proper response to the subpoena to write a short email on 12 May 2010 and then swear an affidavit on 24 May 2010 saying compliance with the subpoena by 25 May 2010 is too hard especially when reliance is placed upon a proposition about the subpoena being too broad as it required searches going back to the 1980s which, in turn, required searches within firms beyond the control of the addressee of the subpoena. 34 Mr Martin contends in reliance upon Mr Kavanagh's affidavit that the phrase "relating to" broadens the scope of the subpoena in such a way that the addressee will be required to form a judgment about the field of the issues in controversy in the proceedings and determine whether a communication is relevant to that matter. The field of the inquiry concerns a communication which relates to Plastec, Plumbing Solutions and Mr Purdon, Mr Martin or the proceeding. Mr Kavanagh would not need to know the detail of the field of factual issues in controversy in the proceeding in order to respond to the subpoena. The addressee would need to understand the broad subject matter of that proceeding. Mr Kavanagh, in any event, is familiar with the issues as he has been asked to consider whether SP (SA) P/L ought to become a respondent in the particular proceeding and whether a separate proceeding ought to be commenced coupled with an application for an order that the new proceeding be heard together with the existing proceeding which necessarily involves a recognition that the issues in the separate proceeding have commonality with the issues in the present proceeding. Having regard to the addressee of the subpoena and the inquiry it requires, I do not accept that the subpoena is burdensome or prejudicial. 35 The question of whether a subpoena is oppressive involves answering two questions. First, does the material sought by the subpoena have an apparent relevance to the issues in the principal proceeding; that is, adjectival as distinct from substantive relevance. Does the subpoena have a legitimate forensic purpose to this extent? The answer to this question involves a consideration of the matter from the standpoint of the issuing party, Plastec. The second question is whether the subpoena is seriously and unfairly burdensome or prejudicial and the answer to that question is viewed from the perspective of the addressee: Trade Practices Commission v Arnotts Limited (No. 2) (1989) 88 ALR 90 per Beaumont J at 103; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 per Stone J at [16] and [17]. 36 A subpoena will be oppressive if the documents called for are not "sufficiently relevant" to the issues in the proceeding: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 and 575 per Jordan CJ; Spencer Motors v LNC Industries [1982] 2 NSWLR 921 at 926 per Waddell J. Documents are sufficiently relevant if they are "reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case": Spencer Motors v LNC Industries (supra) at 927. Where the documents have no apparent relevance, it is likely that the issuing party is simply engaging in an impermissible fishing exercise: see Mandic v Phillips (2005) 225 ALR 760 at 777; [2005] FCA 1279 per Conti J at [49]. The notion of "relevant evidence in the case" now takes its meaning from s 55(1) of the Evidence Act 1995 (Cth) which provides that "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". 37 In this case, the documents sought by Plastec go to the nature of the role played by Mr Martin and his engagement with one or more of the SP entities. An issue in the proceeding is whether the scope of the activities undertaken by Mr Martin were such that he was, at the material time, engaging in trade or commerce with respect to the conduct alleged against him in the proceeding. A part of that contention raises the nature of his contended "for reward" activities on behalf of companies in the SP group and the degree of engagement between him as a consultant commercially or otherwise and any one of those companies with particular reference to the proceeding, Plastec, Plumbing Solutions and Mr Purdon and the activities of SP generally. The documents sought by the subpoena may shed light on the relationship between Mr Martin and any of the SP entities and in that sense the documents have apparent relevance in an adjectival sense as they are "reasonably likely to add, in the end, in some way or other to the relevant evidence in the case". The potential relationship between Mr Martin and Mr Bennett as a part‑owner or operator of SP entities raises the same question as it tends to suggest or explain Mr Martin's engagement with SP entities. As I have already indicated, the answer to the second question raised by Beaumont J in Trade Practices Commission v Arnotts Limited (No. 2) (supra) is that compliance with the subpoena, viewed from the perspective of the addressee, in my view, is not seriously and unfairly burdensome or prejudicial. 38 The subpoena calls for the production of documents consisting of correspondence and copies of emails passing between, put simply, the firm and the nominated SP entities, Mr and Mrs Bennett, entities relevantly related to them and any employee of those nominated parties, which relate to Plastec, Plumbing Solutions, Mr Purdon or Mr Martin or which relate to the proceeding itself, and the reference to proceeding is said to include (without limitation): 1. copies of any fee agreements or documents relating to the manner in which invoices or fees or disbursements incurred in the proceeding are to be raised or paid; and 2. any invoices for fees and disbursements relating to the proceeding; and 3. any receipts for payment of such invoices. 39 Therefore, the subpoena requires the production of any correspondence passing between the firm and any SP entity, Mr and Mrs Bennett, entities related to them (and any employees of any of those parties) that relates to any fee agreement or the manner in which fees and disbursements are to be raised and paid in the proceeding, that is, the fees and disbursements raised in relation to professional services rendered and expenses incurred by D'Angelo Kavanagh in representing Mr Martin in the proceeding, as the firm only represents Mr Martin in the proceeding. Mr Martin says that those documents are irrelevant. He says, in effect, that documents going to the basis upon which his legal fees and disbursements are paid or to be paid are not documents that could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding as to whether, at the material time, Mr Martin was engaged in conduct (and, in particular, by force of any contended relationship with SP as a consultant or otherwise) in trade or commerce. Those documents simply speak to the basis upon which an SP entity might be receiving communications relating to the payment or treatment of Mr Martin's legal expenses all of which post‑date the events in controversy. Therefore, Mr Martin says, in effect, that the material sought by the subpoena has no apparent relevance to the issues in the proceeding, that is, no adjectival relevance and seeking the documents by subpoena does not serve a legitimate forensic purpose. 40 I am not satisfied those documents have no apparent relevance. The documents may add, in the end, to the relevant evidence in the case in this sense. Mr Martin has sworn an affidavit and contends by his Defence and Amended Defence that he has been an aged pensioner since 2007 (although the initial Defence said 2005) and retired on 30 October 1998. He denies that at any material time he carried on a consultancy business or any business and he denies that he provided consultancy services to SP (SA) P/L. By his Amended Defence he sets out facts about the degree of his engagement with SP entities (already quoted in these reasons). In the Amended Defence he reasserts the position that he did not at any material time carry on business but that on occasions he from time to time assisted SP entities although that assistance was not rendered in trade or commerce. 41 If an SP entity has elected to pay the professional costs and disbursements incurred by Mr Martin in the proceeding or if such an entity has established an arrangement by which the fees and disbursements are to be invoiced directly to it in circumstances where Mr Martin is simply an aged pensioner who, although having done some things of assistance to SP, has no other relationship with SP, documents evidencing a willingness on the part of an SP entity to pay Mr Martin's legal costs might be documents which taken together with other evidence is evidence from which inferences might arise which could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding, namely, the degree of engagement between Mr Martin and SP at material times. 42 Accordingly, the documents have apparent relevance and isolating the documents would not be unfairly burdensome or prejudicial. 43 D'Angelo Kavanagh is not a party to the proceeding. 44 In the ordinary course, orders for disclosure might be made (as discovery requires leave) by reference to issues or classes of documents or perhaps more generally. Documents in the possession, power or control of Mr Martin relevant to an issue will then be revealed to Plastec for the purposes of the proceeding. Documents or emails passing between D'Angelo Kavanagh and any of the SP entities arising out of a retainer of D'Angelo Kavanagh by SP (SA) P/L or any other SP entity (if such a retainer exists or existed although Mr Kavanagh does not depose to any other retainer) are not likely to be documents or emails in the possession, power or control of Mr Martin. They will be documents in the possession, power or control of either D'Angelo Kavanagh or SP (SA) P/L or possibly another SP entity. 45 In acting for Mr Martin, D'Angelo Kavanagh may have written letters or emails to SP (SA) P/L or one of the other SP entities such as, for example, SP (Admin) P/L, concerning the proceeding or Plastec or Plumbing Solutions and Mr Purdon or Mr Martin. Those letters or emails may be documents in the possession, power or control of Mr Martin held by his solicitors. Any such letter or email may be discoverable if relevant to an issue in a proceeding (depending upon the subject matter of the letter or email) provided the letter or email is not the subject of legal professional privilege. If, however, letters and emails have passed between D'Angelo Kavanagh and any one of the nominated entities in any capacity other than pursuant to a retainer with Mr Martin, those communications will not fall within the scope of Mr Martin's inter‑parties discovery and therefore will not become available documents produced upon discovery and susceptible of inspection by Plastec in the orthodox course of completing disclosure. 46 Accordingly, the subpoena is an appropriate way to secure the production of documents that may shed light on the issues in the proceeding in the possession of a non‑party where those documents are reasonably likely to add, in the end, to the relevant evidence in the case subject to the principles discussed in McIlwain (supra) at [35]. The subpoena is a process used to procure the production of documents identified with reasonable particularity so as to avoid casting upon the non‑party an unreasonable burden in the nature of general discovery. In this case, the field of the documents is identified by reference to particular parties and a particular proceeding. The addressee of the subpoena is a lawyer who is already engaged in addressing questions which are at the centre of the present proceeding and in any event engages the question of SP (SA) P/L's concerns about the fitness of Plastec's ABS and ASA fittings. The subpoena is not otherwise burdensome, prejudicial or oppressive and is directed to a particular field of inquiry. 47 There seems to me to be no utility in setting aside the subpoena on the footing that no subpoena should issue until the completion of inter‑parties discovery as that process will not necessarily reveal the documents sought by the subpoena. Since the documents are identified by reference to the field of inquiry already discussed, the issue of the subpoena directed to those specific matters is not an abuse of process. As Stone J observed in Dorajay Pty Ltd v Aristocrat Leisure Ltd (supra) at [18]: These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. … 48 I am not satisfied that recourse to the subpoena process of the Court constitutes an abuse of process. 49 The final ground relied upon by Mr Martin is the notion that the documents sought by the subpoena are subject to legal professional privilege. No proper basis has been made out for that contention in Mr Kavanagh's affidavit and therefore no weight was placed upon the proposition in the course of argument by counsel for Mr Martin. 50 Accordingly, it follows that the subpoena ought not to be set aside although it should be limited in one respect. There is no allegation of fact in the Further Amended Statement of Claim which raises any question relating to the role, standing or authority of Mrs Jenny Bennett and accordingly the subpoena ought to be confined by deleting any reference to her or entities of which she is a director although entities of which she is a director may also be entities of which Mr Bennett is a director which would then bring those entities within the scope of the subpoena. The Court will extend the time for compliance with the subpoena until 2.15pm on 14 July 2010. It may be that in answering the subpoena, a proposition may wish to be advanced concerning a question of legal professional privilege attaching to any particular document. That remains to be seen. 51 As to the question of costs, the subpoena has been varied in one respect. However, Plastec has been substantially successful on the motion. In addition, I am satisfied that further steps could have been taken in an attempt to comply with the subpoena. Accordingly, the third respondent will be ordered to pay 80% of the costs of and incidental to the motion filed on 24 May 2010. I certify that the preceding fifty‑one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 25 June 2010