Supreme Court New South Wales Medium Neutral Citation: In the matter of St Gregory's Armenian School Inc [2020] NSWSC 785 Hearing dates: 18 June 2020 Date of orders: 18 June 2020 Decision date: 18 June 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Leave to issue subpoenas not granted. Parties to be heard as to costs. Catchwords: SUBPOENAS – Scope of matters properly in issue in application to set aside costs order in respect of unsuccessful application to terminate a winding up - Whether leave to issue six subpoenas should be granted. Legislation Cited: - Civil Procedure Act 2005 (NSW), s 56 - Corporations Act 2001 (Cth), s 482 Cases Cited: - Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 - Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 - Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 - Gunns Ltd v Marr [2005] VSC 251 - Iacullo v Iacullo [2013] NSWSC 1517 - ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 - Mac Wealth Holdings Pte Ltd v Integrated Green Energy Amsterdam BV [2020] NSWSC 351 - McGuirk v University of New South Wales [2009] NSWSC 1424 - Re Force Corp Pty Ltd (recs and mgrs apptd) (in liq) [2018] NSWSC 896 - Re St Gregory's Armenian School Inc: Ghougassian v Arnautovic in his capacity as Liquidator of St Gregory's Armenian School [2018] NSWSC 2012 - Rinehart v Rinehart [2018] NSWSC 1102 - Shire of Katanning v Bride [2016] WASC 118 - Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 - Young v Hones [2013] NSWSC 580 Category: Procedural and other rulings Parties: Michael Ghougassian (First Plaintiff/First Applicant) Daniel Ghougassian (Second Plaintiff/Second Applicant) Philip Campbell-Wilson and John McInerney in their capacity as Liquidators of St Gregory's Armenian School Inc (in liq) (First Defendant/Respondent) St Gregory's Armenian School Inc (in liq) (Second Defendant/Respondent) Representation: Counsel: P King (Plaintiffs/Applicants) N Newton (Defendants/Respondents) Solicitors: Robert Balzola & Associates (Plaintiffs/Applicants) Hegarty Legal (Defendants/Respondents) File Number(s): 2015/190855 (006) Judgment – ex tempore (revised 18 june 2020) Nature of the application and background 1. By an Interlocutory Process filed on 2 March 2020, the Applicants, the Messrs Ghougassian, sought an order that the costs orders ("Costs Orders") made by Emmett AJA in his judgment in Re St Gregory's Armenian School Inc: Ghougassian v Arnautovic in his capacity as Liquidator of St Gregory's Armenian School [2018] NSWSC 1022 be set aside. That judgment dealt with their application to terminate a winding-up under s 482 of the Corporations Act 2001 (Cth). That application failed and Emmett AJA ordered that the Messrs Ghougassian pay the costs of the proceedings on the usual basis that costs follow the event. 2. The application to set aside the Costs Order was originally brought by reference to a claim identified in an affidavit dated 3 April 2020 of the Messrs Ghougassian's solicitor, Mr Balzola, that, had the existence of a proposed distribution by the St Gregory's Armenian School Inc (in liq) ("School") been made known to the Messrs Ghougassian, they would not have proceeded with the application to terminate the winding-up. The Messrs Ghougassian's reliance on that issue was noted in a judgment of Gleeson J, sitting in the Corporations List, delivered on 9 March 2020. As will appear below, it appears that the scope of the application has widened and the Messrs Ghougassian now seek to raise a number of other matters in it. 3. By a further Interlocutory Process filed on 10 June 2020 the Messrs Ghougassian seek leave to request that the Court issue four subpoenas, identified by reference to an affidavit of their solicitor Mr Robert Balzola, sworn 9 June 2020, to the Messrs Morelli and Arnautovic, who were or are associated with the firm of Jirsch Sutherland, to Ms Young and to Messrs Campbell-Wilson and McInerney in their capacity as the current liquidators of the School. Since that Interlocutory Process was filed, Mr King, who appears for the Messrs Ghougassian, has substituted a new form of the subpoena sought to be issued to Ms Young, which I have marked MFI 1; made several amendments to the subpoenas issued to other persons in the course of the hearing this morning; and has sought leave to request that the Court issue two further subpoenas to the Australian Securities and Investments Commission ("ASIC") and the firm trading as PricewaterhouseCoopers ("PwC") in the form annexed to a further affidavit of Mr Balzola to which I will refer below. 4. In the course of directions to bring this application to a hearing, I directed the Messrs Ghougassian to prepare draft Points of Claim identifying the material allegations of fact relied upon to press any claim, in respect of which the subpoenas to produce or any notices to produce are sought to be issued. I explained my reasons for making that order in my ex tempore judgment delivered on 15 June 2020, where I noted that the question whether the Messrs Ghougassian should be granted leave to request the issue the subpoenas would be determined by reference to material facts identified in the draft Points of Claim, as supporting the claims on which they rely to set aside the Costs Order. I there drew attention to the difference between the position where a claim could properly be put, by reference to an existing allegation properly supported by available evidence, which may support a legitimate forensic purpose in respect of a subpoena, and the position where a subpoena is sought to be issued in the hope that, if documents were produced in response to it, then something might emerge that would allow a new allegation to be put. The latter is described in the case law as involving a "fishing" expedition, and I return to that concept below. The affidavit evidence 1. The parties each relied on two affidavits in respect of the application. The Messrs Ghougassian rely on Mr Balzola's affidavit dated 9 June 2020, which annexed several of the subpoenas, although I noted above that one of those has now been substituted and others amended and two additional subpoenas are now sought to be issued. The Messrs Ghougassian also rely on a second affidavit of Mr Balzola dated 17 June 2020 which included the draft Points of Claim on which the Messrs Ghougassian seek to rely. The present liquidators of the School, Messrs Campbell-Wilson and McInerney, in turn rely on affidavits dated 25 May 2020 and 11 June 2020 of their solicitor, Mr Hegarty. It is not necessary to deal with Mr Hegarty's affidavits at any length, given the views that I have formed on other grounds. The matters that are properly in issue in the application to set aside the Costs Orders 1. The starting point is, it seems to me, to identify the matters that are properly in issue in the application to set aside the Costs Orders, which ultimately depend upon the matters that are properly raised as issues by the Messrs Ghougassian in their draft Points of Claim. I should emphasise that I am not, in this judgment, determining whether that draft Points of Claim would be permitted to be filed. Mr King has not made an application for leave to file it, and it is in draft, so it indicates the matters which the Messrs Ghougassian seek to raise in the application. That in turn provides the basis by reference to which they would be permitted to issue any subpoenas. To foreshadow the conclusions that I will reach below, I have concluded that the draft Points of Claim do not properly articulate the matters the Messrs Ghougassian seek to raise, to allow them to be treated as properly in issue in the application or support the subpoenas in respect of them. I also find, for the reasons noted below, that the Court would not in any event have granted leave for the issue of the several subpoenas, given the significant deficiencies in their form and substance. 2. Turning to the question of the matters that are properly raised by the Messrs Ghougassian in the application to set aside the Costs Order, I recognise that the draft Points of Claim are not strictly a pleading. However, they have the same purpose as a pleading, to define the issues that would be raised by the Messrs Ghougassian in the application to set aside the Costs Orders and provide the basis on which evidence may be ruled admissible or inadmissible at the hearing before the Judge determining that matter, on the ground of relevance, adopting the High Court's observation as to the role of pleadings in Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664. The current liquidators at least need to be given fair notice of the facts and matters on which the Messrs Ghougassian rely to set aside the Costs Orders, so as to define the issues for decision and ensure the basic requirements of procedural fairness, namely that the present liquidators should have the opportunity to meet the case that is brought against them: Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286. 3. The importance of that matter was emphasised in Gunns Ltd v Marr [2005] VSC 251 at [57] where Bongiorno J noted that a pleading, (and, in this case, by analogy, the draft Points of Claim), must set out the facts asserted with sufficient particularity to enable the matter to be determined fairly to all parties. Importantly, his Honour observed that "vague allegations on very significant matters may conceal claims which are merely speculative", and that the plaintiffs must put their allegations clearly, so as to avoid that difficulty. That passage subsequently approved by Garling J in Young v Hones [2013] NSWSC 580 at [82] which I in turn followed in Iacullo v Iacullo [2013] NSWSC 1517. The relevant authorities were again summarised by Johnson J in this Court in McGuirk v University of New South Wales [2009] NSWSC 1424 at [21]-[35] where his Honour referred to the fundamental importance of clarity in identifying the facts and matters in issue in determining the real issues in the proceedings, as prescribed by s 56 of the Civil Procedure Act. Again, I remind myself that I am not dealing here with a pleading or with a strike out application, or even with an application for leave to file the draft Points of Claim, but with the question whether the Messrs Ghougassian have sufficiently identified the facts and matters on which they rely to allow them to be fairly raised and determined in their application to set aside the Costs Orders, so as to support their application for leave for issue of the subpoenas on the basis that these matters are properly in issue. I have reached the conclusion that the identification of the matters raised in the present draft Points of Claim and their factual bases falls well short of that standard. 4. I will not seek to be exhaustive, and I bear in mind that ultimately this issue may need to be addressed by the Judge hearing the application to set aside the Costs Orders, if an application is made by the Messrs Ghougassian to file the Points of Claim or they seek to rely on the issues raised in them without doing so. The Points of Claim identify first, an allegation described as Material Non-Disclosure - Conflict of Interest. That is set out in a series of rolled up and conclusory statements, in which are interpolated some factual allegations, so that the liquidators and the Court, in dealing with this issue would be left to seek to deduce what are the relevant facts, from where they are found intermingled in conclusory pleadings, then to seek to deduce what is the logical relationship, if any, between those facts and the conclusions which are drawn from them. There appears, as best I can understand it from what is put by Mr King for the Messrs Ghougassian in submissions, to be an allegation that a conflict of interest existed because Ms Young was a partner, whether equity or salaried, in the firm of Jirsch Sutherland; was doing work on the liquidation of a kind that the Messrs Ghougassian contend would be undertaken by the liquidator appointed by the Court; and was also the sister of Mr Arnautovic. The manner in which those various elements interact is not really defined, and it is not clear, for example, whether it involves a wider contention that persons with a family relationship should not be members of the same insolvency firm or work on the same insolvency. 5. The Messrs Ghougassian in turn allege Ms Young undertook particular steps in the liquidation, which are said to give rise to the consequence that she acted as the liquidator or as a de facto officer of the School, but that proposition is then stated as supporting a duty of disclosure of a conflict of interest, which is not clearly formulated, but appears to have the elements to which I have referred above. The Messrs Ghougassian then contend that both Mr Arnautovic and Ms Young wilfully or negligently acted in a particular way, without identifying the factual basis of the allegation of conscious wrongdoing implied in "wilfully". They go further to allege contraventions of the Corporations Act, although it is not clear how those are said to connect with the allegation of conflict which is there alleged. 6. There is then, finally, a conclusory and rolled up assertion that by reason of the alleged breaches of duty, the Court should set aside the Costs Orders. This is a significant difficulty with the manner in which this issue is raised, because it does not identify why that is so or what is any logical connection between the matters on which the Messrs Ghougassian rely and the fact that a costs order should not have been made against them when they were unsuccessful in an application to terminate the winding-up of the School. As far as I can tell from Mr King's submissions, it is not alleged that, had these matters been disclosed to Emmett AJA, he would then have terminated the winding-up. It may not be alleged that he would then have substituted a new liquidator but, even if that had occurred, it is not apparent why that would have the result that the Messrs Ghougassian were successful on their application to terminate the winding up so as to avoid an adverse costs order. The link between these matters and their suggested impact upon the Costs Orders, seems to me a critical issue which is not adequately identified. 7. A further allegation is then made of material non-disclosure which is described with the strong term "fraud" and which is said to relate to dealings by Ms Young with the School's funds. In submissions, Mr King referred to a suggested admission made by Ms Young in that respect, but he was unable to take me to any evidence of such an admission, but instead relied, as the draft Points of Claim rely, upon allegations made or concerns raised by Jirsch Sutherland as to Ms Young's conduct. The draft Points of Claim do not, as best I can tell, identify the facts that are said to give rise to the alleged fraud, as distinct from referring to statements made by Jirsch Sutherland which indicate its concerns as to Ms Young's conduct. There are then allegations as to steps which the former liquidator took, for example reviewing the accounts of the School, but it is not apparent why those steps are said to support the allegation that is made of fraud, whether against Ms Young or anyone else, and there are then allegations of breach of duty by way of non-disclosure of the receipt of funds by Ms Young. That, however, begs the question whether the receipt of funds by Ms Young is alleged by the Messrs Ghougassian, as distinct from Jirsch Sutherland, to have been wrongful, and what factual basis they have for that allegation. Again, further allegations are made of breach of the Corporations Act in this respect. 8. An allegation is also made that the former liquidator failed to disclose this matter immediately to the Court, but that begs the question, as to which the draft Points of Claim does not assist, as to whether it is alleged that the former liquidator had actual knowledge of those matters, and if so on what basis, or whether he ought to have known them, and if so why. Once again, there is no linkage in this allegation between the matters alleged, and the consequence claimed in a rolled up and conclusory statement that, by reason of the financial misconduct alleged, the Court should set aside the Costs Orders. Again, the causal steps that exist between the proposition that Ms Young, on this hypothesis, inappropriately accessed funds of the School, and that the Messrs Ghougassian should not be required to pay the costs of an unsuccessful application to terminate a winding-up, are obscure. 9. The Messrs Ghougassian then rely on an alleged material non-disclosure of excessive charging, but here all that is done is identify the proposition that Ms Young charged fees at an hourly rate which appears to be a partner rate, which is not altogether surprising where she was a partner in the relevant period, and that she worked in excess of 257 hours in a liquidation, in a period where that liquidation involved significant controversy. It is not apparent, and the draft Points of Claim do not identify, why that amount is either said to be excessive by way of hourly charge-out rate, or the hours worked are alleged to be excessive, having regard to the work that needed to be done. Paragraph 10(c) of the draft Points of Claim identify a contention that the rate and number of hours amount to over-charging and over-servicing, to be developed by access to information sought under the subpoenas. It seems to me that that, first, does not identify an existing factual basis for the allegation of over-charging and over-servicing, as distinct from the fact that that allegation is made and the Messrs Ghougassian hope that facts will emerge from the subpoenas to support it, and, second, demonstrates that the subpoenas addressed to this issue amount to a fishing expedition in that respect. 10. Paragraph 11 of the draft Points of Claim alleges in turn material non-disclosure, described as irregularity or illegality, and again involves allegations of admissions by Ms Young, for which Mr King was unable to demonstrate a factual basis in the course of submissions. Again, there is no pleaded linkage between the allegation made and the consequence that is said to follow from it in respect of the Costs Orders. 11. Paragraph 12, relating to an alleged material non-disclosure as to the intention of the liquidator as to the mode of distribution of the School's surplus, appears to reflect the basis on which the application to set aside the Costs Orders was originally brought. That paragraph does not involve, at least to the same extent, the difficulties involved with other paragraphs in the draft Points of Claim, but that paragraph does not provide the basis of any significant aspect of the subpoenas sought to be issued. Paragraph 13, headed Financial Misconduct, in turn raises an allegation that the allegations to which I have referred above are available even if members of the firm of Jirsch Sutherland were unaware of any breach of duty by Ms Young. That proposition appears to depend at least in part on an allegation that Ms Young was the former liquidator's agent, which is again not supported by any pleading of material facts. However, that allegation cannot advance matters unless its factual basis and the factual basis of the other allegations to which it refers are sufficiently identified. 12. While it will ultimately be a matter for the Judge hearing the application to set aside the Costs Orders to determine whether the draft Points of Claim in this form, or a substantially similar form, could be filed, or whether the Messrs Ghougassian could file any different document which, for example, pleaded facts and the legal conclusions that were said to follow them in an orthodox way, the draft Points of Claim in their present form do not support a conclusion that these matters are properly raised in the application. In their present form, the way in which these matters are sought to be raised would not allow procedural fairness to the current liquidators. For those reasons they cannot support the application for leave to issue the subpoenas. It seems to me, however, that that conclusion is ultimately not necessary to the conclusion that leave should not be granted to issue the subpoenas, because the subpoenas themselves have substantial deficiencies which would not permit such leave to be granted. The applicable principles in respect of the subpoenas 1. Turning now to the principles that are applicable in respect of the issue of a subpoena, both parties refer to the decision of Gleeson JA in Re Force Corp Pty Ltd (recs and mgrs apptd) (in liq) [2018] NSWSC 896 where his Honour directed attention to the question whether the documents sought to be produced had apparent relevance. That concept has been occasionally described by reference to whether it is "on the cards" that documents will assist with determining an identified issue, or alternatively whether those documents could "possibly throw light on" that issue. Mr Newton, who appears for the liquidators, in turn refers to the observations of Ward CJ in Eq in Rinehart v Rinehart [2018] NSWSC 1102 at [43]ff, where her Honour referred to the Court of Appeal's decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, observing that it must be shown that the documents would materially assist in an identified issue, or there is a reasonable basis beyond speculation that it is likely that they will do so. Her Honour there noted that what was required was reference to the particular issue, or identified issue, that the documents sought were reasonably expected to be likely to assist. Her Honour also referred to the concept of a "fishing expedition" and to the observations in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254, which defined that concept by reference to the position where a person who has no evidence that fish are of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any or not. 2. Subsequently, in Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [36]ff, her Honour described a legitimate forensic purpose for a subpoena as requiring that it have "sufficient apparent connection to the issues in the case to justify their production". Her Honour also noted that a subpoena would be objectionable if it was being used as part of a "fishing expedition" in the sense to which I have referred above. Her Honour added that a subpoena that, on its face, solely seeks privileged material may be said to be improper, referring to Shire of Katanning v Bride [2016] WASC 118 at [31]-[34]. Her Honour finally observed that where a subpoena is deficiently drafted, it is not for the Court to redraft it, and it should instead be set aside. I bear in mind that, in this case, Mr King has redrafted aspects of the subpoenas in the course of submissions and I have had regard to those proposed amendments. The subpoena to Ms Young 1. Turning to the relevant subpoenas, the redrafted subpoena to Ms Amanda Young (MFI 1) commences with paragraph 1 which seeks all documents and things evidencing communications which refer to "any of the following". Some nine categories of documents are then specified, of which one is not now pressed. There is an immediate oddity with this paragraph, which does not, it appears, seek documents which fall within the specified categories, for example, time sheets, but instead seeks documents which refer to those documents which fall within the relevant categories. That, however, may merely be careless drafting. There are, however, other significant difficulties with that paragraph, whether it is read in the narrower way as seeking only documents referring to documents in those categories, or extends to the documents in the categories themselves. 2. Sub-paragraph (a) in respect of time sheets is only referable, in my view, to the speculation of over-servicing by Ms Young, to which I have referred above, which has no identified basis beyond Ms Young's hourly rate and the number of hours which she worked. That is, in my view, an example of a fishing expedition, so far as it depends on the hope that documents will turn up which support an allegation of over-servicing, where presently the only facts available to the Messrs Ghougassian are that Ms Young charged a partner's hourly rate and that she spent a significant amount of time on the liquidation. Sub-paragraph (b) calls for minutes, notes and file notes of Ms Young while engaged in the conduct of the liquidation, extending to essentially all records of what Ms Young did in the liquidation. This, on any view, seems to me to be too wide, and likely directed again to an attempt to establish over-servicing, involving a fishing expedition of the kind to which I have referred above. 3. Sub-paragraph (c) seeks production of documents "relating to" the moneys "taken by" Ms Young. The first difficulty with this paragraph is that the nature of the connection required by the phrase "relating to" is generally too vague to be permitted in a subpoena, as Ball J recently noted in Mac Wealth Holdings Pte Ltd v Integrated Green Energy Amsterdam BV [2020] NSWSC 351 at [4]. I would add that term will generally require an assessment of a logical relationship of the kind that is involved in discovery, and would also not ordinarily be permitted in respect of a subpoena for that reason. The second difficulty is that Ms Young could properly object to production of any documents within this category, on the basis of her privilege against self-incrimination, where any response to this sub-paragraph would require her to accept that she had "taken" moneys from the School. I recognise that is what Jirsch Sutherland contends, but that is not a matter which, given the privilege against self-incrimination in respect of an offence or penalty, Ms Young may be required to admit by responding to that category. Sub-paragraph (d) uses the word "concerning", which would require an assessment by Ms Young of the logical relationship between the document and the relevant subject matter, and is in any event incomprehensible, since what the documents are said to concern is "the discovery of Amanda Young in her dealings" with the School. Presumably, something has been omitted, relating to a discovery of an identified subject matter, but this paragraph presently makes no sense. 4. Sub-paragraphs (e) and (f) call for production of documents which involve correspondence by, inter alia, Ms Young upon her first discovery of her alleged misappropriation of funds from the School, and that demonstrate the first day on which she became aware of her alleged misappropriation. Again, Ms Young could properly object to those paragraphs on the basis of her privilege against self-incrimination, so far as any response to them would require Ms Young to accept, first, that such a misappropriation was established and, second, that she became aware of it on a particular date. Sub-paragraph (g) seeks Ms Young's "personal" file, which may or may not have been intended to refer to her "personnel" file, and the file relating to her work on the School. The first appears to me to have no identified legitimate forensic purpose and the second seems to me to be plainly too wide, so far as it would call for the entirety of the liquidation file. 5. Paragraph 2 in turn is presently drafted to require production of documents prepared by legal counsel, while purporting then to exclude documents subject to legal professional privilege, although I will proceed on the basis, identified by Mr King, that it would be corrected so that documents prepared by legal counsel were excluded. On that basis, it still seems to me to be significantly too wide, so far as it extends, without any limitation in time, to Ms Young's diary and attendances to all work relating to the School, again without reference to any specified subject matter. So far as it further extends to financial records of recoupment of moneys since the discovery of Ms Young's alleged misappropriation of funds, it seems to me that such documents would again be subject to the privilege against self-incrimination. 6. I bear in mind that, as Mr King pointed out in respect of documents subject to legal professional privilege, a Court may permit the issue of a subpoena, leaving the recipient to claim the relevant privilege. However, a Court is not bound to do so. Where, as here, there seem to me to be substantial deficiencies in the form and scope of the subpoena, and a significant number of categories seem to me to be subject to the privilege against self-incrimination, then I would not grant leave for the issue of the subpoena. The subpoenas to Mr Arnautovic and Mr Morelli 1. The second subpoena for which leave is sought is directed to Mr Arnautovic, the former liquidator of the School. Again, it seems to me to be impermissible, and not to warrant the grant of leave. Paragraph 1 has the same difficulty as the subpoena directed to Ms Young, in seeking production of documents which refer to documents in particular categories, as distinct from the documents in those categories. So far as sub-paragraphs (a) and (b) are concerned, they have the same difficulty that they appear to be directed to the claim for excessive remuneration, for which no sufficient factual basis was identified and amount to a fishing expedition. Sub-paragraph (b) and also sub-paragraph (c) uses the term "relating to" which is not an appropriate connecting term as noted above. Sub-paragraph (d) is again incomprehensible, so far as it refers to the discovery of something unidentified by Ms Young in her dealings with the School. Sub-paragraph (e) seeks production of documents "in relation to" the giving of certain notices, which is again not an appropriate connecting term as noted above. 2. Sub-paragraph (g) again calls for Ms Young's "personal" records and the file "relating to" her work on the school, and I have pointed to the lack of forensic purpose in requiring production of the former and the width of the latter in dealing with the same category in the subpoena to Ms Young, and the term "relating to" is again not appropriate. Sub-paragraph (h) again requires production of documents "relating to" the surplus funds of the School, involving the same difficulty as to assessments of relevance. Sub-paragraph (i), directed to instructions to a bank, might have been permissible had the balance of the subpoena been permissible. The 10 year period for which the subpoena was originally directed, which would itself have been excessive, was limited to four years by Mr King in submissions. 3. Paragraph 2 in turn seeks the same categories of documents as was sought in the corresponding paragraph in the subpoena to Ms Young, but again the claim for Ms Young's diary and attendances to all work related to the School seems to me to be too wide, for the reasons noted above, although other aspects of that paragraph may have been permissible had the balance of the subpoena been permissible. I assume that Mr King would here make the same corrections in respect of the fact that the paragraph presently extends to documents produced by legal counsel, while at the same time seeking to exclude documents that are subject to legal professional privilege. 4. Paragraph 3 seeks production of all investigations, reports and determinations "pertaining to" the "inappropriately taken funds" as described in a media release of Jirsch Sutherland. It seems to me that this paragraph is both uncertain and oppressive, so far as it would require any document that related to any financial transaction concerning the School to be assessed as to whether that transaction could be characterised as "a transaction involving inappropriately taken funds", and the language "pertaining" again requires an assessment of logical connection. It also seems to me to be too wide, and to constitute a fishing expedition, so far as it does not limit itself to investigations, reports or determinations that relate to any matter that is specifically raised or sought to be raised by the Messrs Ghougassian. 5. The next subpoena directed to Mr Morelli, who Mr King accepts is or was the managing partner of Jirsch Sutherland, is in substantially the same form as the subpoena addressed to Mr Arnautovic. It has all the same difficulties, and an additional and egregious difficulty that a number of paragraphs refer to documents while Mr Morelli was the Court-appointed liquidator of the School. As Mr King accepted in submissions, Mr Morelli did not hold that role. It seems to me that leave would not be granted to issue the subpoenas directed to Mr Arnautovic and to Mr Morelli on that basis. The subpoena to the current liquidators 1. A fourth subpoena, directed to Messrs Campbell-Wilson and McInerney, the current liquidators of the School, is drafted in the same manner as the subpoena directed to Mr Arnautovic. It has the same difficulties as that subpoena and a further difficulty, so far as several categories refer to documents while Messrs Campbell-Wilson and McInerney were liquidators. To take sub-paragraph 1(a) as an example, it calls for: "Time sheets showing the remuneration of Amanda Young whilst you were at all material times the Court-appointed liquidator of [the school] specifying the dates, times and units of time, hourly rate and total amounts paid to Amanda Young in her capacity as principal then partner of Jirsch Sutherland." A moment's thought will demonstrate the difficulty with that paragraph, namely that the present liquidators were appointed when Mr Arnautovic was replaced as liquidator, which followed the disclosure of concerns as to Ms Young's conduct. There is no reason to think that any such documents exist, or that there was any such remuneration of Ms Young connected with the School, in the period after the concerns as to her conduct had been identified and Mr Arnautovic had been replaced by the present liquidators. 1. Sub-paragraph 1(d) of this subpoena has the same difficulty as the other subpoenas concerning the unidentified subject matter of the suggested "discovery of Amanda Young". Sub-paragraph 1(g) has the same difficulty in respect of "personal" records and the file relating to the liquidation generally. Again, Mr King has narrowed the time period for that paragraph. Paragraphs 2 and 3 have the same difficulties as the corresponding paragraphs in the subpoena to Mr Arnautovic. I would not grant leave to issue that subpoena for these reasons. Subpoenas to ASIC and PwC 1. Two remaining subpoenas are annexed to Mr Balzola's further affidavit dated 17 June 2020, although they were not the subject of the Interlocutory Process. It is not necessary to decide whether the Court should entertain an application for their issue in those circumstances, where leave to issue them would not be granted in any event. 2. Paragraph 1 of the subpoena directed to ASIC seeks the production of documents described as: "The St Gregory's Armenian School in liquidation file(s) of the firm Jirsch Sutherland and of [ii] Mr Sule Arnoutovic and of [iii] Ms Amanda Young." That paragraph seeks the production of the entirety of the liquidation file, in respect of a long running liquidation, if it happens to be in ASIC's possession, where there appears to be an ongoing ASIC investigation concerning Ms Young. The immediate difficulty with that paragraph is that that category is too wide, since it is not limited to any aspect of the liquidation that is in issue in the Messrs Ghougassian's application to set aside the Costs Orders. 1. Paragraph 2, as amended by Mr King in the course of submissions, reads: "A copy of any report, review, memorandum, advice other than legal advice, and instructions of ASIC including drafts thereof or in respect of the St Gregory's Armenian School Inc [sic] liquidation conducted or managed by the firm Jirsch Sutherland and of (1) Mr Sule Arnautovic and of (iii) Ms Amanda Young." 1. A first difficulty with that paragraph, which might be capable of being resolved between ASIC and the Messrs Ghougassian, is the ambiguity as to whether the words "of ASIC" included by Mr King in the course of submissions attach only to the word "instructions" or to all previous categories of documents. However, the more substantial difficulty with that paragraph is the lack of a legitimate forensic purpose in the Messrs Ghougassian's looking over ASIC's shoulder in its ongoing investigation in respect of Ms Young. Paragraph 3 of that subpoena was not pressed. I would not grant leave to issue that subpoena. So far as issues have arisen in this matter, in respect of the conduct of Ms Young, it seems to me that there is no reason for the Court to lend its aid to a step which would potentially disrupt ASIC's investigation into that matter, for little apparent gain in the determination of this application. 2. The final subpoena sought to be issued by the Messrs Ghougassian would be directed to the firm known as PricewaterhouseCoopers or PwC. The first paragraph again seeks the entirety of the St Gregory's School liquidation file of Jirsch Sutherland, and would not be permitted for the reasons that I have noted above in respect of the corresponding paragraph in the subpoena directed to ASIC. The second paragraph seeks a copy of any report, review, memorandum, advice other than legal advice and instructions, with the words "of PwC" inserted by Mr King in submissions in respect of the liquidation conducted by Jirsch Sutherland of the school. Putting aside the ambiguity in whether the words "of PwC" narrow only the reference to instructions or all of those categories of documents, it seems to me that a claim for production of every report, review, every memorandum, every piece of advice other than legal advice, and every instruction given by PwC to any of its staff, or to any contractors or solicitors retained by it, in respect of whatever inquiry it has been retained to conduct concerning Jirsch Sutherland is oppressive. The scope of the documents sought, is again unlimited by any criterion of relevance to any issue sought to be raised by the Messrs Ghougassian in this application, and that paragraph would impose an undue burden upon PwC, not warranted by the likely value of the material in this application. The absence of any limitation to matters in issue also has the characteristic of a fishing expedition in that regard. Orders and Costs 1. For these reasons, I decline leave for the issue of each of the subpoenas. In the ordinary course, it seems to me that the costs of this application should follow the event, and the Messrs Ghougassian should be ordered to pay the liquidators' costs of this application. I will, however, hear the parties if they contend to the contrary. 2. I make the following orders: 1. The Interlocutory Process filed by the Messrs Ghougassian on 10 June 2020 seeking leave to issue certain subpoenas be dismissed. 2. Liberty to the parties to make any written submissions, not exceeding five pages in one and a half spacing, by 4 pm on Tuesday 23 June 2020, if they contend for any order of costs, other than an order that the Messrs Ghougassian pay the liquidators' costs of and incidental to the application on the ordinary basis. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2020