Supreme Court New South Wales Medium Neutral Citation: Morony & Ors v Reschke & Ors [2014] NSWSC 359 Hearing dates: 11 February, 19 March 2014 Decision date: 28 March 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Certain discovery categories allowed; subpoena not set aside and access to documents permitted; Registrar to issue letter of request for production of Court files in respect of certain proceedings in South Australian Court; parties to bring in Short Minutes of Order to give effect to judgment. Catchwords: PROCEDURE - discovery and interrogatories - discovery and inspection of documents - Practice Note SC Eq 11 - disclosure after evidence filed by plaintiffs - whether relevant categories of documents ought to be disclosed - whether disclosure of relevant categories of documents is necessary for resolution of real issues in dispute in proceedings. PROCEDURE - subpoenas - application for subpoena to be set aside - where subpoena is for reports prepared by expert in interstate proceedings involving relevant defendants - whether production of reports is sufficiently relevant to matters in issue in proceedings. EVIDENCE - legal professional privilege - where present plaintiffs seeking access to third party reports under subpoena to produce - where reports were filed and served on opposing parties in interstate proceedings under court order - whether question of access to be determined by statute or common law - whether service of reports in accordance with court order amounted to waiver of legal professional privilege - whether plaintiffs in interstate proceedings had an express or implied obligation to preserve confidentiality of relevant reports. PROCEDURE - application for Registrar to request production of court files in interstate courts under Uniform Civil Procedure Rules 2005 (NSW) r 33.13 - whether direction for request should be made subject to relevant defendants having right of first access to make any potential claim for confidentiality or privilege. Legislation Cited: - Australian Securities and Investments Commission Act 2001 (Cth) s 12DI - Civil Procedure Act 2005 (NSW) s 56 - Corporations Act 2001 (Cth) - Corporations Law ss 724, 728, 731, 731(1), 733, 765 - Evidence Act 1995 (NSW) s 131A - Uniform Civil Procedure Rules 2005 (NSW) rr 1.9, 33.4, 33.9, 33.13 Cases Cited: - Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210 - Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 457 - Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 - Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225; (2009) 74 NSWLR 469 - Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 - City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 364 - Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd & Ors [2004] NSWSC 40 - Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 - Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 - Re North Coast Transit Pty Ltd [2013] NSWSC 1912 - Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 - State Bank of South Australia v Smoothdale No 2 Ltd (1995) 64 SASR 224 - Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 Category: Interlocutory applications Parties: Andre Morony (First Plaintiff) Joseph Edward Duggan (Second Plaintiff) Richard William Turner (Third Plaintiff) Chanturn Pty Ltd atf Staff Superannuation Fund (Fourth Plaintiff) Tadeusz Skoczek (Fifth Plaintiff) Helkad Pty Ltd atf Staff Superannuation Fund (Sixth Plaintiff) Lynbar Pty Ltd atf Roberts Super Fund (Seventh Plaintiff) Rosa Genovesi (Eighth Plaintiff) Denis William Sullivan (Ninth Plaintiff) Anna Lee (Tenth Plaintiff) Barry John Callanan (Eleventh Plaintiff) Hugh Ronald Alexander Millikin (Twelfth Plaintiff) Benjamin David Kirkpatrick (Thirteenth Plaintiff) Stanley Norman Berry (Fourteenth Plaintiff) Ian David McMurtie (Fifteenth Plaintiff) Tolmer Products Pty Ltd (Sixteenth Plaintiff) Peter Charles Thomas (Seventeenth Plaintiff) Burke Robert Stanley Reschke (First Defendant) Coonawarra Property Holdings Pty Ltd (formerly Coonawarra Property Holdings Ltd) (Second Defendant) Koonara Management Pty Ltd (Third Defendant) Rocky Castle Finance Pty Ltd (Fourth Defendant) Advanced Horticultural Management Ltd (formerly Australian Hardwood Management Ltd) (Fifth Defendant) Alan Jessup (Sixth Defendant) Fergus Robert McLachlan (Seventh Defendant) Ian Dugald Murray McLachlan (Eighth Defendant) Ian Murray McLachlan (Ninth Defendant) Representation: Counsel: P Newton (Plaintiffs) No appearance (First-Fourth Defendants) J McDonald (Fifth, Seventh-Ninth Defendants) F McClay (Sixth Defendant) Solicitors: Rockliffs (Plaintiffs) No appearance (First-Fourth Defendants) William Roberts (Fifth, Seventh-Ninth Defendants) Harris Friedman (Sixth Defendant) File Number(s): 2011/110080 Judgment 1These proceedings were commenced by Statement of Claim filed on 5 April 2011 and an Amended Statement of Claim was filed and served on 7 February 2012. I will first identify the parties to the proceedings and then outline the nature of the issues raised in them. 2The First Defendant, Mr Burke Reschke, is alleged to have been involved with the issue of two prospectuses in respect of the Coonawarra Wine-Grape Project ("Project") and with the Project in various capacities. The Second Defendant, Coonawarra Property Holdings Pty Ltd ("CPH") and the Fifth Defendant, Advanced Horticultural Management Ltd (formerly known as Australian Hardwood Management Ltd and now known as ACN 079 695 051 Pty Ltd) ("AHM"), are alleged to have been the issuers of the prospectuses in relation to the Project and AHM was also the responsible entity and manager for the Project. The Third Defendant, Koonara Management Pty Ltd ("Koonara Management") is alleged to have been involved with the Project in the capacity as vineyard manager and the Fourth Defendant, Rocky Castle Finance Pty Ltd ("RCF"), is alleged to have been involved in the capacity of providing finance to investors in connection with the Project. The Sixth Defendant, Mr Alan Jessup, was a director of AHM and is alleged to have been involved with the issue of the prospectuses for the Project in various capacities. The Seventh Defendant, Mr Fergus Robert McLachlan was the managing director of AHM; the Eighth Defendant, Mr Ian Dugald Murray McLachlan, and the Ninth Defendant, Mr Ian Murray McLachlan, are alleged to have been directors of AHM and to have been involved with the issue of the prospectuses. 3The proceedings seek declarations that the two prospectuses, namely a prospectus dated 11 June 1999 ("Prospectus 1") and a prospectus dated 29 May 2001 ("Prospectus 2"), contained misleading or deceptive statements in contravention of s 728 of the Corporations Law. The proceedings also seek declarations that the Defendants have engaged in unconscionable conduct in relation to the Project; that several Defendants engaged in conduct in relation to financial services involving accepting payment without intending or being able to supply the relevant services in contravention of s 12DI of the Australian Securities and Investments Commission Act 2001 (Cth) ("ASIC Act"); and that joint venture agreements between the Plaintiffs, CPH and AHM are void or unenforceable and that loan agreements between RCF and various Plaintiffs are also void or unenforceable. A significant basis of the Plaintiffs' complaint is an allegation that, inter alia, both Prospectus 1 and Prospectus 2 and associated documentation represented that CPH would acquire the land used in the Project and that did not occur. There is also an issue in the proceedings as to the manner in which RCF provided, or purported to provide, finance to investors in the Project. 4Paragraph 61 of the Amended Statement of Claim pleads various matters in respect of which Prospectus 1 is alleged to have contained misleading or deceptive statements and non-disclosures within the meaning of ss 724 and 728 of the Corporations Law. Paragraph 63 correspondingly pleads misleading statements and non-disclosures in respect of Prospectus 2 that are alleged to have contravened ss 724 and 728 of the Corporations Law. In particular, the Plaintiffs allege that CPH had not granted an option to purchase the land on which the Project was to be operated and did not grant a lease, or a lease in registrable form, to AHM or Australian Rural Group Ltd, as custodian, in respect of the Project. Paragraph 75 alleges non-disclosure of material matters by AHM and its directors in respect of Prospectus 1. Paragraph 84 similarly alleges non-disclosure of material matters by AHM and its directors in respect of Prospectus 2. 5By paragraph 21 of his Amended Defence filed on 15 January 2013, the First Defendant, Mr Burke Reschke, in turn pleads the existence of reasonable grounds for making statements in Prospectus 1, to the extent that they were statements as to future matters, and in paragraph 27 also pleads such reasonable grounds in respect of statements as to future matters made in Prospectus 2. Mr Reschke also denies the allegation that Prospectus 1 contained misleading or deceptive statements and also pleads that, at all material times, CPH had an option for the purchase of the land, held a secure lease of the land for the benefit of the Project but did not exercise that option because of changed circumstances, namely that land values in the area had declined such that the exercise of the option was not in the interests of CPH's shareholders. Mr Reschke pleads the same defence in paragraph 63 of his Defence in respect of Prospectus 2. The Fifth-Ninth Defendants similarly plead that CPH had an option to purchase the land that it did not exercise because of changed circumstances and for good reason and held a secure lease of the land in paragraph 178 of their Defence. They also plead that they had reasonable grounds for making statements about future matters for the purposes of ss 728 and 765 of the Corporations Law and also rely on the defences available in respect of an allegation of a misleading prospectus under ss 731(1) and 733 of the Corporations Law and the corresponding provisions of the Corporations Act 2001 (Cth). By a cross-claim filed on 7 May 2012, RCF in turn brings claims against investors in the Project in respect of loans allegedly made in respect of the Project. 6These proceedings have had an unfortunate history of substantial interlocutory disputes between the parties. On this occasion, the disputes relate, first, to an application made by the Plaintiffs seeking discovery from the Defendants; second, to an application by several of the Defendants to set aside a subpoena issued at the request of the Plaintiffs; and, third, to an application by the Plaintiffs that a request be made for production of the court files in respect of certain proceedings in South Australia. These disputes were initially listed for hearing on 11 February 2014, but much of the time on that day was taken up by the Plaintiffs' submissions in respect of the scope of discovery and it was necessary to relist the matter for a second day of hearing on 19 March 2014. By that time, the matters in dispute between the parties as to the scope of discovery had significantly narrowed. The Plaintiffs' discovery application 7There is, as I will note below, a significant degree of overlap between the categories of discovery sought by the Plaintiffs against the various Defendants and, to the extent that discovery categories are contested by the Fifth and Seventh-Ninth Defendants ("Relevant Defendants") and the Sixth Defendant substantially adopts their position, it will not be necessary to deal with each individual category in respect of each Defendant. The determination of the issues noted below will be applicable to each of the corresponding discovery categories in respect of the various Defendants. 8The Plaintiffs rely on affidavits of Mr Andrew Noble dated 8 October 2013, 9 December 2013 and 24 February 2014 in support of the application for discovery. By his second affidavit dated 9 December 2013, Mr Noble explained the basis on which the Plaintiffs contend that disclosure is necessary for the resolution of the real issues in dispute in the proceedings, by reference to the claims made in the Amended Statement of Claim, the nature of the statements made in the prospectuses that are alleged to be misleading or deceptive and the allegation of non-disclosure of material matters in the prospectuses, and the matters raised in the defences of the Defendants. In particular, Mr Noble pointed to the issue as to whether an exchange of promissory notes between RCF and other entities amounted to an advance of funds for the purposes of the Loan Deed between RCF and investors in the Project. 9Mr Noble also identified, albeit in relatively broad terms, the issues in the proceedings to which the discovery categories relate. That question has subsequently been addressed by detailed submissions made by the parties as to the particular categories. Mr Noble also gave an estimate of the likely costs of disclosure by the Defendants, although he provided little by way of reasoning for that estimate. The Defendants have not sought to contest that estimate in this application. I should also note, in passing, Mr Noble's evidence that the Defendants were asked for particulars of their Defences, which they declined to provide. That position seems to me, in the relevant circumstances, to be potentially inconsistent with s 56 of the Civil Procedure Act and the just, quick and cheap resolution of the matters in dispute in the proceedings. Subject to any further submissions of the parties, if the Defendants do not choose to provide reasonable particulars of the matters on which they rely, and the Plaintiffs press the request for such particulars, it seems to me that the Court might well readily order that those particulars be provided. 10Mr Noble's further affidavit dated 24 February 2014 elaborates on his identification of the issues in the proceedings and also points to certain common issues that arose in other proceedings involving some of the Defendants in the Magistrates Court of South Australia and in the Supreme Court of South Australia. The Plaintiffs seek access to the court files in respect of those proceedings. The Relevant Defendants and the Sixth Defendant do not resist the application for access to the court files in respect of the proceedings in the Magistrates Court of South Australia, but resist the application for access to the proceedings in the Supreme Court of South Australia. I will deal with that issue further below. 11The Plaintiffs' application for discovery has, in Mr Noble's evidence, broadly addressed the requirements of Practice Note SC Eq 11 Disclosure in the Equity Division. That Practice Note took effect on 26 March 2012 and provides, relevantly, that there will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings and any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out specified matters, including the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings. The application for discovery is made in this case after the Plaintiffs have filed their evidence in respect of substantive issues in the proceedings and is supported by affidavit evidence that is directed to the relevant matters. 12It is convenient to address the disputed discovery categories primarily by reference to the most extensive discovery sought by the Plaintiffs as against AHM, in respect of forty categories of documents specified in Schedule "E" to their Amended Notice of Motion. I should note that the number of categories of documents there sought somewhat overstates the extent of discovery, since there are several cases in which individual categories are very narrow and could have been treated together. For example, the first, second and third categories relate respectively to agenda, minutes and documents tabled at meetings of directors of AHM for the period 13 August 1987 to date and could readily have been combined as a single category and the fourth and fifth categories respectively relate to financial statements and income tax returns and financial reports for CPH for the financial years ending 30 June 1999-30 June 2012 and could also readily have been combined as a single category. 13I have referred above to the content of the first three categories as to which discovery is sought as against AHM. There was initially a dispute as to the width of those categories, so far as they initially extended to the present and were not specifically limited to documents relating to the Project. That dispute has since narrowed by the Plaintiffs' restriction of the categories to relate to agendas, minutes and documents tabled at meetings of directors of AHM for the period 1 May 1998 to a date to be determined in connection with the Project. The first category of the documents sought from AHM was further amended to refer to agendas for, rather than agendas relating to, meetings of directors in the course of submissions. The Relevant Defendants contend that the date range should be 1 May 1998 to 28 May 2007 when AHM ceased to be the responsible entity of the Project. The Plaintiffs contend that the period should be 1 May 1998 to 31 December 2007, since AHM's Constitution contains provisions dealing with the transfer of books and the execution of documents on a change of responsible entity and documents recording the books and records that were handed over to the new responsible entity and the assignment of any lease are relevant to the issues in dispute. Although the resolution of this issue is to some extent a matter of impression, I consider that discovery should properly be ordered in respect of the longer period specified by the Plaintiffs for that reason. 14The fourth-sixth categories of discovery relate to financial statements, income tax returns and financial reports of CPH and financial reports relating to the Project for the period 30 June 1999 to 30 June 2007. There is now no dispute between the parties as to that category and I consider that discovery can properly be ordered within it. 15The seventh category relates to documents recording the nomination or appointment of a compliance officer as contemplated by cl 2.1 of the compliance plan for the Project. The Relevant Defendants contend that these documents have no bearing on whether the particular statements in the prospectuses that are in issue were misleading or deceptive at the time they were made. The Plaintiffs respond that the compliance plan required the appointment of a compliance officer whose duties included monitoring and carrying on compliance obligations of the manager under the compliance plan. The Defendants claim, in their Defences, that there were reasonable grounds for making certain representations. In these circumstances, whether a compliance officer was appointed and any inquiries that he or she may have made are capable of supporting or undermining that defence and discovery should be ordered in this category. 16There is now no dispute in respect of the eighth category relating to the manager's performance of its obligations under AHM's Constitution, which was amended to refer to documents "recording" rather than "relating to" the review of the manager's performance in the course of submissions, and I will order discovery in that category. There is also now no dispute as to the ninth category, which the Plaintiffs have narrowed to the period from 4 June 1999 to 28 May 2007, when AHM was the responsible entity for the Project and to documents in relation to the Project, and discovery should be ordered in that category. 17The tenth category relates to any agreement required by cl B1.3 of the compliance plan for the Project. That clause requires the compliance officer to arrange for the manager, AHM, to have an agreement with the custodian, Australian Rural Group Pty Ltd, by which the custodian was required to undertake certain matters. The Relevant Defendants contest discovery in that category on the basis that the issue in the proceedings is whether they were entitled to rely on statements made to them by the First Defendant, Mr Burke Reschke, and there is no allegation of any failure by AHM to enter into any such agreement with the custodian. The Plaintiffs seek to support that category on the basis that it is relevant to whether the Relevant Defendants had a reasonable basis for making the statements contained in the prospectuses and to allegations of non-disclosure pleaded in paragraph 75 and 84 of the Amended Statement of Claim. Those non-disclosures relate to matters that have been particularised by the Plaintiffs and as the Relevant Defendants point out, the existence of such an agreement with the custodian is not one of those matters. It does not seem to me that the existence of such an agreement or whether the custodian was undertaking those particular activities would cast any light on the pleaded and particularised issues such as, for example, whether CPH owned the property, the number of participations in the Project that had been taken up, that the project land was not leased to the custodian or that CPH had not obtained an option to purchase the property. Discovery should not be ordered in this category. 18The eleventh category relates to documents given to members of AHM's compliance committee prior to compliance meetings and the twelfth category relates to audits of compliance with the compliance plan. The Plaintiffs have accepted that these categories should be narrowed, in particular as to period, as proposed by the Relevant Defendants and these categories are now agreed. Discovery can properly be ordered in these categories, which are relevant to whether the Relevant Defendants had a reasonable basis for the representations made in the prospectuses. 19The thirteenth category requires production of documents contained in files specified in cl B5.14 of the compliance plan for the Project. The Relevant Defendants contend that this category should be restricted to documents that refer to those matters that are particularised as rendering the Prospectus misleading or deceptive. The Plaintiffs respond that there is no dispute that the category is relevant to the issues in dispute and that the files are readily identifiable and ought to be disclosed in their present form. I consider that discovery should be ordered in this category, because the category is likely to contain relevant material; there is no suggestion that the volume of documents required to be produced in this category would be oppressive; and it is preferable that the integrity of the files not be disturbed and the comprehensibility of documents produced not undermined by extraction from the context in which they appear in the relevant files required to be maintained by the compliance plan. 20The fourteenth category relates to the due diligence process contemplated by the compliance plan for the Project and is no longer disputed. Discovery should be ordered within this category. The fifteenth category is no longer pressed. The sixteenth category relates to the register of scheme interests required under the compliance plan and is no longer disputed, and discovery should also be ordered within this category. The seventeenth and eighteenth categories relate to lists of representations that were made in Prospectus 1 and Prospectus 2 which were required to be maintained as contemplated by the compliance plan for the Project. The Relevant Defendants contend that such lists will shed no light on whether the representations were reasonably made. The Plaintiffs point to the requirement under cl G4 .1 of the compliance plan for a checklist of those representations which was to record the anticipated dates for those representations to be fulfilled. It seems to me that the determination of the dates by which those representations were likely to be fulfilled is likely to cast light on the reasonableness of the representations when made and discovery should be given in these categories. 21The nineteenth category relates to six monthly reports to the board of directors and the compliance committee as required by cl G4.4 of the compliance plan for the Project. There is no longer any dispute as to this category and discovery should be given within it. Categories 20 and 21 relate to cashbooks and journals and ledgers in relation to the payment and receipt of lease rent. The Plaintiffs press these categories as relevant to statements made in the prospectuses in relation to the ownership and leasing of the property and to payments by RCF to AHM under the loan deeds. Those categories are no longer disputed and are relevant to matters in issue in the proceedings. Discovery should be ordered within them. 22Categories 22-24 are pressed by the Plaintiffs as relevant to pleaded representations in Prospectus 1 as to the period in which securities would be allotted or issued and the number of participations in the Project and representations in Prospectus 2 as to the number of interests taken up under Prospectus 1. Those categories are not disputed, subject to amendments to categories 22.1 and 22.2 proposed by the Relevant Defendants and accepted by the Plaintiffs, and are relevant to matters in dispute. Discovery should be ordered in these categories as amended. 23Category 25.1 relates to discounts or refunds offered or granted to participants in the Project. The Plaintiffs contend that these documents are relevant to the pleaded issues and the Relevant Defendants contend that such documents do not relate to whether AHM and its directors were aware whether 100 interests had been taken up under Prospectus 1 or had failed to disclose any relevant matter. It seems to me that those documents are relevant, since discounts or refunds offered or granted to a person who took up such interests may undermine the economic substance of the issue of such interests, and discovery should be ordered in this category. Category 25.2 relates to the purchase of participations in the Project by Mr Burke Reschke and, as amended, is no longer disputed. This category is also relevant to the matters in issue in the proceedings and should be permitted. 24Categories 26-29 relate to reliance by the Plaintiffs on statements made in Prospectus 1 and Prospectus 2 and are not disputed. These categories relate to matters plainly in dispute in the proceedings and should be permitted. Categories 30-31 relate to annual directors reports and reports to members and the Plaintiffs press them as relevant to whether there was a reasonable basis for statements made in Prospectus 1 and Prospectus 2. There is now no dispute between the parties as to these categories and they are, on their face, relevant to the matters in dispute in the proceedings. Discovery should be ordered in these categories. 25The Plaintiffs press categories 32-35 as relevant to the issue of statements made in the Prospectuses in relation to the ownership of the relevant property and the lease of that property and whether those statements had a reasonable basis. Category 32 is no longer disputed, as amended by agreement of the parties. Categories 33.4-33.5 are no longer pressed and the Plaintiffs accept that category 33 should otherwise extend only to documents brought into existence to 5 April 2011, when these proceedings were commenced, and this category is now agreed on that basis. Discovery should be given within categories 32-33. 26Category 34 sought production of: "All documents referring to the statement in Prospectus 1 to the effect that there was no minimum subscription level in CPH because Reschke Vineyards would subscribe for shares as was necessary to provide CPH with the funds to purchase the required area of the Project." The Plaintiffs contend that this matter goes to whether CPH had the financial capacity to purchase the property under the represented option agreement and whether it was reasonable for the Relevant Defendants to rely on statements made by Mr Reschke and to the defence pleaded by the Relevant Defendants that CPH did not exercise that option because of changed circumstances. The Relevant Defendants respond that whether the statement was reasonable is to be determined by reference to the circumstances that existed at the time Prospectus 1 was issued, or at least at the time of its expiry, and contend that the category should be restricted to documents dated prior to 11 September 2000, the date of expiry of Prospectus 1. They also point to the potential breadth of the category and contend that there would be practical difficulty in locating documents that come within it. 27This category would not have been ordered in its initial form. There appears to be no dispute that such a statement was contained in Prospectus 1 and there is no reason that, for example, every draft prospectus containing that statement should be produced. This category was further amended in the course of oral submissions to refer to documents referring to the grounds for, or the basis of, the relevant statements in Prospectus 1. That amendment seems to me to have addressed the issues as to the breadth of the category and the documents now sought relate to matters in issue in the proceedings and discovery should be ordered in this category. 28Category 35 relates to documents filed on behalf of AHM and other plaintiffs in certain proceedings in the Supreme Court of South Australia brought against the firm of Thomson Playford ("Thomson Playford proceedings") relating to the duration of the tax ruling in respect of the Project. The Plaintiffs support this paragraph on the basis that it goes to whether the Relevant Defendants breached a duty of disclosure by failing to disclose the nature of the claims made in those proceedings. The Relevant Defendants respond that the pleaded allegation is that AHM did not make full disclosure of material matters by failing to disclose the existence of the claim, not the nature of it, and that the affidavits from the proceedings are not required for the Plaintiffs to prove this part of the claim. I will address the relevance of these proceedings further below. In my view, the materiality of the relevant matters alleged not to have been disclosed may well depend upon the content of the matters in issue in the proceedings and discovery should be ordered in this category. AHM also contends that it is subject to the implied undertaking and not at liberty to disclose those affidavits. It may be open to question whether the implied undertaking involves a prohibition on the disclosure of the relevant affidavits in response to compulsory process, but I do not address that question further where the parties did not make submissions concerning it. In any event, I do not accept that the implied undertaking is a reason not to order discovery, since AHM may take steps to seek leave from the Supreme Court of South Australia, to the extent that it may be necessary to do so, in order to allow it to comply with the discovery orders made by this Court. If such leave is withheld, after AHM takes all reasonable steps to obtain it, then it may apply to be relieved from the obligation to give discovery in this category. 29Category 36 relates to correspondence with RCF and/or Mr Burke Reschke referring to payments under the relevant Loan Deeds. The Plaintiffs support this category as relevant to the issue whether payments were made by RCF to AHM under the Loan Deeds. This category is not disputed and is, on its face, relevant to matters in dispute and discovery should be ordered in this category. 30Categories 37-40 originally sought production of documents "relating to" certain matters referred to in the affidavits of the Seventh Defendant, Mr Fergus McLachlan, the Eighth Defendant, Mr Ian Dugald Murray McLachlan and the Ninth Defendant, Mr Ian Murray McLachlan. The original terms of the categories seemed to me plainly too wide, given the character of the statements to which reference was made and the consequential lack of clarity as to the documents that would need to be produced. In oral submissions, the Plaintiffs amended categories 38-40 (but not category 37) to seek to limit them to copies and originals of documents recording the requests referred to in the statements quoted in those paragraphs and recording AHM's difficulties in obtaining adequate reports from Koonara Management referred to in the statement quoted in category 40. These amendments clarified categories 38-39 to some extent - although AHM would still have been required to seek to identify which were the requests referred to in the relevant statement, in circumstances that that task would readily have been undertaken by the Plaintiffs in formulating discovery categories - and substantially clarified category 40. 31The Plaintiffs contend that these paragraphs are relevant by reason of the alleged breach of fiduciary duty by failure to disclose material matters to investors under Prospectus 1 and Prospectus 2, pleaded in paragraphs 75 and 84 of the Amended Statement of Claim and by reason of paragraphs 21, 27, 75, 84 and 178-179 of the Defences of the Relevant Defendants, which plead that they had reasonable grounds for the making of the alleged statements in Prospectus 1 and Prospectus 2 and the denial of the allegations of breach of fiduciary duty by failure to disclose such matters and pleaded defences under s 733 of the Corporations Act. It does not seem to me that those categories are justifiable on that basis, so far as they relate to events well after the issue of Prospectus 1 in June 1999 and Prospectus 2 in May 2001, which do not seem to me to be to be relevant to whether there was any non-disclosure or a lack of reasonable grounds for statements made in the prospectuses some years earlier. It may be that those documents could properly be required to be produced, on notice to produce at a hearing, so far as they were relevant to issues addressed by the evidence of the witnesses as to subsequent events, but that does not seem to me to be a basis for ordering their disclosure at this point. 32The Plaintiffs also seek orders that the First-Fourth Defendants provide verified discovery of documents in specified categories of documents within 21 days, and Schedules A - D of the Amended Notice of Motion set out the discovery sought from those Defendants. Those Defendants were previously represented in the proceedings, but their solicitors did not appear in respect of this application, having filed a notice of intention to cease to act and advised the Court that they had no instructions in respect of this application. The Plaintiffs properly accept that the amendments that are to be made by agreement with the other Defendants and in accordance with this judgment should also be made in respect of the categories of discovery to be ordered against the First-Fourth Defendants. 33I should, however, add the following observations as to those categories, so far as the Court must exercise a discretion whether to order discovery irrespective of whether the affected parties appear to oppose it. Categories 1-19 of the categories of discovery sought against the First Defendant, Mr Burke Reschke, correspond to categories 1-19 sought against AHM and should be similarly treated. Categories 20-29 should be permitted, subject to any amendment required by the rulings that I have made above. Category 30 should be permitted, as amended to delete the words "but not limited to reports by Wayne Lonergan and the report by Wayne Lonergan dated 19 February 2005". As Mr Newton conceded in the course of oral submissions, there is no basis for an assumption that Mr Lonergan's report falls within the general category of "valuation reports in relation to the Property" sought in that category. Categories 31-43 should be permitted, subject to any amendment on the basis noted above. Categories 44-47 of the categories of discovery sought against Mr Reschke, which correspond to categories 37-40 sought against AHM, should be set aside on the same basis. 34In the course of oral submissions, the Plaintiffs indicated that categories 7-9 of the discovery sought against CPH should be further amended to limit them to documents relating to the Project prepared in the period to 30 June 2012. That limitation addresses the difficulty that those paragraphs were otherwise unlimited in time or by subject matter. Categories 8-11 of the categories of discovery sought against Koonara Management correspond to categories 37-40 of the categories of discovery sought against AHM and should be set aside on the same basis. Category 13(d) of the categories of discovery sought against RCF relates to loans to "various external investors" whose identity is not further defined. This category is so uncertain that it should be set aside. 35Schedules F, G, H and I of the Amended Notice of Motion relate to categories of documents to be disclosed by the Sixth Defendant, Mr Alan Jessup, the Seventh Defendant, Mr Fergus McLachlan, the Eighth Defendant, Mr Ian McLachlan and the Ninth Defendant, Mr Ian Murray McLachlan. These categories are in identical form and correspond to categories 1-19 of the categories of discovery sought against AHM. Those categories should be permitted, amended or not allowed in accordance with the position agreed between the parties and the rulings that I have indicated above. Application to set aside subpoenas issued to Mr Lonergan 36By notice of motion filed on 30 September 2013, the Relevant Defendants applied under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") to set aside subpoenas to produce issued on 15 August 2013 at the request of the Plaintiffs to Mr Wayne Lonergan or, alternatively, for orders under rr 33.4 or 33.9 of the UCPR that the Plaintiffs not be permitted to inspect the documents produced by Mr Lonergan pursuant to the subpoena. That application is supported by an affidavit of Ms Mullins who is a Special Counsel with the solicitors acting for the Relevant Defendants in the proceedings. 37The subpoena sought production of several reports prepared by Mr Lonergan in respect of claims made by CPH, Koonara Management, RCF and AHM and other entities against a firm of solicitors in the Supreme Court of South Australia in the Thomson Playford proceedings. It will be noted that Ms Mullins acts, relevantly, only for AHM and the other entities that were party to the South Australian proceedings and are party to those proceedings did not appear to pursue any application to set aside the subpoena. It was common ground that Mr Lonergan's evidence in those proceedings related to claims for loss and damage made by the plaintiffs in those proceedings. Mr Lonergan produced five reports and a draft report to the Court in response to the subpoena and the Plaintiffs seek access only to the five reports which, it is common ground, were finalised and served in the Thomson Playford proceedings. 38The Relevant Defendants contend that the documents sought in the subpoena are irrelevant to the matters in issue in the proceedings, although Ms Mullins' affidavit recognises that the Plaintiffs allege that prospectuses contained misleading or deceptive statements in that AHM did not make disclosure of necessary information to enable the Plaintiffs to make decisions about their holdings and, in particular, the content of the advice that it had received concerning the independent tax opinion provided in respect of the Project. Ms Mullins' affidavit also recognises that the Plaintiffs also bring claims for negligent misrepresentation, unconscionable conduct and breach of the joint venture agreements in respect of the Project arising from the same matters, and that the Relevant Defendants plead that the independent tax opinion concerning the Project and subsequent events were matters that did not affect or concern the Plaintiffs 39Ms Mullins exhibits a copy of the Fourth Further Amended Statement of Claim in the Thomson Playford proceedings to her affidavit. That pleading discloses that AHM claimed a loss of profit from fees that they would have earned throughout the Project in respect of further investors who would have invested in it and CPH claimed a loss of profit that it would have otherwise made from the rental of land it would have acquired and leased under the Project, and had previously claimed a loss of profit on the land it would have been able to purchase under the option agreement, although that claim was subsequently not pressed. CPH's claim was specifically particularised by the reference to Mr Lonergan's reports dated 19 July 2007 and 26 May 2010, so that those reports were not only served upon the other parties to the proceedings (as I will note below) but were specifically pleaded and deployed in support of the claim in those proceedings. A claim by RCF for loss of profit in lending funds to the investors in the Project, which was also subsequently not pressed, was also particularised by reference to those reports. 40The Plaintiffs respond to Ms Mullins' affidavit by an affidavit of Mr Noble dated 23 January 2014. Mr Noble gives evidence, on information and belief sourced from the solicitor who acted for the defendants in the Thomson Playford proceedings, that Mr Lonergan's five reports were served and were provided both to the defendants and to experts retained on their behalf in those proceedings and were included in tender books prepared and served in those proceedings. Those proceedings were subsequently settled in October 2011. 41As noted above, the Relevant Defendants contend that the subpoena directed to Mr Lonergan should be set aside on the basis that his expert reports are not sufficiently relevant to the present proceedings. The Relevant Defendants accepted that all the Plaintiffs needed to show in order to sustain the subpoena issued to Mr Lonergan (and the request from production of the court file relating to the Thomson Playford proceedings, to which I will refer below) was that production of the relevant documents was reasonably likely to add to the relevant evidence in the case and that the material had "apparent" relevance in the sense that it could "possibly throw light on the issues in the main case" or that it was on the cards that it would do so: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 926-927; Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [23]ff. In Re North Coast Transit Pty Ltd [2013] NSWSC 1912 at [7]-[9], I summarised the relevant principles as follows: "In Spencer Motors Pty Ltd v LNC Industries Ltd [above] at 926-927, Waddell J in turn referred to Commissioner for Railways v Small and observed that a subpoena should be held to be oppressive or an abuse of process if the production of the documents which it describes is excessively burdensome and the documents appear not to be sufficiently relevant to the proceedings, and also referred to [National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372] as authority that a document is "sufficiently relevant" if its production is reasonably likely to add, in the end, in some way or another, to the relevant evidence in the case. In Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103, Beaumont J noted that the question whether a subpoena has a legitimate forensic purpose will depend on whether the material sought has adjectival, as distinct from substantive relevance, and that the test of adjectival relevance is satisfied if that material has "apparent" relevance in that it could "possibly throw light on the issues in the main case". In White and Tulloch v White (1995) 127 FLR 105; (1995) 19 Fam LR 696 at 703, the Family Court of Australia in turn referred to Waind and Hill and Spencer Motors in identifying the test as to whether a subpoena should be set aside as whether the documents were "sufficiently likely to 'add in the end to the relevant evidence in the case'". In Read v Chang [2010] FamCA 876 at [8], Cohen J cited that decision for the proposition that: "... if there is such relevance, any invasion of privacy will be insufficient to warrant a refusal to force disclosure. If the documents are insufficiently relevant or insufficiently likely to effect the ultimate outcome of the proceedings, the invasion of privacy inherent in disclosure and in some cases the inconvenience of deprival of working documents will be regarded as oppressive and disclosure should not be required." In Portal Software International Pty Ltd v Bodsworth [above] at [19]-[26], Brereton J in turn noted, in respect of a notice to produce, that it was sufficient to support relevance that the documents called for could "possibly throw light" on the issues in the substantive proceedings or that it is "on the cards" that they will do so, but noted that a notice to produce had traditionally been treated more liberally than a subpoena to a third party in that regard. The applicable principles in an application to set aside a subpoena were identified by Einstein J in the City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 364, where his Honour referred to the test for determining whether a party is required to produce documents pursuant to a subpoena as stated in R v Saleam [1999] NSWCCA 86 at [11] as that: "Before access is granted, or an order to produce made, the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case." His Honour also observed at [10] that: "... The essential notion is that there is a reasonable chance that the material sought will assist the defence. If it is reasonable to infer that the material sought exists and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case (as it seems to me) that such a chance exists, even though it might be thought to be unlikely. Seeking that material therefore seems to me to be a legitimate forensic purpose, providing of course that the factual issues and the character of the material sought are precisely identified." His Honour further observed at [12] that a subpoena should be permitted "where the Court forms the view that the material falls within the legitimate field of inquiry raised by the issues in contest and is reasonably likely to add in the end in some way or other to the relevant evidence in the case". In DCM Solar Pty Ltd (in liq) [2013] NSWSC 423, I adopted the test of "could possibly throw light" on the issues in the substantive proceedings or that it is "on the cards" that they do so as formulated in Portal Software above." The Relevant Defendants also emphasise the observation of Einstein J in City of Sydney v Streetscape Projects (Australia) Pty Ltd above at [12] that material sought to be produced on subpoena must be "within the legitimate field of inquiry raised by the issues in contest" and "reasonably likely to add in the end in some or other to the relevant evidence in the case". 42The Plaintiffs also accept the above statement of the tests and principles to be applied in determining the application to set aside the subpoena to Mr Lonergan. They contend that Mr Lonergan's reports are relevant to issues in the proceedings, namely the financial capacity of CPH and its related entities to acquire the relevant property at $25,000 per hectare under the alleged option agreement; whether, as the Relevant Defendants contend, the value of the property declined such that the exercise of the option was not in the interests of CPH's shareholders; whether Reschke Vineyards had the financial capacity to subscribe for such shares as was necessary to provide CPH with funds to purchase the land for the project; the financial capacity of RCF to make advances of $15,600 per participation to investors in the Project; and whether the existence of the Thomson Playford proceedings should have been disclosed to investors in the Project. 43It appears that the primary claim made in the Thomson Playford proceedings related not to the correctness of a tax ruling obtained by Thomson Playford, but to the fact that it was only effective for a short time after it was issued. There seems to me to be some force in the Relevant Defendants' contention that the Plaintiffs do not need access to Mr Lonergan's reports or the court file in the Thomson Playford proceedings in order to establish their claim that they were not told of the expiry of the relevant product ruling or of the existence of the Thomson Playford proceedings. However, the materiality of the Thomson Playford proceedings, as distinct from the specific complaint as to the product ruling, might well turn upon the content of the evidence led in them, including as to the extent of the financial loss which the Plaintiffs claimed that they would suffer as a result of the relevant matters. The claim for damages in those proceedings was, to say the least, substantial and evidence that the Plaintiffs would suffer a loss of profit of that magnitude might well support an allegation that those proceedings, and the loss asserted in them, was material to investors, so far as it might prejudice the Relevant Defendants' capacity to undertake the Project. The Relevant Defendants contend that the Plaintiffs rely on the existence of the proceedings and the fact of the defective product ruling, rather than the quantum of loss that CPH alleged it suffered, to establish the alleged non-disclosure. However, the materiality of the alleged non-disclosure is plainly in issue, and it seems to me that Mr Lonergan's reports and the loss quantified in them would at least be relevant to the matter. 44Moreover, the Plaintiffs contend that they seek to see Mr Lonergan's reports and the evidence in the Thomson Playford proceedings on the basis that they are relevant to, inter alia, whether CPH had the financial capacity to acquire the land and the reasonableness of the representations made in the prospectuses. The Relevant Defendants respond that the financial positions of the various entities are not relevant, generically, to the reasonableness of the representations made in the prospectuses and seek to distinguish between the position at the time at which the representations were made and any future loss of profits by CPH. It seems to me, however, that it is plainly on the cards that, in assessing a future loss of profits by CPH (and by RCF, until it withdrew its claim), Mr Lonergan might well have first assessed the asset position of those companies at the time the prospectuses were issued, since their capacity to earn future profits would plainly depend upon their ability to undertake their ongoing activities, and therefore on the financial position at the time the prospectuses were issued. This seems to me to be sufficient to support the subpoena to Mr Lonergan, the claim for access to Mr Lonergan's reports and also the claim for access to documents in the Thomson Playford proceedings generally, so far as the evidence led in those proceedings is likely to have underpinned, at least in part, the factual assumptions which will have been made by Mr Lonergan in preparing his reports. It seems to me that this line of reasoning is sufficient to establish at least that Mr Lonergan's reports have apparent relevance to the proceedings and that the investigation of the content of those reports is a legitimate field of inquiry for the Plaintiffs. 45The Relevant Defendants also contend that Mr Lonergan's reports were prepared for the purpose of the Thomson Playford proceedings and are subject to legal professional privilege, notwithstanding that (as noted above) they were served on the other parties to the Thomson Playford proceedings, briefed to opposing experts and included in the court books in those proceedings. The Relevant Defendants point out, and I accept, that the question of legal professional privilege is here to be determined by reference to the common law, since the provisions dealing with this question in s 131A of the Evidence Act 1995 (NSW) and UCPR r 1.9 apply only in respect of the party that produced the documents and not in respect of a third party such as the Relevant Defendants seeking to assert a claim for legal professional privilege. That view was taken by Brereton J in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 and by McDougall J in Waugh Asset Management v Merrill Lynch [2010] NSWSC 197, although his Honour also there observed (at [12]) that the same answer would be given whether the situation was dealt with under the common law or under the Evidence Act. 46It is common ground that Mr Lonergan's reports were filed and served in the Thomson Playford proceedings pursuant to orders made by the Supreme Court of South Australia, so far as that Court had made orders for the plaintiffs in those proceedings to serve the evidence on which they sought to rely. The Plaintiffs point out that there have been differences of views expressed in the authorities as to whether the service of evidence, in accordance with court orders, amounts to a waiver of legal professional privilege. In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd & Ors [2004] NSWSC 40, Bergin J (as her Honour then was] treated the service of a witness statement in accordance with a court timetable as not necessarily amounting to a waiver of legal professional privilege. In Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225; (2009) 74 NSWLR 469 at [13], White J distinguished that decision on the basis that it was directed to whether the relevant document was created for the dominant purpose of litigation and not to its continuing confidentiality. I would accept, as McDougall J did in Waugh Asset Management above, that a waiver of legal professional privilege (as distinct from a loss of the confidentiality necessary to underpin a claim to privilege, to which I will refer below) does not necessarily arise from service of Mr Lonergan's reports consistent with directions made by the Supreme Court of South Australia. 47The Relevant Defendants rely on the decision in State Bank of South Australia v Smoothdale No 2 Ltd (1995) 64 SASR 224 which treated the service of witness statements, pursuant to a court order, as not depriving them of their confidential character other than for limited purposes. On the other hand, in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283, the Full Court of the Federal Court took the view (at [22]) that the service of an affidavit (albeit, an affidavit in the nature of a discovery affidavit) was, in the particular circumstances, a step entirely antithetical to its confidentiality, and brought about a loss of privilege where it was inconsistent with the confidentiality protected by the privilege. I accept that, as Ms McDonald points out, that decision was at least in part directed to the relevant context, where that affidavit was served in substitution for discovery and was intended to be relied upon by the other parties to the proceedings. Nonetheless, the Full Court's observations seem to me to be expressed in wider terms. 48In Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (CFMEU) [2008] FCA 678, Finn J referred with approval to Liberty Funding above and observed (at [127]) that, except where a disclosure is made for a particular and limited purpose, the filing and service of evidence operates as a complete and not simply a limited waiver of privilege. 49The decision in Smoothdale above was not followed by the Full Court of the Federal Court in Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547, in respect of finalised proofs of evidence created by a party for the purpose of being served on the opponent in the litigation, and which had in fact been served on that opponent. The Full Court of the Federal Court there observed that the filing and service of finalised proofs of evidence prevented the later reliance on such privilege as existing in those documents before the filing and service. Their Honours noted (at [37]) that: "In our view, whatever is the extent of confidentiality arising from litigation privilege, one element of confidentiality is essential, namely non-disclosure to one's opponent. To say (as does the ACCC) that the finalised proofs of evidence were created and served for the existing litigation can be accepted. However, in our view it is impossible for litigation privilege to attach to the finalised proofs of evidence, when the finalised proofs of evidence were created for the purpose of serving them on the ACCC's opponent and when they were in fact served on that opponent." They also observed at [42] that: "All formulations emphasise, in one way or another, that the communications made or materials to be protected are those which are made confidentially between the client and the legal representative or otherwise come into existence for the dominant purpose of the litigation, and which are to be kept away from the opposing party. " They concluded at [54] that: "The finalised proofs of evidence were prepared for provision to and provided to Visy, the ACCC's opponent in existing litigation. The disclosure was not made on a relevantly confidential basis, although made expressly with the protection of the 'implied undertaking'. The fact that the existence of the implied undertaking was expressly part of Heerey J's orders makes no difference to the analysis. The ACCC did not seek any form of restriction upon the use Visy could make of the finalised proofs of evidence, save as to the limited 'confidentiality' regime already in place." Their Honours did not follow the reasoning in Smoothdale above noting (at [73]) that: "... we do not consider it correct to conclude that the final witness statements were being prepared and signed for the purpose of compliance with a court order or that the documents were merely reproductions of statements already obtained by witnesses for the sole (now dominant) purpose of use in the proceedings so that they were privileged. This fails to appreciate a number of matters. Drafts and final proofs are by nature and in fact different documents. A draft may well include information which is not included in a final version of a witness statement given to an opposing party. A draft may well be a 'discussion' document, intended only to be seen and considered by the party's legal advisor. It should not be assumed that the final version is just a reproduction of anything that comes before it. Even if it be so, once the decision has been made to call a particular witness to give evidence and that the evidence will comprise that which is in the witness statement, that final witness statement assumes a different character. The final version of a proof of evidence is the document prepared for disclosure to the court and to the opponent. The 'essential character' of a final proof of evidence is to make disclosure to the opponent and the court of the evidence which is proposed to be led at trial. Such finalised witness statements may be prepared in the finalised form because of the court order for disclosure of evidence before the hearing. However, the fact remains that the purpose of the party preparing and delivering a final version of a witness statement is to give advance notice of what evidence that party proposes to put before the court. It does not matter whether the finalised version was or was not intended to be tendered in court - the purpose of bringing into existence the finalised proof of evidence was to give it to the opposing party at the time of service and to disclose the information contained in the proof." The Relevant Defendants contend that that statement was obiter but, even if that is so, it was a seriously considered observation of an appellate court that must be given significant weight. 50In Buzzle Operations above, White J addressed a similar issue in circumstances where affidavits and witness statements had been served in proceedings brought by one of the plaintiffs in that case against other parties, which were settled before the affidavits were read or the witness statements tendered. His Honour held that the service of the affidavits and witness statements on the opposing party in the other proceedings brought any confidentiality in them to an end, and that those documents were no longer subject to legal professional privilege. His Honour expressed the view that he should follow the decision in Cadbury Schweppes above as the most recent authority of an intermediate appellate court, although also observing that he had reached the same conclusion. He noted that no authority cited to him, including the decisions in Smoothdale and Ingot Capital which he referred, required a different conclusion. I would take the same view, both as a matter of comity and because it seems to me that it is correct. 51In Waugh Asset Management above, McDougall J treated Cadbury Schweppes as authority for the proposition that confidentiality was of the essence of litigation privilege, and was destroyed once the document in respect of which confidentiality was claimed was disclosed to the opposing parties in litigation. His Honour was not there required to form a final view as to that question, since the question in that case was not whether privilege had been lost in the relevant witness statement, but instead whether the evidence that a witness might give would be inconsistent with maintaining a claim to legal professional privilege in documents relevant to, but not specifically identified in, his witness statement. 52The Relevant Defendants seek to distinguish the position in this case from Cadbury Schweppes on the basis that first, unlike the finalised proofs of evidence considered in that case, Mr Lonergan's reports might not have advanced the plaintiffs' case or the plaintiffs might not have served those reports in the Thomson Playford proceedings after they were obtained, although, I interpolate, they ultimately did so. The Relevant Defendants also contend that the nature of expert reports, in light of an expert's overriding duty to assist the Court impartially on matters within his or her area of expertise, are such that they could not be characterised as a document "created by a party for the purpose of being served on the party's opponent in litigation". I am not persuaded that this distinction is of substance. First, the plaintiffs in the Thomson Playford proceedings presumably retained Mr Lonergan with a view to serving his expert reports, at least if they were favourable to their position in the proceedings, and would not have incurred the expense of doing so in respect of five finalised reports unless they had an expectation that those reports would advance their position. At some point, the plaintiffs in those proceedings plainly determined that those reports in fact advanced that position, since they proceeded to deploy two of them to advance their position in the pleadings, and served all five of them. The fact that an expert owes a duty to the Court also does not seem to me to change the position since the position in that regard does not differ in substance from that of a lay witness who is honest and impartial but generally favourable to a party's case. In any event, none of these matters avoid the consequence that - subject to the further argument raised by the Relevant Defendants to which I will next refer - service of an expert's report on the opponent in the proceedings deprives it of the element of confidentiality necessary to support a continued claim for legal professional privilege. 53Alternatively, the Relevant Defendants contend that, even if service of Mr Lonergan's five finalised reports would otherwise have led to a waiver of legal professional privilege, that waiver could be limited if, for example, those reports were served subject to conditions that may be used only for limited purposes. That submission would not, so far as it addressed waiver, provide an answer to the loss of confidentiality arising from service of the reports; however, the submission extended to a related proposition that the terms on which the reports were provided imposed a continuing duty of confidentiality. The Relevant Defendants refer to a statement contained in the opening section of at least one of Mr Lonergan's reports, an extract of which was placed in evidence, which provides that: "This report has been prepared for the purposes of the proceedings referred to above and should not be used for any other purpose without my firm's prior written consent. This report is not intended for general circulation or distribution, nor is it to be reproduced or used for any purpose other than as outlined above, without my or my firm's written consent in each specific instance. My firm and I do not assume any responsibility or liability for any losses suffered as a result of the circulation, publication, reproduction or other use of this report contrary to the provisions of this paragraph." 54The Relevant Defendants contend that it may readily be inferred from this statement and from a reference to the confidentiality of Mr Lonergan's draft report (access to which is not sought by the Plaintiffs in any event) that the plaintiffs in the Thomson Playford proceedings had an express or implied obligation to preserve the confidentiality of Mr Lonergan's reports and that matter was communicated to the defendants in those proceedings by the terms of those reports. I do not accept that submission. First, the plaintiffs in those proceedings themselves made no attempt, so far as the evidence goes, to impose any express confidentiality regime on Mr Lonergan's reports or any restrictions on their disclosure for proper purposes after they were served. Second, even if it were accepted that an expert retained by a party could unilaterally limit the use of his or her report, the first sentence quoted above does not purport to restrict the use of the report in respect of the Thomson Playford proceedings, and the second sentence is directed only to purposes other than the purposes of those proceedings. The third sentence is a disclaimer of responsibility, not an assertion of confidentiality in respect of the report. So far as AHM and the other plaintiffs in the Thomson Playford proceedings did not assert confidentiality, or seek to exercise continuing control of the content of Mr Lonergan's report in those proceedings, the fact that Mr Lonergan purported to restrict its use for other purposes does not seem to me to avoid the waiver of privilege by the plaintiffs in those proceedings that would otherwise arises from service of those reports in the proceedings. 55For these reasons, I consider that the subpoena issued to Mr Lonergan should not be set aside and that access should be granted in respect of the five reports of Mr Lonergan as to which it is sought. Request for court files in South Australian proceedings 56By an Amended Notice of Motion filed on 24 February 2014, the Plaintiffs seek orders under UCPR r 33.13 that the Registrar request production of the court file maintained by the Supreme Court of South Australia in relation to the Thomson Playford proceedings and the court file relating to proceedings in the South Australian Magistrates Court and the Supreme Court of South Australia between Mr Mark Taylor and Mr Robert Gillen on the one hand and RCF on the other. Rule 33.13 of the UCPR provides for the production of documents in the custody of another court, by request to the Registrar of this Court, who will in turn request the other court to send that document to the Registrar, as an alternative to the issue of subpoenas. In Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210 at [47]-[52] , Hall J observed that the matters relevant to whether such a request should be made included whether there was a possible nexus or relationship between the issues dealt within the proceedings in which the request was made and the other proceedings. His Honour also held that access to a file produced in that manner could be granted without a party specifying the particular documents or classes of documents that were said to relate to the facts in issue in the relevant proceedings, at least in circumstances where a right of first access to the other party had been given to allow the opportunity for any claim for confidentiality or privilege to be made. 57The Relevant Defendants now do not oppose the production of the court files in relation to the proceedings between Messrs Taylor and Gillen on the one hand and RCF on the other in the South Australian Magistrates Court and the Supreme Court of South Australia, subject to an agreement reached between the parties that the Relevant Defendants should be provided first access to the documents produced to make any claim for confidentiality and legal professional privilege over the documents produced. 58The Relevant Defendants oppose the order for production of the court file in the Thomson Playford proceedings on the same basis as they contend that the subpoena addressed to Mr Lonergan should be set aside, namely that the documents are not sufficiently relevant to the issues in the proceedings. I do not accept that submission for the reasons that I have noted above in dealing with that subpoena. 59Accordingly, the Registrar should be directed to request each of the files relating to the relevant proceedings. Conclusion 60In these circumstances, orders for discovery should be made, with the categories amended in the manner agreed between the parties and otherwise as set out above. Corresponding amendments should be made to the categories of documents that the First-Fourth Defendants will be required to discover, as the Plaintiffs accepted in the course of oral submissions. The subpoena issued at the request of the Plaintiffs to Mr Lonergan should not be set aside and the Plaintiffs should have access to the documents produced under it. A request should be made to the South Australian Magistrates Court and the Supreme Court of South Australia for the court files in respect of the relevant proceedings, including the Thomson Playford proceedings, and the Relevant Defendants should have first access to the documents produced in the manner agreed between the parties in the course of the hearing. 61My preliminary view is that each party has had a measure of success in this application and, in particular, the Defendants have abandoned their opposition to many categories of discovery while other categories of discovery have been significantly amended from those which were originally proposed by the Plaintiffs by reason of the exchange of submissions between the parties and the findings that I have reached above, and that the costs of the application should be costs in the cause. However, the party should be permitted and opportunity to make submissions as to that question. 62I direct the parties to submit agreed orders to give effect to this judgment, including as to costs, within 14 days and, if no agreement is reached between them, their respective drafts of such orders and short submissions as to the differences between them. ********** 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: 04 April 2014