In the matter of Healthvue Pty Ltd

HIS HONOUR: On 25 February 2015, the plaintiff Calvary Health Care Sydney Ltd filed an application claiming an order pursuant to (CTH) Corporations Act 2001, s 459P, that the defendant Healthview Pty Ltd be wound up in insolvency. The defendant filed a notice of appearance on 26 March 2015 and, also on the same date, an interlocutory process claiming an order pursuant to Corporations Act, s 459S, granting leave to rely, in opposition to the winding up application, on the ground that the plaintiff's debt was genuinely disputed. It needed that leave in circumstances where it had previously filed an application to set aside the statutory demand but at the hearing did not appear nor proceed with that application.

The evidence establishes that Benjamin & Khoury Solicitors acted for the defendant (then as plaintiff) on that application, and appeared at the outset of the hearing, but informed the Court that they did not have instructions, and that thereafter the company was not represented at the s 459G hearing.

On 10 April 2015, the plaintiff issued a subpoena, which was served shortly thereafter, addressed to Benjamin & Khoury, for production of the following documents:

It will be observed that while the subpoena requires production at the outset of "all documents dated or created between 6 August 2014 and 17 February 2015", the class of documents production of which is required is then described by being limited to communications between Benjamin & Khoury on the one hand and Healthvue on the other in relation to the subject proceedings, and then by reference to a number of grounds or matters referred to in that correspondence, but without limitation. Essentially, therefore, the subpoena calls for all documents being or recording communications between Benjamin & Khoury and Healthvue during the relevant period in relation to the s 459G proceedings. The affidavits sworn in support of the s 459S application states:

In my view, communications between Healthvue’s former solicitors and Healthvue in connection with the subject proceedings could well illuminate the issue as to whether, in truth, Healthvue's former solicitors failed to carry out instructions as alleged, or whether the true explanation for their not continuing to appear at the hearing is otherwise.

The evidence in support of the application to set aside contains little more than a bare assertion that the subpoena unreasonably burdens the subpoena recipient, and does not make out a case that it is oppressive in any relevant sense. It is true that the subpoena calls for what are prima facie privileged communications, but save where it is beyond argument that the documents are privileged and that privilege has not been waived, that is not of itself a ground to set aside a subpoena. There is at least a tenable argument that the nature of the ground advanced by Healthvue in support of the s 459S application amounts to a waiver.

The supporting affidavit also refers to a lien, but while in some circumstances a lien might be relevant where the subpoena is issued by the solicitors' former client, it is no answer to a subpoena issued by a party other than the solicitors' former client.

In my view, a basis for setting aside the subpoena has not been established. I order that the notice of motion filed 4 May 2015 be dismissed with costs.