PRECISE GLOBAL PTY LTD TRADING AS STARKE TOOLING [2026] SASC 1

Applicant: PRECISE GLOBAL PTY LTD TRADING AS STARKE TOOLING Counsel: MR S EVANS SC - Solicitor: WRP LEGAL Respondents: SHAUN MILDE AND MILDE PTY LTD Counsel: MR S ABBOTT KC - Solicitor: MACPHERSON KELLEY O'LOUGHLINS Hearing Date/s: 02/09/2025 File No/s: CIV-25-007462 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. PRECISE GLOBAL PTY LTD T/A STARKE TOOLING v MILDE & ANOR [2026] SASC 1 Decision of the Honourable Associate Justice Bochner 20 January 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - SUBPOENAS AND NOTICE TO PRODUCE AT HEARING - SETTING ASIDE OR OTHER RELIEF EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - EX PARTE APPLICATIONS - NON-DISCLOSURE OR MISREPRESENTATION Orders were made for the issue of subpoenas at an ex parte hearing. The respondents have now applied to have the subpoenas set aside on the basis of material non-disclosure and reliance on illegally or improperly obtained material. Application dismissed. Sullivan v Sclanders (2000) 77 SASR 419; Lord Ashburton v Pape [1913] 2 Ch 469; Bunning v Cross (1978) 19 ALR 641; R v Ireland (1970) 126 CLR 321; Mazinski v Bakka (1979) 20 SASR 350; Pearce v Button (1985) 60 ALR 537; Southern Equities Corporation Ltd (in liq) & Ors v Bond & Ors [2001] SASC 70; Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72; Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130; Goddard v Nationwide Building Society [1986] 3 All ER 264; Re Optimisation Australia Pty Ltd [2016] NSWSC 1581; Lego Australia Pty Ltd v Paraggio (1993) 44 FCR 151, considered. -- 1 of 18 -- -- 2 of 18 -- PRECISE GLOBAL PTY LTD T/A STARKE TOOLING v MILDE & ANOR [2026] SASC 1 1 On 24 June 2025, the applicant filed an urgent ex parte application seeking search orders, injunctions and the issue of subpoenas. In support of this application, the applicant relied on an affidavit sworn by its sole director and secretary, Grant Tinney. Mr Tinney deposed that: • The respondent, Shaun Milde, commenced working for the applicant as a tooling and project manager in August 2021. • Mr Milde’s duties included managing suppliers in China. • In December 2022, Mr Milde was instrumental in retaining a supplier based in China (“the supplier”) for an important project; the supplier did not, according to Mr Tinney, meet its obligations, leading to loss to the applicant. The supplier has now commenced an action in the District Court against the applicant for breach of contract, which action the applicant is defending. • Mr Tinney began to suspect that Mr Milde was involved in a romantic relationship with the general manager of the supplier, Ms Qiuli Jia, following concerns raised by other employees of the applicant. One of the employees, Mr Fachin, is the brother of Mr Milde’s then-wife, Robyn Milde (“Mrs Milde”), who told Mr Tinney that his sister suspected that Mr Milde was having an affair with Ms Jia. • Sometime later, Mr Fachin told Mr Tinney that his sister believed that Mr Milde and Ms Jia were running a business which received secret commissions from suppliers who dealt with the applicant. • Following receipt of this information, Mr Tinney retained a private investigator to investigate Mr Milde’s relationship, both personal and business, with Ms Jia. The private investigator uncovered evidence which supported the contention that they were involved in a business relationship. Including a company of which Ms Jia is the current sole director (and of which Mr Milde is a former director), the investigator also discovered a company, Milde Pty Ltd, of which Mr Milde’s parents were the directors. Mr Milde’s parents are both in their 80s. Milde Pty Ltd was incorporated on 15 September 2020. • Mr Tinney then received further information from Mr Fachin about the business operated by Mr Milde with Ms Jia, which I understand he obtained from his sister. He asked Mr Fachin to arrange for him to speak to Mrs Milde. • Mrs Milde explained the basis of her suspicions to Mr Tinney, and subsequently provided him with the 2021 and 2022 financial statements of -- 3 of 18 -- [2026] SASC 1 Bochner AsJ 2 Milde Pty Ltd, and a screenshot of part of an email chain from Mr Milde to an accountant, Mr Kretschmer, in which Mr Milde appears to ask Mr Kretschmer to remove his name from all documents relating to Milde Pty Ltd. Later the same day, she also provided him with a document entitled, “Irrevocable Commission Agreement”, with the parties stated to be one of the applicant’s long-term suppliers and Milde Pty Ltd. This document appears to be signed by Mr Milde. She also provided an email from the accountant to Mrs Eileen Milde, Mr Milde’s mother, and copied to Mr Milde, which attached financial statements for Milde Pty Ltd. • Mrs Milde also provided Mr Tinney with a sales transaction report for Milde Pty Ltd for the period 1 July 2022 to 31 May 2023, which has led him to believe that the company operates a substantial business, involving suppliers of the applicant, as a result of which it is paid secret commissions for referring work to those suppliers, or recommending those suppliers to the applicant. In addition, Mr Tinney suspects that Mr Milde has, through Milde Pty Ltd, diverted work from the applicant for his own benefit. • If these suspicions proved to be correct, Mr Milde would be in breach of his employment contract with the applicant, as well as in breach of duties of good faith and fidelity. 2 On the basis of this material, the applicant sought search orders and subpoenas with respect to Mr Milde’s devices, and his parents and accountant. At this time, Mr Milde remained an employee of the applicant. 3 I heard the applicant’s application on 25 June 2025. At this time, Mr Evans appeared for the applicant. The application was dealt with ex parte. 4 In the course of his submissions, Mr Evans emphasised that the applicant did not have direct evidence to support its suspicion that Mr Milde had used the applicant’s confidential information or has been engaged in the alleged activities,1 or that he was involved in a personal relationship with Ms Jia.2 He also directly addressed the provenance of the documents provided by Mrs Milde. He said: We're not precisely sure how she obtained them and whether they were accessible by her pursuant to an agreement between her and her husband, or whether she has taken them without his knowledge, in effect, surreptitiously and provided them to us in relation to this matter.3 5 He then addressed two authorities, Sullivan v Sclanders (2000) 77 SASR 419 and Lord Ashburton v Pape [1913] 2 Ch 469. He went on to say: So that leads to this rule of procedure relevant to this case: we have these documents, we're unsure of the circumstances on which they were taken and provided to us. The possibility 1 Transcript of Proceedings (25 June 2025) (‘T’) 15.1-11. 2 T 19.29-30. 3 T 15.28-33. -- 4 of 18 -- [2026] SASC 1 Bochner AsJ 3 exists for Mr Milde to complain about that. They remain admissible in this action. Mr Milde might file a new action in equity to restrain the use of those documents, including to restrain my client in tendering those documents in this proceeding but, until he does, pursuant to the authority of Lord Ashburton v Pape, these documents are admissible because your Honour wouldn't be determining how they were obtained in this action. That's a separate action. But of course I need to disclose the possibility of that separate action in due course by Mr Milde. It will be a matter for him, if he chooses to bring that separate action and seek the restraint, to bring evidence about the confidential nature of the documents, where they were kept, what access Mrs Milde had to them, etc. That will also, of course, give rise to the possible defence of unclean hands because, as your Honour well knows, there can be no confidence in an inequity. That is a defence often raised in relation to restraint and use of documents, and of course this was the subject of great explication in the Roche matter, where a separate action was brought by the companies in that action seeking restraint of the documents and the defence was unclean hands and inequity, ultimately not decided in the action.4 6 I made orders for (amongst other things): • The delivery up by Mr Milde of: • Banking records relating to Milde Pty Ltd; • Written communications between Mr Milde and Sheridans Accountants and Financial Planners in relation to Milde Pty Ltd; • Written communications between Mr Milde and the directors of Milde Pty Ltd in relation to the business of Milde Pty Ltd; • The issue of subpoenas to: • The proper officer of Milde Pty Ltd; • Sheridans Accountants and Financial Planners; and • John Milde and Eileen Milde, the directors of Milde Pty Ltd; • The restraint of Mr Milde from using, disseminating or communicating the applicant’s confidential information; and • The restraint of Mr Milde from communicating with any employee, contractor or agent of any supplier of the applicant. 7 I also made an order permitting the search of Mr Milde’s residence, with permission to remove a range of items, including electronic devices. I will refer to these orders as the delivery up orders, the subpoena orders and the search orders. 4 T 17.18-18.8. -- 5 of 18 -- [2026] SASC 1 Bochner AsJ 4 8 The search order was executed on 26 June 2025, under the supervision of an independent lawyer, Mr Stewart-Rattray. Data was removed from a number of computers and Mr Stewart-Rattray took possession of a number of items, including a number of electronic devices. He also took photographs of a number of documents that he found within the premises. Mr Stewart-Rattray has provided an affidavit to the Court, FDN 43. 9 On 8 July 2025, Mr Milde provided a USB containing electronic copies of documents to the Court. He sought an order that the USB be kept confidential to allow the determination of an application to have the delivery up, subpoena and search orders set aside. He also sought an order that the subpoenas which were issued following the making of the subpoena orders be set aside. 10 On 11 July 2025, I joined Milde Pty Ltd as the second respondent to this action. 11 The respondents have now applied to have the delivery up, subpoena and search orders set aside. In support of this application, Mr Milde deposed that: • He and Mrs Milde are involved in Family Law proceedings which are acrimonious. • Prior to being served with the documents in this matter, he has never seen the sales transaction report for Milde Pty Ltd for the period 1 July 2022 to 31 May 2023; • He does not have access to the Xero files for Milde Pty Ltd and has never accessed the Xero system in relation to Milde Pty Ltd; • From time to time, Mr Kretschmer emailed him documents relating to Milde Pty Ltd, which he printed and gave to Eileen or John Milde; • He regularly updates his email login details and password, has changed them since his separation from Mrs Milde and has not shared his password or login details with her; • He has also not left any electronic device with his children or Mrs Milde or at the matrimonial home at the time of separation; • As a result, he does not know how any person could have lawfully gained access to his email account. 12 Eileen Milde has also filed an affidavit, in her capacity as one of the directors of Milde Pty Ltd. She deposed that: • She has never seen the sales transaction report before; -- 6 of 18 -- [2026] SASC 1 Bochner AsJ 5 • She did not supply it to Mrs Milde and nor did her husband, who has also not seen that document before; • She has never had access to Sheridans Accountants and Financial Planners’ online files relating to Milde Pty Ltd; • She has retained Sheridans Accountants and Financial Planners to do her and Milde Pty Ltd’s accounting for many years and Mr Kretschmer is her nephew; • She does not know how Mrs Milde obtained a copy of the Milde Pty Ltd financial statements. 13 Mr Kretschmer has also filed an affidavit. He deposed that: • Sheridans Accountants and Financial Planners uses the Xero online accounting software; • A review of the Xero files shows that the sales transaction report was not mailed from that system; • He has never sent any documents relating to Milde Pty Ltd to Mrs Milde. 14 I have now heard argument on the application to set aside the subpoenas. The application to set aside the search order and the delivery up orders will be dealt with once this application has been determined. 15 The applicant sought to rely on the affidavit filed by Mr Stewart-Rattray, for the purpose of determining whether the documents relied on by the applicant in support of the search, delivery up and subpoena orders were illegally obtained. I heard argument from the parties on this question. Out of an abundance of caution, I have determined not to have regard to this affidavit. The respondents’ submissions 16 The crux of the respondents’ submissions is that the subpoena should be set aside because they were obtained on the basis of a material non-disclosure during the ex parte hearing on 25 June 2025, and using unlawfully or improperly obtained material. 17 Both complaints related to the material obtained from Mrs Milde. The respondents say that the provenance of the documents supplied by Mrs Milde is unknown and they have not been authenticated. Despite this, the evidence proffered by the applicant on its ex parte application was largely based on this material. They note that Mrs Milde specifically asked that her name not be mentioned in this action, suggesting that the documents were obtained in an improper manner. 18 In particular, the respondents complain that: -- 7 of 18 -- [2026] SASC 1 Bochner AsJ 6 • Mr Tinney does not disclose whether there were any other communications with Mrs Milde, including further emails or conversations, nor does he state whether there was any additional substance to the communications that he had with her, save for that to which he has already deposed; • Mr Tinney does not say whether he asked or was advised (by Mrs Milde or another person) how Mrs Milde obtained the documents; • In light of the evidence given by Mr Kretschmer, Mr Milde and Eileen Milde, it must be accepted that Mrs Milde’s access to the documents, including Mr Milde’s email account, must have occurred without their knowledge or consent; • It follows from this that it must have been obtained unlawfully and improperly. 19 The respondents’ argument is based on an extension of the discretionary principle in the criminal law described in the case of Bunning v Cross.5 In Bunning v Cross, the High Court confirmed the existence of a discretion in criminal matters to exclude illegally or unfairly procured evidence. In that case, Stephen and Aickin JJ (with whom Barwick CJ agreed) referred to the case of R v Ireland6 and said: The Chief Justice there said (126 CLR at 335; [1970] ALR at 735): “Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.” That statement represents the law in Australia; it was concurred in by all other members of the Court in R v Ireland and has since been applied in a number of Australian cases.7 20 Mr Abbott SC, who appeared on behalf of the respondents, submitted that a similar discretion exists in civil matters. In this regard, he relied on cases such as Mazinski v Bakka,8 Pearce v Button,9 and Southern Equities Corporation Ltd (in liq) & Ors v Bond & Ors.10 21 In Mazinski v Bakka, King CJ said, in support of the development of a discretion in the civil jurisdiction similar to that set out in Bunning v Cross: 5 (1978) 19 ALR 641. 6 (1970) 126 CLR 321. 7 (1978) 19 ALR 641, 657. 8 (1979) 20 SASR 350. 9 (1985) 60 ALR 537. 10 [2001] SASC 70. -- 8 of 18 -- [2026] SASC 1 Bochner AsJ 7 The courts cannot appear to condone the obtaining of evidence by deliberately illegal conduct which constitutes a serious infringement of legal rights. Whether by adapting the concept of abuse of process or by some other means, it seems to me that the courts must seriously consider assuming a discretionary power in civil cases to reject evidence which a party has obtained by a serious and deliberate infringement of the legal rights of another.11 22 In Pearce v Button, Pincus J acknowledged that the authorities do not support the view that a similar discretion exists in the civil jurisdiction. He said, however, after describing examples of clearly illegal conduct to extract evidence: …despite the apparent lack of authority in England or Australia supporting its existence, there must surely be a discretion even in civil cases to exclude such evidence on policy grounds.12 23 Lander J expressed similar sentiments in Southern Equities Corporation Ltd (in liq) & Ors v Bond & Ors; indeed, he went further and said: In principle I can see no reason why the evidence which has been improperly or illegally obtained cannot in the exercise of the Court’s discretion be excluded in civil proceedings.13 24 He concluded: In my opinion, there is a residual discretion in the court to refuse to allow the tender of otherwise admissible evidence where that admissible evidence has been obtained by abuse of the court’s processes; Mazinski v Bakka (supra). Not all evidence improperly or illegally obtained will be rejected. Improperly or illegally obtained evidence is not by itself inadmissible; Cleland v R (1982) 151 CLR 1. If evidence has been obtained in that way and is sought to be tendered in civil proceedings the Court has a discretion, which will be exercised having regard to the underlying policies which call for the discretion’s existence, the circumstances in which the evidence was obtained and the potential prejudice to any party if the evidence is admitted or rejected. There are however not the same competing public policies operating. In civil proceedings there is the public policy that all admissible evidence ought to be before the Court to allow it to arrive at the correct result. On the other hand there are the public policies in protecting the individual from unlawful and improper conduct at the hands of another and in protecting the integrity of the Court’s procedures.14 25 Mr Abbott also relied on a number of more recent authorities, such as Georgiou Building Pty Ltd v Perrinepod Pty Ltd15 and Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd,16 where Allanson J said: …but the court may, in its discretion, exclude evidence obtained illegally, at least where there has been a serious and deliberate infringement of legal rights…17 11 (1979) 20 SASR 350, 361. 12 (1985) 60 ALR 537, 552. 13 [2001] SASC 70, [94]. 14 Ibid, [111] – [113]. 15 [2012] WASC 72. 16 [2017] WASC 130. 17 Ibid, [60]. -- 9 of 18 -- [2026] SASC 1 Bochner AsJ 8 26 In that case, the applicant sought to restrain the use of confidential information by the respondent, which it said had been obtained by a director of the respondent in breach of his duties as a director and employee of the applicant. 27 Mr Abbott submitted that these authorities lead to the conclusion that a similar discretion exists in civil matters as that provided by Bunning v Cross in the criminal jurisdiction. In determining whether the discretion should be exercised, the Court would take into consideration (amongst other things) the nature and seriousness of the allegations made against Mr Milde, the probative value of the evidence relied on, and whether the unlawfulness or impropriety was deliberate or as a result of mistaken belief that the obtaining and use of the evidence was lawful. 28 The respondents’ argument based on Bunning v Cross overlaps significantly with the other argument on which they rely: that the applicant failed to make full and frank disclosure of all relevant information that one would expect to be raised by the respondents at the time that the orders for issue of the subpoenas was made. 29 The respondents submit that the evidence on which they rely make it clear that Mrs Milde could not have obtained the evidence which she provided to Mr Tinney by any lawful means. The applicant has failed to explain how Mrs Milde obtained the documents, leading to the inference that they were obtained improperly or unlawfully. As Mrs Milde is clearly the applicant’s witness, it falls on the applicant to lead this evidence. Mr Tinney has remained silent on this question, despite his knowledge that Mr Milde and Mrs Milde were separated; this fact alone should have caused him to suspect that she obtained them improperly. This leads to the conclusion that he is aware of how she obtained them and has chosen not to provide that information to the Court, or he deliberately chose not to inquire. Mr Tinney must have either known, or been wilfully blind to, the fact that the documents had been improperly obtained. The mere fact that Mrs Milde asked Mr Tinney not to make her involvement known should have raised a suspicion about the documents’ provenance. 30 The duty of the applicant to provide to the Court all information which one would expect the respondent to make known to the Court on the application for the issue of the subpoenas encompassed the need for it to make proper inquiries as to the provenance of the documents. Failure to make such inquiries should, itself, have been disclosed to the Court. 31 The evidence of Mr Milde, Eileen Milde and Mr Kretschmer makes it clear that Mr Milde and Mrs Milde are involved in an acrimonious matrimonial dispute, and that none of them are aware of any legitimate means by which Mrs Milde obtained the documents. Indeed, the respondents go so far as to submit that there can be no suggestion that the documents were obtained accidentally, in unknowing contravention of the law, or otherwise lawfully by Mrs Milde. 32 The respondents say that the failure to disclose the manner in which the documents were obtained by Mrs Milde, or the lack of inquiry as to how those -- 10 of 18 -- [2026] SASC 1 Bochner AsJ 9 documents were obtained, combined with a failure by Mr Tinney to depose to the entirety of his conversations with Mrs Milde, gave the Court the false impression that the subpoena orders were obtained on the basis of lawfully obtained material. 33 In exercising the discretion to disallow the use of the material obtained from Mrs Milde, Mr Abbott submitted that the Court should have regard to the fact that Mr Tinney’s suspicion about the activities of Mr Milde largely arose because of the information obtained from Mrs Milde. This information was, in fact, central to the application for the issue of the subpoena orders, while unlikely, in itself, being of major significance in any trial between the parties. While it is unlikely that the subpoena orders would have been made in the absence of the documents from Mrs Milde, their exclusion will not preclude the applicant from pursuing its action against the respondents through the ordinary course of litigation. It is likely that the applicant will be able to obtain the same documents through lawful means, including discovery or subpoenas issued after the action has been properly commenced. 34 The respondents submit that, if the Court does not exclude the material obtained from Mrs Milde, resulting in the setting aside of the subpoena orders, it will be seen to acquiesce in illegal or improper conduct, which would bring the administration of justice into disrepute. To allow the evidence would be to condone a breach of Mr Milde’s right to privacy. The applicant’s submissions 35 The applicant’s primary position is that, even if the documents provided by Mrs Milde were improperly obtained, they remain admissible. The only consideration in this matter is whether they are relevant and probative. Mr Evans SC relied on Lord Ashburton v Pape, as he did at the ex parte hearing, and also on the case of Goddard v Nationwide Building Society,18 where May LJ said of Lord Ashburton v Pape: …it and Calcraft v Guest are good authority for the following proposition. If a litigant has in his possession copies of documents to which legal professional privilege attaches, he may nevertheless use such copies as secondary evidence in his litigation: however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies or to restrain him from disclosing or making any use of any information contained in them.19 36 He then referred to Re Optimisation Australia Pty Ltd,20 where Brereton J dealt with another instance of a copy of a document, the original of which was subject to legal professional privilege. Brereton J said: 18 [1986] 3 All ER 264. 19 Ibid, 270. 20 [2016] NSWSC 1581. -- 11 of 18 -- [2026] SASC 1 Bochner AsJ 10 At common law, there is little doubt that even had the documents been obtained illegally or improperly, they would be admissible secondary evidence, notwithstanding that the original communications were privileged.21 37 He noted that Mr Milde has not brought a separate action to prevent, on equitable grounds, the use of the documents obtained by Mrs Milde. The only question to be asked is whether the documents are relevant to the question of whether Mr Milde breached his duties to the applicant. As this question must be answered in the affirmative, the documents are admissible, regardless of whether Mrs Milde obtained them improperly. 38 Mr Evans submitted that the application of Bunning v Cross to civil proceedings remains unsettled. He noted that the cases relied on by the respondents either did not decide whether it extended to civil litigation or applied the principle in cases where documents were obtained by an authority with a law enforcement role or dealt with it obiter dicta. He suggested that if such a discretion applied in civil proceedings, it was limited to the situation where the evidence was procured through unlawful conduct by law enforcement authorities. The discretion did not exist to exclude evidence procured by private litigants in civil proceedings. 39 Mr Evans submitted that, even if such a discretion did exist, it should not be exercised in this case. There can be no finding that the documents were procured illegally or improperly by Mrs Milde. Mr Tinney has deposed fully to his various communications with Mrs Milde and made it clear at the hearing of the ex parte application that he did not know how she had come by them. 40 The seriousness of the conduct alleged against Mr Milde is low in the sense that this is not a criminal matter. The only consequences to Mr Milde should the applicant ultimately succeed in this litigation are monetary ones; this is not at one with the matters at stake in a criminal matter. Further, the only question in issue is whether the subpoenas should be set aside. The only prejudice that Mr Milde can demonstrate is that the documents in question would be available to the applicant now, when they will be available to it at trial in any event. 41 The applicant submitted that the documents have significant probative value. They directly link Mr Milde to Milde Pty Ltd and the operation of its business. Neither Mr Milde, Eileen Milde nor Mr Kretschmer has said that none of the documents are genuine. Indeed, none of them say anything about the authenticity or otherwise of the commission agreement. 42 Each of Mr Milde, Eileen Milde and Mr Kretschmer disavows any knowledge of how Mrs Milde obtained the documents; while they do not identify a legitimate source for them, they also do not identify an improper source. In fact, one of the directors of Milde Pty Ltd, Mr Milde’s father, has not given evidence at all, when he could have done so. 21 Ibid, [26]. -- 12 of 18 -- [2026] SASC 1 Bochner AsJ 11 43 The applicant submitted that, even if I were to exclude the evidence from Mrs Milde, it does not follow that the subpoenas should be set aside. In determining whether to allow a subpoena to be issued, the Court only has regard to whether there is reason to believe that the addressee might hold relevant documents and whether it is appropriate, in terms of caseflow management, to issue them. The other evidence relied on by the applicant at the ex parte hearing was sufficient to answer both of these questions in the affirmative. The applicant had instructed a private investigator to investigate Mr Milde’s affairs before Mr Tinney had any contact with Mrs Milde; the information which he elicited about Mr Milde’s relationship with Ms Jia was sufficient in itself to justify their issue on the basis that he was in breach of his duties to the applicant by operating a business in competition with or detrimental to the applicant. Consideration 44 In Bunning v Cross, Stephen and Aickin JJ said: What Ireland involves is no simple question of ensuring fairness to an accused but instead the wighting against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. Since it is with these matters of public policy that the discretionary process called for in Ireland is concerned it follows that it will have a more limited sphere of application than has that general discretion to which Lord Widgery refers, which applies in all criminal cases. It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon CJ put it in Wendo's case, unlawful or improper conduct). Moreover, it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called “real evidence”, such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on.22 45 This statement, in itself, appears to preclude the operation of the principles arising from it in an action such as the one before the Court. Certainly, at the time that Bunning v Cross was decided, the Court appeared to contemplate its application as extending no further than where “the evidence is the product of unfair or unlawful conduct on the part of the authorities” (emphasis added). Here, the evidence was procured by Mrs Milde, a private individual. 46 I do not consider that Mazinski v Bakka is sufficient authority to allow me to conclude that the principle has been extended to civil litigation. In that case, the evidence was obtained by police officers, purportedly in the exercise of their duties. King CJ specifically found that it was unnecessary to decide whether the discretion extended to civil proceedings; in any event, his consideration of this 22 (1978) 19 ALR 641, 659. -- 13 of 18 -- [2026] SASC 1 Bochner AsJ 12 question appeared to go no further than to address “deliberately illegal conduct which constitutes a serious infringement of legal rights”.23 47 Similarly, Pearce v Button involved consideration of the actions of customs officials purporting to carry out their official, law enforcement duties. Thus, I am not satisfied that it is broad enough to extend the principle to cover the acts of a private individual acting in a personal capacity. I am satisfied that the comments of Lander J, in Southern Equities Corporation Ltd (in liq) & Ors v Bond & Ors are obiter dicta. In any event, the passage from Lander J’s judgment that I have set out at paragraph 24 makes it clear that the manner in which the evidence was obtained should be weighed against the public policy that all admissible evidence should be before the Court. 48 With respect, I am of the view that Lander J was correct; however, I am unable to elevate those words into a binding principle that I must follow. It is clear that other judges also considered that he was not expressing binding principle. For example, in Georgiou Building Pty Ltd v Perrinepod Pty Ltd, Allanson J said: Improperly or illegally obtained evidence is admissible. But there is support for the proposition that there is a discretion to exclude evidence obtained illegally, even in a civil trial: Miller v Miller [1978] HCA 44; (1978) 141 CLR 269, 277; Pearce v Button (1985) 8 FCR 388, 402; Sheldon v Sun Alliance Ltd (1988) 50 SASR 236, 247; Southern Equities Corp Ltd (in liq) v Bond (No 2) [2001] SASC 70; (2001) 78 SASR 554 [109] [111]. It is not necessary, for present purposes, to decide whether that discretion is confined to evidence obtained by 'serious and deliberate infringements of the legal rights of another' (see Sheldon v Sun Alliance; The Duke Group Ltd (In liq) v Pilmer (1994) 63 SASR 364, 377 378), although the seriousness of the infringement is a matter relevant to the exercise of the discretion. The discretion will be exercised having regard to the all of the circumstances, including the underlying policies which call for the discretion's existence, the circumstances in which the evidence was obtained, and the potential prejudice to any party if the evidence is admitted or rejected. The first factor for consideration in the present case is the Surveillance Devices Act itself, and whether it imposes any limitation on the use of material obtained in breach of its provisions. Under s 9, a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation that came to that person's knowledge as a direct or indirect result of the use of a listening device. That prohibition, however, does not apply where the publication or communication is made in the course of any legal proceedings: s 9(2)(ix). Second, and quite independently of s 9, it would be open to Mr Perrine to give his account of what occurred at the meeting. No illegality taints that knowledge. In the circumstances, the availability of a recording goes to the best evidence that can be put before the court, and not to whether evidence of those facts can be given at all. Third, as it is stated in Cross on Evidence [27270]: 23 (1979) 20 SASR 350, 361. -- 14 of 18 -- [2026] SASC 1 Bochner AsJ 13 Illegalities by persons who have no role in enforcing the laws have been said not to attract the discretion to exclude. Cross refers to Barker v The Queen [1994] FCA 1577; (1994) 54 FCR 451, where the Full Court of the Federal Court found that no occasion arose for the exercise of the discretionary power to exclude from evidence a recording that was made by an accomplice, that was later made available to the police, but where the police and prosecution authorities had no hand in making it (478 479). Fourth, on the evidence before me, the recording was done in a meeting by a device which was placed on the table. Mr Perrine has referred to it in his affidavit, apparently unaware that he may have been in breach of the Act. While I accept that the other parties to the conversation were not aware and did not consent to it being recorded, the conduct of Mr Perrine was not such an abuse as to require the protection of the processes of the court by excluding evidence of that conversation from admission in these proceedings.24 49 That case involved the use of a transcript taken from a meeting which was recorded without the consent of all the participants. While Allanson J appears to question the extension of the discretion to civil matters, he considers the criteria which would govern its application and finds, in the circumstances of that case, that the impugned evidence should be admitted. He consolidates on this position in Phoenix Eagle, where he set aside subpoenas on the basis that the Court has a discretion to exclude illegally obtained evidence where it has been obtained on the basis of a “serious and deliberate infringement of legal rights.”25 50 I am unable to conclude, on the basis of the authorities to which I have been referred by the parties, that there exists a principle that, in civil litigation, there is a discretion to exclude evidence which has been improperly obtained by a private litigant. I am prepared to accept that there is such a principle in relation to evidence obtained by law enforcement or regulatory authorities. Whether the principle should extend to private individuals in civil litigation is a matter for the appeal courts. 51 On this basis, there is no reason to exclude the evidence provided by Mrs Milde. 52 Even if I am wrong in this conclusion, I consider that taking into account the discretionary matters set out by the various authorities, there is no basis for excluding the documents that she provided to Mr Tinney. 53 How she obtained the documents is simply unknown. While the evidence of Mr Milde, Eileen Milde and Mr Kretschmer establish that they did not provide them to her, they also do not establish that she obtained them through some unlawful means. In fact, their evidence almost seems to exclude this. Mr Milde’s evidence establishes that: 24 [2012] WASC 72 (S), [20] – [26]. 25 [2017] WASC 130, [60]. -- 15 of 18 -- [2026] SASC 1 Bochner AsJ 14 • He and Mrs Milde have not lived together since February 2021; • Until 2024, Mr Milde lived with his parents; • Neither he nor his parents gave the documents to Mrs Milde; • He regularly changes his email account password and login details, did so after his separation from Mrs Milde, and has not provided those details to her; • Nor has he left any of his devices accessible to her or their children since separation; • He does not know how she (or anyone else) could have gained access to his email account. 54 Neither Eileen Milde nor Mr Kretschmer has provided any documents to Mrs Milde. 55 I note that none of them has suggested that the documents are not genuine. In his oral submissions, Mr Abbott suggested that the signature on the commission agreement was markedly different to Mr Milde’s signature and therefore it could not be his document. Mr Milde himself, however, has said nothing about this in the affidavits that he has made; indeed, he does not refer to the commission agreement at all; as a result, I draw no conclusion from what amounts to no more than an observation on the part of Mr Abbott. 56 The effect of the respondents’ evidence is that, while none of those involved provided the documents to Mrs Milde, they also ruled out the likelihood that she obtained them by illegally accessing Mr Milde’s email account. He is clear that he regularly changes his passwords and has not left them or his devices where they could be accessed by her. He has not suggested that his account was hacked or that his home was broken into and documents were stolen. Thus, while the evidence does not support the conclusion that the documents were provided to Mrs Milde by any of Mr Milde, Eileen Milde or Mr Kretschmer, nor does it support the conclusion that she obtained them through some form of illegal or improper means. There is simply no evidence as to how she obtained them. I note, too, that one of the directors of Milde Pty Ltd has not provided any evidence on this application. 57 I consider that the probative value of the documents outweighs any prejudice to Mr Milde caused by their use. They clearly link Mr Milde to Milde Pty Ltd and raise questions about the activities of Milde Pty Ltd vis-à-vis the applicant. Mr Milde, on the other hand, will suffer no criminal sanction through the use of the documents. Given that the applicant already had the evidence of the private investigator to ground its suspicion that Mr Milde was involved in a business that was operating by virtue of a breach of his duties to the applicant, and in detriment -- 16 of 18 -- [2026] SASC 1 Bochner AsJ 15 to the applicant, I consider that it is appropriate to allow the use of the evidence in support of the application for the issue of the subpoenas. 58 I am not satisfied that there was any material non-disclosure by the applicant at the ex parte hearing. I am satisfied that Mr Tinney appropriately disclosed the content of his communications with Mrs Milde. I understood that Mr Tinney did not know how Mrs Milde obtained the documents but that he did not believe that they had been volunteered by Mr Milde. Mr Evans addressed appropriate authorities and considerations at that hearing, and I took those into account when deciding to allow the subpoenas to be issued. The evidence filed by the respondents on this question does not offer any surprises. Of course, my conclusion might be different if the respondent’s evidence was that the documents relied on were not genuine documents relating to either of the respondents, or if Mr Milde had said in his affidavit that the signature on the commission agreement was not his. 59 In making this finding, I rely on the words of Wilcox J in Lego Australia Pty Ltd v Paraggio26 where he said: If the courts are to impose a duty to inquire, how far must the inquiry extend? It is one thing to say, as in Columbia Pictures, that an applicant for an ex parte order should read his/her brief; it is another to say that the applicant is under an obligation to seek out all the information potentially relevant to the matter. Many ex parte applications are made under circumstances of extreme urgency. If the courts were to impose an obligation to seek out all relevant material, the result would be to deprive many applicants of the opportunity to obtain the desired order. … I think that the better view, on the authorities, is that failure by an applicant to disclose material information that is in fact unknown to him/her at the time of seeking a search warrant invalidates the warrant only in a case where that information was previously known to the applicant but forgotten, or where the applicant's ignorance results from his/her wilful blindness or other bad faith. None of these matters are suggested in this case.27 60 Likewise, I do not consider that the evidence in this matter suggests wilful blindness or bad faith on the part of Mr Tinney. 61 I draw no adverse inference from the fact that Mrs Milde did not give evidence about the source of the documents. At this stage of the proceedings, I do not think that Mrs Milde can be regarded as the witness of the applicant; in the absence of a wider discretion to exclude relevant evidence in civil matters based on the way it was obtained, I do not think there was a positive duty on either her or the applicant to provide evidence about the provenance of the documents. 62 The documents provided by Mrs Milde are clearly admissible. Even if there exists a discretion to exclude otherwise admissible documents because they have 26 (1993) 44 FCR 151. 27 Ibid, [80] – [85]. -- 17 of 18 -- [2026] SASC 1 Bochner AsJ 16 been obtained improperly or illegally, I do not consider that this is such a case. Mrs Milde is a private individual, not a public official carrying out official duties of a law enforcement or regulatory nature. The respondents have not proffered any positive evidence of illegality or impropriety, nor have they suggested that the documents are not genuine. Appropriate disclosure was made by the applicant at the time of the ex parte hearing. 63 As a result, the respondents’ application to have the subpoenas set aside must be dismissed. I will hear the parties on the question of costs. -- 18 of 18 --