BRACKENRIDGE -v- A.T. BRINE & SONS PTY LTD [2026] WASC 338

[2026] WASC 338 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : BRACKENRIDGE -v- A.T. BRINE & SONS PTY LTD [2026] WASC 338 CORAM : LUNDBERG J HEARD : 6 AUGUST 2026 DELIVERED : 17 AUGUST 2026 FILE NO/S : ARB 4 of 2026 BETWEEN : PETER STUART BRACKENRIDGE First Plaintiff CATHERINE SIOBHAN DRISCOLL Second Plaintiff AND A.T. BRINE & SONS PTY LTD Defendant Catchwords: Arbitration - Application to set aside subpoena to produce documents - Subpoena recipient contends that no legitimate forensic purpose and scope of subpoena oppressive - Turns on own facts Legislation: Commercial Arbitration Act 2012 (WA), s 27A Rules of the Supreme Court 1971 (WA), O 36B r 8A Supreme Court (Arbitration) Rules 2016 (WA), rule 17 -- 1 of 15 -- [2026] WASC 338 Page 2 Result: Application to set aside subpoena dismissed. Category: B Representation: Counsel: First Plaintiff : J B Lock Second Plaintiff : J B Lock Defendant : No Appearance Non-party : H M Healy Solicitors: First Plaintiff : Bennett Second Plaintiff : Bennett Defendant : No Appearance Non-party : Hotchkin Hanly Case(s) referred to in decision(s): CITIC Ltd v Mineralogy [No 4] [2020] WASC 439 Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10 Goldie v Getley [No 2] [2010] WASC 66 Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287 Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415 KNT Contracting Pty Ltd v Yeeda Pastoral Company [2023] WASC 435 Palmer v CITIC Ltd [No 6] [2023] WASC 188 Rankilor v City of South Perth [2016] WASCA 28 we-do-IT Pty Ltd v we-do-IT Inc [2023] VSC 611 -- 2 of 15 -- [2026] WASC 338 Page 3 Table of Contents Introduction ................................................................................................................................ 4 Factual and procedural background ............................................................................................ 4 The categories identified in the Subpoena .................................................................................. 6 Blane's application to set aside the Subpoena ............................................................................ 7 Relevant principles ..................................................................................................................... 9 Disposition ................................................................................................................................ 10 The relevance objections ...................................................................................................... 10 The discovery objection........................................................................................................ 12 The oppression objection ...................................................................................................... 13 Conclusion and orders .............................................................................................................. 15 -- 3 of 15 -- [2026] WASC 338 LUNDBERG J Page 4 LUNDBERG J: Introduction 1 The plaintiffs to this proceeding filed an originating summons on 19 June 2026, seeking leave to issue a Subpoena to Mr Blane Brackenridge, for the production of several categories of documents. The Subpoena was issued by the court on 30 June 2026, on an ex parte basis. 2 These reasons relate to the application brought by Blane to set aside the Subpoena, or to limit its scope, which application was initiated by letter to the Principal Registrar dated 6 July 2026 and was heard by the court on 6 August 2026. With the leave of the court, the parties filed post-hearing submissions on 10 and 13 August 2026. 3 For the following reasons, the application to set aside the Subpoena will be dismissed. Factual and procedural background 4 The Subpoena was sought by the plaintiffs for the purposes of a pending Arbitration before Mr Scott Ellis (Arbitrator), between the plaintiff homeowners and the defendant builder. Blane is not a party to that arbitration. The defendant builder did not oppose the request for the Subpoena, and has not been heard on this application. 5 The Arbitration was commenced by the defendant builder on 25 November 2025, following which a notice of dispute was issued by the plaintiff homeowners on 6 December 2025. The two arbitrations were then consolidated by the appointed Arbitrator by consent directions made on 5 February 2026. Within those consent directions, the Arbitrator ordered that: (a) subject to any further direction, there shall be no discovery in the arbitration (order 6); and (b) any party may apply to the arbitrator for orders for the production of a specific documents or categories of documents where such documents are relevant to the issues in dispute and material to the outcome of the arbitration (order 7). 6 Subsequent to the making of these orders, the Subpoena was sought by the plaintiffs pursuant to s 27A of the Commercial -- 4 of 15 -- [2026] WASC 338 LUNDBERG J Page 5 Arbitration Act 2012 (WA) (CAA) and rule 17 of the Supreme Court (Arbitration) Rules 2016 (WA) (Arbitration Rules). The application was supported by a detailed affidavit affirmed by the plaintiffs' solicitor, Mr Martin Cassidy, dated 19 June 2026 (Cassidy Affidavit). 7 Section 27 of the CAA relevantly provides that: 27A. Parties may obtain subpoenas (1) The Court may, on the application of any party, and subject to and in accordance with rules of court, issue a subpoena requiring a person — (a) to attend for examination before the arbitral tribunal; or (b) to produce to the arbitral tribunal the documents specified in the subpoena; or (c) to do both of those things. (2) A party may only make an application to the Court under subsection (1) with the permission of the arbitral tribunal. 8 The Cassidy Affidavit deposed to the matters required by the foregoing statutory provisions, including the fact that the permission of the appointed Arbitrator had been obtained (at [14]-[17]). The statutory requirements are set out, and explained, in KNT Contracting Pty Ltd v Yeeda Pastoral Company.1 9 The Arbitration proceedings concern claims (and counterclaims) made by both the plaintiff homeowners and by the defendant builder arising under a lump sum building contract dated 30 December 2020 (Building Contract). Pursuant to the Building Contract, the defendant builder undertook the construction of a residential dwelling in Cottesloe. 10 Blane had been appointed by the plaintiff homeowners to provide architectural services for the construction project, in respect of which A.T. Brine & Sons Pty Ltd was the named builder. 11 Blane is the brother of the first plaintiff, Mr Peter Brackenridge, and the brother in law of the second plaintiff, Ms Catherine Driscoll, being the homeowners. There is a degree of informality in the arrangements between Blane and the plaintiff homeowners, owing perhaps to this familial relationship. 1 KNT Contracting Pty Ltd v Yeeda Pastoral Company [2023] WASC 435 [8] - [9]. -- 5 of 15 -- [2026] WASC 338 LUNDBERG J Page 6 12 Nonetheless, it is clear that Blane was engaged as an authorised agent of the plaintiffs under the Building Contract, he provided architectural services for the project, and he charged fees for those services, for which he was paid by the plaintiffs. 13 In an email sent to the plaintiffs by Blane in April 2020, he identified the nature of the project as 'complex', within the classifications used by the Architects Institute. Blane also identified several stages for the project, namely a council planning approval stage, a contract documentation stage, and a contract administration stage. The fees payable to him by the plaintiffs were to be payable at these various stages, in varying amounts. 14 The Building Contract, which was witnessed by Blane, expressly identifies Blane in special condition 15 as the 'owner's agent'. The special condition states: SC15 Appointment and Authority of Owner's Agent Further to Clause 2 of the Schedule of Particulars the Owner (and where there are more than one then each of them) hereby appoints: Mr Blane Brackenridge … As the authorised agent of the Owner to make and sign all variations to the Contract Documents and the Works and the Owner shall be bound by such variations. Copies of all notices under SC6 of the contract shall be forwarded to the Owner's Agent in accordance with this Clause. The categories identified in the Subpoena 15 The Subpoena issued to Blane, which he wishes to have set aside, requires that he produce documents in the following eight categories: 1. The complete agreement governing the engagement of Mr Blane Brackenridge (and/or Blane Brackenridge Architecture) by the Respondents for the provision of architectural services in connection with the project at [address redacted] (Project), including all schedules, annexures, amendments and variations thereto. 2. All architectural drawings, plans and specifications prepared by or on behalf of Mr Blane Brackenridge, including all revisions and issues thereof. 3. All site notes, site diaries, inspection notes, file notes, meeting notes, text messages, other written communications and -- 6 of 15 -- [2026] WASC 338 LUNDBERG J Page 7 memoranda prepared by or held by Mr Blane Brackenridge relating to the Project. 4. All correspondence (including emails, text messages and other written communications) between Mr Blane Brackenridge and A.T. Brine & Sons Pty Ltd (ATBC), (including Mr Christopher Brine), ATBC's site supervisors (including Mr Daniel Pearce and Mr Sean de Vasconcellos), subcontractors and/or their agents relating to the Project. 5. All correspondence (including emails, text messages and other written communications) between Mr Blane Brackenridge and the Respondents relating to the Project. 6. All variation requests, variation approvals, and any documents signed by Mr Blane Brackenridge in his capacity as agent of the Respondents in connection with the Project. 7. All records of instructions given by Mr Blane Brackenridge to ATBC or its agents in relation to the Project, whether in writing or as recorded in any contemporaneous notes. 8. All documents relating to extensions of time granted by Mr Blane Brackenridge under the building contract relating to the Project. 16 Category 1 has effectively been the subject of compliance. The dispute between the plaintiffs and Blane focuses on categories 2 to 8. Blane's application to set aside the Subpoena 17 Blane brings his application pursuant to O 36B r 8A of the Rules of the Supreme Court 1971 (WA) (RSC), which applies by virtue of rule 17(8) of the Arbitration Rules. Rule 8A provides as follows: 8A. Setting aside subpoena to produce and directions as to things to be produced (1) This rule applies if a subpoena to produce has been issued in a proceeding. (2) On a request by the addressee, a party or any other person with a sufficient interest, the Court may, by order — (a) set aside the subpoena or part of it; or (b) make or vary directions in relation to removing from and returning to the Court, and the inspection, copying and disposal, of any document or thing that has been or is to be produced under it; or -- 7 of 15 -- [2026] WASC 338 LUNDBERG J Page 8 (c) grant other relief in respect of it. (3) A request under this rule may be made before the date and time for production specified in the subpoena. (4) Subrule (3) does not limit when a request under this rule may be made. (5) A request under this rule must be made in accordance with rule 8B. (6) While a request made under this rule is pending, the Registry must not permit any, or any further inspection, copying, removal or disposal of any document or thing to which the request relates. 18 The court may also exercise its inherent jurisdiction to set aside a subpoena. It may do so where the subpoena does not serve a legitimate forensic purpose, where it is oppressive, or where it amounts to an abuse of process: Jensen v Nationwide News Pty Ltd [No 6].2 19 Blane submits that categories 2 to 8 seek documents which are not relevant to the Arbitration and for which there is no legitimate forensic purpose for the documents to be produced. Further, Blane submits these categories of the Subpoena are oppressively wide. In the letter to the Principal Registrar from Blane's solicitors, it was asserted that the Subpoena was unreasonably burdensome on him, oppressive and an abuse of process insofar as the categories were tantamount to an order for discovery against him. 20 In support of the application to set aside the Subpoena, Blane relies on the affidavit he affirmed on 5 August 2026 (Brackenridge Affidavit), and an outline of submissions dated 10 August 2026, which was filed with the leave of the court following the hearing on 6 August 2026 (AS). 21 In opposition, the plaintiffs filed an outline of submissions on 13 August 2026 (PS), again with leave of the court. The plaintiffs also produced copies of the pleadings filed in the arbitration, which I have reviewed. 2 Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415 [26] (Quinlan CJ). -- 8 of 15 -- [2026] WASC 338 LUNDBERG J Page 9 Relevant principles 22 Before I address the bases on which Blane seeks to set aside the Subpoena, I should briefly identify the relevant principles which must be applied. These principles are drawn from several authorities.3 23 First, the court is empowered to set aside a subpoena on the basis that it would be an abuse of the process of the court. The authorities establish that this conclusion will be warranted in a variety of circumstances. 24 Second, examples of such circumstances include where the subpoena does not have a legitimate forensic purpose, where the documents sought in the subpoena have no apparent relevance to the issues in dispute, where the subpoena may be characterised as a 'fishing' exercise (on the basis that it does not seek to obtain evidence to support a party's case, but rather to assist that party to discover whether he or she has a case at all), where the subpoena has been used for the purpose of obtaining discovery against a third party, and where it would be oppressive to require a party to comply with the subpoena. To be clear, the foregoing are not exhaustive categories. The power of the court to control and supervise its process to prevent injustice is not restricted to defined and closed categories. 25 Third, in determining whether a subpoena has a legitimate forensic purpose, the court will consider whether there is a reasonable possibility or 'it is on the cards' that the documents sought in the subpoena will materially assist the claim or the defence of the proceedings or are relevant to an issue in the proceedings. A document may provide material assistance even if it is not admissible in the proceedings. In determining whether the documents have apparent relevance to the issues in the proceedings, the court must consider the issues that potentially arise on the pleadings. 26 Fourth, in general terms, it may be accepted that there are circumstances in which it is not legitimate to use the subpoena process so as to enable the processes for discovery to be bypassed, including the pre-action discovery regime. However, the fact that documents which are the subject of a subpoena may also be sought in discovery does not, 3 Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 (Pritchard J); Rankilor v City of South Perth [2016] WASCA 28 (Buss JA (as his Honour then was), Newnes and Murphy JJA); Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287 (Hill J); CITIC Ltd v Mineralogy [No 4] [2020] WASC 439 (Kenneth Martin J); Kestell v Davey [2022] WASC 32 (Smith J); Palmer v CITIC Ltd [No 6] [2023] WASC 188 (Lundberg J). -- 9 of 15 -- [2026] WASC 338 LUNDBERG J Page 10 of itself, mean that the subpoena is an abuse of process. It is necessary for the party seeking to set aside a subpoena on this basis to point to some additional vice in the manner in which the subpoena is being deployed. 27 Fifth, a subpoena may be oppressive if the terms of the subpoena are so wide that it imposes on a stranger an obligation to collect and produce documents, many of which can have no relevance to the litigation. That said, the fact that compliance with subpoenas would be burdensome for a stranger to the litigation is not sufficient to show abuse of process. Rather, it is a burden so unreasonable as to show oppression which is required. 28 Sixth, whether to set aside a subpoena on the basis that it is oppressive is to be determined by reference to the breadth of the subpoena, the definition of documents involved, and the type and degree of burden placed on the addressee. Oppression may be made out where a subpoena requires a recipient to undertake a search of an excessively large number of documents. Disposition The relevance objections 29 I will now turn to the relevance objections. To put the categories in the Subpoena in some context, a summary of the claims in the arbitration is warranted, which I have drawn from the pleadings, the Cassidy Affidavit and the parties' submissions. I have kept this summary as short as the circumstances will allow, to avoid needless descriptions of matters which are the subject of the private arbitration. 30 It is evident that the defendant builder is claiming amounts said to be owing under the Building Contract in respect of provisional sums, prime cost items, variations and other costs. 31 The plaintiff homeowners dispute this entitlement to additional payment and advance a counterclaim for breach of contract, defective workmanship, non-compliance with the National Construction Code, delays and damages. The plaintiffs' solicitor deposes that a broad range of matters is in issue in the Arbitration including 'disputes concerning the scope of works, design compliance, the role and authority of Blane in his role as the appointed architect, variations, extensions of time, practical completion, defects, and the final account'. This characterisation accords with my own review of the pleadings. -- 10 of 15 -- [2026] WASC 338 LUNDBERG J Page 11 32 As earlier noted, Blane had been appointed by the plaintiff homeowners to provide architectural services for the project, including the preparation of architectural and structural engineering drawings, specifications, standards and supervision. This is evident from the email passing between him and the plaintiffs, and his identification within the Building Contract. It appears to be common ground that no additional written contract was brought into existence between Blane and the plaintiffs. 33 On the pleadings in the Arbitration, the scope of Blane's authority, the existence and content of instructions to him, and whether variations were validly authorised are matters in issue in the Arbitration. The pleadings refer to the instructions to the architect, emails, oral discussions, site instructions, design revisions and approvals. In connection with payment claims, the defendant builder pleads the existence of structural changes and revised design scope following architectural or engineering material, architect-selected or architect- directed design details, and final architectural design requirements. 34 The architectural drawings, plans, specifications, revisions and issues are a technical reference point for the plaintiffs' counterclaims in the Arbitration (as to alleged defective work). 35 The plaintiffs' experts in the Arbitration have sought access to the architectural drawings, plans, specifications, and revisions for the purposes of preparing their reports. 36 The defendant builder has pleaded that extensions of time totalling some 427 working days were granted, and the validity of those extensions of time are in issue. The plaintiffs plead there was no valid notice for the extensions, and no use of the contractual extension mechanism. The plaintiffs' case is therefore that there is no entitlement to any extensions of time under the Building Contract. 37 In examining the relevance objections, I accept that a degree of deference is to be given by the court to the assessment made by the Arbitrator that the documents which are sought are relevant to the hearing and determination of the issues in the Arbitration.4 38 Turning then to the categories, I note that the plaintiffs have agreed to limit category 2 to drawings, plans, and specifications relevant to their expert hydrological engineering evidence, which 4 we-do-IT Pty Ltd v we-do-IT Inc [2023] VSC 611 [16] (Croft J). -- 11 of 15 -- [2026] WASC 338 LUNDBERG J Page 12 appears to be a reasonable limitation. So limited, I consider that the architectural drawings, plans and specifications prepared by or on behalf of Blane are of apparent relevance to the issues in the Arbitration. As to categories 3 to 8, they all seek documents which are apparently relevant to the matters in issue in the Arbitration. This is borne out by the examination of the parties' pleaded cases as summarised at [30] to [36] above. 39 The Arbitration will require an examination of the oral and written instructions given to Blane by the plaintiffs, his records of those instructions, any extensions of time granted (or not granted) by Blane during the course of the project, and the course of the drawings and revisions during the project. Correspondence and communications about these matters will be relevant. Blane's role as the owner's agent under the Building Contract emphasise the potential relevance of all of these matters. 40 In my view, having regard to the submissions advanced by both parties and the pleadings produced by the plaintiffs, I consider the submissions advanced by Blane as to the scope of the Arbitration posit an unduly narrow conception as to apparent relevance which is simply not supported by the pleadings. I would therefore reject the relevance objections advanced by the subpoena recipient. 41 To be clear, it does not follow from the fact the plaintiffs have pleaded defences and responses to the defendant builder's claims, including rejections of the extensions of time claims, that no documents touching this subject are relevant. The question whether extensions of time were sought or granted, and their validity, are in issue in the arbitral proceedings. The discovery objection 42 Blane has submitted that the parties themselves are likely to have many of the documents. The plaintiffs correctly note that this does not defeat the legitimate forensic purpose of the Subpoena and the mere fact that some of documents may be caught by a discovery process is not conclusive as to whether a subpoena satisfies the description of an abuse of process. 43 Something more than this is required. I do not accept that the potential for overlap in this case between potential discovery within the Arbitration and the scope of the Subpoena is sufficient to characterise the Subpoena scope as an abuse. There are at least three reasons for -- 12 of 15 -- [2026] WASC 338 LUNDBERG J Page 13 this conclusion. First, the parties to the Arbitration consented to directions that there would be no general discovery process in the Arbitration, allowing instead for a specific discovery process where appropriate. Second, the defendant builder did not oppose the application for the Subpoena, and the Arbitrator granted permission for it to be sought, indicating that the pursuit of this particular subpoena is not inimical to the arbitral process nor an attempt to circumvent that process. Third, the production of documents by Blane, being documents in his possession, may be probative of the existence, content and context of the matters in those documents. The oppression objection 44 The contention that the task of compliance with this Subpoena would be oppressive is not supported by cogent evidence, and remains fundamentally a matter of conjecture, as has been submitted by the plaintiffs. 45 Blane has sworn an affidavit which deposes that the compliance task would be 'significant and onerous', given the project ran for some four years, he worked on a number of other projects involving the defendant builder in this period, and he did not keep a separate electronic folder for each project. Blane also notes that his email account and phone are used for professional and personal purposes, and he estimates that: …over the course of the project, the combined number of documents that came into existence that might fall within the scope of paragraphs 2 to 8 of the subpoena would be in the thousands. 46 Blane also remains concerned that the plaintiff homeowners consider that he has in some way contributed to, or is liable to them for, matters in respect of which they are currently in dispute with the defendant builder. In this regard, he refers to a statement in a letter from the plaintiffs' solicitors to him, sent in November 2025, in which those solicitors requested documents so they could assess the defendant's claims and provide advice to the plaintiffs, including with respect to Blane's potential liability to them. Blane deposes that, on the instructions of his professional indemnity insurer, he did not respond to this letter or any other letters received from the plaintiffs' solicitors seeking information from him. 47 The contention that the Subpoena is oppressive for any of the above reasons should be rejected. In my respectful view, a subpoena -- 13 of 15 -- [2026] WASC 338 LUNDBERG J Page 14 recipient is expected to have undertaken some good faith efforts to assess the compliance task, so as to then provide the court with a more granular assessment of the work and cost involved. Blane's evidentiary material is sparse in this regard, and little more than conjecture. It does not reveal that work was undertaken to properly assess the compliance task and provide the court with a detailed explanation of the efforts which would be involved. 48 Indeed, on the face of the affidavit material, it is difficult to accept that the task of examining one person's email folder, and their phone memory (to capture text messages), in respect of a particular project, would be overly onerous (even for a four year period). An appropriate use of search terms would undoubtedly allow the task to be narrowed down and simplified. It is not evident that this has been done. 49 Further, the categories within the Subpoena have not been drafted so as to require Blane to make a judgment call as to whether documents are caught by its terms, nor align his compliance task with that of a party giving discovery, particularly when Blane's role in the project is considered (being the architect and the owner's appointed agent).5 The categories identify particular documents or class of documents with the necessary precision, in my view. The use of the inclusive phrases such as 'all records' and 'all correspondence', whilst broad, must be seen in the context of the descriptions which follow in each category, which limit the scope of the category. 50 As for the prospect of personal liability, there may be cases where the use of a subpoena to pursue documents to mount a claim against the subpoena recipient is tantamount to an abuse of process. The fact the plaintiffs did raise this spectre at an earlier point in time no doubt gave Blane some cause for concern. But this must be weighed against the evident relevance of the material which has been sought by the Subpoena for the legitimate purpose of it being used in the Arbitration. The risk the materials might be improperly used by the plaintiffs (which is the contention advanced on Blane's behalf) is further mitigated by the so-called implied undertaking which will apply to the documents upon production by Blane.6 5 In the sense explained by Simmonds J in Goldie v Getley [No 2] [2010] WASC 66 [59] and [62]. 6 Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10. -- 14 of 15 -- [2026] WASC 338 LUNDBERG J Page 15 Conclusion and orders 51 For the foregoing reasons, I will dismiss the application to set aside the Subpoena, noting there has been compliance with category 1 and further noting the agreed limitation to category 2. 52 The provisional view I take is that Blane should pay the costs of the application on a party/party basis, but I will hear from the parties in due course in this regard. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 17 AUGUST 2026 -- 15 of 15 --