By Jason Oliver, Partner, Madeleine Scott, Lawyer and Jarod Aitchison, Paralegal

In Tambanis v OrthoDx Holdings Ltd [2026] VSC 113, in a claim involving allegations of shareholder oppression, a question arose as to whether documents which are critical to an early resolution of a dispute may be required to be disclosed under section 26 of the Civil Procedure Act 2010 (Vic), if they are not otherwise relevant to an issue in dispute.

The Court also considered the question of whether facts and matters relevant to the discretion to grant relief for oppression under s.233 of the Corporations Act are confined to those which may establish the oppression itself, and not extraneous matters.

What you need to know:

1. A document will be a “critical document” if it is crucial to either party’s case and most likely to lead to resolution of the dispute, by early settlement or at trial.
2. The exercise of the Court’s discretion under s.233 of the Corporations Act might require consideration of matters external to the alleged oppressive conduct itself – thus potentially broadening the scope of documents which are “critical” to the resolution of an oppression claim.
3. The Court, in obiter, considered it is possible that there may be cases where documents sought are critical to the resolution of a dispute even without satisfying the test of relevance in a discovery sense.

Factual background

The plaintiff was a shareholder, former director and former COO, of the first defendant.  The first defendant was a start-up company founded to commercialise a medical invention.

The company and its shareholders, including the plaintiff, were parties to a Shareholders Deed.  Clause 7.2 of the Shareholders Deed required any shareholder who wished to dispose of their shares to give notice to the company and other shareholders of the terms of the proposed disposal and the identity, background and ultimate ownership of the proposed buyer.  Clauses 7.3 to 7.8 gave existing shareholders a right of first refusal to purchase the shares proposed to be sold, in priority to the proposed buyer.  Clause 10.1 prohibited a person from being registered as a shareholder unless they were acceptable to and approved by the Board in its absolute discretion.

In early 2024, the then directors (including the plaintiff) passed a Special Resolution.  The Special Resolution stated that, to incentivise those directors to make key contributions to the company, it was in the best interests of the company to allow them to dispose of their shares, without the need to comply with clause 7 of the Shareholders Deed.

In late 2024, the plaintiff, after he was made redundant, notified the directors that he wanted to sell 250,000 of his shares to someone he claimed was a “reputable purchaser”, and sought confirmation that the company would register the share transfer.

The company then asked the plaintiff to provide information about the proposed buyer, sale price and terms of the proposed sale.  The plaintiff refused to disclose that information.

In November 2025, the plaintiff commenced the proceedings alleging, among other things, that the defendants’ refusal to abide by the Special Resolution and register and facilitate the proposed share transfer was oppressive.  The plaintiff sought orders under s.233 of the Corporations Act that the company and its directors take steps to register and facilitate the proposed transfer, alternatively that the second defendant purchase 250,000 of his shares.

In February 2026, the defendants applied for orders that the plaintiff produce under s.26 of the CPA all documents disclosing the identity, background and ultimate ownership of the proposed buyer and the price and other terms of the proposed sale.

Issues arising on the Summons

The central question which arose on the defendants’ application was whether the documents sought were critical to the resolution of the dispute, within the meaning of s.26 of the CPA.

The Court applied the test of criticality laid down by the Victorian Court of Appeal in Mullett v Nixon [2022] VSCA 174, [85]-[87], in which it was stated (emphasis added):

“…the critical documents which are required to be disclosed under s 26 of the [CPA] are likely to be a subset of those required to be discovered by a party under r 29.01.1(3) of the [Supreme Court (General Civil Procedure) Rules 2015 (Vic)] (those discoverable documents being documents that are relied upon or which affect or support a party’s case).  The ‘critical’ documents are those which are crucial to each party’s case and which, on this basis, if produced to the opposite party, are the most likely to lead to a resolution of the dispute either by early settlement or at trial.”

The defendants advanced three grounds for contending that the documents sought were critical to the resolution of the dispute:

• first, because information as to the identity, background and ultimate ownership of the proposed buyer, and the price and terms of the proposed sale, was relevant to determining whether the Board ought to have approved the share transfer under clause 10.1, and therefore whether there had been oppression;
• secondly, because, if oppression was established, the information would be relevant to the Court’s discretion as to what relief to grant under s.233 of the Corporations Act; and
• thirdly, because the documents sought are (or ought reasonably to be considered) critical to the resolution of the dispute because they are required “practically” as a step towards negotiating a resolution, including at a mediation which had been scheduled.

The plaintiff contended the documents were neither critical nor relevant to the issues in dispute, because the question of oppression depended on whether the company was bound by the Special Resolution to facilitate the proposed share transfer, and the documents were not relevant to that issue.  Further, the plaintiff contended that the documents were not critical to the Court’s discretion under s.233 of the Corporations Act, because (he submitted) the facts and matters relevant to the discretion to grant relief were confined to those that established the oppression itself and not extraneous matters.

Were the documents critical to the resolution of the dispute at trial?

Yes.  While the Court considered the documents were not relevant to the question of oppression, the Court held that the documents were critical to the question of what relief ought to be granted in the exercise of its discretion under s.233 of the Corporations Act.

As to the question of oppression, the Court considered the documents sought had no bearing on the question of how the Special Resolution operates, nor whether the Board’s refusal or failure to abide by the Special Resolution was oppressive, since the Board’s conduct would be judged by reference to the facts known to it – which include the limited information having been provided concerning the identity of the buyer.

However, the Court rejected the plaintiff’s arguments that the Court would be prevented from considering the documents in the exercise of its discretion under s.233, if oppression was established.  While the facts and matters that establish oppression are likely to be centrally relevant in the exercise of the Court’s discretion, a remedy that is calculated to alleviate oppressive conduct might require consideration of other matters.  For example, the buyer’s identity, background and ownership could be relevant, as they may affect the relief granted – such as where the buyer has interests in a competitor.

Were the documents critical to a negotiated resolution of the dispute?

Given its conclusions above, the Court said that it was unnecessary to reach a concluded view on the question of criticality on the defendants’ third ground.

However, the Court observed that it is possible that there are cases where documents sought are (or ought reasonably be considered) critical to the resolution of a dispute, even without satisfying the test of relevance in the discovery sense.  That possibility had been left open by the Full Court in Mullett v Nixon, by use of the word “likely” in the above passage.

The Court added that, even if the documents were relevant but not critical (in a discovery sense), it would have ordered discovery under s. 55 of the CPA, as limited discovery before mediation was expedient and would facilitate settlement consistent with the CPA.