AMD Far East v Doan - [2004] NSWSC 78

CITATION: AMD Far East and Ors v Doan and Anor [2004] NSWSC 78

HEARING DATE(S): 11/02/2004

JUDGMENT DATE:
9 March 2004

JUDGMENT OF: Shaw J at 1

DECISION: 1) Appeal dismissed; 2) Plaintiffs to pay the defendant's costs of the application

CATCHWORDS: appeal from Magistrate's decision - setting aside subpoena - legitimate forensic purpose

LEGISLATION CITED: Crimes Act 1900 (NSW), s176A
Crimes (Local Courts Appeal and Review) Act 2001, s53

CASES CITED: Alister & Ors v The Queen (1983) 154 CLR 404
Commissioner of Police v Tuxford [2002] NSWCA 139
Fitzgerald v Magistrates' Court of Victoria and Ors [2000] VSC 348; 34 MVR 448
Frugtniet v Magistrate Garbutt & Anor [2003] NSWSC 770
Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498
Roads and Traffic Authority of NSW v Connolly [2003] NSWSC 327
R v Saleam (1989) 16 NSWLR 14
Scott v Jones & Anor [2003] NSWSC 169
Waind v Hill & National Employers Mutual General Association Limited [1978] 1 NSWLR 372

PARTIES :
AMD Far East Ltd - Plaintiff
John Stanley Robinson - Plaintiff
Steven Fraser - Plaintiff
Nicola Bond - Plaintiff
Ngat Doan - First Defendant
Director of Public Prosecutions - Second Defendant

FILE NUMBER(S): SC 10308/2004

COUNSEL: P Singleton (Plaintiffs)
DE Grieve with A. Radojev (First Defendant)

SOLICITORS: Baker & McKenzie (Plaintiffs)
Voy Ilic (First Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : Magistrate Longley

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

9 March 2004
10308 of 2004

AMD Far East Ltd (First Plaintiff)
John Stanley Robinson (Second Plaintiff)

Steven Fraser (Third Plaintiff)
Nicola Bond (Fourth Plaintiff)

Ngat Doan & Anor (First Defendant)

Director of Public Prosecutions (Second Defendant)

JUDGMENT

1 Shaw J: In this matter a summons filed on 6 February 2004 seeks, in summary, orders setting aside orders of the Local Court which dismissed the application made by AMD Far East Ltd (the first plaintiff) for an order setting aside the subpoena served on that corporation in proceedings which may be described as the Director of Public Prosecutions v Ngat Doan.

2 Other related orders were sought to set aside orders made by Magistrate Longley to grant subpoenas directed towards John Stanley Robinson (the second plaintiff in these proceedings), directed to Steven Fraser (seeking to set aside subpoenas served upon him) and, similarly, orders seeking to set aside the orders made in the Local Court in relation to a subpoena served on Nicola Bond in the same proceedings.

3 Mr Singleton of counsel for the plaintiffs said that there was a misapplication of the relevant test applicable to determining whether or not a subpoena has a legitimate forensic purpose. He argued that there was no evidence supportive of that requisite purpose, that the subpoenas were oppressive, and that there was an error of law by reason of the failure of the court below to give reasons or adequate reasons for its decision not to set…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AMD Far East v Doan

Details

AGLC: AMD Far East v Doan [2004] NSWSC 78
Case: [2004] NSWSC 78
Decision Date: 9 March 2004

CaseChat Overview and Summary

AMD Far East, the applicant, sought leave to appeal from the magistrate's decision to set aside subpoenas issued to the Commonwealth Bank. The applicant alleged that the bank held accounts associated with the defendant, Doan, and sought the bank statements for use in the substantive proceedings. The Federal Circuit and Family Court of Australia was asked to determine the legitimacy of the subpoenas.

The court had to decide whether the subpoenas were issued for a legitimate forensic purpose. This required consideration of whether the information sought was necessary for the applicant to establish their case, whether it was beyond their control, and whether it was reasonably proportionate to the needs of the case. The court also considered whether there were other means available to obtain the information, and whether the bank had a legitimate privacy interest in the information.

The court found that the subpoenas were not issued for a legitimate forensic purpose. The information sought was not necessary for the applicant to establish their case, as the applicant had other means of obtaining the information, including from the defendant directly. The court also found that the bank had a legitimate privacy interest in the information, and that the subpoenas were not reasonably proportionate to the needs of the case. Accordingly, the court dismissed the application for leave to appeal.

The court did not make any orders, as the application for leave to appeal was dismissed.

Orders