Anderson v Rapid Metal Developments (Australia) Pty Ltd
[2011] FMCA 421
•6 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANDERSON v RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD | [2011] FMCA 421 |
| PRACTICE & PROCEDURE – Subpoenas – application to issue more than five subpoenas – fifth subpoena requested was not issued by the Court but should have been – later subpoenas unnecessary as they were a consequence of the registry’s refusal to issue the fifth subpoena – it is permissible to issue a subpoena to two or more people where the subpoena seeks production of the same documents from each person and the persons share a common responsibility for the documents sought. |
| Federal Court Rules Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | WARREN PERRY ANDERSON |
| Respondent: | RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD |
| File Number: | PEG 151 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | No oral hearing |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Jackson McDonald |
| Solicitors for the Respondent: | Dwyer Durack |
ORDERS
The subpoena appearing at Annexure JDK7 to the affidavit of June Delphine Kenny made on 26 May 2011 be issued.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PEG 151 of 2010
| WARREN PERRY ANDERSON |
Applicant
And
| RAPID METAL DEVELOPMENTS (AUSTRALIA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 26 May 2011 Rapid Metal Developments (Australia) Pty Ltd (the respondent in the principal proceedings) applied for an order granting leave for the issuing of six subpoenas in the same terms but directed to six different people. The background to the application is set out in the affidavit of June Delphine Kenny made on 26 May 2011.
Ms Kenny deposes that on or about 5 April 2011, pursuant to instructions from Rapid Metal Developments, she caused to be filed at the Perth registry of the Court a request for the issue of subpoenas addressed to Mr Robert Alexander Albert O’Neil and Ms Teresa Johnson. The request was made to issue one subpoena to each of Mr O’Neil and Ms Johnson to appear and give evidence at the trial of this matter than listed to commence on 9 May 2011. The Court issued two subpoenas in response to that request.
On 9 May 2011, with the consent of the parties, I adjourned the trial of the matter to 23 August 2011.
On 12 May 2011, under instructions from Rapid Metal Developments, Ms Kenny caused to be filed at the Perth registry of the Court a request for two more subpoenas addressed to Mr O’Neil and Ms Johnson to appear and give evidence at the adjourned trial on 23 August 2011. The Court issued those two subpoenas in response to the request, bringing the total number of subpoenas issued to four.
There then followed correspondence between the solicitors for the parties concerning a request by the respondent’s solicitors for the production of certain documents. The documents in question were originals of documents previously produced to the respondent’s solicitors. The documents relate to proceedings in the Supreme Court of Western Australia upon which the bankruptcy notice in these proceedings is based. The solicitors for Mr Anderson advised the solicitors for Rapid Metal Developments that the originals of the documents were held by the law firm of Solomon Brothers pursuant to a lien. The firm is a partnership with six partners.
On or about 18 April 2011, on instructions from Rapid Metal Developments, Ms Kenny caused to be filed at the Perth registry of the Court a request for the issue of a single subpoena addressed to all six partners of Solomon Brothers. A copy of that subpoena is annexed to Ms Kenny’s affidavit at JDK7. A registrar of the Court informed an employed solicitor who attempted to obtain the issue of the subpoena that the Court would not issue a subpoena in that form because it was addressed to more than one person.
Ms Kenny then requested the issue of six subpoenas addressed to the six partners of Solomon Brothers. A registrar advised that leave of a Federal Magistrate was required because the request involved the issuing of more than five subpoenas. This has resulted in the application to me for an order in chambers with the consent of both parties. The application is made for leave pursuant to rule 15A.05(1) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
I have concluded that the application is unnecessary. The single subpoena directed to all six partners of Solomon Brothers should have been issued by the Court. The Court registry refused to issue that subpoena on the basis of Order 27, rule 3(2) of the Federal Court Rules (“the Federal Court Rules”) which provides:
(2) A subpoena must not be addressed to more than one person.
There is no equivalent rule in the Federal Magistrates Court Rules. However, the Court has provided guidance to parties and practitioners in relation to subpoenas in the form of an information brochure published on the Court’s website. Relevantly, the brochure states that a subpoena may be directed to two or more persons if the subpoena is to give evidence only or if the subpoena requires the production of the same documents from each person subpoenaed. In the present case, the subpoena required the production of the same documents from each of the six partners of Solomon Brothers. As a practical matter, the subpoena only required the production of one set of the documents sought and the point of directing the subpoena to all six partners was simply to ensure compliance with the subpoena.
There is no reason to apply the Federal Court Rules unless there is some gap in the application of the Federal Magistrates Court Rules that requires filling or unless the application of the Rules of this Court would be inappropriate[1]. In the present case, there was no such gap. Neither was the application of this Court’s Rules inappropriate. This Court’s Rules did not prevent the issuing of a single subpoena to the six partners of Solomon Brothers and the Court’s information brochure indicated that such a course was permissible. It was also sensible in the present circumstances where the partners are likely to be jointly responsible for the documents sought. It would be a pointless inconvenience to require the partners to respond to six separate subpoenas when they only need to respond to one. The appropriate course is to direct the issuing of the single subpoena to all of the partners of Solomon Brothers as originally requested by the solicitors for Rapid Metal Developments. An order making that direction will be made in chambers.
[1] See rule 1.05(2) of the Federal Magistrates Court Rules
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 6 June 2011
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