Ballard v Brookfield Australia Investments Limited

[2012] NSWCA 385

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ballard v Brookfield Australia Investments Limited [2012] NSWCA 385

Hearing dates:

12 November 2012

Decision date:

12 November 2012

Before:

Campbell JA

Decision:

Subpoena set aside.

Issuer of subpoena to pay applicant's cost of the Notice of Motion to set aside.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DISCOVERY AND INTERROGATORIES - production and inspection - subpoena to produce - subpoena put on in relation to application for security for costs of appeal - documents sought relating to legal fees for hearing below - information relating to fees charged cannot establish impecuniosity without further information relating to the financial position of the appellant - further information outside scope of subpoena - fishing expedition - subpoena set aside

Cases Cited:

Preston v Harbour Pacific Underwriting Management Pty Limited [2007] NSWCA 247

Category:

Interlocutory applications

Parties:

Sagacious Legal Pty Ltd (Applicant)
Brookfield Australia Investments (First Respondent)
Multiplex Corporate Agency Pty Ltd (Second Respondent)

Representation:

Counsel:
RW Tregenza (Applicant)
A Bell (First and Second Respondents)
Solicitors:
Sagacious Legal Pty Ltd (Applicant)
Clayton Utz (First and Second Respondents)

File Number(s):

2012/169375

Judgment

1. CAMPBELL JA: This is an application to set aside a subpoena to produce that is directed to the lawyers of Mr David Ballard. Mr Ballard is an appellant in this Court against a judgment of McDougall J. His Honour rejected a claim brought by Mr Ballard that he had been the victim of various economic torts committed by the respondents to the appeal.

1. The case at first instance ran for some ninety three hearing days in the court below and very significant costs must inevitably have been incurred in connection with it. There has been an order that Mr Ballard pay the costs of the defendants in the court below.

1. The subpoena in question is one that seeks the production of, in substance, documents relating to the funding by Mr Ballard of both the proceedings in the court below, and the proceedings that are now on foot in the Court of Appeal. It seeks not only correspondence relating to the funding of those proceedings, but also the invoices and any documents evidencing payment of those invoices.

1. The subpoena contained a wide definition of "Ballard", saying it meant, "David Bruce Ballard and any entity in respect of which he has (or had) a financial interest or exercises any managerial or operational control." That was not a basis, however, upon which the setting aside of the subpoena was sought, nor does it seem to have produced any difficulty for Mr Ballard's lawyers in assembling five volumes of documents in answer to the subpoena.

1. The subpoena has been narrowed by correspondence between the solicitors so that any invoices are sought only insofar as they disclose the quantum of professional fees and disbursements that are being charged. That narrowing seems to be designed to remove any argument that the narrations in the invoices disclose privileged information.

1. The application for security is brought on a basis where the submissions that the parties have filed so far show that they are in agreement about the relevant principles to apply, namely those identified by Basten JA in Preston v Harbour Pacific Underwriting Management Pty Limited [2007] NSWCA 247 at [18].

1. The objective of the subpoena appears to be to show that Mr Ballard is impecunious, as, presumably, part of a combination of factors that is said to add up to special circumstances justifying the provision of security.

1. The extent of his indebtedness for legal fees is a matter that can go to whether he is impecunious or not. However, even if the response to the subpoena showed he had incurred large debts for legal fees, without knowledge of the other side of the balance sheet, one cannot know whether presently being in a situation of having incurred large debts, shows that he is impecunious.

1. Thus, the evidence is such that, even if it were to be obtained, it would not, in its terms, show impecuniosity. It would only be in the event that the documentation happened, by a side wind, to show the financial position of Mr Ballard, that there would be a context in which to place it.

1. If the subpoena were being used to obtain information concerning his assets by a side wind, that in itself would be a fishing purpose, which would be impermissible.

1. In all the circumstances I am not persuaded that the subpoena is one that should be permitted to stand, I therefore set it aside.

1. The issuer of the subpoena must pay the applicant's costs of the notice of motion to set aside. I note that a proportion of the time spent today in connection with this matter, that I would estimate as not exceeding twenty per cent or twenty-five per cent related to the subpoena.

**********

Decision last updated: 29 November 2012