| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2015 03354
| PAUL BANNON | Plaintiff |
| v | |
| NAURU PHOSPHATE ROYALTIES TRUST | Defendant |
| AND BETWEEN | |
| NAURU PHOSPHATE ROYALTIES TRUST | Plaintiff by Counterclaim |
| - and - | |
| PAUL BANNON | Defendant by Counterclaim |
JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2017 |
DATE OF RULING: | 26 April 2017 |
CASE MAY BE CITED AS: | Bannon v Nauru Phosphate Royalties Trust (Subpoena Objection) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 213 |
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PRACTICE AND PROCEDURE – Subpoena to non-party before trial – Production to Prothonotary – Application to set aside subpoenas – Applicable test – Whether documents sought relevant to issues in dispute – Whether legitimate forensic purpose in seeking the documents – Webb v Wheatley applied - Volunteer Fire Brigades Victoria v Country Fire Authority applied - Subpoena set aside – Supreme Court (General Civil Procedure) Rules 2015 rr 42A.01, 42.04.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff and the Subpoenaed Party | Mr T North QC with Mr M Rinaldi | Lander & Rogers |
| For the Defendant | Mr R A Millar with Mr J Hooper | SCL Law Pty Ltd Lawyers |
HER HONOUR:
Paul Bannon was employed by the Nauru Phosphate Royalties Trust (‘the Trust’). He was dismissed from his employment. He brings these proceedings against the Trust claiming monies. The Trust makes a counterclaim against Mr Bannon, alleging he failed to discharge his obligations to it. The Trust has now subpoenaed Mr Bannon’s wife, Melissa Bannon. The subpoena requires Ms Bannon to produce various bank and credit card statements. Ms Bannon and her husband object to the subpoena. Their objection will be allowed and the subpoena will be set aside.
The issues in dispute between the parties narrowed at the hearing. The issues determined in this ruling, and their answers, are as follows:
(a) Are the bank statements operated by Ms Bannon on behalf of Ruby Thoma, a former trustee of the Trust, relevant to the proceeding? No.
(b) Should Ms Bannon be required to produce documents that can be discovered by Mr Bannon or the Trust itself? No.
(c) Is there a legitimate forensic purpose for the subpoenaed documents? No.
(d) Should Ms Bannon be required to depose another affidavit in answer to the subpoena?[1] No.
[1]Ms Bannon deposed to an affidavit sworn on 6 February 2017. By way of clarification, Ms Bannon deposed to two affidavits that day. The first affidavit was filed missing a page and so a second affidavit containing all pages was filed. The reference to Ms Bannon’s affidavit in this ruling is to her second affidavit.
The Subpoena
The subpoena addressed to Ms Bannon seeks production of the following documents.[2]
[2]The subpoena was issued on 29 August 2016.
Copies of all bank statements and credit card statements for accounts operated by:
(i) Melissa Bannon, (alone or jointly); or
(ii) which were held or operated by any company or other entity of which Melissa Bannon was a director, officer, signatory or…
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- Case
- [2017] VSC 213
- Decision Date
CaseChat Overview and Summary
The court considered the principles established in Webb v Wheatley and Volunteer Fire Brigades Victoria v Country Fire Authority, which set out the test for determining the validity of subpoenas to non-parties. The court found that the Trust had not demonstrated that the documents sought were relevant to the issues in dispute or that there was a legitimate forensic purpose in seeking them. The subpoenas were therefore set aside.
The court emphasised that the test for setting aside subpoenas to non-parties is whether the documents sought are relevant to the issues in dispute and whether there is a legitimate forensic purpose in seeking them. The court found that the Trust had not met this test, and the subpoenas were set aside. The court also noted that the Trust had not shown that the documents were necessary for the fair administration of justice or that they could not be obtained by other means.
The court set aside the subpoenas issued to Bannon and ordered that the documents sought not be produced to the Prothonotary for inspection. The Trust was directed to pay Bannon's costs of the application.
Orders
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