Bannon v Nauru Phosphate Royalties Trust (Subpoena Objection) - [2017] VSC 213

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

---

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.

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Bannon v Nauru Phosphate Royalties Trust (Subpoena Objection... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSC 213
Decision Date: 26 April 2017

CaseChat Overview and Summary

Bannon, a former trustee of the Nauru Phosphate Royalties Trust, challenged the subpoenas issued to him by the trust to produce certain documents before the trial. The Trust sought to have these documents produced to the Prothonotary for inspection, but Bannon objected and applied to set aside the subpoenas. The dispute was heard by the Supreme Court of Victoria, where the primary issue was whether the subpoenas were justified under the Supreme Court (General Civil Procedure) Rules 2015. Specifically, the court had to determine if the documents sought were relevant to the issues in dispute and if there was a legitimate forensic purpose in seeking them.

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