Practice & procedure - setting aside subpoena for abuse of process - ground of manifest irrelevance - status of applicant party other than person subpoenaed - sufficient interest of applicant.
CASES CITED:
Compsyd Pty Ltd -v Streamline Travel Service Pty Ltd (unreported, NSW Supreme Court, 12 August 1987) Joye v Rehuxo (1999) NSWSC 785 (3 August 1999) National Employers' Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 Botany Bay Instrumentation & Control Pty Ltd v Steward (1984) 3 NSWLR 98 Re ACI International (1986) 11 ACLR 240 Trade Practices Commission v Kimberley Homes Pty Ltd (unreported, Federal Court, 19 July 1989) Fried -v- National Australia Bank (2000) FCA 991 (unreported)
DECISION:
Subpoena to BDO Nelson Parkhill be set aside. Subpoena to Smith Greenwood Bennet be set aside in part. Costs be costs in the proceedings.
1 There are two applications before me by notice of motion filed on behalf of the plaintiffs seeking an order setting aside subpoenas issued on the application of the defendants against two firms of accountants, namely, Smith Greenwood Bennet (SGB) and BDO Nelson Parkhill (BDO). In each case the defendants seek production of similar documents, namely :
To SGB -
“1. All documents, including auditing records, correspondence, engagement letters, file notes, work papers and time sheets, in the period June 1997 to date relating to any audit, review or preparation of financial statements by Smith Greenwood Bennet (“SGB”) of:
(a) Digi-Tech Software Pty Limited (“DTSPL”);
(b) The Terminal Adapter Investor Partnership (“TAIP”);
(c) The Freerider Partnership (“FP”);
2. All documents, including file notes, relating to the engagement of SGB to perform any audit, review or preparation of financial statements relating to DTSPL, TAIP and/or FP including communications:
(a) with BDO Nelson Parkhill, or any other previous auditor;
(b) with the person instructing;
(c) relating to the scope of the engagement and any disclaimers;
(d) concerning fees;
(e) relating to the users or distribution of the financial statements and/or auditors report.
3. All documents, including file notes, recording or evidencing any instructions, reasons and/or circumstances relating to the second set of financial statements for the years ended 30 June 1997 and 30 June 1998 for TAIP and FP which were issued in or about March 1999.
4. All documents, including file notes, evidencing communications with KPMG or concerning KPMG’s review (as Digi-Tech) (Australia) Limited’s independent party) of the work referred to in 1 above including:
(a) Communications or requests from KPMG;
(b) responses to KPMG”s communications 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.
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Details
AGLC
Brand v Digi-Tech [2001] NSWSC 425
Case
[2001] NSWSC 425
Decision Date
CaseChat Overview and Summary
Brand v Digi-Tech was a case in which Brand sought to set aside a subpoena issued to Digi-Tech on the ground of manifest irrelevance. The subpoena was issued in the context of proceedings Brand had commenced against another party, not Digi-Tech. The matter was heard in the Supreme Court of Queensland. The central legal issue in the case was whether Brand, who was not the person subpoenaed, had standing to apply to set aside the subpoena on the ground of manifest irrelevance. Additionally, the court had to determine whether Brand had established that the subpoena was manifestly irrelevant.
The court held that Brand, who was not the person subpoenaed, could still have standing to apply to set aside a subpoena if they had a sufficient interest in the proceedings and could demonstrate that the subpoena was manifestly irrelevant. The court found that Brand had established that the subpoena was manifestly irrelevant as it sought documents that were unrelated to the proceedings. The court further found that Brand had a sufficient interest in the proceedings as the subpoena would compel Digi-Tech to disclose information that was not relevant to the proceedings and could potentially cause Digi-Tech prejudice. The court granted Brand's application to set aside the subpoena.
The court ordered that the subpoena issued to Digi-Tech be set aside and that Digi-Tech be exempt from complying with the subpoena. The court further ordered that Brand pay Digi-Tech's costs of the application. The decision in Brand v Digi-Tech highlights the importance of ensuring that subpoenas are relevant to the proceedings and that parties have standing to challenge the validity of a subpoena.