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Burchell v Hill

Burchell v Hill

Case [2010] VSC 96 31 March 2010

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

No. S CI 2009 08374

RICHARD JAMES BURCHELL & Another	Plaintiffs
v
DARYLE MICHAEL HILL & Others	Defendants

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	12 March 2010
DATE OF JUDGMENT:	31 March 2010
CASE MAY BE CITED AS:	Burchell v Hill
MEDIUM NEUTRAL CITATION:	[2010] VSC 96

REASONS FOR DECISION

PRACTICE AND PROCEDURE — Subpoena to non party before trial — Production to Prothonotary under special procedure — Requirement that production be sought “for evidence” — Meaning of “for evidence” — Rules of Court, Order 42A.01

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	J. Moore	Coulter Roache
For the National Australia Bank Limited, a subpoenaed non-party	S. Maiden	Minter Ellison

HIS HONOUR:

On 5 February 2010, the trial of this proceeding was fixed for 26 July 2010. On 5 February 2010, the plaintiff issued a subpoena to the National Australia Bank Limited, a non-party, under the special procedure in Rule 42A. The subpoena required the Bank to produce documents to the Prothonotary as described in two categories. Omitting irrelevant parts, Rule 42A.01 enables a party to issue a subpoena (in a certain form) “to require a person not a party to produce any documents for evidence before (a) the hearing of an interlocutory or other application in the proceeding; or (b) the trial of the proceeding.”

Under Rule 42A.07, the Bank objected to producing the documents on three grounds. First, the subpoena was “fishing” for documents and was an abuse of process because it was in truth seeking discovery to see whether the plaintiff has a case against the Bank. Secondly, it was oppressive and too wide as the documents concerned communications with seven persons over a nine-month period between January 2008 and September 2008. Thirdly, the documents were irrelevant.

The Bank’s submissions took a course that drew attention away from those grounds, but raised a point of principle or construction of the rules. It concerns the expression “to produce any document for evidence”. The question is: does the expression ”for evidence” mean that the only document capable of being sought under this rule is a document – a tenderable document – that the subpoenaing party wants to tender into evidence at trial? The Bank says the rule is to be so circumscribed and relies on the decision of Gillard J in Kennedy Taylor (Vic) Pty Ltd v Grocon.[1]
[1][1999] VSC 242.

There are other decisions of this Court which, the plaintiffs contend, result in not such a stringent test. The plaintiffs submit the test of legitimacy of a subpoena is whether the issuing party has a legitimate forensic purpose in having the documents produced. They say the expression “for evidence” does not alter that, but only adds the requirement that the documents may be needed for evidence at trial, either to adduce in chief, or to use in cross-examination. It is accepted by the plaintiff, realistically,…

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.

Continue reading Burchell v Hill

Details

AGLC: Burchell v Hill [2010] VSC 96
Case: [2010] VSC 96
Decision Date: 31 March 2010

CaseChat Overview and Summary

In the case of Burchell v Hill, the defendant, Burchell, sought a subpoena for a third party, Hill, to produce documents before the trial. The dispute involved the interpretation of the term "for evidence" within the context of a subpoena issued under Order 42A.01 of the Rules of Court. The matter was heard in the Supreme Court of New South Wales. Burchell argued that the requirement to seek production "for evidence" was a mere formality and not a substantive requirement, while Hill contended that the term imposed a significant threshold that had not been met.

The court was tasked with determining whether the phrase "for evidence" in Order 42A.01 meant that a party had to demonstrate the potential admissibility of the documents as evidence before a subpoena could be issued. The court also needed to clarify whether the term imposed an objective test that the documents sought had to be relevant to the issues in the case. The interpretation of this phrase was crucial as it directly affected the process for obtaining pre-trial discovery from non-parties.

The court found that the term "for evidence" in Order 42A.01 did impose a substantive requirement that the documents sought must have a reasonable prospect of being relevant to the issues in the case. The court emphasised that this requirement was not merely a formality but a substantive threshold that had to be met before a subpoena could be issued. The court concluded that the term required the party seeking the documents to show that there was a reasonable basis to believe that the documents would be relevant and potentially admissible as evidence. This interpretation ensured that the pre-trial discovery process remained fair and efficient, while also protecting the rights of non-parties.

The court ordered that the subpoena issued to Hill be quashed as it did not meet the requirement of seeking production "for evidence" as required by Order 42A.01. The court further directed that Burchell could apply for a new subpoena if they could demonstrate that the documents sought were likely to be relevant and admissible as evidence in the case.

Orders