Burswood Management Ltd v Burswood Casino Motel/Hotel
[1987] FCA 421
•05 AUGUST 1987
Re: BURSWOOD MANAGEMENT LIMITED and WEST AUSTRALIAN TRUSTEES LIMITED
And: BURSWOOD CASINO MOTEL/HOTEL PTY LTD; FRANCESCO BEMPASCIUTO and AUSTRALIAN
TELECOMMUNICATIONS COMMISSION
No. WAG54 of 1985
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS
Practice and Procedure - Subpoenas to give evidence and produce documents - motion to set aside as abuse of process - power of court to issue subpoenas - role of Registrar - duty of legal practitioners procuring issue - no evidence as to burden of complying with requirement - no evidence as to ability or inability to give relevant evidence - classes of documents wide and irrelevant - subpoenas set aside as to the production of documents - liberty to apply on affidavit to set aside subpoenas to give evidence - motion for specific discovery - motion for order for further particulars.
Federal Court of Australia Act 1976 s. 23
Federal Court Rules
Hughes v. Western Australian Cricket Association (Inc) (1986) ATPR 40-725
Commissioner for Railways v. Small (1938) 38 SR(NSW) 564
Alliance Petroleum Australia (NL) v. Australian Gas Light Co. (1982) 44 ALR 124
Dewley v. Dewley (1971) 1 NSWLR 264
Lucas Industries Ltd v. Hewitt (1978) 18 ALR 555
HEARING
PERTH
#DATE 5:8:1987
Counsel for the applicants: Mr S. Archer instructed by Robinson Cox
Counsel for the First and Second Respondents: Mr B.F. Stokes instructed by B.F. Stokes & Associates
ORDER
On the motions of Messrs. Hughes, Au, Lim, Reid, Perrott and Fisher dated 31 July 1987:-
1. The subpoenas issued to each of these persons on 27 July 1987 be set aside insofar as they require the production of documents;
2. The respondents pay the costs of the motion in any event.
On the motions of Messrs. Burke, Dans, Jarman, Semmens and Shimmon dated 3 August 1987:-
1. The subpoenas issued to each of these persons on 27 July 1987 be set aside insofar as they require the production of documents;
2. The applicants on the motion or any of them have liberty to apply on short notice to set the subpoenas aside insofar as they require them to attend at the hearing of the application to give evidence;
3. The respondents pay the costs of the motion in any event.
On the motion of the Respondents dated 3 August 1987:-
1. The motion be dismissed insofar as it seeks further discovery.
2. The applicants do before close of business on 7 August 1987 give further and better particulars of the statement of claim in accordance with the requests set out in paragraphs 2, 4 and 5 of the minute of request for further and better particulars of claim filed 3 August 1987;
The respondents pay the costs of the motion in any event.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
These proceedings arise out of the alleged use by the respondents in trade and commerce, of names deceptively similar to that of the Burswood Casino in Perth, conducted by the applicants through the Burswood Property Trust.
The background to the proceedings and an outline of the pleadings are set out in Reasons for Judgment given on 30 July 1987 in relation to the respondents' motion for leave to amend their defence, to file a cross claim and for leave to interrogate.
As noted there, the trial of the action is listed for hearing commencing on 10 August, some 5 days hence.
On 23 July the respondents, who had been without a solicitor on the record since February 1986 when a previous trial date was vacated, filed a notice of appointment of new solicitors.
Contemporaneously, they filed the motion which I have already referred to and in relation to which leave was given to amend the defence in certain respects.
Leave to file a cross claim and to interrogate were denied.
On 27 July the respondents procured the issue of some 16 subpoenas to produce documents and to give evidence on the hearing of the application.
For decision today are two motions on behalf of some 11 of these witnesses seeking to have the subpoenas set aside in whole or in part. There is also a motion by the respondent for an order for specific discovery and for the provision of further particulars.
The relevant subpoenas and the documents production of which is required, are as follows:-
Name of Person Subpoenaed Documents Required to be Produced
1. John Joseph Hughes All submissions and supporting documentation and resulting contracts signed by you as a director of Burswood Management Ltd.
2. Colin Au All submissions and supporting documentation made by Tileska Pty Ltd to the West Australian Government concerning the casino project.
3. Lim Kok Thay All submissions and supporting documentation and resulting contracts made and entered into by Genting Berhad to the West Australian Government concerning the casino project.
4. Alan Reid Letter requesting an indemnity granted by Burswood Management Ltd ("B.M.L.") enabling it to be permitted by W.A. Trustees Ltd to commence the within action; and the letter from W.A. Trustees Ltd authorising "B.M.L." to hold the proprietary rights in the business names "Burswood Casino" and "Burswood Hotel" in its own right.
5. Thomas James Perrott Copy of all submissions made by you to the Western Australian Government and Casino Advisory Committee regarding the proposed casino for Western Australia.
6. David Fisher All applications for finance and all supporting documentation regarding the funding of the Burswood Island Resort and the purchase of Dallas Reginald Dempster's units in the Burswood Property Trust.
7. Brian Thomas Burke All submissions and documents received by you as Premier and Treasurer of the West Australian State Government to do with the granting of the proposed casino licence in the years 1983, 1984 and 1985.
8. Desmond Keith Dans All submissions and documents received by you as Minister for Racing and Gaming to do with the granting of the proposed casino licence in the years 1983, 1984 and 1985.
9. Harry Jarman All applications, documents, submissions, letters of intent and written proposals received by the Casino Control Committee from Tileska Pty Ltd and Genting Berhad.
10. Noel J. Semmens All applications, submissions, letters of intent, written proposals and other documents received by the W.A. Tourist Commission regarding the proposed casino for Western Australia.
11. Keith G. Shimmon All applications, documents, submissions, letters of intent and written proposals received by the Casino Control Committee from Tileska Pty Ltd and Genting Berhad.
The power of the Court to issue a subpoena is not expressly defined in the Federal Court of Australia Act.
However, the subpoena being, according to its form (see Forms 41 to 43) and in substance, an order of the Court, its issue is authorised by the provisions of s.23 of the Act:-
"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."
That view is, I think, consistent with the reasoning of Toohey J. in Hughes v. Western Australian Cricket Association (Inc) (1986) ATPR 40-725.
The sanction for failure to appear or to produce documents in answer to a subpoena is provided by s.58 of the Act:-
"58(1) A person duly served with a summons to appear as a witness before the Court shall not, without reasonable excuse -
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself from day to day unless excused or released from further attendance, by the Court.
Penalty: $1000 or imprisonment for 3 months.
(2) A person appearing as a witness before the Court shall not without reasonalbe excuse -
(a) refuse or fail to be sworn or to make an affirmation;
(b) refuse or fail to answer a question that he is required by the Court to answer; or
(c) refuse or fail to produce a book or document that he is required by the Court or by a summons issued from the Court to produce.
Penalty: $1000 or imprisonment for 3 months.
(3) Nothing in this section limits the power of the Court to punish persons for contempt of the Court, but a person shall not be punished under this section and for contempt of the Court in respect of the same act or omission."
The exercise of the power to issue subpoenas is regulated by O.27 of the Federal Court Rules. The relevant parts of the order for present purposes are as follows:-
"2. The Court may, in any proceeding issue a subpoena to give evidence, or a subpoena for production, or a subpoena both to give evidence and for production in the prescribed form or in such other form as the Court may direct for the attendance of the person named before the Court or before any Judge, officer, examiner or other person having authority to take evidence.
.
.
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6(1) On request by a party, the Registrar shall, unless the Court otherwise orders, issue a subpoena to give evidence or a subpoena for production or a subpoena for both testimony and production.
(2) A subpoena shall be issued under seal.
(3) A party requesting the issue of a subpoena shall file a copy of the subpoena.
(4) Subpoenas shall be in or substantially in the Forms numbered 41 to 43 in the First Schedule.
(5) Sub-rule (1) applies whether or not the proceedings were commenced in or transferred to the registry to which the request is directed.
.
.
.
9(1) The Court may, on motion by the person named in a subpoena set aside the subpoena wholly or in part.
(2) Notice of a motion under sub-rule (1) must be filed and must be served on the party on whose request the subpoena was issued."
In this case each of the subpoenas in question was issued by the Deputy Registrar of the Court, an officer who falls within the definition of Registrar for the purpose of the Rules when discharging the duties of the Registrar - see O.1 r.4.
The provisions of O.27 r.6 leave the Registrar with no discretion except to issue a subpoena when requested to do so by a party.
The provision in r.6 for the Court to "otherwise order" is unaccompanied by any machinery for reference of a request for a subpoena to a Judge. No doubt it is possible for the Registrar to refer a doubtful request to a Judge for consideration, and I understand that this has happened on some occasions.
Mention should also be made of the general provisions of O.46 r.7A which deals with the case where a document appears to a Registrar, on its face, to be an abuse of process. That rule provides:-
"7A. If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him -
(a) to accept or issue it; or
(b) to refuse to accept or issue it; or
(c) to refuse to accept or issue it without the leave of a Judge first had and obtained."
The first of the two motions seeking to set aside the subpoenas, was brought by the witnesses numbered 1 to 6 on the list set out above. They were represented by counsel instructed by the solicitors for the applicants.
The witnesses numbered 7 to 11 were represented by counsel instructed by the State Crown Solicitor for the State of Western Australia.
It appears from a Prospectus issued by Burswood Management Limited ("BML") and exhibited to an affidavit sworn in interlocutory proceedings by Dallas Reginald Dempster, that Hughes, Au and Lim were all co-directors of BML at the date of issue of the prospectus in April 1985.
Reid, as I was told from the bar table, is an officer of the West Australian Trustees Limited ("W.A. Trustee").
Perrott is said by the respondents, as appeared in their minute of amended defence, to be a person who was put forward in submissions to the State Government in 1983 as chairman of a rival proponent for a casino development at Burswood Island.
The amendment, it should be noted, was disallowed being a proposed amendment to para.16 of the defence.
David Fisher is the Chairman of the Rural and Industries Bank of Western Australia.
These persons move to set aside subpoenas issued to them only insofar as they require the production of documents. They do not seek to set them aside in relation to the requirement for their attendance in Court as witnesses.
The complaint made by them is in essence, that the width of the classes of documents sought under the subpoenas goes beyond the limits of any possible relevance to any matter in issue in these proceedings.
The issue of the subpoenas, it is said, in this sense amounts to an abuse of the process of the Court.
The second group of witnesses (numbered 7 to 11) seeks to set aside the subpoenas in toto and alternatively insofar as they may require the production of documents.
Counsel for this second group of witnesses also attacked the width of the request for the documents. None of the persons involved submitted affidavit evidence in support of their motions.
In justification of the width of the class of documents sought, counsel for the respondents contended that the applicants' cause of action in this case depends upon their demonstrating that there was an established reputation in the name "Burswood Casino" such that the public would be misled by the use by unrelated parties of similar names or names embodying Burswood Casino.
In para.24 of the statement of claim it is alleged that Burswood Casino Motel/Hotel Pty Ltd ("BCMH") adopted its name (which was previously said to be Esjay Shelf Co. (No. 99) Pty Ltd) "to acquire the benefit of the applicants' established reputation in connection with the Burswood Casino."
The documents requested, it is said, go to the time at which the claim to reputation was established.
In answer to the contention that many of the documents sought would fall into the category of private communications with government or other bodies, counsel contended that there was an issue as to whether the reputation, if established, was "real".
I have considerable difficulty with the concept of a "false reputation" as enunciated by counsel and its relevance in this case. If a reputation is based upon beliefs which can be shown to be false, it is nevertheless a reputation.
Nothing said by counsel in this regard dispelled my difficulty.
So far as subpoenas for the production of documents are concerned, I respectfully adopt what was said by Jordan CJ in the judgment of the Full Court of the Supreme Court of New South Wales in Commissioner for Railways v. Small (1938) 38 SR(NSW) 564 at 573:-
"A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant: Lee v. Angas (LR 2eq 59); Burchard v. MacFarlane ((1891) 2 QB 241 at 247); A.-G. v. Wilson (9 Sim 526); Newland v. Steer (13 LT 111). And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the court to have it set aside."
It must be accepted as was said in Lucas Industries Ltd v. Hewitt (1978) 18 ALR 555 that a degree of generality in the description of the documents sought under a subpoena may according to circumstances, be compatible with reasonable particularity.
There is no material before me going to the question of the extent of the burden or inconvenience involved in complying with the subpoenas so far as they require the production of documents. Counsel for the respondents made some assertions from the bar table that certain of the requests would not involve the production of a substantial number of documents.
In the absence of evidence one way or the other, I do not consider that these motions can be determined according to whether the subpoenas impose unreasonable burdens in relation to the production of documents. The question in respect of each subpoena is whether or not on its face, it is oppressive.
In so approaching the motions I bear in mind the caution expressed in the judgment of Smithers J. in Lucas Industries Ltd v. Hewitt (supra) at 571 where his Honour said:-
"So far as the effort and expense in arranging for production of particular documents in any case exceeded what was reasonable, their non production would be acceptable to the Court. But if a subpoena be wholly set aside on the grounds that on its face it is oppressive, then the subpoena wholly fails and there is the possibility that although some or substantial compliance might have been undertaken with a minimum of effort, the whole procedure may be needlessly frustrated."
It is apparent that mere width in the ambit of the documents sought will not necessarily lead to a subpoena being set aside.
In Alliance Petroleum Australia (NL) v. Australian Gas Light Co. (1982) 44 ALR 124 at 133 Bollen J. said:-
"Certainly a subpoena ducas tecum must tell the proposed witness what documents he must produce. But it need tell him only with reasonable particularity. He must be told sufficient to enable him to identify the documents sought."
Where, however, on the face of it, a subpoena encompasses a wide range of documents which, on any view of the pleadings, can have no relevance to the matters in issue in the proceedings, then the subpoena is oppressive and may amount to an abuse of the process of the court.
Also relevantly to the present case, I respectfully adopt what was said by Allen J. in Dewley v. Dewley (1971) 1 NSWLR 264 at 270:-
"The right to have a subpoena issued with the authority of the Court and with stated sanctions must carry with it the responsibility of acting reasonably and properly in relation to any person summoned to appear and obey its terms. Solicitors, as officers of the Court, should in my view, be vigilant to ensure that no oppressive or improper demands are made on strangers to the litigation under the authority and power which a subpoena presents to a layman. This should be obvious to any conscientious and responsible practitioner."
I turn now to the classes of documents sought from the first group of persons seeking to set aside the subpoenas. So far as the requirements made of Hughes, Au, Lim, Perrott and Fisher are concerned, their width is self evident. Their relationship to issues raised on the pleadings is, so far as I can tell, non-existent.
As to the subpoena directed to Reid, no question arises in this case as to the authority of the BML to bring the action.
The width of the proposed subpoenas and the lack of any apparent connection to the issues in the litigation lead me to the conclusion that whatever purpose they serve it is not the purpose of these proceedings. They amount, in my opinion, to abuse of the process of the Court.
In the circumstances, I propose to set aside the subpoenas in respect of each of these six witnesses in so far as they require the production of documents.
In relation to the second group of witnesses, I understand that it is conceded that Dans is no longer a Minister of the Crown and that Semmens no longer has access to the documents sought from the W.A. Tourist Commission. It is therefore conceded that the subpoena should be set aside as against each of those persons so far as it relates to the production of documents.
In relation to Burke, Jarman and Shimmon, it is again apparent that the scope of the request encompasses a wide range of documents which would have no relevance to any issue that could properly arise in this case. The requirements are on the face of them, an abuse and I will direct that the subpoenas be set aside in so far as they relate to the production of documents.
In doing so, I should say that I regard the conduct of the solicitors for the respondent in procuring the issue of these subpoenas in their present form, as inconsistent with their duty as legal practitioners as enunciated in Dewley v. Dewley (supra).
The question then arises whether the subpoenas directed to the second group of witnesses should be set aside in their entirety.
It is apparent from the terms of 0.27 r.9(1) that the Court may set aside a supboena to give evidence as it may set aside a subpoena for the production of documents.
Some of the persons named in the second group of witnesses occupy or have occupied, positions of public prominence. One of them is the Premier of Western Australia. In that regard I apply the approach taken by Bigham J. in R. v. Baines (1909) 1 KB 258 in dealing with an application to set aside subpoenas directed to Prime Minister Asquith and Home Secretary Gladstone. His Honour said at 261:-
"It must not be supposed that the position which the applicants occupy affords them any privilege. They stand in the same position as any other of His Majesty's subjects. But the court has to enquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant."
In that case the witnesses concerned swore affidavits to the effect that they were wholly unable to give any evidence which could possibly be relevant to any issue which might arise and the truth of those affidavits was accepted by the Judge. They further said that no application had been made to them for any proof of the evidence to be given by them. That statement satisfied his Honour that the process had not been issued for the simple and proper purpose of obtaining evidence, but for a different and ulterior purpose, a purpose to which the process of the court ought not to be applied. He was therefore able to be satisfied that neither of the applicants could give relevant evidence and that the process of the court had not been issued for the purpose of obtaining that evidence but for other reasons.
Walton J. agreed although he cautioned that the case could not be taken as a precedent establishing any rule that a person could, by swearing that he can give no relevant evidence, have a subpoena set aside.
In the present case, there is no evidence before me from any of the applicants from which I could draw any inference as to their ability to give relevant evidence or whether they have been approached in that respect. I can only say that having regard to the extraordinary width of the classes of documents whose production was sought under these subpoenas, I have grave doubts as to whether any real consideration has been given to the ability of these people to give relevant evidence.
In the absence of evidence on the point however, I think it would be inappropriate to set these subpoenas aside insofar as they require testimony. I will however allow these applicants liberty to re-apply at short notice and on affidavit to set aside these subpoenas insofar as they require them to give evidence.
Request for Specific Discovery
The respondents by a motion returnable on the same day as the motion to set aside the subpoenas, sought an order that the applicants give discovery on oath and inspection of documents referred to in the respondents' notice dated and served 23 July 1987 and that this be done within 24 hours.
A reading of the list of documents contained in the notice leaves a considerable question mark as to the relevance of any of them to any matter in issue.
The application falls to be considered under 0.15 r.8 which provides:-
"Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party -
(a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and
(b) to serve the affidavit on any other party."
Applying the criteria set out in the rule and having regard to the description of documents in the respondents' request, I am unable to form the belief that any of them relate to any matter in question in the proceeding. The motion will be denied in this respect.
The motion also seeks an order that the first and second respondents have leave to request further and better particulars of claim in terms of a minute filed with the motion and that the applicants answer that request within 48 hours.
This is a request which is made very late in the day. However as to paragraphs 2, 4 and 5 of the request, counsel for the applicants informs me that there is no objection in principle beyond the lateness of the request nor any practical difficulty in providing the particulars requested.
Objection is taken to paragraph 1 of the request which asks:-
"1. As to paragraph 11 of the Statement of Claim, give details of the acts of the Applicants which constituted being engaged in the said trading and commercial activities."
Paragraph 11 asserts:-
"11. BML was at all material times engaged in trade and commerce and in particular it was engaged in the trading and commercial activities of inter alia, the entertainment, casino, tourist and hotel industries."
In my opinion the paragraph is adequately particularised and whilst I would not necessarily accept that the request seeks evidence, as a matter of discretion I am not prepared to make the order sought.
As to para.3, this seeks particulars of para.24 of the statement of claim. Paragraph 24 alleges:-
"The First Respondent adopted the corporate name calculating thereby to acquire the benefit of the Applicants' established reputation in connection with the Burswood Casino, and with a view to increasing its trading and commercial activities in the motel/hotel industry."
The request made in relation to this paragraph is, as set out in para. 3 of the notice:-
"As to paragraph 24 of the Statement of Claim by which acts and when did the Applicants establish a reputation in connection with the Burswood Casino and the motel/hotel industry."
In my opinion the request has the character of a request for evidence and it will be disallowed.
I propose therefore to order that the applicants do within 48 hours provide particulars as requested in paragraphs 2, 4 and 5 of the respondents' request dated 3 August 1987.
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