Circuit Finance Pty Ltd v Gardner

[2005] VSC 130

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7871 of 2003

CIRCUIT FINANCE PTY LTD	Plaintiff
v
HELEN RAE GARDNER AND ORS	Defendant

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2005
DATE OF JUDGMENT:	15 February 2005
CASE MAY BE CITED AS:	Circuit Finance v Gardner and Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 130

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CIVIL PROCEDURE – Subpoena – Abuse of process. 

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APPEARANCES:	Counsel
For the Defendant	Mr A.T. Strahan
For the Second and Third Parties	Mr M.W. Sangar

HIS HONOUR:

1. This is an appeal from an order of Master Wheeler made 7 December 2004.  By that order the Master ordered that documents produced by Mr Terry Sharp in response to a subpoena to the Victorian Racing Committee be released to the defendant's counsel, Mr Nixon, for the purposes of copying.  The 2nd third party has appealed the making of that order and has done so out of time. 

1. There were conflicting affidavits between the 2nd third party and then counsel for the defendant as to the circumstances in which the order before Master Wheeler was obtained.  After discussion with counsel, counsel for the defendant, for the purpose of having the matter heard and determined today, disavowed any argument which would oppose the grant by me of an extension of time within which the 2nd third party might bring its appeal.  That, of course, was not a concession as to the affidavit sworn by the 2nd third party but was a matter of pragmatism in an order to expedite the appeal.  Accordingly the appeal comes before me to be re-heard de novo on the merits of the matter. 

1. The matter itself was the return of a subpoena directed to the Deputy Chief Steward, Mr Sharp, of Racing Victoria Limited to produce a number of documents.  Mr Sanger, who appeared before me today on behalf of the 2nd third party, submitted that the subpoena was an abuse of the process and that therefore should not be called and the documents should not be produced.  If I were to uphold that argument, I would set aside the subpoena and I would order that all documents obtained under it be returned. 

1. Five bases were argued by Mr Sanger in support of his proposition that the subpoena was an abuse of the process.  In response, Mr Strahan responded seriatim to each of those bases on behalf of the defendant. 

1. The first basis put was that the documents were to be provided by the 2nd third party to the defendant in any event pursuant to an order of Master Cain of 18 October 2004.  By that order the Master made orders for discovery by the 2nd third party.  That argument is to be rejected.  The documents which may be provided by the Victoria Racing Club are not necessarily the same as those which may be provided on discovery by the 2nd third party and therefore that does not make the subpoena otiose or an abuse of the process. 

1. The second basis argued by Mr Sanger was that Master Cain by his order defined the ambit of the documents to be provided in relation to the complaint made by the 2nd third party to the Victoria Racing Club.  The subpoena goes wider than that and therefore is an abuse of the process.  The short answer to that is that the order made by Master Cain was purely made to define the ambit of discovery to be made by the 2nd third party and has nothing to do with the ambit of a subpoena which might be directed to the Racing Club. 

1. The third basis argued was that the subpoena was an abuse because the documents should have been sought by the defendant by way of non-party discovery.  It is always a vexed question as to whether it is better or proper to proceed by third party discovery or by subpoena.  In the circumstances of this case I do not see any basis upon which to criticise or find that the use of the process of subpoena is an abuse of the process.  Further, as pointed out by Mr Strahan, a subpoena was used so that it would produce documents in support of an application by the defendant to strike out the counter-claim against her by the 2nd third party.  That application is now apparently returnable in April.  For those reasons, the resort to the use of subpoena would not be an abuse of the process.

1. The next point made by Mr Sanger was that the subpoena was effected for an ulterior purpose because the documents sought by it would be provided on discovery by the 2nd third party.  The answer to that has already been revealed in these reasons, namely, the documents to be obtained on the subpoena are not necessarily the same as those that are to be provided on discovery by the 2nd third party.

1. As an alternative, it seems to me, the fifth point made by Mr Sanger was that the subpoena goes against an agreement reached with the 2nd third party by the defendant extending the time for discovery to 15 February.  Accordingly it is put that the subpoena should not have been called on earlier than that.  Again, the processes of subpoena and discovery are different.  The agreement that was reached was apparently one as to discovery and had nothing to do with the return of the subpoena, which, as I say, was directed to producing documents for the purposes of advancing the defendant's application to strike out the counter-claim against her.

1. For those short reasons, I find that there is no basis upon which to uphold the submission that the subpoena is an abuse of the process of the court.  Considering the matter de novo, I would have made the same orders as those made by Master Wheeler, being the orders which are currently under appeal. 

1. Thus, I dismiss the appeal by the 2nd third party against the order of Master Wheeler of 7 December 2004.

1. (Discussion ensued re costs.)

HIS HONOUR: 

1. Costs will be ordered as usual, in other words, that the 2nd third party pay the costs of the appeal to the defendant.

1. I order -

1.The appeal from the order of Master Wheeler made 7 December 2004 be dismissed.

2.The 2nd third party pay the costs of the appeal to the defendant.

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