Clarke, W.S. v Howard, J.T

[1992] FCA 677

JUDGMENT No. ..h Z?....J 32-

CATCHWORDS

PRACTICE AND PROCEDURE - subpoena - production of documents - application to set aside - whether oppressive - whether

subject matter of document sought "sufficiently relevant".

Spencer Motors Ptv Ltd v LNC Industries Ltd [l9821 2 NSWLR 921

I	d
(VG 413 of 1991)
Judge :	Heerey J
Date :	21 August 1992
Place: Melbourne

1

VICTORIA D I S W T REGISTRY	1	No. VG 413 of 1991
1
GENERAL DIVISION	1
B E T W E E N :

WILLIAM SEVERN CLARKE

Applicant

JAMBS T HOWARD

Respondent

amz:	Heerey J
Qggg:	21 August 1992

m: Melbourne

EX TEWPORE REASONS FOR JUDGMEN!C

I have come to the conclusion that I should accede to this application by the Public Service Commission and set aside the subpoena addressed to Mr Baxter dated 20 August 1992 which seeks production on 21 August, that is the day after it is issued, of "all documents in the possession of the Public Service Commission relating to applications by William Severn	Clarke for promotions or transfers in the Australian Public	Service between 13 December 1989 and 8 November 1991".
The evidence of Mr Baxter in his affidavit and as explored in cross-examination seems to indicate that compliance would require a search of in the vicinity of some 600 files, each of which would contain a number of documents not necessarily in any uniform order. The evidence was that in relation to the initial estimate of 900 files it would take about a month so conservatively a search of 600 files might be thought to take at least two weeks. Also there would need to be an assessment made by the person searching of what was a document "relating to applications by" Mr Clarke. Decisions would have to be made as to whether applications by competing applicants or assessments by interviewers of M r Clarke and other applicants fell within that description.
Very importantly, although these proceedings were commenced on 23 December 1991, this subpoena was only served on the recipient yesterday requiring compliance today for a trial which is fixed to commence on Monday. To my mind that is quite oppressive and I am not at all persuaded on the evidence that the recipient of the subpoena, that is the Public Service Commission, should have somehow organised its affairs so as to meet with possible extensive and urgent requests of this nature.
Also I take into account that in my view it has not been shown that the subject matter of the documents sought by the
subpoena is "sufficiently relevant". I refer to the decision of Waddell J in SDencer Motors Ptv Ltd v LNC Industries Ltd (19821 2 NSWLR 921 at 926.
The present case involves a challenge to the validity of the rejection of Mr Clarke's application for a position with the Federal Court in November 1991 and the subsequent creation of another post. It has not been shown to me that Mr Clarkets

applications in the previous two years while he was an unattached officer in the Defence Department would have any direct bearing or indeed any bearing at all on the legality or othenvise of the decisions taken by the respondent to these proceedings in November 1991. It would seem to follow that the documents sought by the subpoena were not before the respondent when he made the decisions which are under attack.

I accede to the application to set aside the subpoena. I will make a like order in relation to that subpoena dated 18 August addressed to "Section Head, Redeployment and Retirement Section, Public Service Commission".

I will order that the respondent pay the costs of the

application by the Public Service Commission.

I certify that this and the preceding (2) two pages are a true copy of the reasons for

Justice Heerey. judgment of his Honour M r

Counsel for the respondent:	M r J W K Burnside QC with Mr C G
Sexton

Solicitor for the respondent: Australian Government Solicitor

Counsel for the Public

Service Commission:	Mr B J F Mueller
Solicitors for the Public
Service Commission:	Minter Ellison Morris Fletcher