Commonwealth Bank of Australia v Oberdan No. Scgrg-95-2262
[2000] SASC 155
•14 June 2000
COMMONWEALTH BANK OF AUSTRALIA V OBERDAN
[2000] SASC 155
LANDER J. The plaintiff in this matter issued subpoenas directed to two firms of chartered accountants, KPMG Peat Marwick and Arthur Anderson. It also issued a subpoena directed to Thomson Simmons & Co, solicitors.
Both firms of accountants responded to the subpoena and delivered documents to the Registrar before the date of return of the subpoena.
On the return of the subpoena the plaintiff sought access to the documents produced. The defendant did not object to the plaintiff having access to all of the documents produced by KPMG but did object to the plaintiff having access to some of the documents produced by Arthur Anderson.
In respect of the Arthur Anderson documents the defendant offered four different grounds of objection to the plaintiff having access to those documents.
The first ground of objection is that some documents fall outside the terms of subpoena. The second ground of objection is that confidential material relating to settlement negotiations in the nature of instructions and draft is included within the documents. The third ground of objection is that the documents include references to matters which are irrelevant and confidential. The fourth ground is that the documents are not relevant.
The parties agreed that the quickest way to deal with this matter was for me to read the documents to which objection was taken and determine whether any of the grounds of objection have been made out.
Mr White, who appeared for the defendant, marked each of the documents with the ground of objection in order to assist me in that task.
The documents required to be produced on the subpoena were as follows:
“All documents relating to indebtedness of the defendant and/or St Christopher and/or Haventide and/or the Edinburgh Castle Partnership to the plaintiff including all documents relating to discussions or correspondence during the period between 1 January 1993 and 30 September 1994 between Arthur Anderson and:
1.1 the plaintiff;
1.2 St Christopher;
1.3 Haventide;
1.4 The Edinburgh Castle Partnership;
1.5 the defendant;
1.6 Thomson Simmons & Co;
1.7 KPMG Peat Marwick;
1.8 The co-guarantors.
in relation to such indebtedness.”
The subpoena identified with more particularity a number of the entities referred to in the body of the subpoena. It is not necessary for the purpose of these reasons to set out the extended definitions.
I read the subpoena as requiring Arthur Anderson to only produce documents relating to discussions or correspondence during the period between 1 January 1993 and 30 September 1994. Any document, on my reading of the subpoena, created after that date or indeed before that date would not need to be returned.
The following files comprised the return of the subpoena:
AA Corporate Structure File;
AA Folder General Correspondence - OBE 6760;
AA General File (Pink Folder);
AA Red Folder.
I annex to these reasons the summary of documents produced by Arthur Anderson and the summary of objections to inspection made by the defendant. It can be seen that the ground of objection to the majority of documents to which the defendant objects the plaintiff having access, is that the document was created outside the period specified in the subpoena.
For reasons already mentioned, in my opinion, none of the documents which were created outside the period mentioned in the subpoena need be returned and I uphold the defendant’s objection to the plaintiff’s inspecting those documents. Those documents may not be inspected by the plaintiff.
I turn to the further objection in relation to AA Folder General Correspondence-OBE 6760 in so far as objection is taken to documents to created within the period specified in the subpoena.
The only ground of objection apart from the one already dealt with, in relation to this file, is that the documents contain confidential material relating to settlement negotiations and nature of instructions drafts.
I have read those documents in that file. The ground of objection made by the defendant cannot be sustained.
Confidential material relating to settlement negotiations could, if they were evidence of communications made in an attempt to negotiate the settlement of the civil dispute, become inadmissible in any civil or criminal proceedings; s 67C of the Evidence Act, 1929.
I am not satisfied that any of these documents fall within that category but in any event, even if they did that would not prevent the plaintiff, in my opinion, inspecting the documents, although it might prevent the plaintiff’s tendering the documents.
In my opinion the plaintiff therefore should be entitled to access to those documents in that file which were created within the period mentioned in the subpoena.
I turn next to the AA General file (Pink Folder).
In respect of most of the documents not covered by the objection on ground 1 the defendant also objects on the second and third grounds. I have dealt with the second ground in relation to the AA Folder General Correspondence-OBE 06760. The same comments can be applied to that ground of objection in respect of this file.
The third ground of objection relies on both relevance and confidentiality. If the documents were wholly irrelevant that would be an appropriate ground of objection. But that is not asserted. Confidentiality by itself is not a ground of objection to a party inspecting documents returned on a subpoena. Moreover, because the documents which are otherwise relevant contain irrelevant material, that does not also mean that the documents cannot be inspected by another party.
In my opinion ground 3 is not a true ground of objection to an application for inspection of documents returned on the subpoena.
I dismiss the defendant’s objection to the plaintiff inspecting all of those documents in that file in so far as the defendant relies upon grounds two and three of the grounds of objection. The plaintiff may not inspect those documents which were created outside the period mentioned in the subpoena.
Two documents contained in the AA Red Folder are the subject of objection.
The sole ground of objection in relation to those two documents is the second ground. In my opinion that ground is not a true ground of objection to inspection of the documents.
All of the documents in the Red Folder will be available to the plaintiff for inspection.
Thomson Simmons also responded to the subpoena and delivered seven files to the Court. Those files related to matters for which that firm had acted for the defendant.
Again the plaintiff sought access to the documents returned on the subpoena. The defendant did not object to the plaintiff having access to 5 of the 7 files but objected to the plaintiff having access to the remaining two files on the grounds, with respect to the first of the files, that the file contains file notes and advice between solicitor and client which are confidential and privileged and, in respect of the second file, it contains file notes and correspondence which are privileged and confidential and not relevant.
I have read the two files produced by Thomson Simmons and Co to which objection is taken. Thomson Simmons & Co were at the relevant time acting for the defendant.
In my opinion the file marked AJS/489514 Oberdan Group Re Loan Facility; St Christopher P/L; Commonwealth Bank contains documents which contain communications between Mr Oberdan and his solicitors and the solicitors and Mr Oberdan. In my opinion those documents would be subject to legal professional privilege and in those circumstances the objection to the plaintiff having access to those documents has been made out.
The second file is marked Commonwealth Bank v Oberdan Copies of Documents from File 561478. This file, in my opinion, also contains documents which would be subject to legal professional privilege. In my opinion the objection taken in respect of this file should also be upheld.
I therefore decline to allow the plaintiffs access to those two files.
I therefore allow the plaintiff access to all of the documents produced by Arthur Anderson except those to which objection has been taken on the first ground of objection namely that the documents were created outside the relevant period.
I allow the plaintiff access to all of the documents produced by Thomson Simmons & Co except those in the files marked AJS/489514 Oberdan Group Pre Loan facility; St Christopher PL; Commonwealth Bank and the file marked Commonwealth Bank v Oberdan Copies of Documents from File 561478.
I direct that the defendant remove those documents to which the plaintiff is not entitled to have access and to seal them in separate envelopes indicating in the original documents the place from which and the documents which have been removed.
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