Conroys Smallgoods v Channel Seven Adelaide (No 1)

[2004] SADC 152

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

CONROYS SMALLGOODS v CHANNEL SEVEN ADELAIDE (No 1)

Reasons of His Honour Judge Lunn

1 November 2004

PROCEDURE

Subpoenas - duplicate copies on Court file - held they were "process" under s54(1)(aa) of District Court Act and thus were available for public inspection - application under R3.04(b) to withdraw the subpoenas refused.

CONROYS SMALLGOODS v CHANNEL SEVEN ADELAIDE (No 1)
[2004] SADC 152

REASONS ON APPLICATIONS TO INSPECT, AND WITHDRAW, SUBPOENAS

1. The trial of this action has been part heard before me.  It is due to resume later today.  The defendant has called two witnesses, but has not yet opened its case or disclosed what other witnesses it intends to call.

2. The defendant has issued about twenty five subpoenas.  (Under Rule 81.05 it could have issued one subpoena returnable for twenty five witnesses.  It has apparently issued individual subpoenas for each witness.)  I have not seen these subpoenas.  There are sealed duplicate copies held on the Court file, although it is only the praecipes, and not the subpoenas, which have been formally filed.  I am informed that these duplicate copies held by the Court contain the names of their addressees.  (Under Rule 81.05(3) the defendant did not have to insert those names on the copies lodged with the Court, but it chose to do so.)  I am informed that many of the addressees are current or former employees of the first plaintiff.  At the hearing on 27 October 2004 counsel for the defendant informed me that it was the present intention of the defendant only to call ten of the addressees as witnesses, but more could be called depending on what occurs hereafter at the trial.

3. The plaintiffs’ solicitors applied to the Registrar to inspect these duplicate subpoenas. The Registrar’s staff sought my direction on whether inspection should be permitted. Having ascertained that the defendant’s solicitors did not consent to such inspection I directed that there should be a hearing before me on the matter. Under Section 54(4) of the District Court Act 1991 it is an administrative decision which is not subject to further review.  I gave my direction on 27 October and these are the reasons for it.

4. Section 54(1) of the District Court Act 1991 provides:

   “(1)  Subject to this section, the court must, … allow the applicant to inspect or obtain a copy of –

   (aa)any process relating to proceedings and forming part of the court’s records …”

   Subpoenas are “process”: “Butterworths Australian Legal Dictionary” 929. (In s50A of the same Act “process” is used in a context which would also embrace subpoenas). Although duplicate subpoenas are not filed in the sense of being formally entered in the Court’s records, they are by virtue of being in the possession of the Registrar part of “the Court’s records” within the definitions in Rule 107.05(6). Accordingly, the duplicate subpoenas are encompassed by s54(1)(aa). However, s54(1) is subject to the other subsections of s54. Counsel for the defendant did not seek to bring the duplicate subpoenas within any category of material within s54(2), which is only available for inspection by permission of the Court. Thus by s54(1) the plaintiffs have an absolute right to inspect and copy the subpoenas. I directed the Registrar accordingly.

5. In the course of the argument counsel for the defendant made an oral application under Rule 3.04(b) to withdraw the subpoenas so that they would not be in the possession of the Registrar and so subject to inspection under s54(1). Rule 3.04 provides:

   “The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks just to do so:

   ….

   (b)     give leave to any party to … withdraw any step in a proceeding.

   …”

   I assume, without deciding, that the duplicate subpoenas are a “step in a proceeding” for this purpose.  I am not aware of any reported authority on the criteria for the exercise of the Court’s discretion under Rule 3.04(b).

6. Counsel for the defendant informed me that the defendant’s solicitors had informed some of the addressees of the subpoenas that the fact that they had been served with subpoenas would not be disclosed to the plaintiffs if they were not to be called at the trial.  If the defendant’s solicitors had wished to preserve the anonymity of these addressees, they could under Rule 81.05(3) have not included the names of the addressees in the subpoenas lodged at Court.  Apparently some of the addressees who are still employees of the 1^st plaintiff are concerned that they may be possibly prejudiced in their employment if the plaintiffs learn they have been in communication with the defendant about this case.  However, the service of a subpoena in itself says nothing about what other communications there may, or may not, have been between the defendant’s solicitors and the addressee.  The defendant’s counsel suggested that it could well mean that the employee had given some information to the defendant about the matter, but it could equally mean that the employee had been unco-operative with the defendant and the defendant was risking calling him “on the blind”.  There was no suggestion that the plaintiffs wanted to ascertain the names of the defendant’s potential witnesses by inspecting the subpoenas for any improper purpose of attempting to suborn these witnesses or the like.

7. The duplicate subpoenas form part of the public record of the Court.  If the Registrar had acted on the legal basis which I have enunciated above, and had not sought my direction, the plaintiffs would have inspected the subpoenas without the knowledge of the defendant.  In that event the defendant would not have had any opportunity to have applied to withdraw the subpoenas.  I do not consider that any possible prejudice or detriment to the potential witnesses is sufficient to deprive the plaintiffs of this right of inspection for legitimate forensic purposes.  Accordingly, I dismissed the application for withdrawal.