Coopes v Daishsat Pty Ltd
[2016] FCCA 2893
•5 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COOPES v DAISHSAT PTY LTD & ANOR | [2016] FCCA 2893 |
| Catchwords: PRACTICE & PROCEDURE – Subpoena – notice of objection – purpose for which documents called – whether legitimate forensic purpose – whether “fishing” – whether a substitute for pre-trial discovery. |
| Cases cited: Alister v The Queen (1984) 154 CLR 404 at 414; [1984] HCA 85 R v Saleam (1989) 16 NSWLR 14 |
| Applicant: | GRANT COOPES |
| First Respondent: | DAISHSAT PTY LTD (ACN 059 537 021) |
| Second Respondent: | DAVID DAISH |
| File Number: | PEG 28 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 30 September 2016 |
| Date of Last Submission: | 4 November 2016 |
| Delivered at: | Sydney & by video-link to Perth |
| Delivered on: | 5 December 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr P Brunner, Bailiwick Legal |
| Solicitors for the Respondents: | Mr A Sinanovic, Jarman McKenna Barristers & Solicitors |
ORDERS
Natalie Coopes pay the respondents’ costs of responding to the notice of objection filed 23 September 2016.
The documents referred to in the schedule to the subpoena issued to Natalie Coopes on 23 September 2016 be produced by 4:00pm (Australian Western Standard Time) on 16 December 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 28 of 2016
| GRANT COOPES |
Applicant
And
| DAISHSAT PTY LTD (ACN 059 537 021) |
First Respondent
| DAVID DAISH |
Second Respondent
REASONS FOR JUDGMENT
The applicant was employed as a senior geophysicist by the first respondent from September 2006 until December 2015. The second respondent is, and was at all material times, the sole director of the first respondent.
The applicant has brought proceedings against the respondents claiming, amongst other things, that he was not paid his bonus entitlements by the first respondent. The respondents deny this claim.
On 31 August 2016 a subpoena addressed to Natalie Coopes was issued at the request of the respondents. Ms Coopes is the applicant’s wife. The subpoena requires the production of documents relating to or showing:
i)the payment of any monies to Ms Coopes by the first respondent; and/or
ii)the provision of services to the first respondent
in the period between 18 September 2006 and 23 December 2015 inclusive.
Ms Coopes objects to the production of those documents on three grounds: first, the subpoena has no forensic purpose; secondly, it is oppressive; and thirdly, it was issued as an impermissible substitute for discovery. None of those objections are sound.
The respondents have the onus of establishing that there is some legitimate forensic purpose for the subpoena. In brief, that means that it is “on the cards” that the documents would materially assist the subpoenaing party in relation to the proceedings: Wingecarribee Shire Council v Lehman Brothers Australia Ltd (No. 4) [2010] FCA 1128 (“Wingecarribee”) at [20] (Rares J) citing Alister v The Queen (1984) 154 CLR 404 at 414; [1984] HCA 85 and R v Saleam (1989) 16 NSWLR 14 at 18A-F (Hunt J, Carruthers and Grove JJ agreeing).
The respondents say that the relevance of the documents sought by the subpoena is established by emails emanating from the applicant and a document prepared by Ms Coopes. I agree.
By email dated 22 December 2009 the applicant wrote to the first respondent stating relevantly:
Natalie has done up an invoice for $9,990 to cover my end of year bonus whenever you are ready.
On 20 December 2012 the applicant emailed the respondents stating:
…
If it is okay with Dave can you please pay Natalie’s end of year invoice before you go on holiday? We have deducted $2000 for the sale of the sea container from the old workshop so the total is $8000.
…
Bank records show that $8,000 was paid by the first respondent to the applicant on 21 December 2012 in respect of “NC inv 177”. It may be inferred that this is a reference to invoice no.177 prepared by Ms Coopes. That inference is supported by a document answering that description dated 20 November 2012.
The possible inference to be drawn from this material is that the applicant’s bonus was regularly paid by the first respondent in response to an invoice sent by Ms Coopes in her name. As such, it is “on the cards” that documents showing money paid to Ms Coopes by the first respondent will establish that the applicant was paid his bonus in this way. Conversely, documents showing that Ms Coopes provided services to the first applicant in the relevant period will establish that the invoices were not related to the applicant’s bonus. Of course, the failure to produce any such documents will be able to assist in establishing that there was the connection between the invoices and the payment of a bonus to the applicant.
Ms Coopes argues that the documents cannot be relevant because the respondents have not pleaded a case which would be proven or disproven by the documents. That is not so. As already noted, the respondents’ defence denies the allegation that the applicant was not paid any bonus. It is clear from the documents relied on that underlying that denial will be the assertion that the bonuses were paid in response to an invoice prepared by Ms Coopes. I need not consider the legality of such an arrangement.
For those reasons, I conclude that there is a legitimate forensic purpose to the subpoena.
That conclusion necessarily disposes of Ms Coopes’ argument that the subpoena is a fishing expedition: see Wingecarribee.
The second objection to the subpoena is that it is oppressive. However, Ms Coopes’ argument in this respect is that the documents have no relevance to the issues in the proceedings. I reject that argument for the reasons I have already given.
The third objection is that the subpoena is being used as a substitute for discovery. There are two parts to this argument: first, the documents have no relevance to the issues in the proceedings; and secondly, that the respondents propose to use the documents to develop a case against Ms Coopes. The second part of the argument appears to rely solely on an inference drawn from the first part. For that reason, as I consider that the documents are relevant in the required sense, neither part of the argument can succeed. I would add that, as the documents fall within a narrow, readily comprehensible category, Ms Coopes is not left to consider for herself whether any particular document ought or ought not to be produced in response to the subpoena.
Conclusion
In my view, there was no reasonable basis for the objection to the subpoena. Ms Coopes is not a total stranger to these proceedings: her husband makes claims for unpaid bonuses that, on the face of documents emanating from him involve Ms Coopes. Further, her husband’s lawyers acted for her in connection with the subpoena. In those circumstances, I consider that Ms Coopes ought to pay the respondents’ costs of responding to the notice of objection. The documents referred to in the schedule to the subpoena issued to Natalie Coopes on 23 September 2016 must be produced by 4:00pm AWST on 16 December 2016.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 5 December 2016
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