JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DONALDSON -v- NOLAN [No 3] [2015] WASC 194
CORAM: BEECH J
HEARD: 22 MAY 2015
DELIVERED : 29 MAY 2015
FILE NO/S: CIV 2867 of 2013
BETWEEN: JOHN RAWSON DONALDSON
Plaintiff
AND
JEFFREY RAYMOND NOLAN as Executor of the Estate of JOHN WAYNE DONALDSON
First DefendantJEMMA LOUISE DONALDSON
Second DefendantTHOMAS DEREK DONALDSON
Third DefendantROSANNE DONALDSON
Fourth DefendantGREGORY BRENT DONALDSON
Fifth DefendantVANESSA DONALDSON
Sixth DefendantJACQUELINE DONALDSON
Seventh DefendantVALERIE DOREEN DONALDSON
Eighth DefendantMAITLAND GERALD DONALDSON
Ninth DefendantDAVID TAYLOR
Tenth DefendantSILVER CHAIN NURSING ASSOCIATION INC
Eleventh DefendantROBIN BRAZIL DONALDSON
Twelfth DefendantJENNIFER LOUISE BROWNING
Thirteenth Defendant
Catchwords:
Courts and judges - Contempt - Whether defendant disobeyed order for discovery
Practice and procedure - Discovery - Whether further discovery should be ordered - Subpoena of documents - Whether leave to issue should be granted
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 98
Rules of the Supreme Court 1971 (WA), O 26 r 6, O 55 r 5
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
First Defendant : Ms W F Gillan
Second Defendant : Ms W F Gillan
Third Defendant : Ms W F Gillan
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : Ms W F Gillan
Thirteenth Defendant : Ms W F Gillan
Solicitors:
Plaintiff: In person
First Defendant : Taylor Smart Lawyers & Notaries
Second Defendant : Kershaw Legal
Third Defendant : Kershaw Legal
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : Kershaw Legal
Thirteenth Defendant : Kershaw Legal
Case(s) referred to in judgment(s):
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Australian Gas Light Co v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41 ‑ 956
Boase v Axis International Management Pty Ltd [2012] WASC 334
Caratti v Boban Pty Ltd (Administrators Appointed) (No 2) [2015] WASC 139
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Commissioner for Consumer Protection v Armstrong [No 4] [2015] WASC 8
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558
Donaldson v Nolan [2015] WASC 47
Donaldson v Nolan [No 2] [2015] WASC 158
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
R v Pearce (1992) 7 WAR 395
Continue reading Donaldson v Nolan [No 3]
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- AGLC
- Donaldson v Nolan [No 3] [2015] WASC 194
- Case
- [2015] WASC 194
- Decision Date
CaseChat Overview and Summary
The court had to determine the threshold for establishing apparent relevance of documents in a subpoena, which is a lower standard than actual relevance. The plaintiff needed to demonstrate that the documents or class of documents could potentially give rise to a line of enquiry relevant to the issues before the court. The court also had to consider the timing of the subpoena, the potential for delay in the trial, and the balance between the need for a fair trial and the rights of the third party whose documents were sought.
The court found that the plaintiff had met the threshold for apparent relevance as the documents sought could potentially lead to a line of enquiry relevant to the issues in the case. The court emphasised that a narrow view should not be taken regarding the legitimate purposes of a subpoena of apparent relevance. The court also noted that there was no requirement for the plaintiff to already possess some evidence before issuing a subpoena, as litigation should be conducted on the footing that all relevant documentary evidence is available. The court considered that the plaintiff's need to fairly dispose of the issues at trial outweighed the potential inconvenience to the third party whose documents were sought.
The court granted leave for the plaintiff to issue the subpoena, allowing the plaintiff to obtain the additional documents necessary for their case. The court found that the plaintiff's need to complete their discovery obligations and adequately prepare for the trial outweighed any potential delay in the trial or inconvenience to the third party. The court also noted that the subpoena was not overly wide-ranging and that the documents sought had at least some apparent potential relevance to the matters in issue in the litigation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination.[16][16] Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 374 (Kennedy, Pidgeon & Franklyn JJ); Stanley v Layne Christensen Co [2004] WASCA 50 [9] (Miller & EM Heenan JJ); Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [18] (Steytler P). In advance of trial, the determination of whether a document is relevant is a difficult one.[17] The necessity of having a document in order to fairly dispose of the issues at trial might well not become apparent before trial.[18][17] National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, 385 (Moffit P, Hutley & Glass JJA agreeing); Apache Northwest Pty Ltd (373).[18] Apache Northwest Pty Ltd (374, 376, 379); Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18]. One object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage in proceedings. Accordingly, a narrow view should not be taken as to the legitimate purposes of a subpoena of apparent relevance.[19] [19] Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18]. There is no requirement that to avoid the stigma of fishing, a party must already be in possession of some evidence before issuing a subpoena. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available.[20] [20] Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18]. In Australian Gas Light Co v Australian Competition & Consumer Commission[21] French J said as follows:It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.This passage was cited with approval in Darbyshirev Gilbert[22] and Commonwealth of Australia v Albany Port Authority at [18].[21] Australian Gas Light Co v Australian Competition & Consumer Commission [2003] FCA 1101; [2003] ATPR 41 ‑ 956 [8].[22] Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558 [13] (Pullin JA, Roberts‑Smith JA agreeing).