Donaldson v Nolan [No 3]

Case [2015] WASC 194

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 Defendant

JEMMA LOUISE DONALDSON
Second Defendant

THOMAS DEREK DONALDSON
Third Defendant

ROSANNE DONALDSON
Fourth Defendant

GREGORY BRENT DONALDSON
Fifth Defendant

VANESSA DONALDSON
Sixth Defendant

JACQUELINE DONALDSON
Seventh Defendant

VALERIE DOREEN DONALDSON
Eighth Defendant

MAITLAND GERALD DONALDSON
Ninth Defendant

DAVID TAYLOR
Tenth Defendant

SILVER CHAIN NURSING ASSOCIATION INC
Eleventh Defendant

ROBIN BRAZIL DONALDSON
Twelfth Defendant

JENNIFER 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

Roe…

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AGLC
Donaldson v Nolan [No 3] [2015] WASC 194
Case
[2015] WASC 194
Decision Date

CaseChat Overview and Summary

Donaldson and Nolan appeared before the Supreme Court of Western Australia in a case concerning the discovery of documents and the issuance of subpoenas. The dispute arose from a commercial transaction involving the parties, and the central issue was whether further discovery should be ordered and whether leave to issue a subpoena should be granted. The plaintiff, Donaldson, sought to obtain additional documents from the defendant, Nolan, in order to complete their discovery obligations and adequately prepare for the trial.

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).