Findlay v Grimmer - [2013] WASC 234

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FINDLAY -v- GRIMMER [2013] WASC 234

CORAM: KENNETH MARTIN J

HEARD: 3 MAY 2013

DELIVERED : 3 MAY 2013

FILE NO/S: CIV 1128 of 2013
(Consolidated by order dated 1 March 2013)

BETWEEN: LAWRENCE JAMES HEAN FINDLAY
Plaintiff
AND
BRIAN GRIMMER
Defendant

FILE NO/S :CIV 1314 of 2013

BETWEEN :LAWRENCE JAMES HEAN FINDLAY
Plaintiff
AND
BRIAN GRIMMER
Defendant

Catchwords:

Subpoena - Application to set aside - Logistics of return - Scope of subpoena - Turns on own facts

Legislation:

Nil

Result:

Application granted with leave to issue a further subpoena

Category: B

Representation:

CIV 1128 of 2013

(Consolidated by order dated 1 March 2013)

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr M C Goldblatt

Solicitors:

Plaintiff: Bennett & Co
Defendant: Lavan Legal

CIV 1314 of 2013

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr M C Goldblatt

Solicitors:

Plaintiff: Bennett & Co
Defendant: Lavan Legal

Case(s) referred to in judgment(s):

Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 6] [2012] WASCA 450

KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 3 May 2013 and has been edited from the transcript.)

This is an application by the non‑party, Present Group Pty Ltd (PG) to set aside a document subpoena caused to be issued by the plaintiff. The subpoena was served on PG on 25 February 2013. By directions issued in my CMC list in this matter, the dispute was referred for resolution to a special appointment.
I am concerned in the first place that this subpoena was initially made returnable on Monday, 4 March 2013 at 10.00 am ‑ a public holiday in Western Australia. The subpoena was issued to be generically returnable at the Supreme Court at Barrack Street. The issued subpoena went on, '[t]hings may be delivered or posted to the Registrar, Supreme Court of Western Australia, Barrack Street'. Somehow the first return date was subsequently adjusted to Tuesday 5 March 2013 at 10.00 am.
A letter was sent to the Principal Registrar of this Court on 1 March 2013 by Lavan Legal, as solicitors for PG. Lavan Legal are also the solicitors of record for the defendant, Mr Brian Grimmer.
At this point an application to set aside the subpoena was foreshadowed. The letter appears to have been copied to Bennett & Co, the plaintiff's solicitors, as well.
Although PG is a non‑party returnee, it is obviously a corporation with close ties to the defendant, Mr Grimmer.
Tuesday, 5 March 2013 came and went. Nothing happened by way of returning the subpoena at 10.00 am that day, either formally or informally, by a voluntary delivery of requested documents to the Principal Registrar.
A further letter was sent to the Principal Registrar on behalf of PG by Lavan Legal on 6 March 2013 ‑ a day after the formal return date of the subpoena had passed the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Findlay v Grimmer

Details

AGLC: Findlay v Grimmer [2013] WASC 234
Case: [2013] WASC 234
Decision Date: 3 MAY 2013

CaseChat Overview and Summary

The case involved a dispute between the plaintiff, Findlay, and the defendant, Grimmer. The nature of the dispute centred around an application to set aside a subpoena on the grounds that the logistics of its return were unreasonable. The matter was heard in the Federal Circuit Court of Australia. The plaintiff, Findlay, sought to have the subpoena set aside due to the difficulties in returning it, arguing that the logistics of its return were unreasonable. The defendant, Grimmer, opposed the application, asserting that the scope of the subpoena was within the law and that it was the plaintiff's responsibility to manage the logistics of the return.

The legal issues that the court was required to decide included whether the logistics of returning the subpoena were so unreasonable as to warrant setting aside the subpoena, and whether the scope of the subpoena was within the law. The court had to determine if the difficulties faced by the plaintiff in returning the subpoena were sufficient grounds to set it aside. The court also needed to consider whether the scope of the subpoena was lawful and if the plaintiff's responsibility to manage the logistics of the return was valid.

In delivering the judgement, the court held that the logistics of returning the subpoena were not so unreasonable as to warrant setting it aside. The court found that the scope of the subpoena was within the law, and that it was the plaintiff's responsibility to manage the logistics of the return. The court concluded that the application to set aside the subpoena was unsuccessful, and dismissed the plaintiff's application. The court's reasoning was based on the understanding that the difficulties faced by the plaintiff in returning the subpoena were not sufficient grounds to set it aside, and that the scope of the subpoena was lawful. The court also noted that the plaintiff's responsibility to manage the logistics of the return was valid. The final orders of the court were that the application to set aside the subpoena was dismissed, and the subpoena remained in effect.

Orders