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 previous Tuesday ‑ explaining PG's objections to answering on the grounds of oppression, abuse of process or the like.
Subpoenas are formal commands of the Court issued to a party or non‑party in strict terms. They require compliance either by an attendance at court or by a production of nominated documents. In that respect, it is still pertinent to remember the observations of the Chief Justice of New South Wales, Sir Frederick Jordan, in Commissioner of Railways v Small (1938) 38 SR (NSW) 564. The Chief Justice's observations at page 573 in particular are frequently referred to. Formality of the process and a need for strict compliance are clear, particularly because the potential end consequence for a non‑compliance is a contempt sanction.
The dispute seems to have wended rather informally after the initially wrong formal return date (on a public holiday) and the nomination of a place to respond which does not identify a judicial officer.
I think either the rule or the practice direction may not be entirely clear in terms of how a formal objection shall be taken or articulated, in circumstances where a document subpoena is issued not to be returnable before a Judge or a Master, as was once the case.
The controversy has been approached by its participants on the basis of the plaintiff as issuing party offering via conferral correspondence (between solicitors) some adjustments narrowing the scope of this subpoena. For instance, scope of its reference to 'all communications' was offered to be narrowed to just 'emails'. The terms of the subpoena as issued refer to 'including but not limited to emails'. The plaintiff offered to strike through those words and replace them with the words 'including any email chains or threads originating from such emails'.
The subpoena as issued identifies a series of persons culminating in a category (r), reading 'any officer or employee of WorleyParsons'. Following conferral, it is offered to reduce the scope of that class to any 'email address with the domain of WorleyParsons.com that include the words (i) through (vi) in the subject of the heading email'.
By written submissions of 26 April 2013 (part of the extensive exchange of written submissions antecedent to today's argument) the plaintiff also says at par 11:
Additionally, the plaintiff seeks to add to the list above at 1(8)(r), 'Those persons falling within the email groups entitled directors, senior managers and managers.'
By par 20 of those same written submissions the plaintiff as issuer of the subpoena indicates a willingness to replace the word 'sent' with 'dated', by way of response to PG's objections to the former term.
In support of the PG's abiding objections against the subpoena, there is a longish affidavit by a Mr Ukarbis Bothma sworn 23 April 2013. Across 40 paragraphs, Mr Bothma speaks as an employee of Powertech, specifically its 'enterprise systems manager'. He seeks to identify a considerable number of expressed difficulties arising for his employer by reason of how widely the subpoena is drawn. These include logistical obstacles to the recovery of old emails, PG's recent infrastructure changeover from an old server to a new server, and the search related problems the changeover may create for PG.
RSC O 36 r 4 affords both a power to set aside a subpoena and a power to make such further orders as the Court thinks appropriate. In the circumstances, I will evaluate a potential exercise of either power, in the context of the necessary formality concerning what is involved in properly answering a subpoena bearing in mind the potential contempt sanctions for a non‑compliance. These outcomes are strict in their potential consequences.
This action is now case‑managed in my CMC list. I have had the benefit of references to case authorities that address a somewhat narrow power of the Court to allow amendments to a subpoena, beyond a bare blue pencilling excision: see Perdaman Chemicals & Fertilisers Pty v The Griffin Coal Mining Company Pty Ltd [No 6] [2012] WASCA 450 [11] ‑ [12] (Edelman J).
Here, I think the safest course overall ‑ bearing in mind a non‑compliance controversy that has evolved ‑ is to set aside this subpoena, preserving the plaintiff's right to issue a further document subpoena of a narrower scope, as it has offered in the conferral correspondence. The fresh subpoena may be in such terms as the plaintiff thinks fit, but no doubt sensibly taking account of the conferral dialogue that has ensued to date, the objections or concessions that have been made and these reasons.
Mr Grimmer's solicitors of record are also the solicitors of record for PG. As PG is represented by solicitors with whom there can be an ongoing conferral process, that process should be the means of addressing any residual disputation over the scope of a new subpoena.
Any fresh subpoena should be made formally returnable before me in the CMC list at an appointed time fixed in liaison with my Associate. It should not be issued as generically returnable before a building as the previous subpoena was. That would not inhibit the fresh subpoena being informally answered, if the present disputes are resolved, by a voluntary delivery of documents by PG to the Principal Registrar.
If necessary, I can evaluate any further objections, or programme a hearing for that purpose, when the subpoena is answered before me.
The current subpoena was issued as formally answerable on 4 or 5 March 2013 but has not been answered. I do not want to see any arguments emerging later about what has occurred in terms of the validity of a fresh subpoena not being properly answered by reason of what has ensued to date informally. Without prejudice to the rights of the plaintiff to issue a fresh document subpoena to PG, I therefore set aside the current subpoena.
There being no need to obtain leave to issue any fresh document subpoena, I suggest that the present conferral process over the objections raised continue. If that resolves outstanding issues, the plaintiff can then issue its fresh subpoena in consensually adjusted terms.
If there remains disputation over the ambit of the fresh subpoena or any other aspect of concern, that can be formally raised as an objection in my CMC list, on the formal return date. I will then make programming orders for these issues to be evaluated. But the matter to date has, to be colloquial, evolved to become something of a moving feast. Frequently, it is appropriate for a certain informality to prevail in resolving interlocutory pleading disputes or the like. But I do not assess the controversy over subpoenas not being answered ‑ with the potential contempt consequences ‑ to be of that ilk.
As I have indicated, it is appropriate for conferral to continue as regards any further subpoena. However, a fresh subpoena to PG must be issued in terms which can allow any residual irreconcilable objections to be dealt with by the court with the degree of formality appropriate to the very serious potential consequences arising for non‑compliance.