Glover v Australian Ultra Concrete Floors Pty Limited - [2004] NSWSC 980

NEW SOUTH WALES SUPREME COURT

CITATION: Glover v Australian Ultra Concrete Floors Pty Limited [2004] NSWSC 980 revised - 18/11/2004

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 20249 of 2003

HEARING DATE{S): 21 October 2004

JUDGMENT DATE: 27/10/2004

PARTIES:
David John Glover (Plaintiff)
Australian Ultra Concrete Floors Pty Limited (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20249 of 2003

LOWER COURT JUDICIAL OFFICER: Assistant Registrar B Howe

COUNSEL:
In person (Plaintiff)
Mr H Silvester (Defendant)

SOLICITORS:
N/A
Sparke Helmore (Defendant)

CATCHWORDS:
Review of decision by a registrar to set aside subpoenas and notices to produce
power to set aside
abuse of process
irrelevant material
oppressiveness and fishing expedition.

ACTS CITED:
Supreme Court Rules 1970

DECISION:
The plaintiff's notice of motion is dismissed
the plaintiff is to pay the costs of the notice of motion
the exhibits may be returned.

JUDGMENT:

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Master Malpass
27 October 2004
20249 of 2003 David John Glover v Australian Ultra Concrete Floors Pty Limited

JUDGMENT

Master: The plaintiff was involved in an accident at a factory on 1 May 1994. He brought proceedings for the recovery of damages said to arise out of personal injury suffered in that accident. The defendant was sued in its capacity as his employer. The proceedings went to trial before Newman J. His Honour found in favour of the defendant.
The plaintiff brought an appeal from that decision. The appeal was upheld and a new trial was ordered.
Following the trial, the plaintiff ceased to have legal representation. He continues to appear in person.
Despite the lapse of time, the new trial is yet to take place and no hearing date has been allocated for it.
Instead of pursuing an early hearing, the plaintiff now seems to be intent on adding a further defendant to the proceedings. The proposed defendant is PW Saddington & Sons Pty Limited. There is an extant application to join it as a defendant. The application is yet to come on for hearing.
The plaintiff appears to be labouring under the fear that, at trial, the defendant will dispute that it was his employer at the time of the accident. Further, he labours under a concern that the defendant was uninsured at the time of the accident.
His preoccupation with these matters persists despite there appearing to be no basis for what appears to trouble him and despite repeated reassurance that such is the case. He seems to have become distracted from what should be his first priority (getting his new trial fixed for hearing as soon as possible).
The pleadings have closed. The issue of employment stands admitted on the pleadings. As things presently stand there can be no issue at the trial as to whether or not PW Saddington & Sons Pty Limited or any other entity was the employer of the plaintiff at the time of the accident. The trial will proceed on the basis that the defendant was his employer at that time. The question of insurance is not a relevant issue in these proceedings. But, be that as it may, there is evidence before the court that Allianz Workers Compensation NSW (Limited) was the insurer of the defendant at the time of the accident.
It is in this context that the plaintiff came to issue various notices to produce and subpoenas. The documents that constitute this material are comprised in Exhibit A.
The documents seek to have the defendant, Quarry Products, KPMG Peat Marwick Newcastle and PW Saddington & Sons Pty Limited produce material to the court.
It seems that Quarry Products is in some way a related entity to the defendant. A similar position applies to PW Saddington & Sons Pty Limited (which is said to have been an occupant of the factory). KPMG Peat Marwick are said to be the accountants for the defendant and PW Saddington & Sons Pty Limited.
In part, it is sought to have documentation produced concerning the question of employment. In part, it is sought to have documentation produced in respect of the question of insurance. In part, it is sought to have documentation produced concerning the proposed joinder of PW Saddington & Sons Pty Limited. In part, it is sought to have production of documentation concerning what might be described as safety matters.
Application was made to have each of these documents set aside. The application came before Registrar Howe. He heard the application and then set aside each of the documents.
The plaintiff has filed a notice of motion seeking a review of that decision. The review was undertaken by the court on 21 October 2004.
The court has a discretionary power to review the decision of a registrar (Pt 61 r 3 of the Supreme Court Rules 1970). The function of a review is to have a second look at the decision of a registrar. The applicant bears the onus of satisfying the court that the decision should be disturbed.
The court procedures (including the issuing of subpoenas) are available to parties to enable them to prepare the case that is in contest in the proceedings (such as for a bona fide purpose of obtaining relevant evidence).
The court has a discretionary power to set aside documents such as notices to produce and subpoenas. In the case of subpoenas, the power is conferred by Pt 37 r 4 of the Rules (which applies to subpoenas issued on or after 1 May 2004). In the case of notices to produce, the power is conferred by Pt 36 r 16. In addition to the powers specifically conferred by the Rules, the court also has inherent jurisdiction to make an order.
The power may be exercised where the issue of the subpoena or notice to produce constitutes an abuse of process. This may take place where the issuing process is directed to the production of material which is not relevant to the issues raised by the pleadings. It may take place where what is sought to be produced is regarded as oppressive. It may take place where the process constitutes what is often described as a fishing expedition (where the subpoena is issued for the purpose of trawling amidst the produced documents in an endeavour to ascertain whether or not the issuing party has a case against a party or non party).
I have read the documentation relied on by the plaintiff. I have listened to his oral submissions.
I am not satisfied that the decision of the Registrar should be disturbed.
The documents that are sought by the plaintiff for the purposes of addressing questions of employment and insurance have no relevance to the issues raised by the pleadings. The documents sought to enable the plaintiff to join PW Saddington & Sons Pty Limited are part of a fishing expedition (to ascertain his prospects of bringing a claim against it and what insurance arrangements have been in existence). The documentation that is sought by the plaintiff which relates to safety matters may be at least largely irrelevant and is clearly oppressive (the task of production involves a period from 1990 to date).
It may be thought that it is in the best interests of the plaintiff to move on and get the new trial fixed for hearing.
The plaintiff’s notice of motion is dismissed. The plaintiff is to pay the costs of the notice of motion. The exhibits may be returned.

**********

LAST UPDATED: 18/11/2004