Heggie v CSR Limited

[2001] WADC 77

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   HEGGIE -v- CSR LIMITED [2001] WADC 77

CORAM:   YEATS DCJ

HEARD:   16 FEBRUARY 2001

DELIVERED          :   Delivered Extemporaneously on 16 FEBRUARY 2001 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 4498 of 1998

BETWEEN:   PETER JAMES HEGGIE

Plaintiff

AND

CSR LIMITED
Defendant

Catchwords:

Practice and procedure - Leave to issue a subpoena duces tecum returnable prior to trial - Confidentiality and costs considered

Legislation:

Supreme Court Rules, O 36 r 12(4)

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     Mr H M O'Sullivan

Solicitors:

Plaintiff:     No appearance

Defendant:     Srdarov Richards Burton

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

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Case(s) also cited:

Nil

1. YEATS DCJ: This is an appeal from the decision of the learned Registrar made in chambers on 7 December 2000 when he refused an application for orders pursuant to O 36 r 12(4) requesting the issue of a subpoenae duces tecum and early return of documents prior to trial.

2. The jurisdiction exercised by the Registrar is a delegated jurisdiction and provision is made for a complete review de novo.  I need not look for error on the part of the Registrar but should consider the matter afresh for myself (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26).

3. The defendant is an employer in an action by the plaintiff for damages for injuries suffered in the course of his employment as an independent contractor with the defendant.  I understand from submissions from the defendant that the claim is well in excess of $1,000,000 and relates to an injury the plaintiff suffered in the course of his employment.  Once the plaintiff was injured, the defendant engaged another contractor to carry out the same work that had been done by the plaintiff.  The damages award and the decision of the Court as to the extent of the damages will depend very much on issues as to the projected growth of the business of the person doing this work for the defendant.

4. The documents are sought from Mr Allard, the person who replaced the plaintiff in this position with the defendant.  The subpoena calls on him prior to the trial of this matter to produce books of accounts, ledgers, journals, partnership, taxation return and associated documents and papers relating or pertaining to the business or occupation of Mr Allard as a maintenance contractor with the defendant at the Gosnells quarry for 1996 and every financial year thereafter to the present.

5. The defendant has approached Mr Allard in relation to producing these without need for a subpoena but Mr Allard has declined.  A letter was received from Mr Allard's solicitor which sets out his concerns in this matter.  They are first of all the problem of confidentiality.  There is a concern that Mr Allard, who is not at all involved in these proceedings, does not wish to disclose to the defendant its profit and loss arising from work it caries out on behalf of the defendant; he is concerned that in future negotiations or contracts the defendant may be inclined to reduce the contract price, having been made aware of the profitability of the contracts.  There is also concern about this information in the marketplace in that regard.  There is a further concern as to the costs of preparing the information and Mr Allard estimates that it could cost $3,000 to prepare these documents.

6. I have considered the need for these documents, looked at in the overall case of the defendant.  I accept the submission made to me by counsel appearing for the defendant that the claim is of such a size that costs incurred in this undertaking would be justified.  At the same time I am of the view that these documents have a relatively limited impact.  The evidence of the earnings of the plaintiff himself in his employment with the defendant will be before the court.  The defendant can give evidence as to what it pays now to have the work that the plaintiff did done by Mr Allard; but, at the same time, I can understand the submission of the defendant that he would be entitled to issue a subpoena to Mr Allard returnable on the first day of the trial without leave.

7. This will be a complex trial and this is not the kind of matter that should be dealt with on the first morning of the trial.  It could lead to the adjournment of the trial and loss of the court's time.  That is a matter that goes to the exercise of my discretion because it is important in considering this that the interests of justice are considered; the interests of justice include that the court's time is not wasted.

8. Having considered all of these matters, I am of the view that an order should be made pursuant to O 16 r 12(4) for the issue of the subpoena. That order, however, needs to be amended to take into account the particular concerns of Mr Allard so that there are as few problems as is possible in dealing with questions of confidentiality and in dealing with the costs that he will be incurring in complying with the subpoena.

9. Therefore I have determined that the order should be in these terms:

   (1)the defendant have leave to issue a writ of subpoena duces tecum to the person named in the schedule to produce the documents referred to in the schedule on a date before the date on which the trial is due to commence;

   (2)the defendant shall not issue the writ referred to in par 1 until the listing coordinator, or such other responsible court officer, on the application of the defendant, has allocated a date or dates for the return of the subpoena;

   (3)the subpoena shall be returnable before a Judge in chambers on the date or dates fixed by the aforementioned listing coordinator or responsible court officer;

   (4)the time fixed for service of the subpoena shall be not less than 14 days before the return date;

   (5)the counsel and/or solicitors for the defendant shall attend the court to inspect the documents within seven days after the return date or within the same period after the party has been advised that the documents have been produced under O 16 r16A;

   (6)the documents shall be returned to the person producing them as soon as practicable after the expiry of the period for inspection set out in par 5;

   (7)the defendant shall give to all other parties reasonable notice of the return date for the subpoena;

   (8)the defendant shall pay the third party's reasonable costs incurred in complying with the subpoena;

   (9)inspection of the documents is to be confined to counsel, solicitors and nominated experts of the parties.

10. For these reasons the appeal is allowed and leave to issue the subpoena is granted.