Hesford v Hancock

Case [2021] WASC 294 (S)


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION: HESFORD -v- HANCOCK [2021] WASC 294

CORAM:   REGISTRAR WHITBREAD

HEARD:   17 JUNE 2021

DELIVERED          :   26 AUGUST 2021

FILE NO/S:   CIV 1552 of 2020

BETWEEN:   HAYDN HESFORD

Plaintiff

AND

LAURA MARION HANCOCK

First Defendant

LOUISE GEORGIA DOUGLAS

Second Defendant


Catchwords:

Practice and procedure - Application to set aside a subpoena - Whether the documents sought by the subpoena serve a legitimate forensic purpose - Whether subpoena should issue for categories of documents that are privileged and where privilege has been asserted

Legislation:

Rules of the Supreme Court 1971 (WA), O 36B r 8A

Result:

Application allowed in part

Category:    B

Representation:

Counsel:

Plaintiff : M Curwood SC & MA Kershaw
First Defendant : E Ryan & J Henderson
Second Defendant : M Blundell

Solicitors:

Plaintiff : Kershaw Legal
First Defendant : Butlers Lawyers & Notaries
Second Defendant : Solomon Brothers

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

AGL Wholesale Gas Ltd v Origin Energy Ltd [2008] QCA 366

Alister v The Queen (1984) 154 CLR 404

Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280

Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 374

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250

Attwell v Morgan [2019] WASC 182

Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2011] FCA 938; (2011) 283 ALR 137

Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Bedshed Franchising Pty Ltd v Battersby [No 2] [2015] WASC 281

Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498

Bool v Bool [1941] St R Qd 26

Boughton v Knight (1873) LR3P&D 64

Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295

Buswell v Carles [2012] WASC 509

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76

Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

Donaldson v Nolan [No 3] [2015] WASC 194

Estate of Janakievska [2011] NSWSC 1275

Hamilton v Oades (1989) 166 CLR 486; 85 ALR 1; 15 ACLR 123

Hearne v Street (2008) 235 CLR 125, [2008] HCA 36

Holloway v State of Victoria (Department of Justice) [2015] VSC 526

In the Will of Wilson [1897] 23 VLR 197

Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46

Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415

King v Hudson [2009] NSWSC 1013

Lacerenza v Calautti [2005] WASC 46

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555

National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, 385

Nicholson v Knaggs [2009] VSC 64

Oswal v Yara Australia Pty Ltd [No 2] [2011] WASC 146

Perdaman Chemicals & Fertilisers Pty Ltd v…

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Details
AGLC
Hesford v Hancock [2021] WASC 294
Case
[2021] WASC 294 (S)
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Hesford v Hancock [2023] FCA 45 was heard, where Hesford sought to set aside a subpoena served on Hancock. The subpoena required Hancock to produce documents that Hesford claimed were privileged and not subject to disclosure. The primary legal issue before the Court was whether the documents sought by the subpoena served a legitimate forensic purpose and whether the subpoena should proceed for categories of documents that were privileged and where privilege had been asserted.

The Court considered the principles governing subpoenas and the scope of legal professional privilege. The Court noted that a subpoena would only be set aside if the documents sought were not relevant to the proceedings or if they were privileged and the privilege had been properly asserted. The Court examined the nature of the documents and the purpose for which they were sought. In assessing the legitimate forensic purpose, the Court determined whether the documents were necessary to resolve a real issue in the proceedings and whether the purpose could not be achieved through less intrusive means. The Court also considered the extent to which the documents were protected by privilege and whether the privilege was properly claimed.

Ultimately, the Court found that the subpoena should be set aside in part, as some of the documents sought served no legitimate forensic purpose and were subject to privilege. The Court held that the subpoena could proceed for those documents that were relevant to the proceedings and not privileged. The Court emphasised the importance of proportionality and the need to balance the rights of the parties with the public interest in the administration of justice.

The Court made orders setting aside the subpoena in part, directing that Hancock only produce the documents that were relevant and not privileged. The orders also included provisions for further applications to be made if additional privileged documents were identified during the production process. The Court's decision underscores the need for careful consideration of the scope of subpoenas and the protection of privileged information in litigation.

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Background to the litigation

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Evidence Before The Court

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