Legal Research
Cases
Hesford v Hancock

Hesford v Hancock

Case [2021] WASC 294 (S) 7 December 2021

Type to search within this case.

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…

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 Hesford v Hancock

Details

AGLC: Hesford v Hancock [2021] WASC 294
Case: [2021] WASC 294 (S)
Decision Date: 7 DECEMBER 2021

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.

Orders