Horn, Christopher Lawrence v Ted Tymczyszyn Pty Ltd (In Liq)

[1996] FCA 1174

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )
GENERAL DIVISION  )         No. NG 3578 of 1995

BETWEEN:CHRISTOPHER LAWRENCE HORN

First Applicant

AND:TED TYMCZYSZYN PTY LIMITED

(IN LIQUIDATION)

Second Applicant

TED TYMCZYSZYN

First Respondent

STAN KNYSH

Second Respondent

ALEX STOJANOVIC

Third Respondent

FRANK GELONESI

Fourth Respondent

GRAZIANO DE BORTOLI

Fifth Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:2 December 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:  The firm of Horowitz and Bilinsky, or more accurately the partners of that firm, seek to set aside a subpoena duces tecum requiring production of files, file notes, accounts and correspondence in which the firm has acted for a number of specified

parties: two of them are not parties to these proceedings; the others are and are, therefore, subject to discovery obligations.

The subpoena, which was issued on the application of the applicants, is undoubtedly very wide.  On the other hand it became evident during the course of argument this morning that the material in which the applicant is primarily interested is within a considerably narrower compass.  I fully understand the difficulty involved in the precise specification of particular documents which a subpoenaed party is to be required to produce.  However, this subpoena on its face requires the production of documents falling within categories which appear likely to extend far beyond anything at all likely to be relevant to these proceedings; it may therefore, in my view, be properly characterised as fishing.

The evidence in support of the application to set the subpoena aside is not greatly detailed.  It does not, for example, specify in what matters the firm has acted, nor does it specify precisely in how many matters the firm has acted.  It is said merely that (in support of the argument that the subpoena, as well as "fishing" is unduly oppressive) there have been a number of files and that considerable time, exceeding 10 hours, would be required in order to find the documents and obtain necessary instructions.  With some hesitation, I think the ground of oppression is made out.  It follows that the subpoena ought to be set aside on the two grounds urged and I order that it be set aside accordingly. 

I think it must follow that the firm is entitled to its costs of the motion.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  2 December 1996

Heard:  2 December 1996

Place:  Sydney

Decision:  2 December 1996

Appearances:  Mr M K Hayter of counsel instructed by Gordon & Johnstone appeared for the applicant.

Mr G Durie of counsel instructed by Horowitz & Bilinsky appeared for the respondent.