| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : IDDLES -v- QED (AUSTRALIA) PTY LTD & ANOR [2002] WADC 146 CORAM : YEATS DCJ HEARD : 7 JUNE 2002 DELIVERED : Delivered Extemporaneously on 7 JUNE 2002 typed from tape and edited by Trial Judge FILE NO/S : CIV 1659 of 2000 BETWEEN : BRIAN WILLIAM IDDLES Plaintiff
AND
QED (AUSTRALIA) PTY LTD
First Defendant
NARKHAN PTY LTD
Second Defendant
Catchwords: Appeal from Registrar - Hearing de novo - Application for leave to issue writ of subpoena duces tecum - Order 35 r 12(4) Rules of the Supreme Court - Original writ too broad in scope - Burden on stranger should be reasonable and specific - Appeal allowed
Legislation: Rules of the Supreme Court, O 35 r 12(4)
(Page 2)
Result:
Appeal allowed Representation:
Counsel:
Plaintiff : No appearance
First Defendant : Ms R L Pope
Second Defendant : No appearance
Solicitors:
Plaintiff : No appearance
First Defendant : Phillips Fox
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710
Case(s) also cited:
Nil
(Page 3)
1 YEATS DCJ: This is an appeal from the decision of Deputy Registrar Harman on 8 May 2002, wherein he dismissed the first defendant's application for leave to issue a writ of subpoena duces tecum returnable before trial, directed to the Office of Energy. Although the Deputy Registrar did not provide written reasons, I understand that his refusal of the first defendant's application was on the basis that the documents being sought were not adequately identified.
2 The jurisdiction exercised by the Registrar of the District Court in relation to an interlocutory matter such as this is a delegated jurisdiction and it is a condition of the delegation of this jurisdiction that there be a complete review de novo of the decision before a Judge of the District Court. In conducting such an appeal, the parties may rely on evidence given before the Registrar, and because it is a rehearing, further evidence may be permitted without leave. (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.) 3 The application was brought under O 35 r 12(4) of the Rules of the Supreme Court which allow, with the leave of the Court, the issue of a writ of subpoena duces tecum to require a person to produce a document or object to the Court on a date before the date of the trial, so that the party suing out the writ may inspect the document or object. 4 This is an action by the plaintiff for damages for personal injuries allegedly arising from a work accident on 14 April 1999. The plaintiff alleges that he was in the process of removing a stainless steel rod from a waste tank when it came into contact with or was in close proximity to a 22-kilovolt power line, which resulted in the plaintiff receiving an electric shock and suffering severe injuries. There are papers before me in annexures to the affidavit of Kylie Elizabeth Creswick sworn on 21 March 2002 and a further affidavit sworn on 10 May 2002 which involve correspondence with the Office of Energy. From those documents it is clear that the Office of Energy has in its possession a file of documents relating to the investigation it carried out in relation to the accident referred to in the plaintiff's statement of claim. The first defendant has been in communication with an officer at the Office of Energy, who has indicated that he does not object to the order sought and does not wish to make any submissions in relation to the proposed subpoena and that he will make the file of the Office of Energy available to the Court. A letter from that office does make it clear that there are policy reasons why their office, which is entrusted with the investigation and overseeing of safety regulations in this area, cannot properly, as a matter of course, simply open its files to litigants.
(Page 4)
5 The documents before me, including the submissions of the first defendant, the pleadings and the affidavits, do indicate to me that there is a file of documents in the custody of the Office of Energy which relates to the defendant's case. I do note that in its original application before the Deputy Registrar, the subpoena sought the production of documents in very broad terms. It was a request "… to bring with you and produce all reports and records in your possession, relating to investigations undertaken in relation to the injuries sustained by the plaintiff during the course of his employment on 14 April 1999." I agree with the learned Deputy Registrar that those terms were too broad. By using the plural "investigations" and by not indicating that it was the file relating to the investigation by the Office of Energy, such an order of the Court could require the Office of Energy to search all its files to ensure there were no records here or there of investigations by others or containing other information related to this accident. Such an order would be oppressive and unnecessary.
6 I am assured by the first defendant that they want access to one specific file, and that the Office of Energy is well aware of which file is being sought. In its notice of appeal, the first defendant seeks leave to issue a writ of subpoena duces tecum directed to the Director of Energy Safety requiring him to produce "all documents in his possession relating to the Office of Energy's investigation into the plaintiff's accident on 14 April 1999." That form of words limits the documents required to be provided pursuant to the subpoena duces tecum and is specific enough not to be oppressive. 7 In Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 Clarke J at 720 discussed the need for specificity. It is always true, as Clarke J said in that case, that there is a clash between competing interests when courts are looking at the reasonableness of the burden imposed on a recipient of a subpoena duces tecum. These involve the invasion of private rights and, on the other hand, the public interest in the due administration of justice which requires that material relevant to the issues be available to the parties to enable them to advance their respective cases. It is important that the Court look very carefully at the terms of a subpoena. It may be that the recipient holds relevant documents, but those documents should be specified in the subpoena in a way that does not require that person, who is a stranger to the case, to conduct unnecessary and lengthy searches of records. In other words, the burden placed should be reasonable and should be specific to the particular documents being sought by the defendant. In this case, the defendant is now very clear on exactly the
(Page 5)
documents that are needed and that specificity has been brought into the order it seeks on the notice of appeal. 8 Taking account of the interests of justice, there is nothing in this application that would make it appear to be any sort of fishing expedition. The order now sought does specify with sufficient clarity exactly the documents that are sought. It is reasonable and not oppressive. For these reasons I will allow the appeal and I will make the orders sought by the first defendant.
|