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Jack Brabham Engines Pty Ltd v Beare

Jack Brabham Engines Pty Ltd v Beare

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FEDERAL COURT OF AUSTRALIA
Jack Brabham Engines Limited v Beare [2010] FCA 35

Citation: Jack Brabham Engines Limited v Beare [2010] FCA 35

Parties: JACK BRABHAM ENGINES LIMITED ACN 108 108 425, ALAN CASEY, GAIL CASEY and SIR JOHN ARTHUR BRABHAM OBE v MALCOLM JOHN BEARE, STYLIANOS ELEFTHERIADIS, BEARE TECHNOLOGY PTY LIMITED ACN 826 6537, SIXSTROKE ENGINE DEVELOPMENTS PTY LIMITED ACN 121 883 056, REFERENCE AUDIO VISUAL PTY LIMITED and SPEED OF LIGHT PTY LIMITED; MALCOLM JOHN BEARE; ALAN CASEY and JACK BRABHAM ENGINES LIMITED

File number(s): NSD 2132 of 2007

Judges: JAGOT J

Date of judgment: 27 January 2010

Catchwords: PRACTICE AND PROCEDURE – application to set aside a subpoena – whether subpoena for documents relevant only to credit of a party and a witness valid– whether subpoena issued for a legitimate forensic purpose

Legislation: Evidence Act 1995 (Cth), ss 102, 103

Cases cited: Alister v The Queen (1983) 154 CLR 404
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Limited (1955) 72 WN (NSW) 250-254
Australian Securities and Investments Commission v Whitlam (2002) 42 ACSR 143; [2002] NSWSC 526
Brand v Digi-Tech (Australia) Pty Ltd [2001] NSWSC 425
Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285
Cosco Holdings Pty Limited v Federal Commissioner of Taxation [1997] FCA 1504
Dorajay Pty Limited v Aristocrat Leisure Ltd [2005] FCA 588
Fried v National Australia Bank Ltd (2000) 175 ALR 194; [2000] FCA 911
Liristis v Gadelrabb [2009] NSWSC 441
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90

Date of hearing: 27 January 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 25

Counsel for the Applicants: Mr P King

Counsel for the Respondents: Ms S Gatford

Solicitor for the Applicants: Lewis & Weir

Solicitor for the Applicants: Grahame W. Howe and Co

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2132 of 2007

BETWEEN:
JACK BRABHAM ENGINES LIMITED ACN 108 108 425
First Applicant/First Cross-Respondent

ALAN CASEY
Second Applicant/Second Cross-Respondent

GAIL CASEY
Third Applicant

SIR JOHN ARTHUR BRABHAM OBE
Fourth Applicant

AND:
MALCOLM JOHN BEARE
First Respondent/Cross-Claimant

STYLIANOS ELEFTHERIADIS
Second Respondent

BEARE TECHNOLOGY PTY LIMITED ACN 826 6537
Third Respondent

SIXSTROKE ENGINE DEVELOPMENTS PTY LIMITED ACN 121 883 056
Fifth Respondent

REFERENCE AUDIO VISUAL PTY LTD
Sixth Respondent

SPEED OF LIGHT PTY LIMITED
Seventh Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

27 JANUARY 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Dismiss the respondents' application to set aside the subpoena dated 12 October 2009 issued at the request of the first applicant to the Chief Commissioner of the Victorian Police Service.
2.Subject to Order 3, grant access to the documents produced to the Court under the said subpoena, with access first being granted to the respondents.
3.Access pursuant to Order 2 is limited to the legal representatives of the applicants and respondents in this proceeding and the second respondent, Stylianos Eleftheriadis, on the basis that the documents may not be disclosed or…

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.

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Details

Case: [2010] FCA 35
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Jack Brabham Engines Limited and others sought to enforce a subpoena issued to the Chief Commissioner of the Victorian Police for the criminal history records of Stylianos Eleftheriadis, one of the respondents in the proceedings. The respondents sought to have the subpoena set aside, arguing it was not issued for a legitimate forensic purpose, constituted a fishing expedition, and was issued for an improper purpose. The applicants maintained that the subpoena was issued for a legitimate forensic purpose, namely to assess the credibility of Mr Eleftheriadis, who was a party and critical witness in the proceedings.

The court examined the principles governing the issuance of subpoenas, noting the importance of a legitimate forensic purpose and the need to scrutinise subpoenas seeking documents relevant only to the credit of a witness. The court considered various authorities and found that while a subpoena may not be issued solely for the purpose of impeaching a witness's credit, it could be valid if there was an apparent relevance to the issues in the principal proceedings. The court also noted that a party was not required to establish that a document would necessarily be produced in answer to a subpoena, but that the subpoena could not merely be a fishing expedition.

Applying these principles to the facts of the case, the court found that Mr Eleftheriadis's credit was directly in issue and that there was evidence of his conduct potentially involving the police and alleged offences. The court concluded that the subpoena had an apparent relevance to the issues in the principal proceedings and was not issued for an improper purpose. Therefore, the application to set aside the subpoena was dismissed.

The court also considered orders for access to the documents produced under the subpoena, limiting access to the legal representatives of the parties and Mr Eleftheriadis, on the basis that the documents may not be disclosed or used for purposes other than this proceeding without the leave of the court. The court did not rule on the admissibility of the documents produced in answer to the subpoena, if any, and noted that the validity of the subpoena did not determine the propriety of questions in cross-examination.

Orders