Jefferies v O'Donovan

[2001] WADC 11

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   JEFFERIES & ANOR -v- O'DONOVAN [2001] WADC 11

CORAM:   COMMISSIONER GREAVES

HEARD:   17 JANUARY 2001

DELIVERED          :   Delivered Extemporaneously on 17 JANUARY 2001 typed from tape and edited by Trial Judge.

FILE NO/S:   CIV 2191 of 2000

BETWEEN:   KERRI THERESE JEFFERIES

First Plaintiff

DAVID ALLAN JEFFERIES
Second Plaintiff

AND

DAVID O'DONOVAN
Defendant

Catchwords:

Practice - Leave to issue subpoena duces tecum returnable before trial - Leave may be granted to require production of identified documents

Legislation:

Rules of the Supreme Court, O 36 r 12(4)

Result:

Appeal allowed

Representation:

Counsel:

First Plaintiff                  :     Mr N P Dobree

Second Plaintiff             :     Mr N P Dobree

Defendant:     No Appearance

Solicitors:

First Plaintiff                  :     Hoffmans

Second Plaintiff             :     Hoffmans

Defendant:     Clayton Utz

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

Nil

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES:  This is an appeal from the decision of the learned Deputy Registrar given on 22 November 2000, whereby he ordered that the plaintiff's application of 16 November 2000 for leave to issue subpoenas duces tecum on the administrators of St John of God Hospital, Subiaco, and Attadale Hospital, be dismissed.  The application is, of course, one which was made pursuant to O 36 r 12(4).

2. The affidavit of Mr Dobree sworn 16 November 2000 shows that the chamber summons seeking leave was amended to provide greater particularity of the documents sought to be produced by the recipients of the proposed subpoenas.  It appears although the learned Deputy Registrar gave no written reasons for his decision, that he took the view firstly, that the applicant did not disclose sufficient particularity in its amended form and further that it was incumbent upon the plaintiffs to identify the documents which the recipients should be required to produce.

3. In principle, it seems to me that the learned Deputy Registrar was right in that he decided that the recipients should be able to identify the documents which they would be required to produce.  In my view, the plaintiffs in their amended application had sufficiently identified those documents.  The learned Deputy Registrar was also of the view, it appears, that the plaintiffs should achieve their purpose by seeking non-party discovery.

4. It seems to me that while that is a course which may be open to plaintiffs in a situation such as the present, nothing appears in this case which should lead the Court to a view that it is not appropriate to grant leave to issue the subpoenas duces tecum to obtain production of the documents.  I am comforted in that view both by the fact that Mr Dobree has informed me that that is the practice of the Court in some cases and in my limited experience, seems to be a satisfactory practice.

5. I am also comforted in that view by the fact that the defendant has expressed support for the appeal from the decision of the learned Deputy Registrar.  Accordingly, it is my intention to allow the appeal and grant leave in accordance with the orders sought in the amended application.