Joan Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or
[2006] NSWSC 95
•9 February 2006
CITATION: Joan Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or [2006] NSWSC 95 HEARING DATE(S): 9 February 2006
JUDGMENT DATE :
9 February 2006JUDGMENT OF: Brereton J EX TEMPORE JUDGMENT DATE: 02/09/2006 DECISION: Paragraphs [13], [14], [15], [16]. CATCHWORDS: PROCEDURE - EVIDENCE - Subpoenas and Notices to Produce - Standing to apply to set aside - relevance LEGISLATION CITED: Supreme Court Rules 1970 (NSW), Pt 37 r 8
Uniform Civil Procedure Rules 2005 (NSW), r 33.4(1)CASES CITED: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425
Compsyd Pty Ltd v Streamline Travel Services Pty Ltd (1987) 10 NSWLR 648
Joye v Rehuxo [1999] NSWSC 785
Marcel v The Commissioner of Police of the Metropolis [1991] 2 WLR 1118 Portal Software v Bodsworth [2005] NSWSC 1115
Re ACI International Limited (1986) 11 ACLR 240
Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306
Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241PARTIES: Joan Street & 7 ors
Luna Park Pty Ltd & 1 orFILE NUMBER(S): SC 2267/05 COUNSEL: T Alexis SC & P Sibtain (P)
G Parker SC & M Baird (D)SOLICITORS: Wise Legal (P)
Clayton Utz Lawyers (D)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BRERETON J
Thursday 9 February 2006
2267/05 Joan Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or
JUDGMENT (ex tempore)
1 HIS HONOUR: On 20 December 2005 the defendant caused subpoenas to be issued addressed to Stanley Roth, John Roth, Henroth Investments Pty Limited and Henroth Pty Limited, which sought production of documents described in the following terms:
- 1. All documents constituting, recording or relating to the arrangements, agreements, or understandings, recording or relating to the payment of, or liability for, costs of the proceedings, including (but not limited to) any documents constituting, recording or relating to any:
- (a) costs sharing;
(b) indemnity for costs;
(c) costs apportionment; or
(d) litigation funding,
- between or amongst any of the plaintiffs and/or between each or any of the plaintiffs and any other person or persons, including (but not limited to) any of the following:
- (i) Stanley Roth;
(ii) John Roth;
(iii) Henroth Investments Pty Ltd; or
(iv) Henroth Pty Ltd.
2 By Notice of Motion filed On 6 February 2006 the plaintiffs seek an order that those subpoenas be set aside. The basis upon which that order is sought is that of relevance, in that it is said that the documents, production of which is required by the subpoena, are not relevant to any issue in the proceedings.
3 The plaintiffs, who are the applicants to have the subpoenas set aside, are not persons to whom the subpoenas are addressed. In Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241, Hunt J held that a subpoena could be set aside only on the application of the person to whom it was addressed. In Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98, Powell J held that such an application may be made by any party to the litigation as of right. In Compsyd Pty Ltd v Streamline Travel Services Pty Ltd (1987) 10 NSWLR 648 McLelland J held that under Supreme Court Rules Pt 37 r 8, any person with sufficient interest may move the Court to set aside the subpoena, with the consequence that if the party had an interest in the documents, it was entitled to apply under the Rule, but if it, in fact, had no interest at all in the documents, it could not.
4 In Re ACI International Limited (1986) 11 ACLR 240 Beach J, in the Supreme Court of Victoria, held that a party to proceedings had no right to object to the issue of a subpoena on a witness by another party to those proceedings, expressly not following Botany Bay. In Marcel v The Commissioner of Police of the Metropolis [1991] 2 WLR 1118, Browne-Wilkinson VC (at 1129) expressed a view similar to that of McLelland J in Compsyd. In Joye v Rehuxo [1999] NSWSC 785, Foster J followed the views of McLelland J in Compsyd, in particular holding that a party had to show some interest in the documents the subject of the subpoena, if it were to have standing to apply to set it aside.
5 In Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425 Hunter J expressed the view that, as well as having standing to apply to set aside a subpoena because they had interests in the businesses whose records were the subject of the subpoenaed ordered documents, the plaintiffs in that case also had a sufficient interest to apply on the basis that, as parties to proceedings, they had an interest in due process being observed in preparation for the hearing and in the conduct of the proceedings on hearing. Whether or not his Honour was right to think that such considerations were covered by the observations of McLelland J in Compsyd, they were certainly caught by the observations of Powell J in Botany Bay.
6 Although it might be said that the balance of that authority weighs in favour of the view that a party does not automatically have standing to apply to set aside a subpoena addressed to a third party in the absence of an interest in the subject documents, at least two judges of this Court, Powell and Hunter JJ, have expressed the view that being a party to proceedings is of itself sufficient to confer standing. With great respect to what was said by McLelland J, which faithfully follows the words of the then rule, that view gives insufficient weight to the considerations referred to by Powell J in Botany Bay, that setting aside a subpoena is an aspect of the Court’s inherent power to stay abuses of its process in which - for reasons expressed by Hunter J in Brand - a party has an interest quite apart from any interest in the documents. In my view a party to proceedings has a sufficient interest in the regular conduct of those proceedings to invoke the Court’s power to set aside a subpoena for production of documents whether or not it has an interest in the subject documents.
7 In any event, this is all now by-the-by, since under the Uniform Civil Procedure Rules, which replace former Pt 37 r 8, UCPR rule 33.4(1) now provides that the Court may on the application of a party or any person having a sufficient interest set aside a subpoena in whole or in part or grant other relief in respect of it, thereby resolving the conflict in the authorities to which I have referred in favour of the view that it is sufficient that the applicant be a party to proceedings, whether or not the applicant has an interest in the subject documents. Accordingly, the plaintiffs have standing to make the application which they bring.
8 In the judgment delivered on 14 December 2005, I endeavoured to express my understanding of the case which the plaintiffs seek to make on costs, upon which basis I upheld various applications made that day by the plaintiffs. The plaintiffs contend that, had they known earlier of the proposed enactment of the Amendment Act, the preparation of the case would have taken a different course, and they would not have incurred costs which would be wasted if the legislation were passed. They wish to argue that, acting reasonably, the defendants should have notified them of the proposed legislative intervention as soon as they became aware of it, rather than leaving the plaintiffs to incur costs of preparation which might well be wasted if there were legislative action. As I understand Mr Alexis’ submission today, he did not demur from this endeavour to express the basis of the plaintiff's costs application, which involves, at least in part, the proposition that had the plaintiffs been, so to speak, “warned” of the impending legislative intervention at an appropriate time, then they would have adopted a different course so far as the preparation of the proceeding for trial is concerned.
9 For the defendants, Mr Parker says that that proposition will be very much in issue, and that the defendants will wish to argue that a “warning” would have made no difference to the course which the plaintiffs would have adopted. That means that, on the hearing of the costs application, there will be an examination of the state of mind of the plaintiffs, and of the relevant considerations which would have borne on their state of mind and their judgment upon the hypothesis that they had been warned of the pending legislation.
10 I do not think it can be doubted that the amount of costs which would potentially be incurred and might be wasted, and the extent to which the plaintiffs would be at risk in respect of those costs, would be a factor which a Court could consider might well impact on their judgment on that hypothesis. If it were the case that the plaintiffs were indemnified in respect of any costs incurred or some of the costs that they incurred, that might possibly bear on the extent to which the risk of incurring costs would be wasted would affect their judgment.
11 In Portal Software v Bodsworth [2005] NSWSC 1115, [23]-[25], I endeavoured to explain the concept of relevance in the context of an application to set aside a Notice to Produce or a subpoena. In that context, the question is not whether the documents sought are self-evidently relevant to the issues to be tried. Rather, as Beaumont J explained in Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306, it is a question of adjectival relevance, or perhaps potential relevance. In the vernacular, the question can be posed, is it on the cards that the documents called for by the subpoena may add to the relevant body of evidence in the case?
12 Since, on the ultimate issue with which I am presently concerned, that of costs, considerations bearing on the state of mind of the plaintiffs upon the hypothesis that they had been warned of the impending legislative intervention will be an important issue, I cannot be satisfied that the subpoenas do not call for documents which could potentially be relevant on this issue.
13 Accordingly, I dismiss the Notice of Motion with costs.
14 The four subpoenas to which I have referred are stood over to the Registrar’s Subpoena List on 16 February 2006.
15 On the defendants’ Notice of Motion filed on 19 January 2006, I order that the plaintiffs give discovery to the defendants of the documents specified within the classes identified in paragraphs numbered 1, 2 and 3 of the draft Notice to Produce, which is annexure A to the affidavit of Peter Kevin Briggs sworn 18 January 2006. I order that the plaintiffs pay the defendants' costs of that motion.
16 I stand the matter over to Friday 12 May at 9.30am before me for mention. I shall consider in chambers whether I can allocate a provisional fixture.
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