Kestell v Davey - [2022] WASC 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KESTELL -v- DAVEY [2022] WASC 32
CORAM:   SMITH J
HEARD:   27 JANUARY 2022
DELIVERED          :   28 JANUARY 2022
PUBLISHED           :   2 FEBRUARY 2022
FILE NO/S:   CIV 1727 of 2021
BETWEEN:   TIMOTHY ARTHUR KESTELL
Plaintiff
AND
GRANT LAWRENCE BURNAFORD DAVEY
First Defendant
KAYELEKERA RESOURCES PTY LTD
Second Defendant
DAVEY HOLDINGS (AUS) PTY LTD
Third Defendant
DAVEY MANAGEMENT (AUS) PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Applications to set aside subpoenas - Whether subpoenas serve a legitimate forensic purpose - Whether subpoenas are an abuse of process - Overlap with discovery and oppression considered - Turns on own facts

Legislation:

Nil

Result:

Defendants' application successful in part
Non-party's application to set aside subpoena granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr G D Cobby SC
First Defendant	:	Mr M L Bennett
Second Defendant	:	Mr M L Bennett
Third Defendant	:	Mr M L Bennett
Fourth Defendant	:	Mr M L Bennett
Non-party	:	Mr R J Black

Solicitors:

Plaintiff	:	Tottle Partners
First Defendant	:	Bennett + Co
Second Defendant	:	Bennett + Co
Third Defendant	:	Bennett + Co
Fourth Defendant	:	Bennett + Co
Non-party	:	Norton Rose Fulbright

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

Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Burchard v Macfarlane [1891] 2 QB 241
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Commonwealth v Albany Port Authority [2006] WASCA 185
Goldie v Getley (as executor of the estate of Goldie) [No 2] [2010] WASC 66
Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No 4] [2021] WASC 287
Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415
National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 6] [2012] WASC 450
Rankilor v City of South Perth [2016] WASCA 28
Santos Ltd v Pipelines Authority of SA (1996) 66 SASR 38
Trade Practices Commissioner v Kimberley Homes Pty Ltd (1989) 217 ALR 110
Western Power Corporation v Woodside Petroleum Development Pty Ltd (unreported, WASC, Library No 970332, 27 June 1997)
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2012] WASC 37

SMITH J:

(This judgment was delivered extemporaneously on 28 January 2022 and has been edited from the transcript to add refences to authorities).

1.0 The application and the result

1.1 The applications to set aside the subpoenas

The defendants made an application pursuant to O 36B r 8A of the Rules of the Supreme Court 1971 (WA) to set aside four subpoenas issued on 20 October 2021 at the request of the plaintiff to the following non‑parties to the action:
(a)Lotus Resources Ltd;
(b)Stuart Andrew McKenzie, a company secretary of Lotus Resources Ltd, the second defendant and Lily Resources Pty Ltd;
(c)Benjamin Kent Kay, a director of BW Equities…

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: [2022] WASC 32
Decision Date

CaseChat Overview and Summary

The defendants in Kestell v Davey brought an application to set aside subpoenas issued by the plaintiff to a number of non-parties. The plaintiff sought a range of documents from these non-parties, including emails, text messages, and WhatsApp messages, between specified dates. The defendants argued that the subpoenas did not serve a legitimate forensic purpose, were an abuse of process, and were oppressive. The court considered whether the subpoenas had a legitimate forensic purpose, whether they were an abuse of process, and whether they were oppressive. The court found that the subpoena to Lotus Resources Ltd was oppressive because it required the production of an excessive number of documents that were unlikely to be relevant to the issues in the proceedings. The court also found that the subpoenas to Mr Kay and BW Equities Pty Ltd did not serve an oppressive purpose as the categories of documents sought were likely to be relevant to the issues in the proceedings. The court set aside the subpoena to Lotus Resources Ltd and refused to set aside the subpoenas to Mr Kay and BW Equities Pty Ltd. The court did not make any orders as to costs.

Orders