Kettle Cooked Chip Co P/L CCA Snack Foods P/L

[1992] FCA 780

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	NG 248 of 1992

)

GENERAL DIVISION 1

BETWEEN:  KETTLE COOKED CHIP CO PTY LIMITED

Applicant

AND :  CCA SNACK FOODS PTP LIMITED

Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 8 September 1992

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

I have been asked to set aside a subpoena issued on behalf of the respondent CCA Snack Foods Pty Limited requiring the production of certain documents by West Coast Snacks Pty Limited. The subpoena is said to be oppressive and unduly burdensome and to require the production of large numbers of documents having no conceivable relevance to the proceeding.

available. So far as relevance is concerned, I am satisfied,

Confidentiality of much of this material is stressed.

So far as confidentiality is concerned, I see no problem about protecting the confidentiality of the documents produced by the usual sorts of confidentiality orders; and I note that counsel for the parties in the litigation do not appear to be at odds about the nature of the protection that could be made

having heard Mr Ellicott explain the way in which he seeks to use the information, that the subpoena should not be set aside on the footing that it is irrelevant.

So far as the burdensomeness of it is concerned, paragraphs 1, 2 and 3 are rather wide, but I think there would be no difficulty in severing them in order to enforce them with respect to particular categories of documents falling within their terms. And Mr Ellicott has made it clear that, at any rate at this stage, he would accept documents of a secondary rather than a primary nature falling within the terms of those clauses. It does not appear, at this stage, to be actually necessary that large numbers of invoices should be produced. They must be summarised in appropriate financial statements and books and records and I find it inconceivable that these would not be capable of reduction to a reasonable compass since the business has, in fact, not been in operation for 12 months.

It was also suggested that the subpoena is too vague as regards the commencing time for the activities by reference to which the documents are to be identified. I do not accept that argument. It seems to me that the commencing time is plainly indicated, and that it is from the commencement of the activity of manufacture and sale of a product under the name which is identified in the schedule to the subpoena.

For these reasons, I will not set the subpoena aside. I

will not require, at this stage at any rate, that every original document which could fall within the terms of paragraphs 1, 2 and 3 be produced. ~ u t if appropriate documents covering the areas identified in those clauses are not produced, I give Mr Ellicott leave to come back to insist upon further compliance; because I do not think that the width of paragraphs 1, 2 and 3 is in itself a ground for setting them aside, in the absence of proof that it is unreasonably burdensome to comply with those paragraphs. I am not at the moment satisfied that that is necessarily so. I think it would be unreasonably burdensome to require more if all that Mr Ellicott reasonably needs can be obtained by way of more summary documents. So I reserve that question.

I order that the subpoena be complied with, that the documents be produced to the court, and that each of the parties to the litigation have access to them only by counsel and his instructing solicitor, and on the basis that they

the information obtained by having access to the documents,	(i.e. counsel and his instructing solicitor) will not divulge
and will be entitled to take only one copy for their own use of any documents they desire to copy. Any such copy is to be returned to the court at the conclusion of the case. I add as a condition that counsel for the respondent give to the party subpoenaed 48 hours notice of any tender that he proposes to make of any of the documents.
I will not order that a representative of the party subpoenaed be present when the documents are inspected; I do not think that is necessary when I have limited the access in this way. I will not attempt to bind the discretion either of myself or of another judge in regard to the use that may be made of the documents, as I have been requested to do, because the principles are well established; when documents are produced under subpoena, they are produced for the purposes of this litigation only, and any other way they can ever be used is very limited.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour M r Justice Burchett.

Associate:  M- %-, ,L -

Date: 8 September 1992