Koops Martin v Dean Reeves

[2006] NSWSC 446

CITATION:	Koops Martin v Dean Reeves [2006] NSWSC 446
HEARING DATE(S):	04/04/2006
JUDGMENT DATE :	4 April 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	04/04/2006
DECISION:	Application to set aside or limit subpoena refused
CATCHWORDS:	EVIDENCE - Subpoenas - setting aside - relevance - apparent or potential relevance
CASES CITED:	Hatton v Attorney-General of the Commonwealth of Australia (2000) 158 FLR 31; (2000) 26 Fam LR 570; (2000) FLC 93-038 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306
PARTIES:	Koops Martin Financial Services Pty Limited (formerly Koops Martin Financial Services Limited) ABN 23 098 362 246 Dean Reeves
FILE NUMBER(S):	SC 2005/06336
COUNSEL:	J Fernon SC with D Hand (P) P Russell (D)
SOLICITORS:	L S Juhasz of Koops Martin Lawyers (P) W J Langler of MBT Lawyers (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 4 April 2006

6336/05 Koops Martin Financial Services Pty Limited v Dean Reeves

JUDGMENT – Ex tempore (on objection to paragraphs 2 and 8 in subpoena)

1 HIS HONOUR: On 23 March 2006, the plaintiff issued a subpoena for production addressed to MBT Financial Services Pty Limited, the present employer of the defendant, which was made returnable yesterday, and which amongst other things requires production of:

2. All documents and records of investments or transactions made or undertaken by MBT Financial Services Pty Limited
(i) on behalf of:
(a) Neil & Margaret Stephens
(b) David Reeves
(c) Paul & Lynn Reeves
(d) Morris Reeves
(e) Scott & Carlie Reeves
(f) John Farlow
(g) Thelma & Tom Crawford
(h) Lesley Tucker
(i) Carl Eichmann
(j) Lester & Yvonne Zietsch
(i) Lorraine Gooch
(l) Max Glass
(m) Wally & Sue Sims
(n) Emily Lloyd
(o) Jill Clark
(p) Brett Bellamy
(q) Kevin Bellamy
(r) Scott Bellany
(s) Brian & Dot Lollback
(t) Rodney Eggins
(u) Jim O’Connell & Connie Seward
(v) Raymond & Gayle Ellicott
(w) Shane & Melissa Eichmann
(x) Ken & Lyn Mousdell
(y) Chris & Lynette Hayes
(z) Kenneth & Joyce Harvey
(aa) Dennis & Lynee Meagher
(ii) in respect of which any commission or other payment was made, or is to be made, to Dean Reeves.
…
8. All documents including correspondence and internal file notes and emails relating to or concerning the engagement or employment of Dean Reeves.

2 Disputes concerning other parts of the subpoena have been resolved between the parties. The recipient MBT Financial Services Pty Ltd moves to have paragraph 2(ii) and paragraph 8 of the subpoena set aside or limited.

3 So far as paragraph 2(ii) is concerned, I am informed that, as a result of correspondence between the parties, it has been made clear that the documents for which it calls are sought only in respect of the persons listed in 2(i). In any event, I would have thought that, properly construed as a whole, what paragraph 2 seeks is not records of commissions or other payments, but documents and records of investments and transactions made on behalf of the twenty-seven specified persons, and in respect of which commission or other payment was made to the defendant. In essence, it seems to me that 2(ii) limits, rather than expands, what is required to be produced by paragraph 2. After discussion, Mr Russell did not further press the application to have it set aside.

4 So far as paragraph 8 is concerned, I would construe it as requiring production of correspondence, file notes and email communications pertaining to the circumstances in which Mr Reeves came to be employed by MBT. In other words, it is seeking to elicit evidence of the course of the negotiations which culminated in his employment by MBT Financial Services. Mr Fernon submits that such documents are "forensically" relevant. The true test in this context is whether the documents have "apparent" or "potential" relevance to issues, including issues of credit, in the proceedings [Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306 (Beaumont J); Hatton v Attorney-General of the Commonwealth of Australia (2000) 158 FLR 31; (2000) 26 Fam LR 570; (2000) FLC ¶93-038; Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115].

5 Ultimately, it seems to me that, given that an injunction is a discretionary remedy, it may be important for the plaintiff to establish the attitudes and intentions of the defendant, and any undertakings or arrangements he has made with his new employer may potentially be relevant in persuading the Court to exercise the discretion to grant injunctive relief in its favour.

6 Accordingly, I do not think it can be said that it has been established that paragraph 8 calls for documents which have no apparent or potential relevance to the proceedings.

7 I therefore decline to set aside either of the paragraphs of the subpoena which have been impugned.

8 I dismiss the Notice of Motion with costs.

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