Layne Christensen Company v Stanley

[2003] WASC 103

LAYNE CHRISTENSEN COMPANY & ANOR -v- STANLEY & ORS [2003] WASC 103

Link to Appeal : [2004] WASCA 50 [2004] WASCA 50 [2004] WASCA 50 [2004] WASCA 50 [2004] WASCA 50

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 103
Case No:	CIV:2465/1999	Heard:	2 & 9 APRIL 2003
Coram:	MASTER SANDERSON	Delivered:	29/05/03
No of pages:	19	Judgment Part:	1 of 1
Result:	Application to vary subpoena refused
Category:	A
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Parties:	LAYNE CHRISTENSEN COMPANY STANLEY MINING SERVICES PTY LTD (ACN 009 117 533) ROSS FRANCIS STANLEY AZILIAN PTY LTD (ACN 008 952 681) DAVID HARPER GEODRILL LTD
Catchwords:	Practice and procedure Application by a party to an action to vary subpoenas directed to third parties Principles to be applied
Legislation:	Nil
Case References:	Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350 Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 105 FCR 136 Brand v Digi-Tech [2001] NSWSC 425 Chapman v Luminis Pty Ltd [2001] FCA 1580 Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648 Freid & Ors v National Australia Bank Ltd & Ors (2000) 175 ALR 194 Hillston v Bar-Mordecai [2002] NSWSC 973 Joye v Rehuxo & Ors (1999) NSWSC 785 Khanna v Lovell White Durrant (1995) 1 WLR 121 Layne Christensen Co & Anor v Stanley & Ors [2002] WASC 249 Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors (2000) 18 ACLC 609 National Employers' Mutual General Association Ltd v Waind & Anor (1978) 1 NSWLR 372 Wran v Australian Broadcasting Commission (1984) 3 NSWLR 241 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 Grant v Downs (1976) 135 CLR 674 Harman v Secretary of State for the Home Department [1983] AC 280 Holpitt Pty Ltd v Varimu Pty Ltd & Ors (1991) 29 FCR 576 Mead Corporation v Carbonless Papers (Australia) Pty Ltd & Ors [2002] WASC 237 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Re ACI International Ltd (1986) 11 ACLR 240 Springfield Nominees v Bridgelands Securities Ltd (1992) 38 FCR 217 The Principal Registrar of NSW v Tastan (1994) 75 A Crim R 498 The Sentry Corporation v Peat Marwick Mitchell & Co (A Firm) (1989) 24 FCR 463 Trade Practices Commission v Kimberley Homes Pty Ltd (No 1), unreported; Fed Ct of Aust; 19 July 1989

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LAYNE CHRISTENSEN COMPANY & ANOR -v- STANLEY & ORS [2003] WASC 103 CORAM : MASTER SANDERSON HEARD : 2 & 9 APRIL 2003 DELIVERED : 29 MAY 2003 FILE NO/S : CIV 2465 of 1999 BETWEEN : LAYNE CHRISTENSEN COMPANY

First Plaintiff

STANLEY MINING SERVICES PTY LTD (ACN 009 117 533)
Second Plaintiff

AND

ROSS FRANCIS STANLEY
First Defendant

AZILIAN PTY LTD (ACN 008 952 681)
Second Defendant

DAVID HARPER
Third Defendant

GEODRILL LTD
Fourth Defendant

(Page 2)

Catchwords:

Practice and procedure - Application by a party to an action to vary subpoenas directed to third parties - Principles to be applied

Legislation:

Nil

Result:

Application to vary subpoena refused

Category: A

Representation:

Counsel:

First Plaintiff : Mr J A Thomson
Second Plaintiff : Mr J A Thomson
First Defendant : Mr S J Lemonis
Second Defendant : Mr S J Lemonis
Third Defendant : Mr T J Carmady
Fourth Defendant : Mr T J Carmady

Solicitors:

First Plaintiff : Gadens Lawyers
Second Plaintiff : Gadens Lawyers
First Defendant : Bennett & Co
Second Defendant : Bennett & Co
Third Defendant : Williams & Hughes
Fourth Defendant : Williams & Hughes

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

Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350
Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 105 FCR 136


(Page 3)

Brand v Digi-Tech [2001] NSWSC 425
Chapman v Luminis Pty Ltd [2001] FCA 1580
Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648
Freid & Ors v National Australia Bank Ltd & Ors (2000) 175 ALR 194
Hillston v Bar-Mordecai [2002] NSWSC 973
Joye v Rehuxo & Ors (1999) NSWSC 785
Khanna v Lovell White Durrant (1995) 1 WLR 121
Layne Christensen Co & Anor v Stanley & Ors [2002] WASC 249
Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors (2000) 18 ACLC 609
National Employers' Mutual General Association Ltd v Waind & Anor (1978) 1 NSWLR 372
Wran v Australian Broadcasting Commission (1984) 3 NSWLR 241

Case(s) also cited:

Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125
Grant v Downs (1976) 135 CLR 674
Harman v Secretary of State for the Home Department [1983] AC 280
Holpitt Pty Ltd v Varimu Pty Ltd & Ors (1991) 29 FCR 576
Mead Corporation v Carbonless Papers (Australia) Pty Ltd & Ors [2002] WASC 237
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Re ACI International Ltd (1986) 11 ACLR 240
Springfield Nominees v Bridgelands Securities Ltd (1992) 38 FCR 217
The Principal Registrar of NSW v Tastan (1994) 75 A Crim R 498
The Sentry Corporation v Peat Marwick Mitchell & Co (A Firm) (1989) 24 FCR 463
Trade Practices Commission v Kimberley Homes Pty Ltd (No 1), unreported; Fed Ct of Aust; 19 July 1989

(Page 4)

1 MASTER SANDERSON: This is the first and second defendant's application to vary the terms of subpoenas issued against certain parties. (The chamber summons by its terms seeks to have certain of the subpoenas set aside and others varied. During the course of the hearing counsel for the first and second defendants indicated that in fact what was sought was variation of each of the subpoenas. The application proceeded on that basis.)

2 This is a somewhat complex case and a reasonably detailed consideration of the issues is necessary to ground the application. In an earlier judgment dealing with discovery issues, I provided a detailed summary of the facts: see Layne Christensen Co & Anor v Stanley & Ors [2002] WASC 249 at [2]. I would include in these reasons the summary of the facts found in the earlier decision without repetition. Against that background, matters giving rise to this application can be summarised in this way.

3 On 16 December 2002, in accordance with O 36 r 12(4), the plaintiff applied for and obtained leave ex parte to issue subpoenas returnable before trial against 17 individuals or corporations. The subpoenas were returnable on 5 February 2003. By application dated 4 February 2003 the first and second defendants applied to vary the subpoenas.

4 On or before 5 February 2003 many of the recipients of the subpoenas provided documents to the Court or to the plaintiffs' solicitors in Perth. The documents provided to the plaintiffs' solicitors were handed to the Court on 5 February without inspection of their contents. At the same time an order extending the time for service of one subpoena (to Ms Candice Stanley) was made. Ms Stanley complied with that subpoena prior to the hearing of this application commencing.

5 Although there were 17 subpoenas issued in all, the subpoenas fall neatly into three categories. The first category can be described as the "supplier category". By way of example, a subpoena was directed to East-West Diamond Products Pty Ltd (Trading as Diadrill Mining Supplies). By its terms this subpoena sought to have the proper officer of East-West Diamond Products Pty Ltd produce the following:

"(1) All correspondence, memoranda, notes and other documents (including those held in electronic form) relating to any negotiation, discussion, agreement or arrangement between East-West Diamond Products Pty Ltd or Diadrill Mining Supplies and any of:

(Page 5)

(a) Mr Ross Stanley;

(b) Azilian Pty Ltd (formerly Tazga Pty Limited);

(c) Sierra Bay Pty Limited;

(d) Mr David Harper; and

(e) Geodrill Limited

relating to the possible or actual provision of drilling equipment or supplies to any of them by East-West Diamond Products Pty Ltd or Diadrill Mining Supplies during the period from 1 January 1997 to the present, including, but not limited to:

(i) all documents relating to any payment to East-West Diamond Products Pty Ltd or Diadrill Mining Supplies by Geodrill Ltd or any other entity, including Trans Traders Ltd, during the period from 1 January 1997 to the present, in relation to the provision of drilling equipment or supplies to any of the entities referred to in paragraphs (a) to (e) above;

(ii) all documents relating to any delivery of drilling equipment or supplies by East-West Diamond Products Pty Ltd or Diadrill Mining Supplies to Geodrill Limited or any of the entities referred to in paragraphs (a) to (d) above; and

(iii) all documents relating to any quotations, orders, or communications regarding the progress of the filling of orders for drilling equipment or supplies between East-West Diamond Products Pty Ltd or Diadrill Mining Supplies and any of the entities referred to in par (a) to (e) above."

6 The first and second defendants filed a schedule of amendments to the subpoenas. In relation to the supplier's subpoenaes they proposed four amendments. They are:

(1) Delete "them" in line 11 and insert "Geodrill Limited, Mr David Harper or Trans Traders Limited". (That is to

(Page 6)

say, the reference to Mr Ross Stanley, Azilian Pty Ltd and Sierra Bay Pty Ltd would be omitted).

(2) Delete "to the present" in the line 12 and in line 1(i) and insert "7 September 2002".

(3) Delete "any other entity, including from lines 2 and 3 of 1(i).

(4) Amend the last lines of par (1)(i), (ii) and (iii) to refer to "Geodrill Limited or Mr David Harper".

7 The second category of subpoenas might be described as the "communications subpoenas". The three entities referred to are Telstra Corporation Limited, Primus Telecommunications (Australia) Pty Ltd and Australia Post Corporation. Again these three subpoenas are in similar terms and it will be sufficient if I refer to the subpoena directed to Telstra. The subpoena directed to Australia Post is slightly different inasmuch as it does not refer to telephone numbers but to post office boxes. Nonetheless, the points made by the first and second defendants in relation to the Australia Post subpoena were very much the same as those made in relation to the Telstra subpoena. The Telstra subpoena required the production of the following documents:

"1. All records and any other documents (including those held in electronic form) relating to the provision during the period from 1 January 1997 to the present of any telephone or facsimile services by or on behalf of Telstra ('the Company') to any of:

(a) Mr Ross Stanley;

(b) Ms Candice Stanley;

(c) Azilian Pty Limited;

(d) Tazga Pty Limited;

(e) Sierra Bay Pty Limited;

(f) Mr David Harper; and

(g) Geodrill Limited,

including, but not limited to:

(Page 7)

(i) records of any application submitted by or on behalf of any of the entities referred to in paragraphs 1(a) to (g) above;

(ii) records or other documents evidencing any telephone or facsimile number provided by the Company to any of the entities referred to in paragraphs 1(a) to (g) above;

(iii) statements of account relating to the telephone and facsimile numbers referred to in paragraph 1(ii) above; and

(iv) records or other documents itemising calls made or facsimile transmissions sent from the telephone or facsimile numbers referred to in paragraph 1(ii) above.

2. All records and any other documents (including those held in electronic form) relating to the provision during the period from 1 January 1997 to the present of telephone or facsimile services by or on behalf of the Company in respect of any of the following telephone or facsimile numbers by the Company:

(a) ([phone];

(b) ([phone];

(c) ([phone];

(d) ([phone];

(e) ([phone];

(f) ([phone];

(g) ([phone],

(h) ([phone];

(i) ([phone]; and

(j) 1800 639 666,

including, but not limited to:

(Page 8)

(i) records of any application leading to the provision of such telephone or facsimile services;

(ii) records or other documents evidencing the identity of the subscribers to the telephone and facsimile numbers referred to in paragraphs 2(a) to (j) above;

(iii) statements of account relating to the telephone and facsimile numbers referred to in paragraphs 2(a) to (j) above; and

(iv) records or other documents itemising calls made or facsimile transmissions sent from the telephone and facsimile numbers referred to in paragraphs 2(a) to (j) above.

3. All records and any other documents (including those held in electronic form) relating to the provision during the period 1 January 1997 to the present of any telephone or facsimile services by or on behalf of the Company to any of the following addresses:

(a) 14 Burton Place, Kalgoorlie WA 6430;

(b) 7/431 Bagot Road, Subiaco WA 6008; and

(c) 34 Branksome Gardens, City Beach WA 6015,

including but not limited to:

(i) records of any application leading to the provision of such telephone or facsimile services;

(ii) records or other documents evidencing the telephone or facsimile numbers provided by or on behalf of the Company to any of the addresses referred to in paragraphs 3(a) to (c) above;

(iii) records or other documents evidencing the identity of the subscribers to the telephone or facsimile numbers referred to in paragraph 3(ii) above;

(Page 9)

(iv) statements of account relating to the telephone or facsimile numbers referred to in paragraph 3(ii) above; and

(v) records or other documents itemising calls made or facsimile transmissions sent from the telephone or facsimile numbers referred to in paragraph 3(ii) above.

4. All records and any other documents (including those held in electronic form) relating to the provision during the period 1 January 1997 to the present of any telephone or facsimile services by or on behalf of the Company where the billing addresses for those telephone or facsimile services were any of the following:

(a) 14 Burton Place, Kalgoorlie WA 6430;

(b) 7/431 Bagot Road, Subiaco WA 6008;

(c) 34 Branksome Gardens, City Beach WA 6015;

(d) PO Box 1541, Kalgoorlie WA 6430;

(e) PO Box 261, South Perth WA 6951;

(f) PO Box 684, Subiaco WA 6904; and

(g) PO Box 844, Subiaco WA 6008,

including, but not limited to:

(i) records of any application leading to the provision of such telephone or facsimile services;

(ii) records or other documents evidencing the telephone or facsimile numbers identifying the lines from which calls could be made or facsimiles sent by means of such services provided by or on behalf of the Company where the billing addresses for those numbers were any of those referred to in paragraphs 4(a) to (g) above;

(Page 10)

(iii) records or other documents evidencing the identity of the subscribers to the telephone and facsimile numbers referred to in paragraph 4(ii) above;

(iv) statements of account relating to the telephone and facsimile numbers referred to in paragraph 4(ii) above; and

(v) records or other documents itemising calls made or facsimile transmissions sent from the telephone and facsimile numbers referred to in paragraph 4(ii) above."

8 The first and second defendants sought to have all of the above deleted and to substitute the following:

"All records and any other documents, including those held in electronic form:

"1. Itemising calls made during 1997 and 1998 to or from:


1.1 any telephone number held in the name of Mr Ross Stanley;

1.2 any mobile telephone number held in the name of Mr Ross Stanley;

1.3 any telephone services provided to any of these addresses:


(i) 14 Burton Place, Kalgoorlie WA 6430;

(ii) 7/431 Bagot Road, Subiaco WA 6008;

(iii) 34 Branksome Gardens, City Beach WA 6005.

2. Itemising facsimile transmissions made during 1997 and 1998 to or from:

2.1 any facsimile number held in the name of Mr Ross Stanley;

2.2 any facsimile services provided to any of the following addresses:

(Page 11)

(i) 14 Burton Place, Kalgoorlie WA 6430;

(ii) 7/431 Bagot Road, Subiaco WA 6008;

(iii) 34 Branksome Gardens, City Beach WA 6005."

9 Finally, there was the subpoena directed to Ms Candice Stanley. Ms Stanley is the estranged wife of the first defendant. The subpoena directed to her stands alone in a category of its own. It is in the following terms:

"1. Copies of the Affidavits filed in Family Court proceedings commenced in or about 1999 between Mr Ross Stanley and Ms Candice Stanley, including but not limited to:

(a) the Affidavit of Mr Ross Stanley sworn on 1 June 1999; and

(b) the Affidavit of Mr Ross Stanley sworn on 24 June 1999.


2. All files, file notes, correspondence and any other documents (including those held in electronic form) relating to the investigation of overseas transactions of Mr Ross Stanley undertaken for or on behalf of yourself by Mr Harvey Pickup during the period from 1 January 1999 to the present.

3. All correspondence and any other documents (including those held in electronic form) which came into existence in the period from 1 January 1997 to the present relating to any communication, dealing or relationship between any of:


(a) Mr Ross Stanley;

(b) Mr David Harper;

(c) Mr Ross Kestel;

(d) Mr Andrew Grout;

(Page 12)

(e) Azilian Pty Limited (formerly Tazga Pty Limited);

(f) Sierra Bay Pty Limited;

(g) Geodrill Limited;

(h) Nissen Kestel & Harford;

(i) MGI Midgley Snelling;

(j) Mr Paul Moore;

(k) Moore Young;

(l) Trans Traders Limited;

(m) Cartwheel Advance Limited;

(n) Kingston Management (Guernsey) Limited;

(o) Kingston Management (Isle of Man) Limited; and

(p) any business located in Western Australia engaged in the provision of drilling services or equipment, such as KL Drillrig Services (Aust) Pty Ltd (now UDR-KL Pty Ltd),

relating to:

(i) the provision of loans or funds;

(ii) the provision of drilling services or equipment;

(iii) the establishment, organisation, management or running of Geodrill Limited or any business involved in the provision of drilling services to mining companies;

(iv) the payment of any moneys for or on behalf of Geodrill Limited; or

(v) the receipt of any moneys, directly or indirectly, from Geodrill Limited or Mr David Harper.

4. All correspondence and any other documents (including those held in electronic form) which came into existence

(Page 13)

in the period from 1 January 1997 to the present relating to Mr Ross Stanley's direct or indirect involvement, participation, responsibilities or duties in, or remuneration or other return from, the establishment, funding or running of Geodrill Limited or any other entity involved in the provision of drilling services to mining companies."

10 The first and second defendants would seek to delete par (1) of the subpoena. They would seek to amend par (2) by deleting "Mr Ross Stanley" from lines 2 and 3 and inserting "Geodrill Limited or Cartwheel Advance Limited". In relation to par (3) and (4) of the subpoena, the first and second defendants would seek to make the following amendments:

1. Insert after "in" in line 2 of paragraphs (3) and (4) the words "or refer to".

2. Delete "the present" from line 2 of paragraphs (3) and (4) and insert "7 September 2002".

3. Delete (3)(i) and (3)(ii).

4. Delete the second and third lines of (3)(iii) and the last two lines of par (4) after "Geodrill Limited".

5. Insert a new (3)(iv) "any business involved in the provision of drilling services to mining companies in Africa prior to May 1998".

11 By O 36 r 18, the Court may set aside a subpoena on the application of a person named in the subpoena. There is no equivalent provision to that rule in other Australian jurisdictions. It is open to question then whether it is only the person named in the subpoena who may apply to set it aside: see Wran v Australian Broadcasting Commission (1984) 3 NSWLR 241 at 264 - 265. However, there is authority to the effect that if a subpoena is an abuse of process, a person affected by that abuse of process may apply to set it aside: see Freid & Ors v National Australia Bank Ltd & Ors (2000) 175 ALR 194 at 197 - 199. For the purposes of this application the plaintiffs accepted that it was open to the first and second defendants as persons "affected" by an abuse of process to apply to set aside the subpoenas. The matter proceeded on that basis.

12 All parties accepted that it was for the first and second defendants to positively demonstrate through affidavit evidence that the issue of the

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subpoenas or the inspection of documents produced in response to the subpoenas, would adversely "affect" them: see Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648 at 649; Joye v Rehuxo & Ors (1999) NSWSC 785 at 24 - 26. This statement of principle is drawn from what was said by McLelland J in the Comsyd decision (supra). His Honour put the position as follows (at 649):

"… I do not think that the mere fact that the moving party is a party to the proceedings necessarily establishes a sufficient interest in having the subpoena set aside. It will all depend on what interest existed, in fact, in the moving party in relation to the documents which the subpoena required to be produced. If, for instance, the documents were documents in which the moving party had a proprietary interest or if the documents contained information which the moving party claimed to be confidential to it, then, in my view, either of those situations would provide a sufficient interest to justify an application to set aside the subpoena. Another example is the very situation illustrated by the case R v Lewes Justices where the Crown, obviously, had a sufficient interest in seeking to set aside a subpoena addressed to someone else on the basis of public interest privilege and the contents of documents sought to be produced. So I do not think that this application can be disposed of on the ground of standing without an examination of the connection, if any, between the documents sought to be required to be produced by the subpoenas in question on the one hand, and the defendants on the other."

13 It was the prime contention of the first and second defendants that the subpoenas only had a legitimate forensic purpose if they were amended as proposed. It was said the subpoenas in their present form were too extensive. They dealt with matters which were irrelevant to the issues between the parties and amounted to a fishing expedition. Furthermore, in the case of the subpoena directed to Ms Stanley, what was sought were documents which were confidential to the first defendant. In particular, counsel for the first and second defendants relied upon the Federal Court decision of Freid v National Australia Bank (supra). Weinberg J (at 29 and 30) said:

"[29] It is not appropriate, in my view, for a court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness. This is particularly so when the

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documents sought have nothing to do with any of the issues in dispute in the proceedings. The court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceedings, not merely to oppress a party or a witness.

[30] … It is not a legitimate use of the subpoena to have the specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value..."

14 The first and second defendants' position can be illustrated by reference to the subpoena directed to East-West Diamond Products Pty Ltd. First, there is the attempt by the first and second defendants to impose a temporal limitation on the documents to be produced. It is common ground between the parties that the alleged restraint the subject of the proceedings came to end on 7 December 2002. It is said on behalf of the first and second defendants that any documents brought into existence after this date are irrelevant. There is no claim for damages extending beyond the date upon which the restraint terminates. In opposition to this application the plaintiffs relied upon an affidavit of Andrew Lloyd Connolly sworn 3 March 2003. Dealing with this temporal aspect of the subpoenas directed to suppliers, Mr Connolly says (at par 18):

"… I say that documents that came into existence following 7 September 2002 may provide evidence of relevant conduct that occurred in the period up to 7 September 2002. Further, I believe that the Plaintiffs will adduce evidence of loss and damage arising after 7 September 2002 and occasioned by the Defendants' alleged conduct both during the period up to 7 December 2002 and after that date, on the basis that after 7 September 2002 the Fourth Defendant benefited from an unfair competitive advantage in relation to the Second Defendant and its related bodies corporate that was established earlier through the Defendant's alleged unlawful conduct".

15 In relation to the parties other than the first and fourth defendants named in the subpoenas, counsel pointed out that there is no allegation in the statement of claim that payments were made by, or that goods were supplied to these entities. It is said that any suggestion that the other

(Page 16)

parties might have made payments is pure speculation and could not justify the wide terms of the subpoenas.

16 The way in which counsel for the first and second defendants approached the matter raises the question of what, in any particular case, is a legitimate forensic purpose for which a subpoena might be issued. There are, I think, four points of principle which emerge from the cases. They are:

(1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: see Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350 at 374; National Employers' Mutual General Association Ltd v Waind & Anor(1978) 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors (2000) 18 ACLC 609 at 613 - 614.

(2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforeseen evidence-in-chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of the proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: see Apache Northwest (supra) at 376. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground that documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: see Brand v Digi-Tech [2001] NSWSC 425 at 42.

(3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence no

(Page 17)

narrow view as to the legitimate purposes of a subpoena ought be taken: see Khanna v Lovell White Durrant (1995) 1 WLR 121 at 123.

(4) There is no requirement that to avoid the stigma of fishing, a party must already be in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant: see Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 105 FCR 136 at 143 - 144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at 48. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey (supra) at 143.

17 Set against these principles I am satisfied that the suppliers' subpoenas and the communications' subpoenas should stand. So far as the temporal aspect of the suppliers' subpoenas are concerned, while there is presently no plea of damage after 7 December 2002, it may be evidence will emerge which would justify a claim for such damages. In my view the plaintiffs are pursuing a line of enquiry which is proper; in other words they have a legitimate forensic purpose in issuing subpoenas unlimited in time. With respect to the other objections taken by the first and second defendants it seems to me based on the evidence of Mr Connolly, particularly the evidence in his affidavit of 3 March 2003, the plaintiffs have a legitimate forensic purpose for each of the subpoenas. For instance, in relation to the subpoena issued to East-West Diamond Products Pty Ltd, there is no warrant for confining the subpoena as proposed by the first and second defendants. What the plaintiffs are seeking to do is obtain details of documents relating to the provision of drilling equipment or supplies to a group of individuals and companies, some of whom are defendants in these proceedings, others of whom are associated with defendants in the proceedings. In my view the subpoena properly reflects an appropriate investigation by the plaintiffs and has been issued for a legitimate forensic purpose.

18 That leaves the subpoena directed to Ms Stanley. It is apparent from a reading of both of Mr Connolly's affidavits that the plaintiffs have enjoyed the cooperation of Ms Stanley in preparing their case. It is clear that Ms Stanley has no objection to producing the documents pursuant to the subpoena - as I have mentioned, these documents were produced at the commencement of this hearing. The Family Court proceedings are unresolved and it is clear from Mr Connolly's affidavits that Ms Stanley is

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represented by solicitors in the Family Court proceedings. She may or may not have received advice in relation to production of the documents sought in the subpoena. Either way, that is a matter for her.

19 As Bryson J noted in Hillston v Bar-Mordecai [2002] NSWSC 973 at 8:

"Family Court files could readily become a treasure house on issues of credit for cross-examiners if they had ready access to them …"

20 His Honour went on to detail the way in which Family Court documents can be subpoenaed in New South Wales. The mechanism used in that State is not presently relevant. What is clear is that his Honour was of the view that the Family Court documents which satisfied the legitimate forensic purpose test could be obtained pursuant to a subpoena. In other words, the mere fact that the documents were generated as part of Family Court proceedings was not in and of itself enough to deny a party to a Supreme Court action access to those documents.

21 The first and second defendants object to the scope of the subpoena issued to Ms Stanley on two separate but related grounds. First, they say that there is no legitimate forensic purpose in the plaintiffs seeking the documents. They point to the fact that the first defendant has provided discovery and if it was thought any affidavits or other material produced in the course of Family Court proceedings was relevant, then an application for further and better discovery ought be made. In the absence of such an application, there is no warrant, so it was submitted, for allowing access to Family Court documents through Ms Stanley. In my view it is not appropriate to test the subpoena by reference to the defendants' discovery. Based upon the evidence of Mr Connolly, I am satisfied that the plaintiffs do have a legitimate forensic purpose in seeking the Family Court documents.

22 The second objection raised, focussed upon the duty of a party in any court proceedings, be it the Family Court or any other court, not to use documents in the proceedings for any other purpose. With respect to counsel, having listened to his oral submissions and given careful consideration to his original written submissions and supplementary submissions, I am not entirely sure how this objection was formulated. However, be that as it may, on the basis of the Hillston decision, it would seem to me to be open to this Court to allow production of Family Court documents pursuant to a subpoena. Of course the legitimate forensic

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purpose test must be satisfied and in this case I am content that it has been so satisfied. Accordingly I will allow the amended subpoena directed to Ms Stanley to stand in its present form.

23 For these reasons I would dismiss the first and second defendants' chamber summons. I will hear the parties as to the precise form of orders and as to costs.