Leighton Contractors Pty Ltd v Western Metals Resources Limited

[2000] QSC 27

SUPREME COURT OF QUEENSLAND

CITATION:	Re: Leighton Contractors Pty Ltd v Western Metals Resources Limited [2000] QSC 027
PARTIES:	LEIGHTON CONTRACTORS PTY LTD (Plaintiff) and WESTERN METALS RESOURCES LIMITED (Defendant)
FILE NO:	S2218 of 1999 Brisbane Registry
DIVISION:	Trial Division
DELIVERED ON:	2 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2000
JUDGE:	Mackenzie J
ORDER:	1. The application is dismissed. 2. The documents produced pursuant to subpoena shall be released forthwith to the solicitors for the respondent.
CATCHWORDS:	DISCOVERY AND INTERROGATORIES – Production and inspection non-party discovery – Use of subpoena to obtain non-party disclosure – falls outside intention of Uniform Civil Procedure Rules.
Burchard v MacFarlane ex parte Tindall (1891) 2 QB 241; Commissioner for Railways New South Wales v Small (1938) 38 SRNSW 564; Waind v Hill and National Employers Mutual General Association (1978) 1 NSWLR 376) Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; Greyhound Australia Pty Ltd v Deluxe Coachlines Pty Ltd (1986) 67 ALR 93) Kennedy Taylor Vic (Pty Ltd) v Grocon Pty Ltd (1999 )VSC 242)
COUNSEL:	Mr McQuade for the plaintiff Ms D Murphy for the non-party
SOLICITORS:	Blake Dawson Waldron for the plaintiff Freehill Hollingdale & Page for the non-party

1. MACKENZIE J: On 25 January, Blake Dawson Waldron, solicitors for Leighton Contractors Pty Ltd, served a subpoena for production in an action between Leighton Contractors Pty Ltd and Western Metals Resources Limited, directed to the proper officer of contracts and purchase, Contracts and Purchasing Services Pty Ltd. That company is a non-party to the action. The action is not ready for trial and will not be for some time. Nor was the subpoena issued in connection with a pending application.

2. On 16 February 2000 when I was sitting as one of the judges dealing with Applications to Court the documents were produced to the court in accordance with the subpoena. No-one appeared on behalf of Leighton Contractors although a solicitor for the non-party who appeared in connection with the delivery of the documents told me she had anticipated an application for inspection and copying of the documents to be made.

3. I received the documents to relieve the non-party of its obligation under the subpoena and directed the Registrar to hold the documents for 14 days to allow any application to be made in respect of them.

4. On 22 February 2000 the present application, which was for access to and permission to copy all produced documents not claimed to be privileged, was filed. On this occasion the solicitor for the non-party appeared but only to assist the court. No objection was raised to the documents being inspected and copied. I was informed that it was not suggested that anyone else's interests would be affected if the right to inspect and copy was granted. However, this may be a subjective view because the subpoena requires production of documents brought into existence by six companies, entities or natural persons and received by the respondent.

5. Prior to December 1965 when the then O 35 r 28 was introduced it had long been recognised that the fact that relevant documents were in the possession of a stranger to litigation presented procedural problems (William Collin & Sons Pty Ltd v T&T Mining Corporation Pty Ltd (1971) QdR 427, 435). The December 1965 amendment to the Rules introduced an entirely new procedure whereby documents in the possession of a stranger might be inspected. Hoare J observed that the rule necessarily involved an infringement of the rights of third parties and for that reason care should always be taken that as far as possible those rights were infringed to no greater extent than was necessary to ensure the due conduct of the litigation.

6. The procedure under O 35 r 28 required a Judge's order based on his satisfaction that the non-party had in his possession a document relevant to a matter in question in the cause and which he could be required to produce at the trial and that it was necessary that it be inspected at that stage of the case. Judicial involvement provided a degree of control over excessive requirements, but required the expense of an application to a Chamber Judge.

7. Hoare J (437-8) said that O 35 r 28 required discovery from a third party. W B Campbell J was "inclined to agree" with that characterisation (441). Hanger CJ did not express an opinion on the issue whether the procedure was akin to discovery or subpoena.

8. Later, Pt 3A of O 40 provided, in substitution for the need for a Judge's order, for a writ of non-party discovery which required a non-party to produce to the party issuing the writ documents related to a matter in question in the cause which were in the non-party's possession or control and were documents he could be required to produce at trial. The non-party was given a right to apply to set aside or vary the writ. The rules also made provision for inspection and copying.

9. Following the repeal of that rule by UCPR, Chapter 7 Pt 2 of the UCPR governs non-party discovery. It makes detailed prescriptions as to the procedure to be followed and as to the content of the documents initiating the process. Rule 242 provides that document required to be produced must be directly related to allegations in issue in the pleadings. It must be in the possession or control of the non-party. It must be a document which the non-party could be required to produce at trial. Rule 243 requires the notice served on the non-party to state the allegation in issue in the pleadings to which the document sought is directly relevant and to include a certificate signed by the applicant's solicitor or a litigant in person stating that there is not available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.

10. Rule 243(2) and r 244 relate to the giving of notice to other affected persons. The provisions of rules 243(2) and 244 recognise the intrusion involved in inspecting a non-party's documents and the fact that persons may have a legitimate ground to object which must be taken account of as well as the legitimate claims of the party to obtain information relevant to the action and the wider public interest in the due administration of justice. The provision relating to the contents of the notice requires an applicant to restrict the ambit of disclosure to documents directly related to allegations in issue in the pleadings and thereby relieves the non-party of the oppressive need to make a judgment as to which of his documents may relate to an issue in the pleadings.

11. Against this historical background and in the context of Rules which prescribe the way in which a party seeking disclosure from a third party must go about it and provide quite precisely what must be disclosed the issue is whether there is any reason to think that it is permissible to use a subpoena to obtain what is really non- party disclosure.

12. Mr McQuade for the applicant accepted that under the former rules (O 40 r 29) a subpoena ad testificandum and a subpoena duces tecum could be issued only for the purpose of requiring the attendance of a person or production of documents at a hearing. I note that there are statements in some cases in other jurisdictions suggesting that the limits upon issuing a subpoena returnable prior to the date of trial or hearing are not defined precisely. As will be seen later where it has been suggested that it is permissible to use a subpoena to obtain production of documents prior to trial the justification lies in the practice of the particular court having regard to the state of the rules at the time of the decision or, perhaps, the existence of special circumstances in a particular case justifying an exceptional use of the writs. Reference to the issue should not be taken to be acceptance that, under the UCPR, the principle survives.

13. It was not argued that there were any such special factors in this case. The argument was based on a construction of the uniform civil procedure rules:

    "[r 414] Power to issue subpoena
    414 (1) This rule applies to the following subpoenas-

    (a)          subpoenas for production;

    (b)          subpoenas to give evidence;

    (c)          subpoenas for production and to give evidence.

    (2) The court may, on its own initiative or at the request of a party,
    issue a subpoena requiring the attendance of the person specified in
    the subpoena before the court or before an officer, examiner, referee
    or other person having authority to take evidence.
    (3) A request for a subpoena-

    (a)        must specify the name or designation by office or position of the person to whom the subpoena is directed unless the registrar otherwise directs or the court otherwise orders; and

    (b)        must be filed.

    (4) If a party files a request for a subpoena, the registrar may issue
    the subpoena.
    .............................
    (8) A subpoena requiring a person to produce a document or thing
    must include an adequate description of the document or thing.
    (9) A person to whom a subpoena is directed must comply with it."

14. Rule 415 requires the approved forms to be used. Forms 41 to 43 follow a common pattern. In each case the form contains the words "The court orders that you attend" followed by a statement of the purpose of attendance, i.e. to produce documents or things described in the schedule to the subpoena or to give evidence or to do both of those things. The Court or person having authority to take evidence before which or whom the person must appear, the place and date and time of appearance and the fact that the obligation continues until the person is excuse from further attendance are there stated.

15. Mr McQuade relied on a difference between O 40 r 29 and the present Rule 414 as demonstrating that a subpoena could be used to obtain the production of documents to court in the pre-trial phase of proceedings. Order 40 r 29 is as follows:

    "[40.29] Attendance of witness under subpoena for examination
    or to produce documents
    29 Any party to a cause or matter may, subject to these rules, by a
    writ of subpoena ad testificandum or subpoena duces tecum, require
    the attendance of any person, or the production of any document,
    before the Court or Judge at the hearing or trial, or on the hearing of
    any motion or application in the cause or matter, or before the
    registrar or other officer of the Court or other person appointed to
    make any inquiry in the cause or matter, or before any person
    appointed to take any examination of witnesses."

16. He accepted that under the repealed rules the use of the subpoena was ordinarily restricted to cases where production at a hearing was sought. The submission was the absence of the words "at the hearing or trial or on the hearing of any motion or application in the cause or matter" in UCPR Rule 414 demonstrated an intention to allow a subpoena to be used at any stage of the action or proceeding to obtain documents. It was implicit in this submission that the methods of obtaining documents by non-party disclosure and subpoena were alternatives.

17. The distinct purposes of discovery and subpoena are reflected in numerous decisions (e.g. Burchard v MacFarlane ex parte Tindall (1891) 2 QB 241; Commissioner for Railways New South Wales v Small (1938) 38 SRNSW 564; Waind v Hill and National Employers Mutual General Association (1978) 1 NSWLR 376). Statements are to be found in some cases suggesting that a subpoena returnable at a date well in advance of trial is permissible (e.g. Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; Greyhound Australia Pty Ltd v Deluxe Coachlines Pty Ltd (1986) 67 ALR 93). The courts in which these decisions were made had at that time no rules permitting discovery from non-parties (Kennedy Taylor) Vic (Pty Ltd) v Grocon Pty Ltd (1999 VSC 242) Gillard J , 1 July 1999; Greyhound Australia at 97). The decisions are based on considerations of convenience, or perhaps inconvenience if it were otherwise, in the conduct of complex litigation in the absence of a procedure for obtaining documents of non- parties.

18. On the other hand Kennedy-Taylor and J Boag & Son Brewing Ltd v Cascade Brewery Co Pty Ltd (1997) 7 Tas R119 are examples of the reluctance of courts to recognise the use of a subpoena duces tecum in substitution for another available procedure when the purpose is to obtain production of documents in the pre-trial phase and unconnected with the hearing of an application. The mere fact that some of the documents, after inspection, will be used as evidence at trial does not qualify the case as one where a subpoena may be used.

19. Returning to the UCPR, the rules relating to subpoenas appear in ch 11, intituled "evidence". The rules relating to non-party disclosure are in ch 7, intituled "disclosure". This reflects the traditional difference between discovery and obtaining documents by subpoena.

20. The rules relating to non-party disclosure are designed to provide safeguards to a non-party upon whom a notice is served and to more remote persons who may be affected. Where a deliberately prescriptive regime is provided for the obtaining of documents from a non-party the question presents itself whether the intention was that those safeguards might be avoided by using a different procedure with requirements which are different but which have some common features. Further, the fact that there is a verbal difference between the repealed rules and the UCPR does not necessarily require the conclusion that there is a difference in substance. The notion of appearing before a court or person required to take evidence, even in the absence of the words "at hearing or trial", is not inconsistent with the UCPR being intended to relate to appearance at trial or hearing especially where there is a distinct and closely regulated procedure for obtaining disclosure in the pre-trial phase.

21. In my opinion there is no indication in the rules that it is intended that what is really non-party disclosure in the pre-trial phase may be obtained by issuing a subpoena to produce. In my opinion the rules do not effect a change from the philosophy in that regard under the repealed rules.

22. While it is not incumbent on the Registry to make specific inquiries in this regard, if it is apparent that a request for a subpoena is being made where it is unconnected with a trial or hearing, it would be appropriate for the discretion in R414(4) to be exercised against issuing it. There can now be no misapprehension about the scope of the respective rules and any attempt henceforth to use a subpoena for the purpose of obtaining disclosure would be an abuse of process. If a subpoena were issued for that purpose, it would be liable to be set aside on that ground.

23. Accordingly I refuse the application for access to and copying of the documents produced pursuant to the subpoena. I direct the Registrar to release the documents to the solicitors for Contracts and Purchasing Services Pty Ltd.

24. It was submitted that, if an order refusing access to and copying of the documents was made, it would be appropriate to make an order under R371 and in accordance with the philosophy in r 5 achieving the same result on the basis that use of the wrong procedure was an irregularity only. I have concluded that I should not do so. The principal reason is that I am not satisfied that, on the material before me, there has been sufficient compliance with the safeguards in r 244. It is for the applicant's solicitors to assess whether any of the persons who brought into existence documents sought fall into a category of persons who must be served with the notice. I am also unable, on the material before me, to be satisfied that there has been sufficient compliance with all of the requirements of r 243.

[25]

The formal orders are:

1.	The application is dismissed.
2.	The documents produced pursuant to subpoena shall be released forthwith to the solicitors for the respondent.