Lewis v Nortex Pty Limited
[2002] NSWSC 1064
•11 November 2002
CITATION: Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1064 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 3081/97; 1750/02 HEARING DATE(S): 11 November 2002 JUDGMENT DATE: 11 November 2002 PARTIES :
3081/97
Peter Lawrence Lewis (P)
Lamru Pty Ltd (Applicant)
Kation Pty Ltd (Respondent)
Brian Raymond Silvia (Liquidator)
1750/02
Lamru Pty Limited (P)
Kation Pty Limited (D1)
Peter Lawrence Lewis (D2)
Mark Lewis (D3)
Nortex Pty Ltd (In Liq) (D4)JUDGMENT OF: Hamilton J
COUNSEL : N A Cotman SC & J T Johnson (Kation P/L & P L Lewis)
S J Motbey (Lamru P/L)
V R Gray (Liquidator & Nortex P/L)
No appearance (M Lewis)SOLICITORS: Kemp Strang (P L Lewis & Kation P/L)
Lyons & Lyons (Lamru P/L)
Abbott Tout (Liquidator & Nortex P/L)
Corrs Chambers Westgarth (M Lewis)CATCHWORDS: PROCEDURE [111] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Subpoenas - To produce documents - Questions as to existence or possession - How determined. LEGISLATION CITED: Supreme Court Rules 1970 Part 36 r 16 CASES CITED: Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90 DECISION: Order that party be examined on oath in answer to notice to produce having effect of subpoena.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
MONDAY, 11 NOVEMBER 2002
3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (In Liq)
1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED & ORS
JUDGMENT
1 HIS HONOUR: At pages 524 to 527 of the transcript is recorded what occurred on a call made on behalf of Lamru upon a notice to produce to the Lewis parties constituted by a letter dated 5 November 2002 directed to their solicitors. Pursuant to that call a copy of the notice to produce was produced to the Court together with one document. That document was received into the custody of the Court as on subpoena and has now been placed with a copy of the paragraph of Mr Lewis’ affidavit referred to in the notice to produce in an envelope with a copy of the notice to produce attached to the front. That is now marked MFI12:
MFI #12 NOTICE TO PRODUCE TO LEWIS INTERESTS DATED 5/11/2002, A COPY OF PARAGRAPH 56 OF MR LEWIS' RELEVANT AFFIDAVIT AND DOCUMENT PRODUCED IN ANSWER TO NOTICE TO PRODUCE ON 8/11/2002
2 Reference was made in the course of the answers given by Mr Cotman, of Senior Counsel for the Lewis interests, at pages 524 to 527 to a notice to produce to the liquidator and a CD-ROM said to have been placed in a clear envelope. In fact, whilst that was done at the time, the CD-ROM is now in a manilla envelope with the notice to produce to the liquidator on the front. That envelope will be marked MFI13:
MFI #13 NOTICE TO PRODUCE TO LIQUIDATOR DATED 5/11/2002 AND CD-ROM PRODUCED ON 8/11/2002
3 Mr Motbey, of counsel for Lamru, now pursues an application that he made on 8 November 2002 in respect of the notice to produce dated 5 November 2002 directed to the Lewis interests to examine on oath Mr Peter Lewis in relation to the answer to the notice to produce. He does that in accordance with the procedure that has evolved over the years as set out in the decision of Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90. That procedure is, in short, that where an issue arises as to the production of documents under a subpoena (and the notice to produce in question is by Part 36 r 16 of the Supreme Court Rules 1970 given the force of a subpoena) the person subpoenaed or, if the addressee be a corporation, an officer, may be called and sworn. That person may then be examined by the person serving the subpoena and after that, if necessary, examined by counsel on behalf of the person to whom the subpoena is addressed. These matters are all within the discretion of the Court. The evidence given will be evidence upon the ancillary proceeding constituted by the application to have the subpoena answered and will not be evidence in the proceedings.
4 Mr Cotman protests that something more must appear than does in the present case for that procedure to be followed. Like the procedure on an application for further discovery, it must appear that some document once existed and is not now produced or that the person answering the subpoena has the document but declines to produce it on the basis that it is held for a third party or something of that sort. Furthermore, he says the situation is different if one or more documents are produced and said to be all the documents that there are, than what the situation would be if no documents were produced. He says that it does not matter what the suspicions of Mr Motbey as counsel for Lamru are.
5 In my view nothing of the sort put forward by Mr Cotman is necessary. I do not see any of the sorts of requirement he has suggested as arising either from the practice of the Court as I understand it or from the judgment of Beaumont J. All that is required is that there be a real issue as to whether the production is sufficient. The discretion is at large. It will be exercised in accordance with the dictates of justice taking into account all the circumstances of the case. Without suggesting that its width be limited in any way, it will often involve a weighing of the trouble and expense occasioned by such an examination against the requirement that the order of the Court constituted by a subpoena be meticulously obeyed and all documents properly required for the administration of justice be produced. The occasion for the exercise of the discretion may in an appropriate case arise from the party issuing the subpoena or his counsel stating that it is not accepted that the production is complete.
6 Perhaps in an ordinary case the Court may be sceptical and not prone to exercise its discretion upon a simple statement of non acceptance. But this is not an ordinary case and the documents in relation to which the issue arises are not ordinary documents. They include computerised records. There has already been such controversy about the stock records of the relevant company at appropriate times that in this, a civil case, there was a voir dire in which four days of evidence was given for the purpose of establishing whether or not a computer version of the stock records of the company at about this time could be admitted into evidence. This is a case in which the parties are very embattled and there are strongly taken issues as to what was and was not in relevant stock records, and, as I say, the stock records, what was contained in the computerised versions of them and what printouts there were of them from time to time, are matters of the highest controversy.
7 In those circumstances, I do not think it can be validly suggested that it is in any way trivial or inappropriate for Mr Motbey to announce that there is an issue as to whether there has been a full answer to this notice to produce or that that issue should be regarded as illusory. I therefore propose to allow Mr Lewis to be brought forward, sworn and asked about the response to the notice to produce. On the other hand, the ambit and purpose of the exercise, as laid down by Beaumont J, must be borne in mind. This must not be turned into some sort of inquisition and the examination must proceed accordingly.
8 I therefore propose to grant the application to permit the swearing of Mr Lewis to make further answer to the relevant notice to produce, being the notice to produce in MFI12. The orders that I make upon the application are as follows; they are modelled on those of Beaumont J, but bearing in mind that there was there a subjacent issue as to whether there had been a contempt of the Court by destruction or removal from the jurisdiction of the documents:
- In respect of the call made on the notice to produce MFI12 I give the following directions:
1 Mr Peter Lewis should be sworn in this "ancillary" application.
2 Mr Lewis should then be examined by counsel for Lamru as a witness called by Lamru.
3 If he wishes, counsel for the Lewis interests may examine Mr Lewis further.
4 The evidence given on this application is not to be accepted as evidence in the principal proceedings without specific tender in those proceedings.
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