Macks v Tuck & Ors & QBE Insurance (Australia) Ltd (No.4)

In the case of Macks v Tuck & Ors & QBE Insurance (Australia) Ltd (No.4), the applicants, QBE Insurance (Australia) Ltd and SAAMC, sought to have a subpoena set aside. The subpoena had been issued by the defendants to SAAMC, which was a non-party to the proceedings. The applicants contended that the subpoena was oppressive and sought its setting aside. The applicants also argued that SAAMC was not a "bank" as defined in the Evidence Act 1929 (SA), and thus, the subpoena did not apply to it.

The court was required to determine whether the non-party, SAAMC, was a "bank" under s 50 of the Evidence Act 1929 (SA) and whether the subpoena was oppressive. The court also had to consider the relevance of the documents sought by the subpoena and whether the subpoena amounted to non-party discovery. Furthermore, the court had to decide whether the issue of the subpoena was a "fishing" exercise and whether the plaintiff was entitled to be heard on the application by the non-party to strike out the subpoena.

The court found that the subpoena was oppressive, as it imposed a substantial burden of search and inquiry on SAAMC. The court also noted that the subpoena was a "fishing" exercise and lacked particularity. The court held that SAAMC was not a "bank" within the meaning of the Evidence Act 1929 (SA), and thus, the subpoena did not apply to it. The court considered the relevance of the documents sought by the subpoena and found that they were not directly relevant to the proceedings. The court held that the subpoena amounted to non-party discovery and that the defendants should have applied for further and better discovery or non-party discovery in accordance with r 60 of the Supreme Court Rules 1987. The court set aside the subpoena directed to SAAMC.

The court ordered that the subpoena directed to SAAMC be set aside. The court noted that the defendants could seek an order for further and better discovery from the plaintiffs if they had a genuine concern about the adequacy of the plaintiff’s discovery. If they believed that there were still documents in the possession or power of SAAMC which were directly relevant to an issue in the proceedings, they should consider an application for non-party discovery in accordance with the provisions of r 60 of the Supreme Court Rules 1987, supported by an affidavit specifying the documents sought and their relevance to the proceedings.