McLaughlin v Dungowan Manly Pty Ltd - [2009] NSWSC 1501

CITATION: McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC 1501

HEARING DATE(S): 15 June 2009

JUDGMENT DATE :
14 July 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

DECISION: Notice of Motion dismissed

CATCHWORDS: PRACTICE AND PROCEDURE – application to set aside subpoena – r 33.4 Uniform Civil Procedure Rules 2005 – whether subpoena constituted an impermissible fishing expedition – whether documents sought to be produced were irrelevant to the main issues in the proceedings – consideration of various formulations of the test for relevance – mere relevance not enough to establish legitimate forensic purpose – consideration of whether subpoena as drafted is too wide, oppressive or uncertain – HELD – application to set aside subpoena dismissed – direct that scope of subpoena be limited as indicated in reasons

CATEGORY: Procedural and other rulings

CASES CITED: Alister v R (1984) 154 CLR 404
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Limited (1952) 72 WN (NSW) 250
Attorney-General (NSW) v Chidgey [2008] NSWCCA 65
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162
Carter v Hayes (1994) 61 SASR 451
Commonwealth v Northern Land Council (1991) 30 FCR 1
Cosco Holdings Pty Limited v Commissioner of Taxation (1997) 37 ATR 432
Doyle v ASIC (2005) 227 CLR 18
Duke Group Limited (in liq) v Pilmer (1998) 27 ACSR 1
Kelly v Raymor (Illawarra) Pty Limited [1981] 1 NSWLR 720
Liristis v Gadelrabb [2009] NSWSC 441
Lucas Industries Limited v Hewitt (1978) 18 ALR 555
Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 619
National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Portal Software v Bodsworth [2005] NSWSC 1115
R v Ali Tastan (1994) 75 A Crim R 498
R v Gergis [2000] NSWCCA 508
R v Saleam (1989) 16 NSWLR 14
R v Taylor (2007) 169 A Crim R 543
Re Bird v Military Rehabilitation & Compensation Commission [2006] 91 ALD 691
Regina v Saleam [1999] NSWCCA 86
Roads & Traffic Authority of NSW v Conolly [2003] NSWSC 327
Saleam [1999] NSWCCA 86
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts [2007] FCA 1398
The Bell Group Limited (in liq) v Westpac Banking Corporation (No 9) (2008) 70 ACSR 1
Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306
Universal Press Pty Limited v Provest Limited (unreported, FCA, 14/07/89)

PARTIES: Patrick David McLaughlin (First Plaintiff)
Jennifer Therese McLaughlin (Second Plaintiff)
Dungowan Manly Pty Ltd (Defendant)

FILE NUMBER(S): SC 4924/06

COUNSEL: S J Burchett (Plaintiffs)
D A Priestley (Defendant)

SOLICITORS: Turner Freeman (Plaintiffs)
Pikes Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

TUESDAY 14 JULY 2009

4924/06 PATRICK DAVID MCLAUGHLIN V DUNGOWAN MANLY PTY LTD

JUDGMENT

1 In these proceedings an application has been brought, by notice of motion filed on 15 June 2009, by Rodney Garratt QC (Mr Garratt) to set aside in whole or in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 1501
Decision Date: 14 July 2009

CaseChat Overview and Summary

The case of McLaughlin v Dungowan Manly Pty Ltd involved an application by the defendant, Dungowan Manly Pty Ltd, to set aside a subpoena issued by the plaintiff, McLaughlin. The subpoena required the defendant to produce a wide array of documents and records, which the defendant argued were irrelevant to the main issues in the proceedings. The matter was heard in the Supreme Court of New South Wales. The defendant argued that the subpoena constituted an impermissible fishing expedition and that the documents sought were irrelevant, overly broad, oppressive, or uncertain.

The court was required to determine whether the subpoena constituted an impermissible fishing expedition and whether the documents sought were relevant to the main issues in the proceedings. The court considered the various formulations of the test for relevance, ultimately concluding that mere relevance was not sufficient to establish a legitimate forensic purpose. The court also examined whether the subpoena, as drafted, was too wide, oppressive, or uncertain. The court found that the subpoena was not an impermissible fishing expedition and that the documents sought were relevant to the main issues in the proceedings. The court also found that the subpoena, as drafted, was not too wide, oppressive, or uncertain.

The application to set aside the subpoena was dismissed. The court directed that the scope of the subpoena be limited as indicated in the reasons. This decision reinforces the importance of ensuring that subpoenas are narrowly tailored to the issues in the proceedings and that the documents sought are relevant and not overly broad, oppressive, or uncertain. The court's decision also highlights the importance of considering the various formulations of the test for relevance when determining whether documents are relevant to the issues in the proceedings.

Orders