Mead Corporation v Carbonless Papers (Australia) Pty Ltd
[2002] WASC 114
MEAD CORPORATION -v- CARBONLESS PAPERS (AUSTRALIA) PTY LTD & ORS [2002] WASC 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 114 | |
| Case No: | CIV:1606/1996 | 20 MARCH 2002 | |
| Coram: | MASTER BREDMEYER | 17/05/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| B | |||
| PDF Version |
| Parties: | MEAD CORPORATION CARBONLESS PAPERS (AUSTRALIA) PTY LTD (ACN 053 402 038) THOMAS LESTER EVERETT ROBIN ASCOTT |
Catchwords: | Subpoena Application to set aside subpoena |
Legislation: | Rules of the Supreme Court, O 36 r 12(4), r 18 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CARBONLESS PAPERS (AUSTRALIA) PTY LTD (ACN 053 402 038)
First Defendant
THOMAS LESTER EVERETT
ROBIN ASCOTT
Second Defendants
Catchwords:
Subpoena - Application to set aside subpoena
Legislation:
Rules of the Supreme Court, O 36 r 12(4), r 18
(Page 2)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
Plaintiff : Mr C S Gough
First Defendant : Ms G S Pitt
Second Defendants : Ms G S Pitt
Solicitors:
Plaintiff : Minter Ellison
First Defendant : Williams & Hughes
Second Defendants : Williams & Hughes
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: This is an application on behalf of the defendants and Mr Michael Townsend to set aside a subpoena to produce documents or objects served on Mr Townsend. The application is supported by an affidavit of Ms G Pitt, sworn 19 March 2002 which annexes, inter alia, correspondence passing between the parties' solicitors. Ms Pitt, and her firm of solicitors, represent both the defendants and Mr Townsend, a non-party, in this application. The application is brought under O 36 r 18 of the Supreme Court Rules.
2 On 22 February 2002, the plaintiff obtained leave from me to issue the subpoena against Mr Townsend. On that occasion, Mr Gough appeared for the plaintiff ex parte and filed an affidavit in support, sworn 12 February 2002.
3 The subpoena ordered the production of the following documents:
"(a) an electronic copy of the complete books of account for the first defendant for each of the financial years ending 30 June 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000 and 2001 respectively;
(b) an electronic copy of any spreadsheet, graph, comparison, summary and/or other document touching on any financial aspect of the business of the first defendant;
(c) any correspondence in the period 1990 to 2001 (inclusive) with the first defendant, Rebb Nominees Pty Ltd or Robin Ascott in any way touching on the business of the first defendant;
(d) any and all agreements with the first defendant or Robin Ascott concerning any investment in the first defendant and the terms of any such investment;
(e) any and all correspondence between Toongabbie Ply Ltd or Michael Townsend and Thomas Eyres relating to, or touching upon, the activities of the first defendant; and
(f) any and all correspondence with any other party for the period 1991 to 2001 (inclusive) relating to the production, manufacture, obtaining of, or sale of, carbonless coating chemicals."
(Page 4)
4 The solicitors for the defendants and Mr Townsend had some difficulty obtaining a copy of Mr Gough's affidavit which they required in order to attack the ex parte grant of leave. Any ex parte order can be set aside, inter alia, on the basis of material non-disclosure by the party who obtained the order: see Seaman [58.23.1]. That applies whether the order obtained is an interim injunction, the appointment of a provisional liquidator, an application to serve a writ out of the jurisdiction or, as in this case, leave to issue an early subpoena. The request for a copy of Mr Gough's affidavit should have been met more readily.
5 I will consider (a) and (b) quoted above together. Mr Gough's affidavit in support of 12 February 2002 did not mention that he had obtained a compact disk from the defendants containing many of the financial documents sought in categories (a) and (b). Mr Gough did tell me orally on the day that he had recently obtained a CD, by way of informal discovery, from the defendants' solicitors, but had not yet obtained computer access to it to unlock it. It is clear from Ms Pitt's affidavit and the supporting correspondence that the defendants' solicitors were co-operating and using their best endeavours to give access via a password, and possibly in other ways, to the CD supplied. I do not consider there was any material non-disclosure to me by the plaintiff's counsel. I consider, however, that categories (a) and (b) of the subpoena should be set aside, with liberty to apply. I say that because the plaintiff's legal advisers should first consider and digest the financial information contained on the CD-ROM which has been supplied before troubling Mr Townsend, a non-party, for further information.
6 Category (c): par 4 of Mr Gough's affidavit in support says:
"4. Rebb Nominees Pty Ltd is a company through which Robin Ascott initially corresponded with the plaintiff. Prior to most of the events of which the defendants complain, Robin Ascott began corresponding in the name of the first defendant. I therefore believe that in relation to the classes of documents that have been requested, it is possible that they may make reference to Rebb Nominees Pty Ltd."
7 I consider category (c) in order subject to some paring down. Mr Townsend, as one who did accounting work for the first defendant, may have some correspondence with the first defendant, Rebb Nominees Pty Ltd, Rebb Nominees or Robin Ascott. I consider it should be
(Page 5)
- confined to "the first defendant's production, manufacture, acquisition or sale of carbonless coating chemicals and carbonless paper".
8 Category (d) seeks all agreements with the first defendant and Robin Ascott concerning any investment in the first defendant and the terms of any such investment. I understand that Mr Townsend is an investor in the first defendant. I consider this category is not relevant to the issues as pleaded and I set it aside.
9 I consider (e) is too wide. It is not relevant to produce correspondence relating, for example, to the first defendant's lease of a vehicle. I would allow it, restricted to the first defendant's production, manufacture, acquisition or sale of carbonless coating chemicals and carbonless paper.
10 Category (f) refers to correspondence with "any other party". That means a party other than the first defendant. I think this category is in order. It is not oppressive. I would not expect a great deal of this correspondence to have reached Mr Townsend. But if some did, it would be important.
11 The plaintiff has some evidentiary base for this part of the category. The first defendant said its business ceased in 1996. At par 8 of Mr Gough's affidavit, he states, in summary, that in February 2002 he telephoned Mr David Newman, a director or Custom Paints Pty Ltd, who told him that Custom Paints did, in fact, manufacture carbonless coating chemicals for the first defendant. Mr Newman told him that he and Robin Ascott established a company known as Davcor Pty Ltd for the purposes of acting as a "middle man" between Custom Paints and the first defendant. A search of that company shows that it was incorporated on 3 November 1994 and deregistered on 4 March 1996. Messrs Ascott and Newman were directors of that company. Also Mr Gough tendered to me a page of transcript from a proceeding in the Local Court, number 15739/97, Carbonless Papers v Vista Papers Pty Ltd. The page of transcript is page 78 and it is part of Mr Ascott's evidence in cross-examination on 7 September 1998.
"There was a substantial amount go - - that went in, so when did you start selling off machinery and close down - - ?---1996.
1996?---It was actually September 1996.
(Page 6)
- So what business do you operate now?---Well, Carbonless Paper still remains, and I have an agency for chemicals from a company in Taiwan.
Are you still a director?---Yes."
12 If this is true, it is relevant to the question of the first defendant's damages on its counterclaim.
13 I will hear the parties on the orders and on costs.
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