Michael Morris v Riverwild Management Pty Ltd - [2009] VSC 654

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6968 of 2008

MICHAEL MORRIS	Plaintiff
v
RIVERWILD MANAGEMENT PTY LTD (ACN 070 089 860) & ORS	Defendants

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ASSOCIATE JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2009
DATE OF JUDGMENT:	11 September 2009
CASE MAY BE CITED AS:	Michael Morris v Riverwild Management Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 654

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PRACTICE AND PROCEDURE - subpoena – notice to produce - application to set aside subpoena and notice to produce – documents not reasonably likely to add to relevant evidence in the case – subpoena and notice to produce used as an alternative to application for further and better discovery – subpoena and notice to produce set aside.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JR Dixon SC Mr AM Dinelli	DLA Phillips Fox
For the Defendants	Mr P Murdoch QC Mr J Pizer	Giannakopoulos Solicitors

The defendants seek orders that the plaintiff’s subpoena dated 24 April 2009, directed to Giannakopoulos Solicitors and the notice to produce dated 23 April 2009, directed to the defendants be set aside.

The subpoena requires the production of:

“Trust account records and general office accounting records in respect of Giannakopoulos Solicitors’ file reference EAG/COOL12482.”

As well as those documents the Notice to Produce requires the production of:

“All bills and tax invoices rendered by Giannakopoulos Solicitors in respect of VCAT Domestic Building List proceeding DA79/1999”.

The proceeding arises out of the settlement of VCAT proceedings in respect of a building dispute arising from a development of units and apartments at Falls Creek.

The background to this proceeding is set out in paragraphs 1-13 of the statement of claim and is summarised in the plaintiff’s outline of submissions filed 9 April 2009. The VCAT proceedings settled after the commencement of the hearing. The defendants accepted the plaintiff’s offer of settlement to pay $1,400,000 to the defendants together with the defendants’ party-party costs in relation to their claims against the plaintiff. Those costs were subsequently agreed at $1,800,000. The defendants agreed that the other respondents would pay agreed sums inclusive of costs in full and final settlement of the proceeding.

The plaintiff says that as the defendants have already recovered a large proportion of the costs of the VCAT proceedings from other parties to the VCAT litigation when they were paid the “all in” settlement sums from those parties. The plaintiff says that they will be obtaining double recovery of part of their legal costs incurred in the VCAT proceedings. The proceeding seeks declaratory and injunctive relief to prevent this from occurring. The plaintiff says that the documents the subject of the notice to produce and the subpoena are likely to establish that there has been prior recovery of costs through “all in” settlements with the other respondents.

The defendants ’ submissions

The defendants’ application is based on three grounds. The first ground is that the documents which are…

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] VSC 654
Decision Date: 11 September 2009

CaseChat Overview and Summary

The case of Michael Morris versus Riverwild Management Pty Ltd involved a dispute concerning the issuance of a subpoena and a notice to produce by the plaintiff, which the defendant sought to have set aside. The matter was heard in the Supreme Court of New South Wales. The defendant argued that the subpoena and notice to produce were improperly issued, as the documents were not reasonably likely to add to the relevant evidence in the case and were being used as an alternative to an application for further and better discovery.

The central legal issue before the court was whether the subpoena and notice to produce were justified under the circumstances, particularly considering the defendant's contention that they were not reasonably likely to contribute to the evidence in the case. The court also had to consider the appropriateness of the use of these processes as a substitute for an application for further and better discovery.

The court found that the subpoena and notice to produce were not justified, as the documents in question were not reasonably likely to add to the relevant evidence. The court emphasised that such processes should not be used as a substitute for an application for further and better discovery. Consequently, the subpoena and notice to produce were set aside. The court's decision highlighted the importance of ensuring that discovery processes are used appropriately and for their intended purposes, rather than as a means to circumvent the formal procedures set out in the rules of court. The court's ruling provided clarity on the circumstances under which such processes can be properly utilised in litigation.

Orders