Morey, Phillip James v Transurban City Link Ltd

[1996] FCA 1202

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  No VG 124 of 1996
GENERAL DIVISION

B E T W E E N :
  PHILLIP JAMES MOREY
  Applicant
A N D :
  TRANSURBAN CITY LINK LIMITED AND
  CITY LINK MANAGEMENT LIMITED
  Respondents

COURT:          NORTHROP J
PLACE:          MELBOURNE
DATE:  24 APRIL 1996

REASONS FOR JUDGMENT

Presently before the Court are issues arising from the service of three separate subpoenas returnable today.  These subpoenas were issued, and served, yesterday. They are directed to the respondent, to Maunsell Pty Limited trading as D.J.A. Maunsell and Acer Wargon Chapman (Vic) Pty Limited. Each subpoena seeks the production of a specified document identified as Traffic Report prepared by Acer Wargon Chapman Transport Research Centre, University of Melbourne and D.J.A. Maunsell dated July 1995.  Each of the persons served with the subpoena have moved the Court that the subpoena be set aside under Order 37, rule 9.

The nature of a subpoena must be understood, particularly when the subpoena is directed to a person to produce documents as in this case. The person served is required to obey the subpoena, which is an order of the Court, to attend Court at a specified time and to produce those documents.  The person so subpoenaed, when attending Court, may object to production of the documents on various grounds, including a ground that the subpoena should be set aside.  Although the rules require notice of motion, in practice, the person subpoenaed can make the application without notice.  The person subpoenaed need not be represented but is entitled to be represented.  If the subpoena is answered, and no objection is taken, the documents are then produced to the Court, not to anybody else. The documents are in the custody of the Court. Any person who wants to inspect those documents must obtain the leave of the Court to do so.  That is the way the subpoena system operates.

In the present case the Court has refused to give discovery generally or on a limited basis. The matter has proceeded as a matter of some urgency by way of affidavit material.  At the beginning of the hearing the applicant sought to have documents produced pursuant to subpoena and issued subpoenas directed to the respondent and other parties for the purposes of obtaining documents to be produced in Court.  On the application of the persons so served, the Court set aside those subpoenas. Insofar as the respondent was concerned, it was set aside on the basis that it is inappropriate to have subpoenas of this kind to produce documents where discovery has not been ordered. Reference is made, particularly, to what was said by Jordan CJ in The Commissioner for Railways v Small, (1938) V38 NSWSR 565 at page 574 where his Honour said:

"It is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents or as alternative to an application of further and better particulars.  Discovery application should be made at the proper time and place.  It would greatly impede the trial of actions at nisi prius (that is at trial), and impose an intolerable burden upon the presiding judge if he were required from time to time to suspend proceedings and wade himself through masses of documents for the purpose of endeavouring to determine whether any of them are relevant."

There is only one document involved in this case but the comment made by the Chief Justice is equally applicable here where, so far, an hour has been spent on the questions of subpoenas in the middle of a trial which is being heard as a matter of urgency and time constraints are imposed by the fact of the non-availability of the Court.

In this case, no discovery has been ordered, in fact, an application for discovery was rejected.  On a previous occasion the Court ruled that a subpoena be set aside insofar as the respondent was concerned because it was inappropriate to obtain by subpoena what should have been obtained by discovery.

It has been argued in this case that discovery and subpoena are two different things because discovery requires a person, either a third party or a party to the proceedings, to search and decide what documents are relevant and come within the discovery principles whereas here, one document only is identified.  But that, in my opinion, does not alter the general principle that a subpoena to produce documents should not be used as a substitute for discovery.

It is made clear that the purpose of the discovery is for cross examination.  The applicant has closed his case.  The respondent is in the course of presenting its evidence.  Witnesses are to be cross examined on their affidavits. Apart from any question of whether the contents of this document are relevant or not to the issues before the Court, this is a case where, in my opinion, what is being sought against the respondent is impermissible. 

The same document is being sought against the other persons. In my opinion, the conduct of the applicant in doing this amounts almost to an abuse of the process of the Court to get indirectly what it cannot get directly.

In all the circumstances, in my opinion, each of these subpoenas should be set aside and I so order.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable Justice R M Northrop.

Associate:

Date:20 May 1997

ATTACHMENT

Solicitors for the Applicant:                  Maurice Blackburn & Co.

Counsel for the Applicant:  Mr. P. Vickery QC and

Dr. J. Scutt

Solicitors for the Respondent:    Freehill Hollingdale & Page
Transurban City Link Limited

Counsel for the Respondent:                Mr. J. E. Middleton QC
Transurban City Link Limited    Mr. T. Walker

Solicitors for City Link             Blake Dawson and Waldron
Management Limited

Appearing for Acer Wargon
  Chapman:  Mr D Masel

Appearing for Maunsell Pty Ltd:           Mr P F Coldbeck

Date of Hearing:  3, 4, 24 and 26 April 1996