New Ashwick PL & Anor v IAMA & Anor (No 1) No. Scgrg-00-789

[2000] SASC 416

NEW ASHWICK PTY LTD & C P VENTURES LIMITED v IAMA LIMITED & WESFARMERS LIMITED (No 1)
[2000] SASC 416

Civil

1................ WICKS J......................... On 11 October 2000 New Ashwick Pty Ltd and C P Ventures Limited (“the plaintiffs”) made application for non-party discovery pursuant to r 60 of the Supreme Court Rules against Nufarm Limited (“Nufarm”).

1. The plaintiffs’ application for non-party discovery sought the following relief:

   "1....... That Nufarm Limited (ACN 091 323 312 of 103-105 Pipe Road Laverton in the State of Victoria, do disclose and produce within 7 days all documents in its possession, power or custody falling within any of the categories of documents set out in Schedule A to this application.

   2...... That the reasonable expenses incurred Nufarm Limited (ACN 091 323 312) in complying with any orders made pursuant to this application be paid by the first and second plaintiff.

   3...... Such further or other orders as this Honourable Court thinks fit."

1. Schedule A referred to set out various categories of document in respect of which disclosure and production were sought under r 60.

2. On 17 November 2000 an application was made to the Court by Nufarm seeking the following orders:

   "1....... That the plaintiffs’ application dated 10 October 2000 and filed 11 October 2000 and the plaintiffs’ amended application filed 30 October 2000 seeking orders that Nufarm disclose and produce within 7 days all documents in its possession, power or custody falling within any of the categories of documents set out in schedule A of that application (the ‘non-party discovery application’) be struck out as an abuse of the process of the Court.

   2...... That the plaintiffs pay Nufarm’s costs of this application on an indemnity basis.

   3...... Such further other orders as this Honourable Court thinks fit."

1. The grounds upon which the application to strike out was made were contained in a letter dated 21 November 2000 from Arnold Bloch Leibler, solicitors for Nufarm, the material part of which was as follows:

   "You seek particulars of the abuse of process alleged by our client.

   The particulars of the abuse are:-

   1...... That the predominant purpose motivating Futuris (via New Ashwick Pty Ltd and CP Ventures Limited) to issue the non party discovery application was:

   (a).... To bring pressure to bear on Nufarm and cause it to incur legal expense and interruption to its business and thereby to seek to undo the following situations perceived and alleged by Alan Newman to be the case:-

   (i).... a nexus between IAMA and Nufarm;

   (ii)... Wesfarmers and Nufarm working together to a plan (without contravention of any laws) to determine ownership of IAMA;

   (iii).. Wesfarmers’ support of Nufarm.

   (b)... To ascertain whether a cause of action might exist upon which Futuris, New Ashwick or CPV could rely to seek to set aside the long term supply contracts between Nufarm and IAMA and thereby cause damage to Nufarm’s business.

   2...... Each of the predominant purposes is collateral or ulterior to the purpose of the non party discovery procedure facilitated by Order 60 of the Rules."

2. The application was supported by an affidavit of Robert Gerard Reis filed on 20 November 2000, an affidavit of Brendan Mark Bowler filed on 17 November 2000 and an affidavit of Zaben Mardirossian sworn on 21 November 2000 but produced at the hearing of this matter on 22 November 2000.

3. In addition, subpoenas to give evidence and to produce various documents identified in general terms were issued against Futuris Corporation Limited (the ultimate holding company of the plaintiffs), each of the plaintiffs and Fisher Jefferies (the plaintiffs’ solicitors).

4. The documents to be produced under the subpoenas were described as follows:

Subpoena addressed to Futuris Corporation Limited:

"All original and/or copies, files, correspondence, email, memoranda, file notes, notes, advices received from lawyers, minutes of meeting of the board of Futuris Corporation Limited, agendas of meetings of the board of Futuris Corporation Limited, directions given to New Ashwick Pty Ltd or CP Ventures Limited, which documents:-

(a)     were brought into existence after 23rd August 2000; and

(b).... relate to the Application dated 10th October 2000 brought by each of New Ashwick Pty Ltd and CP Ventures Limited in this proceeding that Nufarm Limited make non-party discovery."

Subpoena addressed to New Ashwick Pty Ltd:

"All original and/or copies, files, correspondence, email, memoranda, file notes, notes, advices received from lawyers, minutes of meeting of the board of New Ashwick Pty Ltd, agendas of meetings of the board of New Ashwick Pty Ltd, reports to Alan Newman, Leslie Peter Wozniczka, or other employees or agents of Futuris Corporation Limited, which documents:-

(a)     were brought into existence after 23rd August 2000; and

(b).... relate to the Application dated 10th October 2000 brought by each of New Ashwick Pty Ltd and CP Ventures Limited in this proceeding that Nufarm Limited make non-party discovery."

Subpoena addressed to C P Ventures Limited:

"All original and/or copies, files, correspondence, email, memoranda, file notes, notes, advices received from lawyers, minutes of meeting of the board of CP Ventures Limited, agendas of meetings of the board of CP Ventures Limited, reports to Alan Newman, Leslie Peter Wozniczka, or other employees or agents of Futuris Corporation Limited, which documents:-

(a)     were brought into existence after 23rd August 2000; and

(b).... relate to the Application dated 10th October 2000 brought by each of New Ashwick Pty Ltd and CP Ventures Limited in this proceeding that Nufarm Limited make non-party discovery."

Subpoena addressed to Fisher Jeffries:

"All original and/or copies, files, correspondence, email, memoranda, file notes, notes, advices, advices from Counsel, reports to Alan Newman, Leslie Peter Wozniczka, or other employees, servants or agents of Futuris Corporation Limited, New Ashwick Pty Ltd and/or CP Ventures Limited, which documents:-

(a)     were brought into existence after 23rd August 2000; and

(b).... relate to the Application dated 10th October 2000 brought by each of New Ashwick Pty Ltd and CP Ventures Limited in this proceeding that Nufarm Limited make non-party discovery."

1. In connection with the strike-out application, Mr Hoffmann was asked to indicate what material he relied upon in connection with Nufarm’s application.  He indicated that he would be relying on the affidavit of Wendy Jones sworn on 10 October 2000 and two affidavits sworn by Wendy Jones on 25 October 2000.

2. Mr Hoffmann complained that the affidavit of Mr Mardiarossian was not properly sworn and should not be accepted for filing.  The first point which Mr Hoffmann made was that the affidavit was not dated on the first page in accordance with the rules.  I would see no reason why I should not give leave to use the affidavit under r 83.09 despite the defect referred to.

3. Mr Hoffmann also complained that the affidavit did not specifically state that statements made in the affidavit were either true of the deponent’s own knowledge or true on information and belief with the sources and grounds thereof stated.  Rule 83.04(2) is applicable in this case.  That rule provides:

   "Unless the Court otherwise orders, an affidavit shall contain only such facts as the deponent is able of his own knowledge to prove."

1. On the face of it, this affidavit purports to set out certain facts which, in the absence of any qualification, must be taken to be within the actual knowledge of the deponent.  If that is not in fact the case, application may be made for leave to produce the deponent for cross examination.  If it appears that statements contained in the affidavit are not of the deponent’s own knowledge, application could be made to have the statements concerned struck out of the affidavit. 

2. Mr Hoffmann’s next complaint was that a person in the position of Nufarm could not properly issue a subpoena in relation to an application under r 60.01 of the Supreme Court Rules.  I see no reason why a person in Nufarm’s position should be precluded from issuing a subpoena in relation to proceedings under r 60.01 of the Supreme Court Rules in an appropriate case.  Proceedings under r 60 are dealt with in chambers.  In that case, r 81.02 is applicable and leave of the judge is required before a subpoena should issue.  Leave is required in the present case and I note that leave has not been obtained.  Without such leave, the subpoenas are irregular and would have to be struck out.  I should point out that the question of whether leave should be given under r 81.02 is another matter altogether where leave is concerned.  Consideration needs to be given to a number of factors including the likelihood of prejudice to one or more of the parties to the action brought about by the delay occasioned by elevating an application for discovery into a major piece of litigation.  The inconvenience to a non-party in being subjected to an application for disclosure and production of documents must be weighed against the prejudice to one or more of the parties to the action in the event that relevant documents are not made available in the litigation.

3. Mr Hoffmann’s next complaint is that no conduct money was proffered at the time of service of the subpoenas.  I note that each subpoena is addressed to the intended recipient at an address within the city of Adelaide and within easy walking distance of the Court.  In the circumstances, it would seem to me that no conduct money is required in relation to the four subpoenas presently under consideration.

4. The next complaint was that the subpoenas have been incorrectly addressed.  In the case of Futuris Corporation Limited, the subpoenas should be addressed:

   To:    Futuris Corporation Limited

   35 Waymouth Street
            Adelaide
            SA
   THE SUPREME COURT OF SOUTH AUSTRALIA ORDERS that you by your proper officer attend before it on the hearing of an application by Nufarm Limited (ACN 091 323 312) against the plaintiffs at the Supreme Court House ... etc

1. As to the addressing of a subpoena to a company see Penn-Texas Corporation v Murat Anstalt (No 2) (1964) 2 QB 647 at 663 per Lord Denning MR, and Pacific Limited v Transport Workers Union of Australia (1993) 40 FCR 1 at p 4. What I have said about Futuris Corporation Limited applies equally to New Ashwick Pty Ltd and CP Ventures Limited. Such a subpoena would be served on the company in each case in accordance with the provisions for the service of documents on companies under the Corporations Law.

2. The fourth subpoena was addressed as follows:

   "To:     The Proper Officer

   MR MARK HOFFMANN

   Fisher Jefferies

   Level 13 - 15 SGIC Building

   211 Victoria Square

   ADELAIDE  SA  5000"

3. I have not been able to find any authority directly on point.  It seems to me that in relation to documents in the possession of a firm (which is the case here) in the absence of express provision contained in the rules of court, the subpoena, in order to compel production of documents in the possession of a firm, would have to be served on all partners: Lee v Angas (1866) LR 2 Eq 59 per Sir W Page Wood VC at 63.

4. I think some attempt was made in r 15 to facilitate service of documents other than summonses on particular parties.  The rule deals with the service of documents on a firm.  However, the relevant part of the rule deals only with the case where persons are sued as partners in the name of the firm.  In those circumstances, the document can be served on one or more of the partners or at the principal place of business within the jurisdiction.  The rule would be applicable to the case in hand if in par 15.01(vi) the words “in the case of persons sued as partners in the name of their firm” were omitted

5. In my view the subpoena in relation to Fisher Jeffries is not valid. 

6. For these reasons I would set aside each of the subpoenas.