P Dawson Nominees Pty Ltd v Multiplex Ltd - [2007] FCA 1044

FEDERAL COURT OF AUSTRALIA
P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1044
PRACTICE – representative proceeding claiming breach of continuous disclosure obligations – investigation by Australian Securities and Investments Commission – subpoena to ASIC to produce documents obtained and created in course of investigation – no opposition by ASIC – opposition by respondents
Held: Leave granted on terms as to inspection
Corporations Act 2001 (Cth) s 674
Federal Court of Australia Act 1976 (Cth) ss 33N, 33P
Australian Securities and Investments Commission Act 2001 (Cth) s 25(1)
Federal Court Rules O15A r 8, O27A r 2(3)(a)
Johns v Australian Securities Commission (1993) 178 CLR 408 cited
Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541 followed
Commissioner for Railways v Small (1938) 38 SR (NSW) 564 discussed
Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686 cited
Pasini v Vanstone [1999] FCA 1271 cited
Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 cited
Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432 cited
McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 cited
P DAWSON NOMINEES PTY LTD v MULTIPLEX LIMITED & ANOR
VID 1380 OF 2006
HEEREY J
12 JULY 2007
HOBART (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1380 OF 2006

BETWEEN:

P DAWSON NOMINEES PTY LTD
Applicant

AND:

MULTIPLEX LIMITED
First Respondent

MULTIPLEX FUNDS MANAGEMENT LIMITED
Second Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

12 JULY 2007

WHERE MADE:

HOBART (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:
1.The applicant have leave to issue a subpoena directed to the Australian Securities and Investments Commission seeking the documents described in par 10 of these reasons subject to the following terms:
(1)Within 14 days of service of the subpoena and a copy of this order and these reasons ASIC shall
(a) deposit at the Victoria District Registry of the Court the documents the subject of the subpoena together with a list of such documents; and
(b) file such list in the Court and serve a copy on the parties.
(2)If ASIC seeks to restrict inspection of any of the documents by the parties on grounds of privilege or for any other reason it shall

(a)   separate such documents in an identified bundle and
(b)   file in the Court and serve on the parties a statement identifying such documents and the grounds on which such restriction is claimed.
(3)The respondents shall have 14 days after the deposit of such documents to inspect and make copies of those to which ASIC does not seek to restrict inspection.
(4)If the respondents seek to restrict inspection of any of the documents by the applicant they shall
(a)   by arrangement with ASIC separate such documents in an identified bundle; and
(b)   file in Court and serve on ASIC and the applicant a statement identifying such documents and the grounds on which such restriction is claimed.
(5)After the…

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: [2007] FCA 1044
Decision Date: 12 July 2007

CaseChat Overview and Summary

The case between P Dawson Nominees Pty Ltd and Multiplex Ltd revolves around the issuance of a subpoena duces tecum directed to the Australian Securities and Investments Commission (ASIC) for specific documents. The applicant, P Dawson Nominees Pty Ltd, seeks certain documents from ASIC that were collected during an investigation conducted by ASIC concerning Multiplex Ltd. ASIC's possession of these documents is critical to the applicant's case, and the court must decide whether these documents should be subpoenaed. The legal issues primarily concern the appropriateness and scope of the subpoena, especially in relation to non-party entities like ASIC, and whether the subpoena constitutes an abuse of process by seeking irrelevant or overly broad information.

The court reviewed the principles governing subpoenas directed to non-parties, emphasizing that such subpoenas can be issued when it is in the interests of justice and the expeditious conduct of the proceeding. The court referenced Hughes v Western Australian Cricket Association (Inc), which established that a subpoena duces tecum can indeed be directed to a non-party. However, it noted that the subpoena must be specific and not overly burdensome, avoiding the use of the subpoena as a substitute for discovery. The court found that the documents sought by the applicant were sufficiently identified and did not impose an undue burden on ASIC, as they were either specifically described or based on objective criteria known to ASIC.

In its decision, the court allowed the issuance of the subpoena to ASIC but imposed conditions to ensure that the process remains fair and efficient. The court stipulated that within 14 days of receiving the subpoena, ASIC must deposit the requested documents at the registry and provide a list to the parties involved. It also outlined procedures for handling claims of privilege or other restrictions on inspection by ASIC and the respondents. The court concluded that the subpoena was not an abuse of process, provided that the imposed terms were followed.

The court ordered that the applicant may issue the subpoena to ASIC, subject to the specified conditions. ASIC must deposit the documents within 14 days and provide a list of these documents to the parties. Any claims of privilege or restrictions on inspection must be clearly identified and filed with the court. The respondents have 14 days to inspect and make copies of the unrestrictively inspected documents. The court also provided a mechanism for resolving any disputes regarding inspection restrictions. Finally, the court ordered that the respondents bear the costs of the application for leave.

Orders

Orders of the court

1. The applicant have leave to issue a subpoena directed to the Australian Securities and Investments Commission seeking the documents described in par 10 of these reasons subject to the following terms:

(1) Within 14 days of service of the subpoena and a copy of this order and these reasons ASIC shall

(a) deposit at the Victoria District Registry of the Court the documents the subject of the subpoena together with a list of such documents; and

(b) file such list in the Court and serve a copy on the parties.

(2) If ASIC seeks to restrict inspection of any of the documents by the parties on grounds of privilege or for any other reason it shall

(a) separate such documents in an identified bundle and

(b) file in the Court and serve on the parties a statement identifying such documents and the grounds on which such restriction is claimed.

(3) The respondents shall have 14 days after the deposit of such documents to inspect and make copies of those to which ASIC does not seek to restrict inspection.

(4) If the respondents seek to restrict inspection of any of the documents by the applicant they shall

(a) by arrangement with ASIC separate such documents in an identified bundle; and

(b) file in Court and serve on ASIC and the applicant a statement identifying such documents and the grounds on which such restriction is claimed.

(5) After the expiry of the period in (3) above the applicant shall be at liberty to inspect and make copies of the documents to which neither ASIC nor the respondents seek to restrict inspection.

(6) The parties and ASIC may refer to a judge any dispute as to restrictions on inspection.

2. The respondents pay the applicant’s costs of the application for leave.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J

Insofar as the subpoena by items 4 and 5 seeks the terms of reference and report of the consultant, it is said to be fishing and enquiring after irrelevant matter. Conclusion It has been firmly established since the decision of Toohey J when a judge of this Court in Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541 that a subpoena duces tecum may be directed to a non-party prior to trial. The power exists “where it appears to the court to be in the interests of justice and the proper and expeditious conduct of a proceeding that a person produce documents before the date of hearing of the [substantive] application”: at 543. (That case was the converse of the present in that issue of the subpoena was opposed by the proposed recipient, the Australian Cricket Board, but the respondent in the proceeding did not appear.) In the present case senior counsel for Multiplex cited a line of cases which hold that a subpoena duces tecum is not to be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small, said that a party may not though a subpoena “obtain discovery from a stranger to the action”. But what was meant by obtaining discovery from a stranger emerges from the judgment of Jordan CJ in Small at 573:“If [a subpoena duces tecum] be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant”. In the present case, no such burden is cast upon ASIC. The documents in items 2 to 5 are specifically identified by description. The documents in item 1 are identified by an objective criterion within the knowledge of ASIC, namely that they were provided by Multiplex to ASIC in the course of the investigation in question. The best evidence as to the alleged burden on ASIC is the response from ASIC itself on receipt of the proposed subpoena. On 3 July ASIC wrote to the applicant’s solicitors in these terms (formal parts omitted):“Whether or not the subpoena should be issued and the types and categories of documents that might properly be sought under the subpoena, having regard to the particular proceedings, is a matter for the parties and for the Court and ASIC does not make any comment in relation to those questions.ASIC will, of course, use its best endeavours to comply with any subpoena issued, reserving its rights in relation to any claims for privilege and/or public interest immunity that may need to be made.In relation to the description of the documents, ASIC requests that you clarify whether the reference to ‘all statements from witnesses obtained by ASIC during the course of the investigation’, in paragraph 2 of the Schedule, refers only to statements which have been finalized (ie signed or sworn by the deponent). Also, having regard to the very large volume of documents that the subpoena, in its present form, would encompass, we request that due consideration be given to providing sufficient time to allow the documents to be collated and reviewed.”

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1380 OF 2006

JUDGE:	HEEREY J
DATE OF ORDER:	12 JULY 2007
WHERE MADE:	HOBART (HEARD IN MELBOURNE)