GALLIANO PERAZZOLI, MORENO FERLUGA and WILLIAM JOHNSON v BANKSA, A DIVISION OF WESTPAC BANKING CORPORATION LIMITED ABN 33 007 141, MICHAEL CHRISTOPHER SAMRA, MICHAEL CHRISTOPHER SAMRA AS TRUSTEE OF THE MICHAEL CHRISTOPHER SAMRA FAMILY TRUST TRADING AS ADELAIDE LENDING CENTRE ABC 69 787 153 821 and ADELAIDE LENDING CENTRE GROUP PTY LTD (IN LIQUIDATION) ACN 088 613 156
File number:
SAD 307 of 2014
Judge:
WHITE J
Date of judgment:
23 April 2015
Catchwords:
PRACTICE AND PROCEDURE – setting aside of subpoenas issued to third parties – material sought relevant to respondent’s application for summary dismissal or stay of proceedings –whether application for dismissal or stay was futile, such that subpoenas had no utility – whether subpoenas constituted fishing – whether subpoenas impermissibly sought discovery – whether affidavits in support of bankruptcy examination summonses should be sought in light of Federal Circuit Court (Bankruptcy) Rules 2006 r 6.13 – whether subpoenas otherwise excessively broad or oppressive – subpoenas set aside in part
[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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AGLC
Perazzoli v BankSA [2015] FCA 373
Case
[2015] FCA 373
Decision Date
CaseChat Overview and Summary
The case of Perazzoli v BankSA involved an application to set aside subpoenas issued to third parties by the applicants, Perazzoli and GMG Legal Services Pty Ltd. The subpoenas sought documents relevant to the respondent's application for summary dismissal or stay of proceedings. The central issue for the court was whether the subpoenas had any utility given that the application for dismissal or stay was deemed futile. Additionally, the court needed to determine if the subpoenas amounted to fishing expeditions or if they improperly sought discovery. Furthermore, the court had to consider whether the affidavits in support of the bankruptcy examination summonses should be sought in accordance with Federal Circuit Court (Bankruptcy) Rules 2006 rule 6.13. The court also assessed whether the subpoenas were excessively broad or oppressive.
The court held that some of the subpoenas were overly broad and sought information that was not directly relevant to the respondent’s application for dismissal or stay. Specifically, the court found that paragraphs 2 and 4 of the subpoena to LCM Litigation Fund Pty Ltd were set aside as they were not pertinent to the application. In relation to GMG Legal Services Pty Ltd, the court determined that paragraphs 1, 5, 7, and 9, along with the requirement in paragraph 4 to produce documents which “touch on” specified subjects, were set aside. The court found that these subpoenas either constituted fishing expeditions or sought information that should have been obtained through other means, such as the affidavits required by rule 6.13. The court dismissed the other interlocutory applications seeking to set aside the subpoenas, concluding that they did not meet the threshold for being excessively broad or oppressive. The matter was adjourned for further consideration of the orders to be made in light of the court's decisions.
Orders
Orders of the court
1. In relation to the subpoena addressed to LCM Litigation Fund Pty Ltd, paragraphs 2 and 4 be set aside.
2. In relation to the subpoena addressed to GMG Legal Services Pty Ltd, paragraphs 1, 5, 7 and 9 be set aside in full, as well as the requirement in paragraph 4 to produce documents which “touch on” identified subject matters.
3. Otherwise the interlocutory applications of the Applicants and of GMG Legal Services Pty Ltd seeking the setting aside of subpoenas be dismissed.
4. The matter be adjourned to 9.00 am on Friday 10 April 2015 for consideration of the orders to be made in consequence of the above orders, noting that the parties are encouraged to confer as to reach an agreed position.
5. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.