Pt Limited v Department of Natural Resources and Mines
[2004] QLC 97
•17 November 2004
LAND COURT OF QUEENSLAND
CITATION: PT Limited and Anor v Department of Natural Resources and Mines [2004] QLC 0097 PARTIES: PT Limited and Westfield Shopping Centre Management Co (Qld) Pty Ltd
(applicants)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO: AV2003/0803 DIVISION: Land Court of Queensland PROCEEDING: Application to set aside subpoenas duces tecum DELIVERED ON: 17 November 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr RP Scott ORDER: The subpoenas are set aside CATCHWORDS: Practice and Procedure - Subpoena - Detailed case management including disclosure - Abuse of process
Practice and Procedure - Non-party subpoena - Company associated with appellant - Associated company remains non-party
APPEARANCES: Mr R Traves SC with him Mr J Horton, for the applicant
Mr T Quinn of counsel for the respondent
On 2 November 2004 at the request of the respondent's solicitor subpoena duces tecum issued to the appellant and to Westfield Shopping Centre Management Co (Qld) Pty Ltd, a company associated in some manner with the appellant (the associated company). The subpoena were returnable on 8 November 2004, the date of commencement of trial of an appeal by the appellant with respect to a valuation carried out by the respondent pursuant to the provisions of the Valuation of Land Act 1944.
The subpoenas issued in identical terms.
"In relation to either or both of the properties known as Westfield Chermside Shopping Centre corner Gympie and Hamilton Rds Chermside, Qld and No. 68 Banfield St. Chermside, or any part thereof:
1. documents referring to or describing site investigation assessments and advice in relation thereto;
2. documents referring to, advising or reporting upon or describing requirements for piling and/or foundation systems specifications, designs, and contracts, including subcontracts, for or including work in relation thereto;
3. documents referring to, advising or reporting upon or describing ground conditions, soil or sub-surface conditions and characteristics including but not limited to acid sulphate issues and contracts, including subcontracts, for or including work in relation thereto;
4. any schedule, report or other document estimating, assessing, advising or commenting upon costs of site works;
In relation to the property known as Westfield Chermside Shopping Centre corner Gympie and Hamilton Rds. Chermside, Qld, or any part thereof:
5. as constructed drawings for improvements thereon, and documents summarising or reporting on the cost of construction of those improvements;
6. insurance replacement cost assessments or reports and the insurance policies effected for improvements thereon for any periods which include the whole or any part of 2002l;
7. depreciation schedules for improvements, plant or equipment thereon or reports, advice, claims, submissions or returns in relation to such depreciation for periods including the whole or any part of 2002."
The appellant has applied to set aside the subpoena served on it on the following grounds:
(a)the subpoena is an abuse of process because to issue a subpoena at this late stage subverts the case management to date and, in particular, subverts the disclosure process;
(b)the subpoena constitutes an abuse of this Court's process, issued as it is late and, in effect, seeking not evidence for trial, but disclosure;
(c)the subpoena in some respects seeks irrelevant documents, is too wide, constitutes fishing and compliance with it will be too burdensome.
The associated company has applied to have the subpoena served on it set aside on the grounds:
(a)the subpoena constitutes an abuse of this Court's process, because:
(i)to issue a subpoena at this late stage subverts the non-party disclosure process;
(ii)it seeks not evidence for the hearing, but a broad range of documents in the nature of fishing.
(b)the subpoena is, on its terms, imprecise, too wide and in some respects irrelevant.
The Notice of Appeal in this matter was lodged in the Court on 5 December 2003. The matter was first mentioned before the Judicial Registrar on 4 February 2004 for the purpose of directions.
Subsequently, on 16 April 2004, the respondent applied to have certain of the grounds of the Notice of Appeal determined as preliminary points in advance of the proposed full hearing of the matter which was then listed to commence on 12 October 2004. That application was dismissed in reasons delivered on 21 May 2004.
By application dated 19 April 2004 the appellant sought the Court's leave to administer interrogatories. That application was granted in part in reasons published on 28 May 2004.
On 28 May 2004 the respondent made application for further and better particulars and further and better disclosure. Orders in response to that application were made in reasons delivered on 16 July 2004.
In reasons delivered on 16 July 2004 the Judicial Registrar refused an application from the respondent for an order that the appellant request a non-party to produce material.
An application by the appellant for further answers to interrogatories was dealt with by the Judicial Registrar who, in reasons delivered on 18 August 2004, ordered further answers to interrogatories.
By applications of 4 August 2004 and 5 August 2004 the respondent and the appellant respectively sought further disclosure against the other. Further disclosure was ordered by the Judicial Registrar on 20 August 2004.
By application dated 7 September 2004 the respondent sought disclosure of further materials. Orders for further disclosure were made by the Judicial Registrar on 15 September 2004.
Other orders were made by the Court, either by consent or after hearing submissions, these orders being made on 8 June 2004, 25 June 2004, 16 July 2004, 12 August 2004, 20 August 2004, 20 August 2004, 27 August 2004, 3 September 2004 and 9 September 2004.
A further order relating to disclosure was made by the Judicial Registrar on 10 November 2004 (that is, after the commencement of trial) pursuant to an application by the appellant on 4 October 2004 relating to a range of matters some of which were determined by consent.
A perusal of the preceding paragraphs reveals what I think could properly be described as a detailed, indeed, elaborate management by the Court of pre-trial procedures. Whilst I will not detail them, I should also say that those procedures included in the orders, provision for the exchange of relevant expert reports and other documents and the provision of response expert reports where appropriate.
I will deal first of all with the application to set aside the subpoena served on the appellant and in so doing will consider the submission that the subpoena is an abuse of process which subverts the case management to date and in particular, the disclosure process. That submission relies on authorities to which I refer below and has as its basis the proposition that the respondent ought to have proceeded by way of an application for further and better disclosure pursuant to Rule 223 of the Uniform Civil Procedure Rules 1999 (UCPR):
"223 Court orders relating to disclosure
(1) The court may order a party to a proceeding to disclose to another
party a document or class of documents by-(a)delivering to the other party in accordance with this part a copy of the document, or of each document in the class; or
(b)producing for the inspection of the other party in accordance with this part the document, or each document in the class.
(2) The court may order a party to a proceeding (the “first party”) to file and serve on another party an affidavit stating-
(a)that a specified document or class of documents does not exist or has never existed; or
(b)the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party.
(3) The court may order that delivery, production or inspection of a document or class of documents for disclosure -
(a)be provided; or
(b)not be provided; or
(c)be deferred.
(4) An order mentioned in subrule (1) or (2) may be made only if -
(a)there are special circumstances and the interests of justice require it; or
(b)it appears there is an objective likelihood -
(i) the duty to disclose has not been complied with; or
(ii)a specified document or class of documents exists or existed and has passed out of the possession or control of a party.
(5) If, on an application for an order under this rule, objection is made to the disclosure of a document (whether on the ground of privilege or another ground) the court may inspect the document to decide the objection."
In Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 QdR 261, Mackenzie J had for consideration an application to set aside a subpoena issued to a non-party seeking a production of documents well before trial. The subpoena did not issue in connection with a pending application.
In his reasons at paras [5] to [8] inclusive, his Honour sets out briefly a history of the issues associated with inspecting documents in the possession of a third party. The UCPR now in Chapter 7, Part 2, deals with non-party disclosure and provides a detailed code dealing with that process. Rule 242 provides that a document required to be produced must be directly related to allegations in issue and must be a document which the non-party could be required to produce at trial. Rule 243 requires that the notice served on the non-party state the allegations in issue in the proceedings to which the document sought is directly relevant. That rule also requires the applicant to include a certificate signed by the applicant or his solicitor stating that there is not available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document sought.
Rules 243(2) and 244 recognise that there is an intrusion involved in inspecting a non-party's documents and that a non-party may have a legitimate ground to object to the production of the document. Rule 242 assists the non-party by relieving the non-party of the oppressive need to make a decision as to which documents in his possession or control may relate to an issue in the proceedings.
In his reasons at 265 his Honour said:
"[19]... the rules relating to subpoenas appear in ch. 11, intituled 'evidence'. The rules relating to non-party disclosure are in ch.7, intituled 'disclosure'. This reflects the traditional difference between discovery and obtaining documents by subpoena.
[20]The rules relating to non-party disclosure are designed to provide safeguards to a non-party upon whom a notice is served and to more remote persons who may be affected. Where a deliberately prescriptive regime is provided for the obtaining of documents from a non-party the question presents itself whether the intention was that those safeguards might be avoided by using a different procedure with requirements which are different but which have some common features. ...
[21]In my opinion there is no indication in the rule that it is intended that what is really non-party disclosure in the pre-trial phase may be obtained by issuing a subpoena to produce. In my opinion the rules do not effect a change from the philosophy in that regard under the repealed rules.
[22]... There can now be no misapprehension about the scope of the respective rules and any attempt henceforth to use a subpoena for the purpose of obtaining disclosure would be an abuse of process. If a subpoena were issued for that purpose, it would be liable to be set aside on that ground."
In Lewiac Pty Ltd and ING Real Estate Joondalup BV v Gold Coast City Council & Ors [2002] QPEC 059, there was an application for a subpoena to be set aside, that subpoena, similarly with the Leighton Contractors' case, requiring the production of documents before the date of commencement of hearing. The Court on that occasion relied upon Leighton Contractors saying that the subpoenas amounted to an abuse of process and should be set aside.
It was submitted for the respondent that both Leighton Contractors and Lewiac could be distinguished as, in the present matter, the subpoena is returnable at the date of commencement of trial and therefore it cannot be characterised as disclosure. That submission appears to disregard, however, the decision of Cooper J in Australian Competition and Consumer Commission v Shell Co of Australia Limited [1999] FCA 212; 161 ALR 686 (ACCC).
That was a case in which the proceedings had been subject to management by the Court and a timetable for delivery of pleadings and discovery of documents was set. The parties each lodged a list of documents following which a dispute arose between the parties. A supplementary list of documents was filed. ACCC then lodged a subpoena directed to Shell which Shell sought to set aside on the basis that it amounted to an application for further and better discovery and that the subpoena was oppressive.
The timetable in that case contemplated completion of all steps necessary before listing the matter for trial by 6 April 1998. By its solicitors the ACCC advised on 7 April 1998 that it considered the matter to be ready for trial, though also foreshadowed the issuing of a notice to produce. On 8 April 1998 Shell's solicitors advised that they considered the matter to be ready for trial, subject to a matter not relevant for present purposes.
On 22 April 1998 the solicitor for the ACCC first attempted to have a notice to produce made returnable before the Court prior to the matter being listed for trial, then, failing in that process, filed and served the subpoena which, by its application, Shell sought to set aside. The following quotations are taken from his Honour's reasons at 695 to 696:
"[48]In Commissioner for Railways v Small (19380 38 SR(NSW) 564, Jordan CJ said (at 574-5): ... It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place. ...
[49]In a recent case dealing with an application to set aside a subpoena addressed to a respondent, Diddams v Commonwealth Bank of Australia [1998] FCA 497, Branson J said (at 6 of her Honour's reasons):
'However, the usual legal processes by which a party to a proceeding in a court obtains access to the documents of opposing parties are the processes of discovery and inspection. Where the court has by detailed directions set a timetable for the undertaking of the procedural steps necessary to bring a matter to readiness for trial, including a timetable for the discovery and inspection of documents, it is to be expected that the parties will seek such documents "relating to any matter in question between [them]" as they wish to have access to through the process of discovery and inspection: 0 15, r2(2). If such documents are sought by subpoena or notice to produce issued close to trial, the court's endeavours to manage the process of the preparation of the matter for trial, and to ensure that no interlocutory issues are outstanding at the hearing date, may be subverted.
Order 15, r 8 of the Federal Court Rules provides a procedure whereby particular discovery may be sought where a party is dissatisfied with the extent of discovery made by an opposing party. The discretion given to the court by O 15, r 8, and the requirement that, before any order may be made under that rule, it should appear to the court "... from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of [the] party", ought not, in my view, to be able to be avoided by the simple device of serving a subpoena duces tecum upon an opposing party.
... The rules of court do not place on judges the responsibility of determining for the parties which of their respective documents are required to be discovered. Judges have not traditionally assumed such a role. I do not consider that, by choosing to issue a subpoena, rather than to seek an order pursuant to O 15, r 8 of the Federal Court Rules, a party should be able to achieve the result of placing such a responsibility on a judge. Moreover, in this case it would have been inappropriate for the conduct of the trial to have been further disrupted by my being required to read documents produced in response to a subpoena called during the course of taking the evidence.'
[50]The rationale for this principle is, in my view, that where a particular method has been prescribed by the rules for the achievement of the particular objective, such as the obtaining of further discovery conformably with the rules relating to discovery of documents espoused in Mulley v Manifold (1959) 103 CLR 341, it is impermissible to attempt to achieve that objective through the subpoena process. This broader principle was applied by Beaumont J in Kizon v Palmer (1997) 75 FCR 261, in a case where the material sought to be produced via subpoena was prohibited from production in discovery. On that basis the subpoena was set aside as an abuse of process. This decision was affirmed on appeal: Kizon v Palmer [1998] FCA 312 (Northrop, French and Branson JJ).
[51]Like the case before Branson J in Diddams v Commonwealth Bank of Australia, this case has been the subject of a managed timetable and, other than the issues raised by this subpoena and motion, the matter is ready for trial. In those circumstances the ACCC should not be permitted to avoid the evidentiary onus required in O 15, r 8 in order to go behind two affidavits of documents provided by Shell by issuing a subpoena in this form." (my emphasis)
His Honour's reasons are, I think, directly applicable to the application by the appellant to set aside the subpoena served on it. Both the appellant and the respondent submitted to a comprehensive management of the proceedings, including disclosure. The parties were apparently so astute as to the need to thoroughly employ disclosure, interrogatories and requests for particulars in this matter that the date for commencement of trial slipped from 20 October 2004 to 3 November then 8 November to accommodate these procedures. It ought not to be open to a party in such circumstances to issue a subpoena which clearly on the face of it is not seeking evidence for trial, but is seeking disclosure. To conclude otherwise would have the effect of emasculating the pre-trial process, such that a party could bypass pre-trial procedures in part, with an intention of employing the subpoena mechanism at or near the commencement of trial.
The respondent submitted that whereas disclosure required documents "directly relevant" to an issue in proceedings only (UCPR Rule 211(1)(b)) a subpoena required "documents that are apparently relevant or are on the subject matter of the litigation" (Director-General of the Department of Land and Water Conservation v Prime Grain Pty Ltd DC200104262, 25 July 2001, Land and Environment Court New South Wales).
Such a distinction appears to exist in Queensland on the basis that the term "directly relevant" does not appear in UCPR Rules 414 to 422 dealing with subpoenas. That is not to say that there is any difference of that nature between Rule 223 and Rule 211. Even, however, to the extent that such a distinction exists between Rule 211 and those rules dealing with subpoenas, that cannot mean that the subpoena process is justified at the behest of the issuing party in all cases. At the least, the respondent would need to demonstrate that the distinction has a particular application in the present case.
My reasoning is not intended to suggest that there would never be justification for employing a subpoena duces tecum in circumstances where disclosure has taken place and a trial has commenced. It is for the party who serves the subpoena to justify it as being appropriate in the circumstances and where there is an application to set the subpoena aside.
The subpoena served on the associated company, being in identical terms to that served upon the appellant, suffers the same deficiency as that served on the appellant in that it does not seek evidence for the hearing, but requests a broad range of documents that may be the subject of non-party disclosure or may be described as "fishing" as that term was used by Jordan CJ in Commissioner for Railways v Small at 575. In the present case that description appears particularly apt as counsel for the respondent said that the use of the words "referring to" in the subpoenas may unearth a document such as a letter referring to, for example, "site investigation assessments".
Whilst the associated company was not a party and was not, therefore, subject to the case management processes undertaken with respect to the appellant and the respondent, non-party disclosure mechanisms were available to be employed prior to trial. Those mechanisms, as I have summarised them above, afford a non-party certain procedural protections which are not similarly expressed under the subpoena provisions of the UCPR.
Counsel for the respondent attempted to characterise the associated company in a way that stripped it of its non-party status, that characterisation being dependent upon the degree of association that is suggested to exist between the associated company and the appellant. The fact that an employee of another company associated with the appellant is to give evidence at trial was said to demonstrate the degree of the relationship. It was also said that the associated company has "a role in relation to" the property the subject of the appeal.
There will be circumstances where the veil of incorporation may be lifted in proceedings, however I was not referred to any authority which indicated that it would be appropriate in the present circumstances to treat the associated company as other than a non-party.
In the absence of detailed submissions and reference to relevant authority in this respect, I draw the conclusion that in the case of procedures of the type under discussion here, greater certainty attends the application of the rules if the distinction between a party and a non-party is maintained. Apart from that, the evidence said to demonstrate the degree of association was indirect and flimsy.
In passing, I make the observation that if the respondent seriously considered the associated company as being other than a non-party, then disclosure would have appeared to be the natural process to be employed, before trial.
Rule 223 does not, in its terms, prevent an application for further disclosure being made at any time before or after a trial has commenced.
Given my conclusion that both subpoenas ought to be set aside on the basis that the disclosure process ought to have been employed, I need not consider the submissions for the appellant and the associated company that the description of the documents sought is imprecise or too wide.
RP SCOTT
MEMBER OF THE LAND COURT
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