QUESTARE Pty Ltd v Solar E-MISSION Pty Ltd - [1999] WADC 32

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: QUESTARE PTY LTD -v- SOLAR E-MISSION PTY LTD [1999] WADC 32

CORAM: NISBET DCJ

HEARD: 23 JULY 1999

DELIVERED : Delivered Extemporaneously on 23 JULY 1999 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 4126 of 1998

BETWEEN: QUESTARE PTY LTD
Plaintiff (Applicant)
AND
SOLAR E-MISSION PTY LTD
Defendant (Respondent)

Catchwords:

Procedure - Subpoenas to chambers - Whether Registrar has power to give leave to issue - Appeal from decision of Deputy Registrar to grant leave.

Legislation:

Supreme Court Act 1935 as amended

Result:

Appeal allowed. Leave granted afresh

Representation:

Counsel:

Plaintiff (Applicant) : Mr J M Healy
Defendant (Respondent) : Mr R M Wilenski

Solicitors:

Plaintiff (Applicant) : Healy Pynt
Defendant (Respondent) : Fiocco Hopkins Nash

Case(s) referred to in judgment(s):

Duncan v Cloisters Securities Pty Ltd, unreported; DCt of WA; Library No D990088; 15 April 1999
Talalla v Under Secretary for Law, unreported; SCt of WA; Library No 5753; 15 March 1985

Case(s) also cited:

Nil

NISBET DCJ : I have before me the return of a notice of appeal filed in the court 14 July 1999 by the plaintiff Questyle Pty Ltd from an order made by Deputy Registrar Harman on Friday, 9 July last, by which order he gave the defendant leave to issue subpoena duces tecum addressed to the proper officer of the Master Builders' Association of Western Australia, in terms of a minute that was attached to the summons.
The Deputy Registrar further ordered that the subpoena be returnable before a Registrar in Chambers next Tuesday, 27 July 1999, being the date and time for hearing of a defendant's application by way of summons to chambers for security for costs, which summons is dated 28 April 1999. The application for security for costs is being opposed by the plaintiff and the time fixed for the determination of the matter is a special appointment for the hearing of the application.
The application for security in its terms is made to a Registrar of this Court in Chambers. The application for leave to issue a subpoena returnable in chambers was in its original form made to a Judge in Chambers but the court of its own motion listed the matter before Deputy Registrar Harman.
The power to issue a subpoena, whether it be duces tecum or ad testificandum, in respect of proceedings in chambers would appear to come from O35 r13 of the Rules of the Supreme Court which reads:
"A writ of subpoena to compel the attendance of a witness for the purpose of proceedings in Chambers may be issued upon the production of a note from a Judge or a Master, as the case may be, authorising the issue of the writ."
The plaintiff has come before me this morning by way of a notice of appeal from the Deputy Registrar's order, as I have mentioned, and complains that the Deputy Registrar had no power to issue the subpoena because O35 r13 must in its terms be referring to a writ of subpoena ad testificandum because of the words in the rule, "to compel the attendance of a witness".
Whilst there may be some force in that argument, particularly when that rule is read against O36 r12 subrule (4) which enables the issue of a writ of subpoena duces tecum to require the production of documents "to the Court on a date before the date of the trial" so that the party suing out the writ may "inspect the document or object" and, being the rule pursuant to which the plaintiff would say documents are normally brought into court in advance of a proceedings, there is nothing in the Rules preventing the issue of a subpoena duces tecum returnable on the day of a trial or indeed issuing out a writ of subpoena ad testificandum which additionally requires the production of documents at the trial.
In my references to "trial" I bear in mind that O1 r4 of the Rules of the Supreme Court defines "trial" to include a hearing, which, I suggest, would include a hearing in Chambers.
Nevertheless it seems to me that O36 r13 is not to be read down to refer only to a writ of subpoena ad testificandum and duces tecum.
More to the point, I think, is that Order 36 r13 provides that only a Judge or a Master may authorise the issue of a writ of subpoena to compel the attendance of a witness, whether for production of documents or otherwise, to proceedings in Chambers. There is no equivalent in this Court of a Master. The Registrars of this Court are not equivalent in status to the Masters of the Supreme Court.
The Masters of the Supreme Court are members of that Court by reason of the provisions of s7(1)(c) of the Supreme Court Act 1935 as amended. The Registrars of this Court are public servants, they are not members of the court and the Registrars only exercise jurisdiction specifically delegated to them by the Judges of this Court; see, for example, the discussion in cases such as Talalla v Under Secretary for Law, unreported; SCt of WA; Library No 5753; 15 March 1985 and Duncan v Cloisters Securities Pty Ltd, unreported; DCt of WA; Library No D990088; 15 April 1999.
That has the consequence that the subpoena addressed to the proper officer of the Master Builders' Association of Western Australia has been issued without power because, to make it plain, O36 r13 does not confer a power on Registrars of this Court to issue subpoenas to chambers. This leaves me in somewhat of a quandary because the subpoena has been issued, it has been served, and counsel for the defendant apprehends that it has in all probability, already been complied with.
Additionally he has been provided with documents (after the issue of the subpoena) by the proper officer of the Master Builders' Association, which provision of documents may be regarded as having been voluntary.
The practical effect of this is that the plaintiff's counsel has told me that he will object to the use of any documents provided pursuant to the subpoena because they have been obtained pursuant to the issue of a subpoena without power which would bring those documents into the class of unlawfully obtained evidence which the court has a jurisdiction in some circumstances to exclude.
If that evidence is excluded, counsel for the defendant has told me that his case for security of costs may be jeopardised in that, insofar as he has obtained any documents which it might be said to have been obtained because of the issue of a subpoena without a power, those documents are crucial to his client's case for security of costs because they apparently contain admissions as to the state of the plaintiff company's finances.
From my perspective I am concerned that the processes of the court are not brought into disrepute. It seems to me that where I had the power to issue a subpoena I could issue it today and I could relieve the defendant from the compliance with the rule that ordinarily requires 14 days' notice. To decline to exercise that power in the circumstances of this case would only occasion additional delay and expense when no reason has been demonstrated to me why I should not exercise the power in any event, if it goes to a matter that is properly in issue between the parties; namely the financial status of the plaintiff.
So it seems to me that the most just way of resolving these difficulties is for me to authorise the issue of a writ of subpoena duces tecum to the proper officer of the Master Builders' Association of Western Australia and to hold that the subpoena already issued and served upon the proper officer of the Master Builders' Association of Western Australia stand as the subpoena.