Randle, R.G. v Jet Corporation of Australia Pty Ltd

[1985] FCA 321

CATCHWORDS

32'

PRACTICE AND PROCEDURE - application for leave to appeal from

unsuccessful application to set aslde subpoena duces tecum -

whether subpoena too wide - relevance of Supreme Court proceedings

to inspect same documents - relevant considerations on application

for leave to appeal from interlocutory decision - whether

substantial	injustice	would	follow	from refusal	of	leave	to
appeal.

Federal Court of Australia Act 1976 s.24(l)(a)

Companies (Victoria) Code s.329(a)

ROGER GRAHAM RANDLE AND MESSRS TOUCHE ROSS & CO ( A FIRM) v

JET CORPORATION OF AUSTRALIA PTY LIMITED (in its capacity as

Trustee of the Jet Corporation Australia

Trust)

No. VG 143 of 1985

Woodward J.

Melbourne

5 July 1985

IN THE FEDERAL COURT OF AUSTRALIA	)
)

VICTORIA	D STRICT	REGISTRY	)	No. VG 143	of 1985
)

GENERAL DIVISION )

ROGER GRAHAM RANDLE and

MESSRS TOUCHE ROSS & CO. (A FIRM) Applicants

and

JET CORPORATION OF AUSTRALIA PTY LIMITED

(in its capacity as Trustee of the

Jet Corporation Australia Trust) Respondent

MINUTES OF ORDER

COURT: Woodward J.

m: 5 July 1985

PLACE : Melbourne

THE COURT ORDERS THAT:

The application for leave to appeal be dismissed with

costs.

(Settlement and entry	of	orders is dealt with by 0.36	of	the
Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA	D STRICT	REGISTRY	)	No. VG 143 of 1985
)

GENERAL DIVISION	)
BETWEEN :

ROGER GRAHAM RANDLE and

MESSRS TOUCHE ROSS & CO. (A FIRM) Applicants

and

JET CORPORATION OF AUSTRALIA PTY LIMITED

(in its capacity as Trustee of the

Jet Corporation Australia Trust) Respondent

COURT :	Woodward J.
U:	5 July 1985

W: Melbourne

M-TEMPORE JUDGMENT

This is an application for leave to appeal from a

judgment of Northrop J. given on 23 May 1985. The matter before

his Honour was a motion to set aside two subpoenas duces tecum. aside in part.

The applicants now seek leave to appeal against his

Honour's refusal to set aside the remaining two operative

paragraphs of the latter subpoena. Leave is necessary pursuant to

section 24(l)(a) of the Federal Court of Australia Act 1976

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because the judgment I s of a purely Interlocutory nature. The

relevant facts and authorities are set out clearly in the

judgment of Northrop	J. and I	need not repeat them here in any
detail.

Counsel for the applicants relied upon two arguments,

the first being that the two paragraphs of the remaining subpoena

were clearly too wide because they sought in effect all documents,

belonging to or relating to three firms involved In the litigation

before his Honour, which are in the possession of the applicants,

who were the accountants for the three firms	at	the relevant
times.

A subpoena couched in such general terms will often be

bad because It clearly covers too long a period or too wide a

range of subjects, but it will not be bad simply because it is

likely to include some documents which will turn out to be

irrelevant to the issues before the court. In the present case

the issues affecting the three companies are complex and the time

span covered by the subpoena is relatively short.

All that counsel for the applicants could point to as

irrelevant documents likely to be comprehended by the subpoena

were cords of charges for p ofessional services and

administrative office memoranda and, as counsel for the respondent

pointed out, the inspection of documents remains within the

control of the court and objection may be taken to permitting the

parties to inspect these or any other documents which appear to

have no relevance to issues being litigated.

i - 3 -

The width of the subpoena was carefully considered by

his Honour in the light of relevant authorities, and in my view this is precisely the type of question which, in the absence of special circumstances, should not be further debated before a Full Court.

The other argument pursued by counsel for the applicants

was that his Honour should, as a matter of discretion, have set

aside the subpoena because the receivers and managers of the

present respondent had also sought inspection of much the same

documents, although this time they had been categorized in more

detail, in the Supreme Court of Victoria pursuant to section

329(a) of the Companies (Victoria) Code.

I am informed that, in that matter, a judgment has been

given by Gobbo J, which was placed before Northrop J, but no order

has been taken out in the Supreme Court. Northrop J. said as to

this argument that "the existence of proceedings in the Supreme

Court cannot displace the practice and procedures of this Court".

I respectfully agree.

The product ion of docum ents to the Court in furth ,er an ce

of litigation which is proceeding in the normal way is a matter

qulte different from the exercise of the powers of recelvers and

managers to inspect documents; and in my view there was no obligation on his Honour to exercise a discretionary judgment on

the point. I think there is no substance in this argument.

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Even if I had taken the view that there was some

substance in either of the issues raised, I would have refused

leave to appeal because, in my vlew, the applicant for leave in

interlocutory proceedings uch as these must show that a substantial Injustice could follow from a refusal of that leave. I refer to the case of Nlemann v Electronic Industries Limited, C197811 VR 431 at page 439.

Nothing has been put to me which persuades me that the

applicants will suffer any injustice from Northrop J's judgment.

The task of producing the documents may well be made easier by the

fact that they do not have to be related to a list of speciflc

categories; and any question of irrelevant internal minutes or

documents relating to professional charges can be dealt with by

the Court at a later stage. The appllcation will accordingly be

dismissed with costs.

I certify that this and	the three
(3) preceding pages are

a true and accurate copy of the

reasons for Judgment herein	of
The Hon Mr Justice Woodward

Dated: 5 July 1985

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Counsel for the applicants:	Mr A.J. Myers
Counsel for the respondent:	Mr P.J. Jopling
Solicitors for the applicants:	Messrs Madden, Butler, Elder &
Graham

Solicitors for the respondent: Messrs Madgwicks