Rivers v Rivers - [2004] SASC 295

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
RIVERS v RIVERS
Judgment of The Honourable Justice White
18 September 2004
PROCEDURE - COSTS - SECURITY FOR COSTS - OTHER REASONS FOR SECURITY
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - EVIDENCE
SUBPOENA TO PRODUCE DOCUMENTS - APPLICATION TO SET ASIDE
First defendant sought an order that the plaintiff provide security for costs and sought grant of leave to issue subpoenas - Subpoenas seeking production of communications between plaintiff and third parties in relation to the funding of the plaintiff's action were served on the plaintiff and third parties - Plaintiff agreed to accede to an order for security for costs - Plaintiff sought to have subpoenas set aside - First defendant opposed setting aside of subpoenas as security for costs on an indemnity basis and for an extended period was sought - Production of documents not necessary for fair disposition of the claim for security - Discussion of plaintiff's standing to have subpoenas directed to non-parties set aside - Plaintiff had legitimate interest in setting aside subpoenas - Subpoenas set aside.
Administration and Probate Act 1919 (SA) s 72G, referred to.
Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180; Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (1995) 134 ALR 187; Hunt v Judge Russell (1995) 63 SASR 402, applied.
Rivers v Rivers (2002) 84 SASR 426; Rivers v Rivers (2002) 220 LSJS 74; ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2001) 214 LSJS 421; Commissioner for Railways v Small (1938) SR (NSW) 564; Alister v The Queen (1984) 154 CLR 404; Santos v Pipelines Authority of South Australia (1996) 66 SASR 38; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250; Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160; R v Baines [1909] 1 KB 258; Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545; R v Saleam (1989) 16 NSWLR 14; Brundza v Robbie & Co (No 2) (1952) 88 CLR 171; Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; Crothers v Simpson Sears Ltd; Attorney-General (Alberta) (1988) 51 DLR (4th) 529; Reinsurance Australia Corp Ltd v HIH Casualty & General Insurance Ltd (in liq) [2003] FCA 803; Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98; Fried v National Australia Bank Ltd (2000) 175 ALR 194; Trade Practices Commission v Kimberley Homes Pty Ltd (No 1) (Hill J, Federal Court, 19 July 1989, unreported); New Ashwick Pty Ltd v Iama Ltd (No 1) [2000] SASC 416, considered.

RIVERS v RIVERS
[2004] SASC 295
WHITE J
Introduction

On 9 July 2003, the first defendant filed an application seeking an order that the plaintiff provide security for her costs of action. At the same time, the first defendant sought the grant of leave to issue subpoenas to the plaintiff and to another three groups of persons requiring the production of documents in connection with the application for security. Two were the legal firms, Piper Alderman and Iles Selley; and the third group comprised the plaintiff’s grandparents, Donald and Lorna Wray Rivers (“the grandparents”).
On 14 July 2003, a Master of this Court granted, pursuant to SCR 81.02, his concurrence to the issue of the subpoenas and they were then issued and served.
On 5 November 2003, the plaintiff applied for an order setting aside all four subpoenas. An issue was then raised about the standing of the plaintiff to apply for the setting aside of subpoenas directed to others.
On 4 March 2004, three further applications were filed. The first was filed by the plaintiff seeking an order setting aside the concurrence of the Master to the issue of the four subpoenas. The second was an application by the partners of Iles Selley to have set aside the subpoena served on that firm. The third was an application by the grandparents to have set aside the subpoena served on them. Each of the applications was filed by Iles Selley, the solicitors acting for the plaintiff in the within action. Ms Powell QC and Mr Selley appeared for all applicants on the hearing before me.
No application has been made by Piper Alderman for the setting aside of the subpoena directed to that firm.
The application of the plaintiff filed on 5 November 2003 and each of the three applications filed on 4 March 2004 were referred by the Master for consideration by a Judge, and were heard by me.
The first defendant’s application for security for costs was not referred to me. The issue before me is more narrow, viz., whether by one means or another, the subpoenas which had been issued by the first defendant in connection with her application for security for costs should be set aside. What follows are my reasons for decision on those applications.
Background History
This litigation has its origins in the death by a bullet wound of Donald Graeme Rivers (“the deceased”) on 4 July 1997. The deceased was the husband of the first defendant, and the father (by an earlier marriage) of the plaintiff. The grandparents are the parents of the deceased.
The bullet which killed the deceased was fired from a rifle held by the first defendant, his wife. The first defendant was acquitted by a jury of both the murder and manslaughter of her husband.
The deceased died intestate. He left an estate worth a little under $1m. By virtue of s 72G of the Administration and Probate Act 1919 (SA), where the value of an intestate estate exceeds $10,000 and where the deceased dies leaving both a spouse and children, the deceased’s spouse is entitled to the sum of $10,000 and to one-half of the balance of the estate. The other half of the balance is to be divided equally between the deceased’s children.
In the present case, the plaintiff seeks to invoke the so-called forfeiture rule. He seeks orders which would exclude the first defendant from participating altogether in the distribution of the estate. The plaintiff alleges that the first defendant intentionally or recklessly caused the death of the deceased, or in the alternative, committed an unlawful and dangerous act which resulted in his death.
This background is set out more fully in the judgment of the Full Court in earlier proceedings involving the same parties (Rivers v Rivers (2002) 84 SASR 426 and at first instance in those proceedings (2002) 220 LSJS 74).
Affidavit Material
In the determination of the four applications referred to me, I have had regard to the following affidavits:
1.     Affidavit of the plaintiff sworn 31 May 1999.
2.     Affidavit of Wendy Ann Bidstrup sworn 29 August 2003.
3.     Affidavit of Sara Leah Rivers sworn 21 September 2003.
4.     Affidavit of Natasha Jane Haslam sworn 13 October 2003.
5.     Affidavit of Matthew Selley sworn 5 November 2003.
The Plaintiff’s Financial Position
The first defendant is concerned that the plaintiff is impecunious. There is material in the affidavits indicating grounds for that concern.
The first defendant is concerned further that in the event that the plaintiff is unsuccessful in his claim, he will not have the means to satisfy the order for costs that is likely then to be made against him, as well as those orders for costs already made against him. This is a matter of contention between the parties. The plaintiff asserts that in the event that he is unsuccessful, his own share of the estate will be available to meet his liability for costs. However, the plaintiff (but not the first defendant) has already had an interim distribution from the estate of $100,000. It is unclear what the plaintiff has done with that sum. The first defendant submits that it may be inferred that that sum has been applied by the plaintiff to meeting legal costs already incurred by him in these proceedings and would no longer be available to her in the event that she successfully defends the action. Furthermore, the first defendant submits that the remaining entitlement of the plaintiff in the estate (of the order of $60,000) would be insufficient to meet the plaintiff’s liability to her for costs in the event that he is unsuccessful.
Although a reasonable amount of the affidavit material, and the submissions, were directed to these issues, I consider that it is unnecessary for me to express any concluded view about them in the determination of the present applications. Furthermore, given the relatively narrow issue which I have to decide, it is probably inappropriate that I do so. In my opinion, it is sufficient and appropriate, for present purposes, for me to accept that there is a real issue as to the plaintiff’s ability, in the event that he is unsuccessful, to meet the liability for costs which he will then incur.
Involvement of the Grandparents
A second and related concern of the first defendant is that the plaintiff is being funded and maintained in these proceedings by his grandparents. The first defendant submits that the grandparents are unlawfully maintaining the litigation and that the proceedings thereby involve an abuse of the process of the Court. The first defendant points to both direct and circumstantial evidence justifying that concern. In particular, the first defendant relies on statements made by the plaintiff in an affidavit sworn on 31 May 1999 as follows:
“Late last year my grandparents told my sister and I that they were seeking independent legal advice as to the prospects of preventing the defendant from obtaining any benefit from the estate. They enquired of my sister and I whether, if the advice they received was positive, my sister and I would be prepared to bring an action of the type now commenced by my sister. My sister refused. Since then my grandparents have caused to be undertaken extensive investigations into the circumstances of the shooting incident. My sister is not aware of these investigations because she has declined to be involved. As a result of these investigations I am satisfied that, if the material discovered was to be put before the Court, the Court would be satisfied that the defendant intentionally caused my father’s death. I therefore determined to commence an action of the type the subject of this action in my own name believing that my sister was not prepared to do likewise. I had asked my sister whether she was prepared to join with me and my grandparents in commencing an action of this type and she refused.” (emphasis added).
Later in the same affidavit, the plaintiff deposed to a conversation between Mr Carpenter (a solicitor then retained by the plaintiff and his sister) and Mr Selley in which Mr Carpenter is said to have referred to an interest of the grandparents in prosecuting an action to obtain a declaration that the first defendant had caused their son’s death. The basis, if any, which Mr Carpenter may have had for that statement, is not known. Of significance in the present circumstances is that it is the plaintiff who relied on that statement.
The plaintiff has not denied, either by way of affidavit, or in submissions, that the litigation is being funded by his grandparents.
The first defendant submits that the grandparents have financial resources. She submits that in the circumstance that the action is being pursued at the instigation of the grandparents, the circumstance that they stand to benefit from success in the action, and the circumstance that the action is being funded by them, it would be appropriate for an order for security to be made and that when regard is had to some further factors which I will mention below, security ought be ordered both in respect of costs already incurred and to be incurred, and on an indemnity basis. The subpoenas were issued with a view to obtaining evidence confirming that the circumstances just outlined do exist.
The Plaintiff’s Concession
By letter dated 4 December 2003 to the first defendant’s solicitors, the plaintiff’s solicitors said:
“We are instructed that our client will accede to an order that the plaintiff provide security for the first defendant’s costs in such terms as the Court deems fit.
As our client is consenting to an order for security, the subpoenas issued at the request of your client are no longer necessary and each of them ought to be set aside. The issues remaining, therefore, are the quantum of security and the questions of costs.”
Although this concession was apparently made with a view to making compliance with the subpoenas unnecessary, it did not have that effect. The first defendant continues to resist the applications to have the subpoenas set aside.
The letter of 4 December 2003 indicates that the first defendant’s entitlement to some security is conceded. The plaintiff accepts that circumstances enlivening the discretion to award security under SCR 100.01 do exist and that an order for security should be made. SCR 100.01 enumerates five circumstances in which the Court may order security, namely,
“(a) where the plaintiff is a mere nominal plaintiff and is in a condition of poverty or insolvency;
(b)where the plaintiff is ordinarily resident out of the jurisdiction;
(c)where the residence of the plaintiff is incorrectly stated in the summons with an intention to deceive;
(d)in circumstances authorised by any statute;
(e)where for special circumstances the justice of the case so requires.”
No reliance was placed, in the submissions, on SCR 100.01(a). Para (e) appears to be the only one of the remaining provisions which is applicable. I note that the written outline of submissions of the first defendant dated 16 September 2003 (ie, before the plaintiff’s concession) was directed to establishing the existence of “special circumstances” within the meaning of SCR100.01(e). Thus the plaintiff’s concession in the letter of 4 December 2003 should be read as a concession of the existence of special circumstances. Ms Powell QC informed me that the plaintiff does not concede that special circumstances of the kind alleged by the first defendant (abuse of process) do exist. Thus the precise basis upon which it is accepted that security should be awarded is unclear.
The Security Claimed
The first defendant claims that the security to be provided by the plaintiff should be calculated so as to provide security for:
(a)the prospect that the first defendant will, ultimately, be awarded costs on an indemnity basis (rather than party-party costs);
(b)the anticipated costs of the whole trial (rather than those costs likely to be incurred to the end of the first day of trial);
(c)costs already incurred by her prior to her application for security (rather than prospective costs only).
Thus the first defendant seeks a departure from the usual practice in this Court when security is ordered of the security being fixed by reference to a fair estimate of the party-party costs likely to be incurred up to the end of the first day of trial, discounted slightly for the prospect that the matter may settle without coming to trial.[1] Liberty to apply for further security at the end of the first day of trial is also usually granted.
[1] ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (2001) 214 LSJS 421 at 422.
The usual practice of the Court is just that: the usual practice. It does not reflect some fixed rule. The Court has a general discretion as to the amount and terms of the security ordered. Each case must depend upon its own circumstances.
But in exercising the discretion, the Court must try to do justice to both plaintiff and defendant. “In considering security for costs the Court ought to try to do justice as between the parties. The Court should protect a defendant against the loss which may result from the inability to recover costs by reason of the impecuniosity of the plaintiff but should not go further than is reasonably necessary for the purpose. The provision of security for costs, which it may never be liable to pay, may place an unreasonable burden upon a plaintiff or those for whose benefit the plaintiff is suing.”[2]
[2]Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180 per King CJ at 189
It was submitted by the first defendant that I was not required, on these applications, to determine whether she was entitled to security in the manner sought, nor even that she had reasonable prospects of obtaining such security. It was sufficient, it was submitted, for me to note the nature of the security sought, to accept that the discretion to award security was sufficiently wide to permit the security sought to be awarded, and to conclude that the first defendant had a legitimate forensic purpose in seeking the documents specified in the subpoenas, and that there was a reasonable prospect that the persons to whom the subpoenas were directed had documents which were material to that purpose.
The first defendant submits that a departure from the usual practice will be appropriate in this case for two principal reasons. First, the first defendant contends, and will contend on the hearing of the application for security itself, that the grandparents are both promoting and funding the plaintiff’s action, and thereby are perpetuating an abuse of process. It is said that the grandparents are unlawfully maintaining the litigation, and, further, that that maintenance probably amounts to champerty. Next, it is said that the interim distribution from the estate to the plaintiff has given him an unfair advantage in the litigation. He has thereby been able to fund the litigation thus far, whereas the first defendant has not. Notions of what was called “restorative justice” should be applied, it was said, so as to award security in respect of costs already incurred.
The Documents Sought by the Subpoenas
In general, the first defendant seeks to have produced by subpoena documents which might evidence funding of the litigation by the grandparents, the means by which any such funding has been provided, and the arrangements between the grandparents and the plaintiff with respect to such funding. Thus, by the subpoena directed to the plaintiff, the first defendant seeks to have produced all correspondence with the grandparents and with the plaintiff’s sister (the second defendant in the proceedings) with respect to funding of the action and documents evidencing the source of the monies used to fund the action and investigations in connection with the action.
As against the grandparents, the first defendant seeks production of documents of a like kind but including “all correspondence with and memoranda from” the firms of Iles Selley and Piper Alderman together with any other documents which may record or evidence payments to the firms of Piper Alderman and Iles Selley in connection with the litigation. In addition, the first defendant seeks production of all documents recording or evidencing transfers of certain parcels of land from the plaintiff to the grandparents and the borrowing of monies on the security of that land.
The subpoenas addressed to the firms of Piper Alderman and Iles Selley are (relevantly) the same, seeking production of documents which evidence or record the receipt of monies on account of fees and disbursements in connection with this action, or of payment out of those monies, correspondence and memoranda with the grandparents and file notes of attendances on the grandparents.
In ACN 007 528 207 Pty Ltd v Bird Cameron[3] it was held that documents relating to the funding of the plaintiff’s claim were irrelevant once the entitlement of the defendant to security was conceded. The first defendant seeks to avoid that conclusion in this case by arguing that the documents sought are also relevant to the fixing of the amount of the security.
[3] (2001) 214 LSJS 421.
Submissions of the Parties

The plaintiff submitted that the subpoenas should be set aside, and the Master’s concurrence revoked, for a number of reasons. It was said that the documents sought are irrelevant and are, in many cases, the subject of legal professional privilege; that the subpoenas are an abuse of process in that they are “fishing” and that they are, in any event, too broadly expressed. It was also submitted that the subpoenas had been issued irregularly because the plaintiff had not been given an opportunity to be heard on the request for the Master’s concurrence to their issue.
In addition to resisting these submissions, the first defendant submitted that the plaintiff did not have standing to seek the revocation of the Master’s concurrence to the issue of, or the setting aside of, subpoenas directed to others. This submission has no point in relation to the subpoenas issued against Iles Selley and the grandparents as they have, in any event, made their own application for revocation and setting aside. However, as noted above, Piper Alderman has not made any similar application and the plaintiff persists in his application in respect of the subpoena directed to that firm.
Setting Aside a Subpoena: Relevant Principles
SCR 81.10 grants a discretion permitting the Court to set aside a subpoena in specified circumstances. It provides:
“A subpoena may be set aside by the Court where it is vexatious, oppressive or an abuse of the process of the Court.”
The circumstances in which the discretion thus granted may be exercised are quite various. Relevantly to the present case, subpoenas have been set aside on the grounds that they are fishing[4], ie, where a party who has no evidence that documents of a particular kind do exist issues a subpoena to ascertain whether they do;[5] where the documents are not relevant to an issue to be decided by the Court;[6] where the subpoena is issued for an ulterior purpose;[7] and where production of the documents sought is not necessary for disposing fairly of the proceedings.[8] It must be “on the cards” that documents of the kind sought do exist and may be material.[9]
[4]Commissioner for Railways v Small (1938) SR (NSW) 564 at 575; Alister v The Queen (1984) 154 CLR 404 per Gibbs CJ at 414, per Brennan J at 455-456; Santos v Pipelines Authority of South Australia (1996) 66 SASR 38 at 57.
[5]Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 per Owen J; Santos v Pipelines Authority (1996) 66 SASR 38 at 57.
[6]        Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160.
[7]        R v Baines [1909] 1 KB 258.
[8]        Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545.
[9]Alister v The Queen (1984) 154 CLR 404 per Gibbs CJ at 414; R v Saleam (1989) 16 NSWLR 14 at 18.
Relevance and Utility
In my opinion, it would be a proper exercise of the discretion under SCR 81.02 to set aside the subpoenas if I am satisfied that there is no real prospect of security, calculated in the manner sought by the first defendant, being ordered. In that event, I should hold that the production of the documents is not necessary for the fair disposition of the claim. The respondents to the subpoenas should not be put to the trouble and expense of complying with a subpoena which will serve no real purpose in the security for costs application.
I realise that taking such an approach involves some prediction as to the manner of exercise of the discretion to be exercised by the Master hearing the application, and therefore has the potential to impinge on the exercise of that discretion. Further, that impingement will occur without my hearing all the arguments which may be addressed on the application for security. Such an impingement is inevitable, in my opinion, on applications of the present kind.
The first defendant seeks, in effect, that security be provided for the prospect that in the event that the plaintiff is unsuccessful in his claim, he will be ordered to pay costs on an indemnity basis. In my opinion, the prospect of a Master making an order on that basis is so remote that it can, for present purposes, be ignored. Before making such an order, a Master would need to be satisfied that it was probable, not just possible, that after judgment costs would be awarded against the plaintiff on an indemnity basis. This would involve a prediction both as to the outcome of the litigation, and the basis upon which the plaintiff’s claim would fail. Mr Wells QC has not pointed to any case in which security for costs has been awarded on an indemnity basis. In Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (1995) 134 ALR 187, Lindgren J declined to award security assessed on an indemnity basis. Whilst acknowledging that the word “indemnity” has more than one meaning when used in this context, and that it should not held absolutely that security on an indemnity basis would never be ordered, Lindgren J referred to a number of authorities indicating that the discretion to award security would not generally be exercised so as to give a complete and certain indemnity to the defendant.[10] These considerations suggest that an order based on indemnity costs is unlikely. I note in passing that in Allstate Life Insurance Lindgren J said that he was not aware of any case in which the amount for which security for costs had been ordered to be provided had been arrived at by reference to a conclusion that the plaintiff would probably be ordered to pay the defendant’s costs on an indemnity basis. This too confirms that the first defendant seeks an order of an exceptional kind.
[10]Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 per Fullagar J at 175; Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 per French J at 515; Crothers v Simpson Sears Ltd; Attorney-General (Alberta) (1988) 51 DLR (4th) 529 at 536, and Halsbury’s Laws of England (4th Ed Vol 37 [307]). See also Reinsurance Australia Corp Ltd v HIH Casualty & General Insurance Ltd (in Liq) [2003] FCA 803 per Jacobson J at [94].
In the circumstances of this case, there are additional reasons why a Master would not award security on an indemnity basis. Although the first defendant contends that the proceedings are an abuse of process, are being unlawfully maintained, and are probably champertous, there is no plea to that effect in the amended defence. No issue has been joined in the proceedings on the point. It would be remarkable for a Master to form the view that the proceedings are likely to be regarded as an abuse of process on grounds of champerty or maintenance when such an abuse has not been (and may never be) raised as an issue on the pleadings. Furthermore, a Master is likely to take the view that the exercise of the discretion as to the amount of security is an inappropriate occasion to be addressing issues of maintenance and champerty. Not only are there no pleadings, the grandparents will not be before the Court. Complex issues of law and fact are involved.
If proceedings are being unlawfully maintained, or are champertous, the appropriate order of the Court, at least in the first instance, is a stay, which may be ordered on an application brought for that purpose. A Master would not, in my opinion, allow a hearing concerned with the fixing of the amount to be ordered by way of security (which should be relatively straightforward and short) to become the occasion for exploration and consideration of issues pertinent on such a stay application. The exercise of fixing the amount of security should not be elevated into a major piece of litigation in its own right.[11]
[11] Cf New Ashwick Pty Ltd v Iama Ltd (No 1) [2000] SASC 416 per Wicks J at [13].
I conclude therefore that insofar as the legitimate forensic purpose relied upon is the furtherance of the claim of unlawful maintenance, champerty and of abuse of process in the context of an application for security for costs, the documents sought are not reasonably necessary for a fair disposal of the application.
Nor do I consider that notions of “restorative justice” make the documents sought relevant to, or necessary for, the fair disposal of the claim for security for costs already incurred, or for the costs of the whole trial. As I understand it, the submission is that because of the perceived unfairness, and, as it was submitted, the unlawfulness of the interim distribution from the estate to the plaintiff and his sister, and the perceived advantage which that distribution provided to the plaintiff in the litigation, the Master should award security in respect of costs incurred over a longer period than would usually be the case. I do not consider that a Master should act on any such principle. Security for costs is not ordered as a punitive measure, nor as a compensatory measure. It is, as the name implies, ordered as a security thereby ensuring that a defendant will, in the event that the plaintiff is unsuccessful, be able to recover the costs incurred. It would be inappropriate to take into account, in fixing the amount of the security, some notion of reversing some perceived injustice which has occurred between the parties.
Quite apart from that consideration, the delay by the first defendant in seeking security for costs would also be properly regarded by the Master as making an order for security in respect of past costs inappropriate. These proceedings were instituted on 25 February 1999. There have been numerous interlocutory applications, and appeals, since then. The affidavit of the plaintiff upon which the first defendant relies was sworn and filed on 31 May 1999. Four years elapsed before the application for security was made. A substantial amount of costs has been incurred on each side. It is well established that delay by the defendant in seeking security is a factor militating against the grant of security. It also, in my opinion, militates against an award of security in respect of costs already incurred.
In my opinion therefore, the documents sought by the subpoenas are not reasonably necessary for the fair disposal of the claim for security. That being so, it is appropriate that I exercise the discretion in favour of the plaintiff and set aside each of the four subpoenas. My conclusion may have been different if the first defendant’s entitlement to security had not been conceded by the plaintiff.
Standing
There is some uncertainty about the standing of a litigant to apply to have a subpoena directed to non-parties set aside. I do not propose to address the question in any detail. I agree, with respect, with the decision of Perry J in Hunt v Judge Russell (1995) 63 SASR 402 at 412-415, viz., that a person other than the person to whom a subpoena is directed may apply for it to be set aside where his or her legal rights are affected or if he or she has, for any other reason, a legitimate interest in having the subpoena set aside.[12] The plaintiff has such an interest in the present case. Piper Alderman are his former solicitors. The subpoena requires the production of documents which Piper Alderman are otherwise required to keep confidential. I consider that the plaintiff does have the requisite standing to seek the setting aside of the subpoena. I will set aside the subpoena directed to Piper Alderman. It would, in any event, be inappropriate to leave that subpoena extant given that the other subpoenas are to be set aside, and given my reasons for setting them aside.
[12]See also (in the context of differently worded Rules) Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98; Fried v National Australia Bank Ltd (2000) 175 ALR 194; Trade Practices Commission v Kimberley Homes Pty Ltd (Hill J, Federal Court, 19 July 1989, unreported).
The Master’s Concurrence
In view of that conclusion, it is unnecessary for me to consider further the application for revocation of the concurrence by the Master to the issue of the subpoenas on 14 July 2003. That being so, it is unnecessary to consider whether there is any difference between an act of “concurrence” on the one hand, and the grant of leave for the issue of the subpoena on the other.[13] It is also unnecessary to consider the precise characterisation of the act of concurrence and whether it is something which can be revoked or set aside pursuant to SCR 84.12.
[13]The Master’s fiat shows that he granted leave for the subpoenas to be issued, rather than indicating his concurrence to their issue.
The conclusion which I have reached also makes it unnecessary for me to consider the alternative submission of the plaintiff to the effect that the subpoenas should be set aside on the ground that they were irregularly issued. The plaintiff claimed that he should have been given an opportunity to be heard on the application for the concurrence of the Master for the issue of the subpoenas. I doubt that that submission is correct but it is unnecessary for a concluded view to be expressed.
Order
For the reasons given above, the orders of the Court are as follows:
1.On the plaintiff’s notice for specific directions filed 5 November 2003, each of the subpoenas issued by the first defendant directed to the plaintiff, the partners of Piper Alderman, the partners of Iles Selley and Donald Rivers and Lorna Wray Rivers dated 14 July 2003 are set aside.
2.I make no order on the notices for specific directions issued on 4 March 2004 by the plaintiff, the partners of Iles Selley and Donald and Lorna Wray Rivers.
3.I will hear the parties as to the costs of the various applications.