Ryan v Commercial and Residential Developments (SA) Pty Ltd - [2013] FCA 656

FEDERAL COURT OF AUSTRALIA
Ryan v Commercial and Residential Developments (SA) Pty Ltd [2013] FCA 656

Citation: Ryan v Commercial and Residential Developments (SA) Pty Ltd [2013] FCA 656

Parties: PAMELA MARGARET RYAN and HIGHFIELD PROPERTY INVESTMENTS PTY LTD v COMMERCIAL AND RESIDENTIAL DEVELOPMENTS (SA) PTY LTD and ANTHONY PHILLIPS

File number: SAD 335 of 2012

Judge: BESANKO J

Date of judgment: 5 July 2013

Catchwords:
PRACTICE AND PROCEDURE – subpoenas issued by plaintiffs to former solicitors of first defendant or related companies – whether documents produced by solicitors were outside the scope of the first subpoena – whether plaintiffs were fishing – where first defendant sought an order setting aside second subpoena issued to solicitors pursuant to r 24.15 of the Federal Court Rules 2011 – whether second subpoena impermissibly wide – whether second subpoena an abuse of process – whether second subpoena issued for a legitimate forensic purpose.

PRACTICE AND PROCEDURE – application by plaintiffs to amend points of claim – where first defendant opposed the application – whether amendments were premised on an obligation to act in the best interests of creditors – whether amendments were linked to an identifiable ground of relief in the originating process – whether amendments were relevant.

Held: Production of documents in first subpoena ordered subject to claims for legal professional privilege. Second subpoena upheld subject to an amendment to paragraph 5. Leave granted to the plaintiffs to amend the points of claim.

Legislation: Corporations Act 2001 (Cth) ss 439A, 445D, 447A, 600A
Federal Court Rules 2011 (Cth) rr 24.01, 24.15, 24.20

Cases cited: Alister and Others v The Queen (1984) 154 CLR 404
Carter v Hayes SM & Another (1994) 61 SASR 451
Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588
Hunt & Boyce v Judge Russell (1995) 63 SASR 402

Dates of hearing: 27 March 2013 and 4 June 2013

Date of last submissions: 4 June 2013

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 44

Counsel for the Plaintiffs: Mr R Whitington QC with Mr C Haebich on 27 March 2013 and with Mr S Abbott on 4 June 2013

Solicitor for the Plaintiffs: Sykes Bidstrup

Counsel for the First Defendant: Mr M Selley on 27 March 2013 and Mr B Roberts on 4 June 2013

Solicitor for the First Defendant: Iles Selley Lawyers

Counsel for the Second Defendant: Mr R Mansueto

Solicitor for the Second Defendant: Mansueto Legal

Counsel for the Other Party: Mr P Campbell on 27 March 2013 and Mr M Livesey QC on 4 June 2013

Solicitor for the Other Party: Kelly & Co

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 335 of 2012

BETWEEN:
PAMELA MARGARET RYAN
First Plaintiff

HIGHFIELD PROPERTY INVESTMENTS PTY LTD
Second Plaintiff

AND:
COMMERCIAL AND RESIDENTIAL DEVELOPMENTS (SA) PTY LTD
First Respondent

ANTHONY PHILLIPS
Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

27 MARCH 2013 AND 4 JUNE 2013

WHERE MADE:

ADELAIDE

THE COURT ORDERED ON 27 MARCH 2013 THAT:

Grounds of appeal

[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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Details

Case: [2013] FCA 656
Decision Date: 5 July 2013

CaseChat Overview and Summary

In the case of Ryan v Commercial and Residential Developments (SA) Pty Ltd, the plaintiffs sought to subpoena documents from the former solicitors of the first defendant and related companies. The dispute involved whether the documents produced by the solicitors were outside the scope of the initial subpoena and whether the plaintiffs were engaging in fishing expeditions. Additionally, the first defendant applied to set aside a second subpoena issued to the solicitors under rule 24.15 of the Federal Court Rules 2011, arguing that the subpoena was impermissibly wide and constituted an abuse of process. The plaintiffs maintained that the second subpoena was issued for a legitimate forensic purpose.

The court examined whether the documents produced in response to the first subpoena were outside the scope and if the plaintiffs' actions amounted to fishing. It also considered the scope and purpose of the second subpoena. The court found that the first subpoena's production of documents was ordered subject to claims for legal professional privilege. Regarding the second subpoena, the court determined that it was not an abuse of process and was issued for a legitimate forensic purpose. The court also granted leave to the plaintiffs to amend their points of claim, finding that the proposed amendments were relevant and linked to an identifiable ground of relief in the originating process.

The court ruled that the production of documents ordered by the first subpoena was subject to claims for legal professional privilege. The second subpoena was upheld, but subject to an amendment to paragraph 5. The plaintiffs were granted leave to amend the points of claim. The court's decision emphasised the importance of ensuring that subpoenas are not abused and are issued for legitimate forensic purposes, while also allowing for necessary amendments to the points of claim.

Orders