Santos Limited and BHP Petroleum Pty Ltd (Respondent) v Pipelines Authority of South Australia (Applicant) No. SCGRG 95/2276 Judgment No. 5602 Number of Pages 4 Procedure

[1996] SASC 5602

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LANDER J

CWDS
Procedure - Supreme Court procedure - South Australia - practice under rules of court - evidence - subpoenae - application for abridgment of time within which to answer subpoena.

HRNG ADELAIDE, 3 May 1996 #DATE 3:5:1996 #ADD 4:7:1996

Counsel for applicant:                Mr M Manetta

Solicitors for applicant:             Johnson Winter and Slattery

Counsel for BHP Petroleum Pty Ltd:    Mr G Edmonds-Wilson

Solicitors for BHP Petroleum Pty Ltd: Minter Ellison Baker
  O'Loughlin

ORDER
Application allowed.

JUDGE1 LANDER J This is an application for the abridgment of time within which to serve subpoenas in the State of Victoria upon BHP Petroleum Limited and upon Richard Price, an employee of that company. The application for the abridgment of time within which to serve Mr Richard Price has not been pursued after counsel for Mr Richard Price, Mr Edmonds-Wilson, advised the court that Mr Price has previously left Australia and would be out of Australia until Tuesday, 14 May.

2. In those circumstances, Mr Manetta, who appeared for the Pipelines Authority of South Australia, did not pursue the application for abridgment of time.

3. However, the application in relation to BHP Petroleum Pty Ltd was persisted with.

4. A subpoena was issued to that company on 25 January 1996 seeking a variety of documents. That subpoena was challenged in this court and the challenge was rejected by Justice Bollen.

5. BHP Petroleum Pty Ltd then appealed from his Honour's decision to the Full Court which also rejected, in the main, the challenge made by BHP Petroleum Pty Ltd. During the time between 25 January 1996 and its determination by the Full Court, which was on 24 April 1996, there was in place a stay in relation to compliance with that subpoena. That stay was first put in place by an order which I made on 20 March 1996. That stay order was allowed for BHP Petroleum Pty Ltd not to comply with the subpoena until two days after the decision of the Full Court.

6. When BHP Petroleum failed in its challenge in the Full Court, it sought and obtained a further stay in relation to that subpoena for a period of one week after the Full Court decision whilst it considered whether it wished to challenge the decision of the Full Court by application for special leave to appeal to the High Court. As it happened, it did not seek special leave to the High Court, nor for the stay of the order by the High Court, or any stay of the subpoena after the decision of the Full Court.

7. I have recited that history because it has been the various challenges in this court which has delayed the answer of the subpoena. The subpoena of 25 January 1996 was answered yesterday and it was then noticed by the solicitors acting for PASA that the subpoena contained an omission in that first subpoena did not seek management reports in para.1 of the subpoena although management reports were sought in paras 2 and 3.

8. When that omission was first noticed, notice was given to BHP Petroleum Pty Ltd that PASA would seek those further reports and an application was made today to me for the abridgment of time in relation to a subpoena which was restricted to management reports previously omitted from the subpoena of 25 January 1996.

9. When the matter was called on Mr Manetta very properly showed me a letter written by Minter Ellison Baker O'Loughlin which put his instructing solicitors upon notice that if the matter was to be called on for an abridgment of time, then BHP Petroleum Pty Ltd desired to be heard upon the application.

10. I therefore adjourned the matter for half an hour to allow notice to be given to the company and the matter was called on again when Mr Edmonds-Wilson appeared for the company. He opposes the abridgment of any time upon the basis that the company could not comply with the subpoena except upon having seven days notice, although the company would prefer ten days notice, but in any event the company would insist upon its right to have 14 days notice pursuant to s.30 of the Service and Execution of Process Act 1992.

11. He said that his present instructions are that the documents are in three States and the persons who have knowledge of the documents are also in three States, and that his client would wish for the documents to be gathered up and taken to the head office in Melbourne before they were presented in answer to the subpoena. He said in those circumstances his instructions were that the company could not comply with the provisions of the subpoena by next Thursday.

12. Mr Manetta argued that in respect of a company of the size of BHP Petroleum Proprietary Ltd, and its holding company BHP Proprietary Ltd, that the company would not suffer any hardship by being called upon to direct sufficient resources necessary for compliance with the subpoena. He also said that whilst the company would suffer an inconvenience by being required to direct sufficient resources for compliance with the subpoena, the inconvenience would not be serious as is required under s.30(2) of the Service and Execution of Process Act if abridgment is to be refused.

13. I think it right to say that the company could, if it directed sufficient resources to the exercise, comply with the terms of the subpoena by next Thursday. I say that having regard to what I anticipate is the order within which a company of this size would keep its records having regard to what I believe would be the resources available to it if it was prepared to direct those resources to the exercise. It will be a matter of inconvenience to BHP Petroleum Pty Ltd at any time to comply with this subpoena, but I do not think calling upon it to comply within the time requested by the applicant would give rise to a serious inconvenience.

14. In those circumstances, I am prepared to abridge the time within which to comply with the order so that compliance with the subpoena is to take place on Thursday, 9 May. In making the order, which I will make, I have had regard to the fact that it is necessary, so the applicant puts to me, that the documents be returned in the arbitration before Thursday so that a witness who has been brought from overseas may give evidence in relation to it.

15. I have understood it to be the case that the orderly presentation of the applicant's case depends upon the witness being able to comment upon those documents before he leaves the witness box, which is anticipated to be Thursday next.

16. I have also had regard to the fact that the applicant was delayed in obtaining the documents to which it was entitled, as the Full Court determined, by the applications both to Justice Bollen and to the Full Court by BHP Petroleum Pty Ltd. I do not mean by that to criticise the company for exercising its legal rights to challenge the previous subpoena under s.33 of the Act, but I only observe that the carrying out of that challenge, which was a right available to the company, has delayed the production of the documents to which the applicant was, as the Full Court has determined, entitled.

17. During argument, it was put to me by Mr Manetta that if the documents were not produced it would be necessary, at least from the applicant's point of view, to have Mr Price give oral evidence of the matters about which the document spoke. It has become clear because of what Mr Edmonds-Wilson has put to me that Mr Price's attendance next week could not be secured, because he is presently outside the country.

18. In those circumstances, whilst accepting that this will cause an inconvenience to the company, I believe that it is not of a kind that disqualifies the application for abridgment of time.

19. I therefore make an order that, upon Pipelines Authority of South Australia by its counsel undertaking to effect service of the subpoena on BHP Petroleum Pty Ltd on or before the 6th day of May 1996, the time within which BHP Petroleum Pty Ltd must comply with the subpoena issued to it out of this court on 3 May 1996 at the request of Pipelines Authority of South Australia be abridged to a period of three days after service upon it, namely Thursday, 9 May at 10.00 am. I make no order as to costs.