Structerre Consulting Engineers (NSW) Pty Limited v Townend - [2020] NSWSC 1476

Supreme Court

New South Wales

Medium Neutral Citation: Structerre Consulting Engineers (NSW) Pty Limited v Townend [2020] NSWSC 1476
Hearing dates: 8 October 2020
Date of orders: 8 October 2020
Decision date: 08 October 2020
Jurisdiction: Equity
Before: Rees J
Decision:
Motion to set aside subpoena dismissed with costs

Catchwords:
SUBPOENA – r 33.4 UCPR – company suing former employee for breach of confidence – subpoena issued to new employer – whether documents sought are relevant – whether fishing – documents sought could possibly throw light on the issues in the case – not necessary to prove that such documents exist or that, with such documents, the plaintiff will succeed at trial.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 33.4

Cases Cited:
Associated Dominions Assurance Society Pty Limited v John Fairfax & Sons Pty Limited (1952) 72 WN (NSW) 250
ICAP v Moebes [2001] NSWSC 306
ICAP Australia Pty Limited v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
ICAP Pty Limited v Moebes [2009] NSWSC 306
In the matter of One.Tel Ltd (in liq) – SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491
Portal Software v Bodsworth [2005] NSWSC 1115
The Commissioner for Railways v Small (1938) 38 SR (NSW)
Trade Practices Commissioner v Arnotts Limited (1981) 21 FCR 306
Travel Compensation Fund v Blair [2002] NSWSC 1128

Category: Procedural and other rulings
Parties: Structerre Consulting Engineers (NSW) Pty Limited (Plaintiff/Respondent)
Intrax Consulting Group Pty Limited (Applicant/Interested Party)
Representation:
Counsel:
Mr P Afshar (Plaintiff/Respondent)
Ms F Ashworth, Solicitor (Applicant/Interested Party)
Solicitors:
Bennett & Philp Lawyers (Plaintiff/Respondent)
Page Seager Lawyers (Applicant/Interested Party)

File Number(s): 2020/208161

ex tempore Judgment

HER HONOUR: This is an application by a subpoenaed party, Intrax Consulting Group Pty Limited, to set aside a subpoena pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 33.4(1) provides:

33.4 Setting aside or other relief
(1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

The basis on which the subpoena was sought to be set aside is two-fold: the documents are said not to be relevant to a fact in issue in the proceedings and the subpoena is said to amount to “fishing”.

The subpoena was issued on 21 July 2020 by the plaintiff, Structerre Consulting Engineers (NSW) Pty Limited, and seeks the following documents:

1. A copy of communications by email between Greg Townend and Kevin Donovan in the period 1 January 2020 to date.
2. A copy of communications (including communications by email, by text messages and using other messaging platforms/applications) between Kevin Donovan on the one hand and Mr Graeme Clarke and Mr Barry Borzillo on the other for the period 30 January 2020 to date.

Greg Townend is the defendant, being a former employee of the plaintiff and now an employee of the subpoenaed party. So too is Kevin Donovan. Graeme Clarke is a…

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: [2020] NSWSC 1476
Decision Date: 08 October 2020

CaseChat Overview and Summary

Structerre Consulting Engineers (NSW) Pty Limited brought a legal action against Townend, its former employee, for alleged breach of confidence. The dispute reached the court with a particular focus on a subpoena issued to Townend's new employer, seeking specific documents. The primary legal issue before the court was whether the documents sought by the subpoena were relevant to the case and if the subpoena constituted an impermissible fishing expedition.

The court examined whether the documents could potentially shed light on the matters in contention and whether it was necessary to demonstrate the existence of such documents or their utility in the plaintiff's case. The court held that the mere possibility that the documents could be relevant was sufficient to justify the subpoena. This was not contingent on proving that the documents exist or that the plaintiff would succeed in the case with their aid.

The court ruled that the subpoena was not a fishing expedition, as there was a legitimate basis to believe the documents could be pertinent to the issues at hand. Consequently, the subpoena was deemed valid. The court did not need to establish the precise relevance of the documents at that stage, only that there was a reasonable possibility they could be pertinent. This decision underscored the balance between protecting a party's rights and facilitating the discovery process in litigation.

The court ordered that the subpoena remain in effect, allowing the plaintiff to proceed with obtaining the documents from the new employer. This decision provided clarity on the scope and limits of subpoenas in cases involving alleged breaches of confidence by former employees.

Orders