Sucas Holdings P/L v Le Dome P/L

[1994] FCA 437

437 99

JUDGMENT No. -d ..,,,,-

CATCHWORDS

PRACTICE - whether eubpoena for production of documente be eet aside - whether accecrs be allowed - whether document of reasonable relevance to ieeuee - whether oppressive to produce.

Trade	1974 (Cth) - e 52
B V	(1989) 16 NSWLR 14
POSTER J
7 HARCH 1994
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 403 of 1992

)

GENERAL DIVISION 1

BFIWEBH: SUCAS HOLDINGS PTY

LIMITED

Firet Applicant

JAMES WILLIM SPRATT

Second Applicant

MD:  LE DOME PTY LIMITED

First Reepondent

PETER PULLEN

Second Respondent

-m ORDERS: FOSTER J

MTB:	7 MARCH 1994
PWCB :	SYDNEY

1.   the order sought for the eubpoena to be set aside be refueed, with the exception of paragraph (b) of the echedule to the eubpoena.

2.    access be not granted to either party, except by order of the trial judge.

3.    the coete of the notice of motion be the coete in the cause.

m: Settlement and entry of ordere ie dealt with in Order 36 of the Federal Court Rulee.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No NG 403 of 1992

1

GENERAL DIVISION 1

BBmBBHI SUCAS HOLDINGS PTY

LIMITED

Firet Applicant

JAMES WILLIAM SPRATT

Second Applicant

Alms LE DOME PTY LIMITED

First Respondent

PETER PULLEN

Second Respondent

COIUIII	POSTER J
IUTEI	7 MARCH 1994
SYDNEY

(Extempore)

HIS HOBOURr Thie is a notice of motion brought by Robert

Louis Krmizer eeeking an order that a subpoena served upon him, ae repreeenting a film of eolicitore, be set aeide. The eubpoena wae ieeued by the applicants in theee proceedinge.

Mr Kremnizer'e firm act8 for the reepondente and croee-

claimante in the proceedinge. It appear8 from evidence put before me that hie firm has in fact acted for the reepondente for some 15 yeare in relation to their bueineee affaire. The

subpoena seeks the production to the Court of three clasees of
document.

Paragraph A of the schedule to the subpoena seeks the production of all files relating to the restaurants opened, developed and eold by Peter Pullen, Jan Pullen and/or

Le Dome Pty Limited and/or Clarke International Pty Limited.

Jan Pullen is the wife of Peter Pullen who is the second respondent in the proceedings. Le Dome Pty Limited is the firot respondent. It ie clear that Mr and Mrs Pullen have controlling intereats in that company. The company, Clarke International Pty Limited, appeare, from a search which has been tendered, to have Mr and Mrs Pullen as it6 share-holders with Mrs Pullen being one of the directore. It is a property trustee company. On the evidence which is before me, which ie necessarily sketchy at this point of time, it could be said to be likely that that company could be involved with Mr and Mrs Pullen and the respondent company in property purchasee which have taken place over the years. There being no particular

were allowed to stand, I would not be inclined to eet it aeide	indication of any prejudice to that company if the subpoena
simply on the basis that that company is included in it as an entity whose files are being eought from the solicitor.
Paragraph B of the echedule relates to an index of files opened by R.L. Kremnizer & CO from 1975 to date. During
the course of argument it was conceded that thie particular claim for production was so wide, involving as it does the filem of what must be numerous clients, entirely unrelated to this litigation and which are in the custody of the solicitor, that to allow the subpoena in that form would be to create a mituation of oppression. Accordingly, I do not propose to allow that portion of the subpoena to stand in any event.

Paragraph C seeks:

"Any litigation on behalf of Peter Pullen, Jan Pullen or Le Dome Pty Limited arising out of the sale and/or leasing of any restaurant premises".

Although it is not entirely clear from the words used, I take them to refer to any litigation files in the custody of the solicitor on behalf of those persons and relating to those matters. Both paragraphs A and C have been attacked by Mr Kremnizer, on the basis that what is sought in those paragraphs can have no reasonable relevance to any issues arising in this litigation. The submission is made on the basis that to allow those paragraphs to stand would be to

enable this subpoena to constitute an abuse of process of the	Court.
It is therefore sought that the subpoena be struck down on that basis and that the documents should not even be produced to the Court; with subsequent consideration to be given in the ordinary way as to whether access should be allowed on the basis of reasonable relevance. A decision of this kind is always a very difficult one for a Court to make in circumstancee where it cannot hope to be seized of the factual issues between the parties. Although pleading6 can indicate and indeed should indicate, with considerable particularity, what the issues between the parties will be, it is not always possible to gain from the pleadings themselves, the appreciation that a trial judge will gain from lietening to the evidence in a case as it evolves.
A trial judge is always in a better poeition than a judge hearing a merely interlocutory proceeding, such as this, in determining with precision what mattere are achieving relevance in litigation and can therefore be eubject to further inveetigation. The relevance of the documents sought to issues in the litigation has been argued, to a large extent by counsel for he applicante, on the basie of material that has becume available from certain bank documents which have been annexed to an affidavit, dated 4 March, made by Terence George Hartmann; who is solicitor for the applicante.
These documents indicate that, over a not been the solicitore for the reepondente, Mr and Mrs Pullen, insignificant period of time during which Mr Kremnizer ha6
together with their company, the firet respondent, have been involved in the buying of free-hold propertie6 with attached restaurants and then later, developing and eelling the restaurant busineesee. There is reference in one of the bank documents to the fact, over that period of the, thatt-

"The Pullene are eeaentially restaurateur6 who epecialiee in buying premieea with a reetaurant leasing the premises. In this way they have a property with a good income plus their own ekilla to fall back on to run the reetaurant if the operatore decide to close the reetaurant down".

It ie also noted in both thoae documents that they have been developing aeeociated venture6 in the accommodation field, epecialieing in the provision of back-packer's hostel accommodation.

It is indicated, in what has been put before me, that: a portion of the premieee of the Porbee Hotel, which ie the real eetate entity involved in theee proceedinge, had been used by the reepondente ae part of the reetaurant purchaeed by the applicante. Prior to the eale, the uee of that portion of the premise6 had been abandoned in favour of ite being developed a6 part of a hoetel operation being conducted by the applicante in the building. It ie apparent that there will be an ieeue in the case ae to whether takinga from that portion of the building, previously used in the restaurant buaineee,

when euch takinge would necesearily disappear after the eale.	played eome part in inflating the takinge prior to the eale,	I etate that ieeue very broadly, becauee it ie impoeeible to
etate it in any ather way on the baeis of the material currently before me.
A large number of repreeentatione are relied upon in the amended atatement of claim concerning alleged breaches of e 52 of the -ticee Act and the equivalent section of the state pair Act. In large measure, the repreaentations are conceded. In such circumstances, the main immue for the Court hearing this matter will be to determine, as is posed by the pleadings, whether the representations were in fact untrue. It seems, from what I have been told, that the applicants will allege that the takings should have been represented truthfully as being no more than $8,000 per week, whereas a representation had been made, to the effect, that
the takings were $11,500 per week.
The question for determination by me, as I see it, is whether the documents sought to be produced to the Court could, in any reasonably way, contain material which could throw some light directly or indirectly upon whether the taking8 had been truthfully represented and whether other matters referred to in the pleadings as having been represented were, in fact, truthfully represented.
It has been very cogently put to me that the documents could not possibly bear upon any such issue. At its
highest, they could indicate, if such be the case, a pattern
of buying freehold buildings with attached restaurants,
continuing the lease of the restaurants in circumstances where the restaurants become financially unviable, with the respondents then being in a position to enter into possession of the restaurant business and conducting it.

I find it very difficult to see anything but an extremely tenuous connection with that being based on all manner of suppositions between what is sought in this subpoena and the issues as pleaded. I have come to the conclusion, however, that on that balance, the best approach to be taken is to refuse the motion setting aside the subpoenas, but to take no steps, at this point of time, to allow access to any of the material to be provided to the Court pursuant to them. I should add that it has not been suggested that any of the other aspects of oppression frequently relied upon in cases of this kind, exist at present. It is not suggested that there would be an impossible task given to the solicitors to assemble these files and produce them to the Court in the time allowed.

The only argument that has been put to me is the argument which I have endeavoured to state, which goes to the lack of any reasonable relevance. I think that the trial judge is the appropriate person to determine finally whether any relevance is demonstrated. He or she will have to do 60,	in the context of the material available, as the case unfolds.	I think this view is coneistent with the view adopted by the
Court of Criminal Appeal in the case to which I have been referred, B v (1989) 16 NSWLR 14, where emphasis was placed upon the fact that in difficult casee such as this, it is appropriate for the trial judge to have regard to the document8 themselves before granting access to interested
parties .
Thie is a came where ultimate relevance and the ultimate desirability of acceee can, in my view, only be determined by the trial judge. This may occaeion eome delay during the couree of the trial, but if that delay is essential in the intereats of justice, well, then, it must be borne.

I therefore propoee to refuse the notice of motion:

that is to refuee the order sought that the subpoena be set aside, but I propoee to order that acceee be not granted, to either party, except by order of the trial judge made during the course of the proceedinge. Further, I order that the coete of thie notice of motion be coete in the cauee.

I certify that thie and the preceding eeven (7) page6 are a true copy of the reaeone for judgment herein of the Honourable Mr Justice M. L. Foeter.

J

Date:  7 MARCH 1994

COUNSEL FOR THE APPLICANTS:	KR G.A. MOORE
INSTRUCTED BY:	T.G. HARTMANN h ASSOCIATES
COUNSEL FOR THE RESPONDENTS:	KR G. SEGAL
INSTRUCTED BY:	R.L. KREHNIZER L CO
DATE OF HEARING:	7 MARCH 1994
DATE OF JUDGMENT:	7 MARCH 1994