The Change Group International Plc v City Exchange Mart Pty Ltd
[2012] FCA 1188
•30 October 2012
FEDERAL COURT OF AUSTRALIA
The Change Group International Plc v City Exchange Mart Pty Ltd [2012] FCA 1188
Citation: The Change Group International Plc v City Exchange Mart Pty Ltd [2012] FCA 1188 Parties: THE CHANGE GROUP INTERNATIONAL PLC and THE CHANGE GROUP AUSTRALIA PTY LTD ACN 087 042 993 v CITY EXCHANGE MART PTY LTD ACN 113 024 203, RAO ARIF YASIN and INDRAVAND SHAH File number: NSD 618 of 2011 Judge: EDMONDS J Date of judgment: 30 October 2012 Catchwords: PRACTICE & PROCEDURE – application by respondents to set aside subpoenas issued to non-parties – whether documents sought have apparent relevance to the issues in proceeding – no evidence the subpoenas seriously and unfairly burdensome or prejudicial to addressees – application dismissed Legislation: Federal Court Rules 2011 r 24.15 Cases cited: Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 referred to
Mandic v Phillis (2005) 225 ALR 760 cited
Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 referred toDate of hearing: 17 October 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicants: Mr J Spinak Solicitor for the Applicants: ClarkeKann Lawyers Counsel for the Respondents: Mr CE Bannan Solicitor for the Respondents: John Orford and Associates
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 618 of 2011
BETWEEN: THE CHANGE GROUP INTERNATIONAL PLC
First ApplicantTHE CHANGE GROUP AUSTRALIA PTY LTD
ACN 087 042 993
Second ApplicantAND: CITY EXCHANGE MART PTY LTD
ACN 113 024 203
First RespondentRAO ARIF YASIN
Second RespondentINDRAVAND SHAH
Third Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
30 OCTOBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The respondents’ application dated 30 July 2012 be dismissed.
2.At the request of the applicants, leave be granted to issue a subpoena to Mr Ramendra Kumar of PRC Consulting in the form handed up and marked “MFI 1” returnable not less than 10 days after date of service.
3.The respondents pay the applicants’ costs of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 618 of 2011
BETWEEN: THE CHANGE GROUP INTERNATIONAL PLC
First ApplicantTHE CHANGE GROUP AUSTRALIA PTY LTD
ACN 087 042 993
Second ApplicantAND: CITY EXCHANGE MART PTY LTD
ACN 113 024 203
First RespondentRAO ARIF YASIN
Second RespondentINDRAVAND SHAH
Third Respondent
JUDGE:
EDMONDS J
DATE:
30 OCTOBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By interlocutory application dated 30 July 2012 (“the application”), the respondents seek an order setting aside, in whole or in part, the schedules to some 14 subpoenas issued to addressees other than parties to this proceeding. The application claims that the subpoenas had been issued on 28 June 2012, although my inspection of them suggests that two of the 14, those to Sana Zulfiqa and Azeem Zulfiqa, were issued on 9 July 2012. The subpoenas were issued at the request of the applicants and all were returnable before the making of the application. On the hearing of the application, it was common ground that, save in the case of the subpoena issued to Arthur Yee Pty Ltd, documents had been produced to the Court in response to each although no access had been sought by any party to inspect the documents produced.
I heard the application on 17 October 2012. I was informed from the Bar table that at about 6.30 pm the preceding evening, the applicants served on the respondents proposed amendments to the schedules to some of the subpoenas. These amendments were described by counsel for the respondents as being “limited” and that his instructions were, notwithstanding, to proceed with the application.
In support of the application, the respondents rely on the affidavit of Mr Gus Bernardi, an employed solicitor in the firm of solicitors acting for the respondents in the proceeding, affirmed 30 July 2012 (Ex 1).
The amendments proposed by the applicants were made without concession on their part and they oppose the application. In support of that opposition they rely on the affidavit of Mr Timothy John Crumpton, a partner in the firm of solicitors acting for the applicants in the proceeding, affirmed 20 June 2012 (Ex A). Exhibit A was originally filed in connection with the request for leave to issue the subpoenas, as well as other subpoenas not the subject of the application, and refiled on 23 August 2012. The applicants also rely on the affidavit of Mr Patrick Wiggins, a solicitor employed by Mr Crumpton’s firm, sworn 23 August 2012 (Ex B).
As well as opposing the application, the applicants seek leave for a subpoena to be issued to a Mr Ramendra Kumar of PRC Consulting in a form which incorporated some of the amendments of a kind proposed in relation to the subpoenas the subject of the application. A copy of the proposed form of this subpoena was handed up and marked “MFI 1”.
THE RESPONDENTS’ CASE
The principal ground of the application is that the schedules to the subpoenas, or the paragraphs of the schedules to the subpoenas, sought to be set aside require the production of documents which are wholly irrelevant to the matters in issue in the principal proceeding. In their written submissions, the respondents also invite the Court to draw an inference that compliance with the subpoenas would be oppressive having regard to their exceedingly broad terms although this secondary ground was disavowed in oral submissions.
THE RELEVANT PRINCIPLES
In Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98, Powell J at 100 gave a number of examples of the variety of cases where the Court will exercise its jurisdiction to set aside a subpoena. While a number of these examples are not relevant for present purposes, his Honour’s summation was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102 and by Conti J in Mandic v Phillis (2005) 225 ALR 760 at 771–772. In Arnotts (No 2), Beaumont J was concerned with whether documents should be produced pursuant to a subpoena issued by Arnotts Limited (among others) and served on Mattingly Pty Ltd. In an oft-quoted passage at 102–103, his Honour said:
The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose…
[T]he present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly.
Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions:
(1)Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts.
(2)Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.
…
The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.
Addressing the application the same way, having regard to the evidence that has been filed by both sides in the principal proceeding although not read on the application, I am satisfied that the documents sought to be produced by the schedules to the subpoenas, or those paragraphs of the schedules to the subpoenas, sought to be set aside, are for a legitimate forensic purpose; they are adjectively relevant to the issues which are likely to arise at the hearing of the principal proceeding. So much is a complete answer to the first question.
As far as the second question is concerned, the respondents called no evidence from any of the addressees and there has been no application by any of the addressees to have the relevant subpoena set aside on the ground that it is seriously and unfairly burdensome or prejudicial. Indeed, as noted above, documents have been produced by each addressee, other than the case of Arthur Yee Pty Ltd, and the circumstances for the non-production of documents in that case is explained in Ex B.
It follows, in my view, that the application should be dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 30 October 2012
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