The Public Trustee of South Australia (As Legal Personal of the Estate of the late John Alfred Richardson) v Clifton Financial Services Pty Ltd (No. 1)

[2004] NSWDDT 38

Dust Diseases Tribunal

of New South Wales

CITATION:	The Public Trustee of South Australia (As Legal Personal of the Estate of the late John Alfred Richardson) v Clifton Financial Services Pty Ltd & Ors (No. 1) [2004] NSWDDT 38
PARTIES:	The Public Trustee of South Australia Clifton Financial Services Pty Ltd B I Contracting Pty Limited CSR Limited
MATTER NUMBER(S):	400 of 2002 & 221 of 2003
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	27/08/04
DATE OF JUDGMENT:	08/27/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr D G Letcher, QC instructed by Turner Freeman. FOR FIRST DEFENDANT: Mr G P F Rundle instructed by Hicksons. FOR SECOND DEFENDANT: Mr M M T Vesper instructed by Makinson & D' Apice

JUDGMENT:

1. The third defendant CSR Limited (“CSR”) moves to set aside a subpoena on two grounds namely that the documents sought are not relevant; secondly it submits that compliance with the subpoena is too burdensome, particularly at this late stage and hence they should be relieved of the obligation to comply with it.

2. As regards relevance the documents sought by the subpoena are, firstly, documents relating to three companies which may conveniently be called Ingham companies which I am told are subsidiaries of CSR during a period from 1 January 1962 to 31 December 1964.

3. The second broad type of document sought by the subpoena is records relating to the sale of materials by those Ingham companies to Bradford Insulation Contracting Ltd, the former identity of the second defendant and Bradford Insulation (SA) Ltd in respect of the same period.

4. The third type of documents sought by the subpoena is records of CSR relating to the appointment of directors in the Ingham companies. Once again the period is restricted to the period from 1 January 1962 to 31 December 1964.

5. In the course of submissions about relevance it became clear that the plaintiff seeks to obtain the documents nominated in the subpoena to demonstrate part of the chain of supply from CSR to the second defendant and also to the first defendant. I think it not unfair to say that as the submissions were being exchanged once that forensic purpose was identified learned counsel for the third defendant, CSR, could see that there may indeed be some relevance for the documents in the manner described by his learned opponent. It seems to me that they would be relevant to such an issue and for that reason I would hesitate to set aside the subpoena on the ground of relevance.

6. As regards the question of whether or not what is sought by the subpoena is too burdensome to be reasonable, firstly, I note the restricted time period in respect of which records are sought. Secondly, although the solicitors for CSR have expressed concern about what may be involved in finding the documents, there is no material presently available to confirm that compliance with the subpoena would in fact be beyond a fair thing.

7. I determine therefore that the subpoena should not be set aside. I dismiss the present application.

8. As regards costs of the application Mr Letcher seeks them - it is perhaps sufficient to say that in respect of the application the costs should follow the event.

9. Applicant to pay respondent's costs.

Mr D G Letcher, QC instructed by Turner Freeman appeared for the plaintiff

Mr G PF Rundle instructed by Hicksons appeared for the first defendant

Mr M Vesper instructed by Makinson & D’Apice appeared for the second and third defendants