Timcal Pty Ltd v Sons of Gwalia Ltd (Subject to Deed of Company Arrangement)
[2010] WASC 406
•8 FEBRUARY 2011
TIMCAL PTY LTD -v- SONS OF GWALIA LTD (Subject to Deed of Company Arrangement) [2010] WASC 406
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 406 | |
| Case No: | COR:28/2009 | 18 NOVEMBER 2010 | |
| Coram: | LE MIERE J | 8/02/11 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to pay costs of motion to set aside the subpoena | ||
| B | |||
| PDF Version |
| Parties: | TIMCAL PTY LTD SONS OF GWALIA LTD (Subject to Deed of Company Arrangement) DARREN WEAVER GARRY TREVOR ANDREW LOVE LIKNO ESTABLISHMENT As Trustee For THE CLYDE TRUST DAWN EVELYN ROBBINS SONS OF GWALIA LTD (Subject to Deed of Company Agreement) |
Catchwords: | Practice and procedure Subpoena returnable before trial Rules of the Supreme Court 1971 (WA) O 36B Application to set subpoena aside Whether leave required to issue a subpoena returnable before trial Relevance Costs Reasonable loss and expense Legal representation Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 36B |
Case References: | Areva NC (Australia) Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 McClure v Mayor and Councillors of the City of Stirling [No 2] [2008] WASC 286 Seven Network Ltd v News Ltd (No 5) [2005] FCA 510 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SONS OF GWALIA LTD (Subject to Deed of Company Arrangement)
First Defendant
DARREN WEAVER
Second Defendant
GARRY TREVOR
Third Defendant
ANDREW LOVE
Fourth Defendant
- Plaintiff
AND
- SONS OF GWALIA LTD (Subject to Deed of Company Arrangement)
First Defendant
DARREN WEAVER
Second Defendant
GARRY TREVOR
Third Defendant
ANDREW LOVE
Fourth Defendant
- Plaintiff
AND
SONS OF GWALIA LTD (Subject to Deed of Company Agreement)
First Defendant
DARREN WEAVER
Second Defendant
GARRY TREVOR
Third Defendant
ANDREW LOVE
Fourth Defendant
Catchwords:
Practice and procedure - Subpoena returnable before trial - Rules of the Supreme Court 1971 (WA) O 36B - Application to set subpoena aside - Whether leave required to issue a subpoena returnable before trial - Relevance - Costs - Reasonable loss and expense - Legal representation - Turns on own facts
(Page 3)
Legislation:
Rules of the Supreme Court 1971 (WA), O 36B
Result:
Plaintiff to pay costs of motion to set aside the subpoena
Category: B
Representation:
COR 28 of 2009
Counsel:
Plaintiff : Mr J J Garnsey QC & Mr M R Gracie
First Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Second Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Third Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Fourth Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Jeffrey Dowling : Ms B Ludlow
Solicitors:
Plaintiff : Thomas Booler & Co
First Defendant : Freehills
Second Defendant : Freehills
Third Defendant : Freehills
Fourth Defendant : Freehills
Jeffrey Dowling : Blake Dawson
COR 29 of 2009
Counsel:
Plaintiff : Mr J J Garnsey QC & Mr M R Gracie
First Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Second Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Third Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
- Fourth Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Solicitors:
Plaintiff : Thomas Booler & Co
First Defendant : Freehills
Second Defendant : Freehills
Third Defendant : Freehills
Fourth Defendant : Freehills
COR 31 of 2009
Counsel:
Plaintiff : Mr J J Garnsey QC & Mr M R Gracie
First Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Second Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Third Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Fourth Defendant : Mr K J Mony De Kerloy & Mr S J Dundas
Solicitors:
Plaintiff : Thomas Booler & Co
First Defendant : Freehills
Second Defendant : Freehills
Third Defendant : Freehills
Fourth Defendant : Freehills
Case(s) referred to in judgment(s):
Areva NC (Australia) Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276
McClure v Mayor and Councillors of the City of Stirling [No 2] [2008] WASC 286
Seven Network Ltd v News Ltd (No 5) [2005] FCA 510
(Page 5)
1 LE MIERE J: The plaintiff commenced these proceedings in the Federal Court. The proceedings were transferred to this court under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act) by order of Justice Jacobsen of the Federal Court of Australia made 6 February 2009. The plaintiff's case is founded upon claims of misleading and deceptive conduct and non-disclosure by Sons of Gwalia Ltd (Subject to Deed of Company Arrangement) (SOG). By notice of motion filed 14 September 2010 the plaintiff moved for orders that pursuant to s 5 of the Cross-Vesting Act the proceedings be transferred to the Federal Court of Australia, Sydney Registry. The notice of motion was listed for hearing on 18 November 2010. On 4 November 2010 the plaintiff caused to be issued to Jeffrey Dowling, Ernst & Young, a subpoena. The subpoena ordered Mr Dowling to attend on 18 November 2010 to produce the subpoena and the documents specified or by delivering or sending the subpoena and the specified documents to the registrar before the dates specified for attendance and production. The subpoena specified that the documents to be produced were:
Any documents relating to the settlement of action CIV 1152 of 2005 in the Supreme Court of Western Australia between Sons of Gwalia Ltd (Subject to Deed of Company Arrangement) (SOG), yourself and others and CIV 2374 of 2008 in the Supreme Court of Western Australia between SOG, yourself, Crestcave Pty Ltd and others from the date of the commencement of settlement negotiations until 28 February 2009.
2 On 16 November 2010 Mr Dowling caused to be issued a chamber summons to set aside the subpoena on the grounds that:
a. the material sought in the subpoena are not for a legitimate forensic purpose in that they are manifestly irrelevant to these proceedings; and/or
b. the scope of the material sought in this subpoena is too wide.
3 The plaintiff's application to transfer the proceedings to the Federal Court and Mr Dowling's chamber summons to set aside the subpoena came on for hearing on 18 November 2010. Senior counsel for the plaintiff, Mr Garnsey QC, informed the court that the subpoena was issued before Mr Weaver had put on his affidavit of 10 November 2010 and consequently its utility was very limited and furthermore that the plaintiff had been informed by Mr Dowling's solicitors by letter of 15 November 2010 that Mr Dowling does not possess any documents as described in the subpoena. I adjourned the subpoena and the chamber summons to set aside the subpoena and gave the parties leave to put on
(Page 6)
- written submissions in relation to the costs of the subpoena and the application to set it aside.
Plaintiff's contentions
4 The plaintiff submits that the plaintiff should have the costs of the summons to set aside the subpoena and Mr Weaver's costs on the subpoena should be limited to the reasonable cost of search and notification of nothing to produce.
Mr Dowling's contentions
5 Mr Dowling submitted that the subpoena should be set aside on the following grounds:
(a) lack of apparent relevance;
(b) the subpoena is an attempt to gain discovery from a non-party in the proceedings when documents were otherwise obtainable from a party to the proceeding;
(c) it is not usually legitimate to issue a subpoena before trial to a non-party in order to bypass the procedure in O 26A; and
(d) in the absence of clarification from the plaintiff's solicitors, the subpoena may have put Mr Dowling, a non-party to the proceedings, to the trouble and expense of ransacking his records to form a judgment as to whether his papers throw light on the dispute.
6 Mr Dowling further submitted that the plaintiff should pay his costs, and his legal costs, in relation to the subpoena and the application to set the subpoena aside.
Is leave required?
7 Mr Dowling submitted that leave of the court is required if a party proposes to issue a subpoena to compel a witness to attend to give evidence on an interlocutory application because leave is required if the return date is any date before trial. Mr Dowling's submissions referred to McClure v Mayor and Councillors of the City of Stirling [No 2] [2008] WASC 286. The plaintiff submitted that the subpoena was regularly issued and that leave was not required. The plaintiff referred to Areva NC (Australia) Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276.
(Page 7)
8 Order 36B r 3(6) of the Rules of the Supreme Court 1971 (WA) provides that the date specified for the return of the subpoena must be the date of trial or any other date permitted by the court. Leave of the court is no longer required before the issue of a subpoena returnable prior to trial: see Areva NC (Australia) Ltd v Summit Resources (Australia) Pty Ltd [18] - [19] (Martin CJ).
9 In McClure v Mayor and Councillors of the City of Stirling Beech J said that leave is required if the return date of a subpoena is any date before trial. However, in that case the plaintiff proposed to issue a subpoena to compel a witness to attend to give evidence on an interlocutory application. Beech J said that leave of the court is required in that circumstance.
Costs
10 The only issue that remains to be resolved is the costs of Mr Dowling in answering the subpoena, the costs of the motion to set aside the subpoena and the costs of written submissions in relation to the subpoena issued to Mr Dowling.
Costs of subpoena
11 Order 36B r 11(1) provides that the court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. No reason has been advanced why Mr Dowling, rather than the plaintiff, should bear the loss or expense incurred by Mr Dowling in complying with the subpoena. The plaintiff should pay to Mr Dowling the amount of any reasonable loss or expense incurred in complying with the subpoena.
12 The court does not usually award costs in favour of a subpoena recipient who engages legal representation. However, each case must be considered on its merits. The documents sought in the subpoena issued to Mr Dowling relate to long running and complex proceedings. Those matters were settled. Mr Dowling's counsel submits, and I accept, that the details of the negotiations of the settlement, which were sought in the subpoena, were confidential and, at least in some cases, the subject of legal professional privilege. It was reasonable for Mr Dowling to engage legal representatives to assist him in responding to the subpoena. It would not be just to leave the burden of the costs of responding to the subpoena upon the party to whom the subpoena was issued. The costs should be payable by the party at whose instance the subpoena was issued. The
(Page 8)
- plaintiff should pay the reasonable legal costs incurred by Mr Dowling in responding to the subpoena.
Costs of motion to set aside subpoena
13 I have found that the subpoena was regularly issued in that leave was not required for its issue. However, I find that the plaintiff should pay the costs of the motion to set aside the subpoena. That is because the conduct of the plaintiff's solicitors unnecessarily caused Mr Dowling to apply to set aside the subpoena and incur the costs in relation to that application.
14 Lack of apparent relevance is a factor for consideration in an application to set aside a subpoena. The test of apparent relevance is whether the documents are 'reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case': Seven Network Ltd v News Ltd (No 5) [2005] FCA 510 [10]. After the subpoena was served on Mr Dowling his solicitor, Ms Ludlow, telephoned the plaintiff's solicitor, Mr Joukhador, and asked for a copy of the originating process and statement of claim in the matter. Mr Joukhador emailed to Ms Ludlow a copy of the originating process and statement of claim. Mr Joukhador did not tell Ms Ludlow that the hearing in relation to which the documents were sought was an application to transfer the proceedings from this court to the Federal Court pursuant to the Cross-Vesting Act. On 15 November 2010 Ms Ludlow wrote to Mr Joukhador stating, amongst other things, that having reviewed the originating process and statement of claim she could not see how the documents requested by the subpoena were in any way relevant to the subject matter of the proceedings. On the face of it, the documents requested were not relevant to the proceedings commenced by the originating process. Mr Joukhador did not reply to Ms Ludlow's letter. On 16 November 2010 Mr Joukhador emailed to Ms Ludlow a copy of the plaintiff's outline of submissions entitled 'Applicant's outline of submissions on hearing of notices of motion filed 10 September 2010 for hearing 18 November 2010 before Justice Le Miere'. Ms Ludlow again emailed Mr Joukhador requesting a response to her letter of 15 November 2010. Mr Joukhador did not reply to the letter. Mr Joukhador subsequently emailed a copy of further court documents.
15 Mr Dowling, through his solicitor, informed the plaintiff's solicitor that the documents requested by the subpoena appeared to be irrelevant to the issues in the proceedings in relation to which they were sought. The plaintiff's solicitor should have, but did not, inform Mr Dowling or his solicitor of the application in relation to which the documents were sought and the relevance of the documents to that application. The failure of the
(Page 9)
- plaintiff's solicitors to make that simple response led to the issue of the summons to set aside the subpoena. The plaintiff should pay the costs of the summons. The plaintiff should also pay the costs of the submissions in relation to the costs concerning the subpoena and the summons to set aside the subpoena.
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