Tomlinson, P.J. v Cut Price Deli Pty. Limited

[1992] FCA 1012

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 72 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: PETER JOHN TOMLINSON and

JEAN TOMLINSON

Applicants

AND :  CUT PRICE DEL1 PTY. LIMITED ! .

First Respondent

AND :  ENZO SGAMBELLONE

Second Respondent

AND:  HARRY MALOVANY

Third Respondent

AND :  PETER HOEFLER

Fourth Respondent

AND :  RON HARMER

Fifth Respondent

AND:  CUT PRICE DEL1 PTY. LIMITED

Cross Claimant

AND:  PETER JOHN TOMLINSON and
JEAN TOICLINSON

Cross Respondents

i

MINUTES OF ORDERS

Drummond J

16 December,

Brisbane

THE COURT ORDERS THAT:

I

1. The subpoena to Mr. Harold Fong to produce documents

returnable 16 December, 1992 be set aside. ! -

2.

The respondents pay Mr. Harold Fong's costs of and	I
incidental to the subpoena directed to him and to	i

the notice of motion filed on his behalf on 10 December, 1992, to be taxed on a party and party basis.

The subpoena to Ms. Maxine Dodd to produce documents returnable 16 December, 1992 be set aside.

The subpoena to Mr. Brian Galvin to produce documents returnable 16 December, 1992 be set aside.

The costs of today, so far as they relate to the action, are costs in the proceedings.

THE COURT DIRECTS THAT:

1. All parties have leave to inspect and make copies of the documents delivered to the Registry, upon subpoena, by the following persons:

- Val Williams (Centre Manager of Capalaba
Park Shopping Centre);

- Colliers Jardine (Qld) Pty. Ltd.;

- Trevor Holzapfel (of old Coast
Refrigeration);

- The National Manager (Strategy Finance and
Administration, Telecom Australia).

The applicants deliver to the respondents' solicitor, by no later than 4.00 p.m. on Wednesday, 23 December, 1992, a statement for the financial year ending 30 June, 1992 and a further statement for the period 1 July, 1992 to 30 November, 1992, which statements are to contain information on the following:

- sales

- operating costs

- the costs of purchases.

The respondent deliver to the applicants1 solicitor, by no later than 4.00 p-m. on Monday, 4 January, 1993, a copy of the final expert's report upon which they intend to rely at the hearing.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 72 of 1991
9UEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN:  PETER JOHN TOMLINSON and
JEAN TOMLINSON

Applicants

AND :  CUT PRICE DELI PTY. LIMITED

First Respondent

AND :  ENZO SGAMBELLONE

Second Respondent

AND:  HARRY MALOVANY

Third Respondent

AND :  PETER HOEFLER

Fourth Respondent

AND :  RON HARMER

Fifth Respondent

AND :  CUT PRICE DELI PTY. LIMITED

Cross Claimant

AND:  PETER JOHN TOMLINSON and
JEAN TOI&INSON

Cross Respondents

Coram:	Drummond J
Date:	16 December, 1992

Place: Brisbane

EX !EWPORE REASONS FOR JUDGMENT

The respondents have served a subpoena upon the solicitor on the record for the applicants requiring him to produce all his diaries being records of appointments, meetings, and attendances between December 1990 and April 1991 inclusive, concerning or relating to Peter and Jean Tomlinson and the Cut Price Deli Shop at Capalaba.

I have before me a notice of motion filed on behalf of Mr. Fong seeking to set aside that subpoena. Correspondence is also before me coming from the solicitors for the respondents in which it is asserted thai: the time when Mr. and Mrs. Tomlinson first gave instructions or discussed matters with Mr. Fong concerning the Cut Price Deli is or may be of relevance to some of the issues in the case. I am not at all certain that that proposition is right, but in any event it seems to me that the objection to the subpoena is well founded.

There is nothing before me to indicate how any diary entry in Mr. Fong's diary recording the time of an appointment with Mr. and Mrs. Tomlinson can be of any relevance to any of the issues. So far as the material before me goes, the Tomlinsons may have discussed matters with Mr. Fong on a particular occasion that have nothing whatsoever to do with

this action. It is for the respondents who have issued the

subpoena to establish how an entry relating to an appointment might be of relevance to these particular proceedings. There is a total lack of evidence to indicate how such an entry could have relevance to issues in the case. Mr. Fong cannot be required by this subpoena to check through his diary and make his own judgment on whether any particular entry in his diary recording a meeting with the Tomlinsons might be of relevance to the action.

I w i l l therefore make an order i n terms of paragraph

1 of the notice of motion.

I cer t i fy that t h i s and the preceding

two pages i s a true copy of the
reasons for judgment herein of the

Honourable M r . Justice Drummond.

Associate: @+v'- Date : 1 6 December, 1992