Travel Compensation Fund v Blair - [2002] NSWSC 1228

CITATION: Travel Compensation Fund v Blair & Ors [2002] NSWSC 1228

CURRENT JURISDICTION: Equity Division
Commercial List

FILE NUMBER(S): SC 50175/02; 50176/02; 50177/02; 50178/02; 50179/02; 50180/02; 50181/02; 50182/02; 50183/02

HEARING DATE(S): 5 December 2002

JUDGMENT DATE: 20 December 2002

PARTIES :

Travel Compensation Fund (Pltf)
John Harvey Blair (1D)
George Frazis (2D)
Scott David Roworth (3D)
Gary Kenneth Toomey (4D)

JUDGMENT OF: McClellan J

COUNSEL : R McColl SC/I Mescher (Pltf)
A J Meagher SC/P R Whitford (1D)
S Donaldson SC/R Butler (2 & 3D)
S D Rares SC/M Speakman (4D)
A Vincent (ASIC)
M Clifton (Air New Zealand)

SOLICITORS: Minter Ellison (Pltf)
Corrs Chambers Westgarth (1D)
Deacons (2 & 3D)
Henry Davis York (4D)

CATCHWORDS: SUBPOENAE - documents held by ASIC including transcripts of interviews of directors within the Ansett Group - whether in relation to a claim under the Travel Agents Act 1986 the subpoenae should be set aside - Part 37 Rule 8 - "sufficient interest" - "fishing" - abuse of powers

LEGISLATION CITED: Travel Agents Act 1986 (NSW) ss 40(3); 40(4)
ASIC Act 2001 s 25

CASES CITED: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Compsyd Pty Limited v Streamline Travel Services Pty Limited (1987) 10 NSWLR 648
Fried & Ors v National Australia Bank (2000) 175 ALR 194
Brand v Digi-Tech (Australia) Ltd (2001) NSWSC 25
The Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Newcastle City Council v Kern Land Pty Ltd & Anor, unreported, NSWSC, 9 December 1996
Schutt v Queenan [2000] NSWCA 341
NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139
Attorney General for Stuart (1994) 34 NSWLR 667
Lakatoi Universal Pty Limited & Ors v Walker, unreported, NSWSC, 31 July 1998

DECISION: See para 31

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McCLELLAN J

FRIDAY 20 DECEMBER 2002

50175/02; 50176/02; 50177/02; 50178/02; 50179/02; 50180/02; 50181/02; 50182/02; 50183/02 - TRAVEL COMPENSATION FUND v BLAIR & ORS

JUDGMENT

1 McCLELLAN J: There are presently nine proceedings before the court in which the Travel Compensation Fund (“the Fund”) seeks to recover monies from the defendants pursuant to the Travel Agents Act 1986 (NSW) or its equivalent in other states. The nine proceedings have been carefully chosen as “test cases”. Other proceedings were commenced before the test cases and there are potentially thousands more cases. The defendants were directors of either Ansett Australia Limited or Traveland Pty Limited which were both part of the Ansett group of companies.

2 The Ansett group failed leaving many people, who had paid monies to Ansett or Traveland, without their anticipated travel or accommodation.

3 The Fund has already compensated many persons who had booked and paid for travel and accommodation before the collapse. It has commenced proceedings in accordance with the provisions of ss 40(3) and 40(4) of the Act. Where a payment is made to a claimant under the compensation scheme by reason of an act or omission by a person carrying on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 1228
Decision Date: 20 December 2002

CaseChat Overview and Summary

The case involved a legal dispute between the Travel Compensation Fund and Blair. The matter was brought before the court to determine whether subpoenas issued to the Australian Securities and Investments Commission (ASIC) should be set aside, as they related to documents held by ASIC including transcripts of interviews of directors within the Ansett Group. The central issue was whether the subpoenas were issued in relation to a claim under the Travel Agents Act 1986 and whether the Fund had a sufficient interest in the proceedings to justify the subpoenas. The court also had to consider whether the subpoenas were an abuse of the court's process or if they were akin to "fishing" expeditions.

The court examined the relevant provisions of Part 37 Rule 8 and assessed the nature of the subpoenas and their relevance to the claim under the Travel Agents Act 1986. The court noted that the Fund's interest in the documents held by ASIC was not immediately apparent and that the subpoenas appeared to be seeking documents that were not directly related to the claim. The court found that the subpoenas could be considered an abuse of the court's process if they were issued for an improper purpose or if they were too broad and not narrowly tailored to the specific issues in the case. The court held that the Fund had not demonstrated a sufficient interest in the proceedings to justify the subpoenas and that the subpoenas were likely to result in an abuse of the court's process.

The court concluded that the subpoenas should be set aside as they did not meet the requirements set out in Part 37 Rule 8. The court found that the Fund had not demonstrated a sufficient interest in the proceedings to justify the subpoenas, and that the subpoenas were likely to result in an abuse of the court's process. The court emphasised the need for parties to ensure that their subpoenas are narrowly tailored to the specific issues in the case and that they are not issued for an improper purpose. The court also noted that parties must demonstrate a sufficient interest in the proceedings to justify the issuance of subpoenas. The court set aside the subpoenas issued to ASIC and ordered that the documents sought by the subpoenas be returned to ASIC.

Orders