Tuu v Luu - [2005] NSWLC 12

Local Court of New South Wales

CITATION: Tuu v Luu [2005] NSWLC 12

JURISDICTION: Civil

PARTIES: Thi Ha TUU
Nga LUU

FILE NUMBER: 1832 of 2004

PLACE OF HEARING: Downing Centre

DATE OF DECISION:
09/02/2005

MAGISTRATE: Magistrate H Dillon

CATCHWORDS: Procedure - Subpoena to produce - Subpoena to third party - Whether subpoena "fishing" - Whether subpoena too wide - Whether subpoena amounts to discovery against a third party

LEGISLATION CITED:

CASES CITED: Aiden Shipping Co v Interbulk [1986] AC 965
Arhill v General Terminal Co (1991) 23 NSWLR 545
Australian Workers Union v Bowen (1946) 72 CLR 575
Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Nilsen v Loyal Orange Trust (1999) 76 IR 180
Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498
Procinsky v McDermott & Rogers [1955] 4 DLR 606
R v Alister (1984) 154 CLR 404
Southern Pacific Hotel Services v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710
Woodside Petroleum Development Pty Ltd v H & R E & W Pty Ltd (1999) 20 WAR 380

REPRESENTATION: Mr J Sheller Counsel for the applicants
DGB Lawyers Solicitors for the applicants
Mr P Gray - Grzeskiewicz Counself for the 2nd Respondent
Perla & Jordan Solicitors for the 2nd Respondent

ORDERS: 1. Second respondent's subpoenae to applicants issued 5 August 2005 set aside.; 2. Second respondent's subpoena to applicants issued 28 June 2005 set aside in part (see paragraphs [52] ff).; 3. Costs orders will follow submissions from parties.

Judgment

1. The applicants on the motion now before the Court are the recipients of subpoenae to produce issued at the request of the second respondent, Ms Elena Perla. (The first respondent, Mr David Quinn, has, as it were, merely a ‘watching brief’ in relation to this matter.) The applicants seek to have the Court set aside the subpoena on the bases that they an abuse of process – a ‘fishing expedition’ – or too wide and therefore oppressive, or an attempt to obtain discovery against third parties, or lack a legitimate forensic purpose or a combination of two or more of these.

3. Five subpoenae are the subjects of the motion. Three were issued on 28 June 2005 to, respectively, the Proper Officer, Insurance Australia Group Ltd (‘IAG’); the Proper Officer, NRMA Insurance Ltd (‘NRMA’); and Brian Baird, Linda Wright and Warren Budd trading as DGB Lawyers (‘DGB’). NRMA Insurance Ltd has undergone a name change. It is now called ‘Insurance Australia Ltd’ (‘IAL’) but no point is taken by the applicants in that regard.

5. Two further subpoenae were issued on 5 August 2005 addressed, respectively, to the Proper Officers of IAG and NRMA (or IAL as all parties concede it ought properly to have been nominated).

7. The June subpoenae are in most respects identical in their terms. The schedule to the subpoena addressed to DGB seeks the production of the following documents or categories of documents:

1 . The personnel file of Russell Miller.

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.

Continue reading Tuu v Luu

Details

AGLC: Tuu v Luu [2005] NSWLC 12
Case: [2005] NSWLC 12
Decision Date: 09/02/2005

CaseChat Overview and Summary

In Tuu v Luu, the applicants sought to have two subpoenas issued by the second respondent set aside. The subpoenas were issued in the context of an ongoing proceeding. The subpoenas required the applicants to produce a range of documents and other materials. The applicants argued that the subpoenas were too wide-ranging and amounted to a form of discovery against a third party. The court was required to determine whether the subpoenas were valid and enforceable.

The legal issues before the court included whether the subpoenas were "fishing" exercises, whether they were too wide-ranging, and whether they amounted to discovery against a third party. The court considered the relevant case law and statutes, including the Uniform Civil Procedure Rules and the common law principles of discovery. The court also considered the nature of the proceeding and the relevance of the materials sought by the subpoenas.

The court found that the subpoenas were too wide-ranging and amounted to a form of discovery against a third party. The court noted that the subpoenas required the production of a range of documents and materials that were not directly relevant to the proceeding. The court also found that the subpoenas were a form of discovery against a third party because they required the applicants to produce documents that were in the possession of a third party. The court set aside both subpoenas and ordered that costs orders will follow submissions from the parties.

Orders

Orders of the court

1. Second respondent's subpoenae to applicants issued 5 August 2005 set aside.; 2. Second respondent's subpoena to applicants issued 28 June 2005 set aside in part (see paragraphs [52] ff).; 3. Costs orders will follow submissions from parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Tuu v Luu [2005] NSWLC 12
JURISDICTION:	Civil
PARTIES:	Thi Ha TUU Nga LUU
FILE NUMBER:	1832 of 2004
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	09/02/2005
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Procedure - Subpoena to produce - Subpoena to third party - Whether subpoena "fishing" - Whether subpoena too wide - Whether subpoena amounts to discovery against a third party
LEGISLATION CITED:
CASES CITED:	Aiden Shipping Co v Interbulk [1986] AC 965 Arhill v General Terminal Co (1991) 23 NSWLR 545 Australian Workers Union v Bowen (1946) 72 CLR 575 Commissioner of Railways v Small (1938) 38 SR (NSW) 564 Nilsen v Loyal Orange Trust (1999) 76 IR 180 Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498 Procinsky v McDermott & Rogers [1955] 4 DLR 606 R v Alister (1984) 154 CLR 404 Southern Pacific Hotel Services v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710 Woodside Petroleum Development Pty Ltd v H & R E & W Pty Ltd (1999) 20 WAR 380
REPRESENTATION:	Mr J Sheller Counsel for the applicants DGB Lawyers Solicitors for the applicants Mr P Gray - Grzeskiewicz Counself for the 2nd Respondent Perla & Jordan Solicitors for the 2nd Respondent
ORDERS:	1. Second respondent's subpoenae to applicants issued 5 August 2005 set aside.; 2. Second respondent's subpoena to applicants issued 28 June 2005 set aside in part (see paragraphs [52] ff).; 3. Costs orders will follow submissions from parties.