United Cinemas Australia Pty Limited v Gungahlin Lifestyle Pty Ltd
[2018] ACTSC 362
•11 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | United Cinemas Australia Pty Limited v Gungahlin Lifestyle Pty Ltd |
Citation: | [2018] ACTSC 362 |
Hearing Date: | 11 September 2018 |
DecisionDate: | 11 September 2018 |
Before: | Burns J |
Decision: | See [13]-[14], [16]-[17], [19] and [22] |
Catchwords: | PRACTICE AND PROCEDURE – Application to set aside subpoenas – whether the Court is bound to determine the applications to set aside the subpoenas at first instance – abuse of process – fishing – narrowing of the documents – whether documents which are sought pursuant to those subpoenas are subject to any form of privilege – usual order for costs |
Cases Cited: | The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 |
Parties: | United Australia Pty Limited (ACN 124 779 077) (Plaintiff/Respondent) Gungahlin Lifestyle Pty Ltd (ACN 165 510 958) (Defendant/Applicant) |
Representation: | Counsel Mr A Hourigan (Plaintiff/Respondent) Mr G Blank (Defendant/Applicant) |
| Solicitors William Roberts Lawyers (Plaintiff/Respondent) MinterEllison (Defendant/Applicant) | |
File Number: | SC 28 of 2018 |
BURNS J:
As I understand the material before me, three subpoenas have been issued at the request of the applicant who is the plaintiff in the current proceedings before the Associate Justice.
The proceedings before the Associate Judge essentially concern the construction of an agreement to lease, and whether the respondent, Gungahlin Lifestyle Pty Ltd, was entitled pursuant to the terms of that agreement to terminate the agreement as it has purported to do. Not only are MinterEllison the solicitors representing the respondent in the proceedings before the Associate Judge, they were also the lawyers who were representing the respondent in the development itself. The respondent, I should add at this point, is the developer with respect to a particular development which is the subject of the proceedings.
The first two subpoenas have been issued to MinterEllison, the solicitors who are acting on behalf of the respondent in the proceedings before the Associate Judge. The third subpoena was issued to a company, Lockbridge Pty Ltd, which has been, as I understand it, retained by the respondent in the proceedings before the Associate Judge with respect to making certain assessments as to the economic feasibility of the development.
The statement of claim which has been filed by the plaintiff, who is the respondent to the application to set aside the subpoenas, raises a number of issues relating to the termination notice purportedly issued by Gungahlin Lifestyle Pty Ltd pursuant to the agreement for lease. Some of those are technical issues such as whether the provisions of the agreement for lease relied upon by Gungahlin are invalid and of no effect by reason of their uncertainty, and perhaps other reasons.
The second matter which appears to be raised in the pleadings in the statement of claim is a question whether if the particular provisions relied upon by Gungahlin to issue the notice of termination are valid, whether the events which would give rise to an entitlement on the part of Gungahlin to issue the termination notice had yet occurred.
Perhaps the third issue raised in the pleadings is a claim by the plaintiff that Gungahlin has not been acting in good faith in relation to the issue of the termination notice. In that regard, as I understand the pleadings, it is suggested that there was a motivation on the part of Gungahlin for issuing the notice of termination which would not be a motivation consistent with the terms of the clause under which it purported to issue the termination notice.
Application to set aside subpoenas
At the present time I am dealing only with the question of whether the subpoenas should be set aside. There are contingent issues such as whether documents which are sought pursuant to those subpoenas are subject to any form of privilege. At the present time, however, I will leave that aside.
The significant legal issue which appears to arise between the parties with respect to this application is whether I am bound to determine the applications to set aside the subpoenas at first instance, purely on the basis of the face of the subpoena, and the pleadings.
If that were to be the case, then in my view the second subpoena to MinterEllison and the subpoena to Lockbridge Pty Ltd, which I understand is in the same terms, would be clearly too wide, and would be subject to being set aside. Mr Hourigan on behalf of the plaintiff, however, submits that I am entitled to go beyond that in the present application in that I have been advised that only a certain number of documents are now identified as being in question.
10. The principles which Mr Blank referred me to relating to the setting aside of subpoenas as an abuse of process because they constitute on the one hand effectively seeking discovery from a third party or, on the other hand, although the two are not entirely separate, an exercise in fishing, really cannot in my view be entirely divorced from the question of oppression as such. Mr Blank referred me to the decision in The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 for the proposition that a third party should not be required effectively to give discovery in proceedings in which he is not a party.
11. Were it not for the fact that there has been a significant narrowing of the documents that are the subject of the subpoenas, I would have agreed that the subpoenas in effect were seeking discovery from the third parties referred to in the subpoenas, or to whom they were addressed. However, having regard to the fact that the issues have been narrowed between the parties with respect to the matter, I am not satisfied that this is a case where I should set aside the subpoenas to MinterEllison on the basis of abuse of process.
12. In particular the first subpoena, I should say, is fairly narrowly drawn and appears to seek documents relevant only to the correspondence relating, or correspondence or other documents, relating to the termination notice of 29 January 2018. As I said, were it not for the fact that the parties have reached some agreement in terms of narrowing the issues to which the second subpoena to MinterEllison is directed, I would have held that it was too widely drawn and I would have set it aside. However, in the circumstances as they now exist, I do not propose to do that.
13. The applications to set aside the MinterEllison subpoenas will be refused.
14. The scope of the documents sought pursuant to the subpoena to Lockbridge has not been narrowed by any agreement between the parties, as indeed has occurred in relation to the second MinterEllison subpoena which was in the same form. So in that regard, I am obliged to approach the question of the application to set aside the subpoena to Lockbridge on the basis of the face of that document, and I am satisfied that it is simply too widely framed and that subpoena will be set aside.
15. No suggestion has previously been raised that Gungahlin Lifestyle Pty Ltd did not have sufficient standing to make the application to set aside the subpoena to Lockbridge. In that regard I do note that Lockbridge is said to have been retained by Gungahlin Lifestyle Pty Ltd, and it would be I think the inevitable inference that any of the documents that are currently sought would be documents that came into existence for the purposes of Gungahlin Lifestyle Pty Ltd and with respect to its interests. I am satisfied that Gungahlin Lifestyle Pty Ltd has a sufficient interest in the subpoena to seek to have the subpoena set aside.
Privilege
16. We now need to engage upon an exercise of looking at privilege in relation to those documents insofar as it may be claimed. I have had an opportunity to closely examine the documents which have been produced, and in respect of which privilege is claimed. With respect to the first MinterEllison subpoena, I am satisfied that documents numbered 1, 2, 14, 17, 18, and 19 are the subject of privilege on the basis that they came into existence with the predominant purpose of allowing Gungahlin to obtain legal advice from MinterEllison.
17. With respect to document 24, that is in fact a copy of a termination notice which was provided to the landlord under MinterEllison's understanding that such a termination notice was required. I see no reason why that would be the subject of any form of privilege. It appears not to be a document prepared for the purposes of obtaining legal advice, or containing such advice, and on the face of it is signed and appears to be a copy of the document which was served on the landlord purportedly in compliance with the terms of the agreement.
18. I should also say that I am satisfied that there has been no waiver of privilege with respect to the other documents to which I have referred.
19. Turning now to the second MinterEllison subpoena, I am satisfied that each of those documents was prepared for the purpose of obtaining advice from MinterEllison, and I am satisfied that each of those documents is subject to privilege.
20. If it is of any comfort to the plaintiff in relation to this matter, I can say that in my view there is no way that any of these documents would have assisted in the advancement of its claim.
Costs
21. Gungahlin Lifestyle Pty Ltd has been substantially successful in relation to the application. In my view there is no reason why I should not make what I would regard to be the usual order for costs.
United Cinemas Australia Pty Ltd is to pay the costs of Gungahlin Lifestyle Pty Ltd with respect to the application as agreed or assessed, but I will direct that that not occur prior to judgment being handed down in the proceedings overall.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Justice Burns. Associate: Date: 6 February 2019 |
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