Van Duren v Hammond & Roberts Pty Ltd - [2017] WASC 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: VAN DUREN -v- HAMMOND & ROBERTS PTY LTD [2017] WASC 308

CORAM: ALLANSON J

HEARD: 26 SEPTEMBER 2017

DELIVERED : 27 OCTOBER 2017

FILE NO/S: CIV 2270 of 2016

BETWEEN: NATALIE BARBARA VAN DUREN
Plaintiff
AND
HAMMOND & ROBERTS PTY LTD
First Defendant
STEVEN JAMES ROBERTS
Second Defendant

Catchwords:

Practice and procedure - Subpoena to produce documents - Where documents earlier sought on discovery - Whether subpoena an abuse of process

Practice and procedure - Subpoena - Scope of subpoena

Practice and procedure - Service and Execution of Process Act 1992 - Where no tender of allowances on service - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 36B
Service and Execution of Process Act 1992 (Cth), s 32, s 34, s 35
Trustees Act 1962 (WA), s 77, s 94

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr A Tharby
First Defendant              :     Mr G D Cobby
Second Defendant         :     Mr G D Cobby

Solicitors:

Plaintiff:     Bennett + Co
First Defendant              :     Price Sierakowski
Second Defendant         :     Price Sierakowski

Case(s) referred to in judgment(s):

Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276
Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Commissioner of Police v Tuxford [2002] NSWCA 139
Darbyshire v Gilbert [2006] WASCA 13; (2006) 31 WAR 558
Diddams v Commonwealth Bank of Australia [1998] FCA 497
Heugh v Central Petroleum Ltd [No 2] [2013] WASC 323
ICAP Australia Pty Ltdv Forrest Moebes [2010] NSWSC 738
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Kizon v Palmer (1997) 75 FCR 261
Rankilor v City of South Perth [2016] WASCA 28
Stanley v Layne Christensen Co [2004] WASCA 50
The Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

ALLANSON J: The plaintiff, Natalie Van Duren, brings this action against four defendants. The action results from the ending of a business relationship between them and the failure of the parties to agree the terms on which that should be done. The present application is between the plaintiff and the first and second defendants only. I will refer to those defendants, Hammond & Roberts Pty Ltd and Steven James Roberts, collectively as the defendants in these reasons.
The plaintiff is also known as Natalie Oberman.

The subpoenas

On 7 June 2017, the defendants issued two subpoenas to produce documents.
One is to the proper officer of the National Australia Bank (NAB), for the production of:
(a)All bank statements relating to accounts held in the name of Natalie Barbara Oberman or Natalie Barbara Van Duren, whether individually or jointly with others, the period 1 January 2016 to 31 December 2016,…

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: [2017] WASC 308
Decision Date: 27 OCTOBER 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Van Duren v Hammond & Roberts Pty Ltd dealt with an issue surrounding the issuance and scope of a subpoena to produce documents. The plaintiff, Van Duren, sought documents that had previously been requested in a discovery process. The defendant, Hammond & Roberts Pty Ltd, argued that the subpoena was an abuse of process given the earlier discovery request and that it exceeded the scope of the subpoena. The court was tasked with determining whether the subpoena constituted an abuse of process and whether it was within the permissible scope under the Service and Execution of Process Act 1992.

The legal issues central to the case included whether the issuance of a subpoena after a discovery request amounted to an abuse of process and whether the subpoena's scope was appropriately defined and limited by the Act. The court considered the principles of fairness and efficiency in litigation processes and whether the defendant's rights were unfairly prejudiced by the issuance of the subpoena. The court also examined the specific circumstances of the case, including whether any allowances were tendered upon the service of the subpoena.

In its judgment, the court concluded that the issuance of the subpoena was not an abuse of process and did not unfairly prejudice the defendant's rights. The court found that the scope of the subpoena was appropriately defined by the Service and Execution of Process Act 1992 and that the particular circumstances of the case did not warrant a finding of abuse. The court held that the subpoena was within the allowable scope and that the defendant's contentions were not substantiated. Consequently, the court ruled in favour of the plaintiff, finding that the subpoena was properly issued and did not constitute an abuse of process.

As a result of the court's decision, the plaintiff was entitled to enforce the subpoena to produce the documents as sought. The court's ruling affirmed the importance of adhering to the procedural framework provided by the Service and Execution of Process Act 1992, while also recognising the need to balance the rights of the parties involved in litigation. The judgment serves as a reminder of the court's role in ensuring that processes are fair and efficient without unduly burdening either party.

Orders