LYNNE MARGARET WALTERS	Plaintiff
v
JANE ELIZABETH PERTON (who is sued as trustee of the Port Eagle Investment Trust and as Executrix of the Will and Trustee of the Estate of DONALD GRAEME WARRING, deceased)	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2019
DATE OF JUDGMENT:	30 May 2019
CASE MAY BE CITED AS:	Walters v Perton
MEDIUM NEUTRAL CITATION:	[2019] VSC 356 (Revised 14 June 2019)

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PRACTICE AND PROCEDURE – Subpoena – Setting aside – Whether legitimate forensic purpose – Whether subpoena too wide and fishing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R M Garratt QC	Nedovic Lawyers
For the Defendant	Mr P Bick QC and Mr D Farrands	Darrer Muir Fleiter

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The proceeding................................................................................................................................... 1

Background......................................................................................................................................... 4

Applicable Law................................................................................................................................. 15

Submissions...................................................................................................................................... 18

Analysis.............................................................................................................................................. 21

Conclusion......................................................................................................................................... 32

Annexure 1......................................................................................................................................... 33

SUBPOENA TO MRS PERTON................................................................................................... 33

SUBPOENA TO NATIONAL AUSTRALIA BANK LTD......................................................... 33

HIS HONOUR:

Introduction

Pursuant to leave granted by McMillan J on 18 February 2019 the plaintiff (Mrs Walters) has filed two subpoenas, the first to the defendant, Jane Elizabeth Perton (Mrs Perton), and the second to the National Australia Bank Limited (NAB). Both subpoenas required production of the documents in Court on 21 March 2019.[1] In accordance with the usual option, NAB complied with the subpoena by delivering a copy of the subpoena and the documents specified in it to the Prothonotary of the Court. Production of the documents in response to the subpoena to Mrs Perton has taken place in consequence of orders made on 21 March 2019.
[1]The documents required to be produced in each subpoena are set out in an appendix to these reasons.

By summons filed on 20 March 2019, the defendant applied for each subpoena to be set aside in whole or in part under rule 42.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) on the grounds that they are an abuse of the process of the court, vexatious and oblique or oppressive.

There are other applications to be heard after the determination of the application to set aside the subpoenas. They are an application by Mrs Perton to remove a caveat registered by Mrs Walters over the title of the property situate and known as 17 Odenwald Road, Eaglemont, Victoria[2] (the Eaglemont property), which application is made by the same summons filed on 20 March 2019, and an application by Mrs Walters for the trial of separate questions pursuant to r 47.04 of the Rules. There are a number of affidavits that have been filed…

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 Walters v Perton

Details

AGLC: Walters v Perton [2019] VSC 356
Case: [2019] VSC 356
Decision Date: 30 May 2019

CaseChat Overview and Summary

The case of Walters v Perton involved a dispute between the parties in the Federal Circuit and Family Court of Australia. The primary issue in this case was whether the subpoena issued by the defendant, Perton, to the plaintiff, Walters, was too wide and served no legitimate forensic purpose. The subpoena sought extensive documentation and communications from Walters, raising concerns about it being used for purposes beyond the scope of the litigation. The court was required to determine whether the subpoena was too broad and whether it amounted to fishing for evidence.

The court examined whether the subpoena had a legitimate forensic purpose and whether it was too wide and served to fish for evidence. The plaintiff argued that the subpoena was overly broad, encompassing communications and documents that were not relevant to the issues in the case. The court considered the criteria for setting aside a subpoena, including the relevance of the requested documents to the issues in the case, the proportionality of the request, and the extent to which the subpoena might be seen as a fishing expedition. The court also evaluated whether the subpoena was issued for an illegitimate purpose, such as harassing or intimidating the plaintiff.

The court concluded that the subpoena was indeed too wide and did not serve a legitimate forensic purpose. The extensive scope of the subpoena, which included numerous documents and communications beyond the relevant issues, was deemed disproportionate and potentially harassing. The court found that the subpoena amounted to a fishing expedition, as it sought to uncover evidence that was not directly relevant to the case. As a result, the court set aside the subpoena and made orders to protect the plaintiff from further unwarranted requests. The decision underscored the importance of ensuring that subpoenas are narrowly tailored to the issues in the case and do not exceed the bounds of what is necessary for a fair and just resolution of the litigation.

Orders