| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WHITE -v- MCKENZIE [2002] WADC 170 CORAM : COMMISSIONER GREAVES HEARD : 21 JUNE 2002 DELIVERED : 7 AUGUST 2002 FILE NO/S : CIV 2869 of 2001 BETWEEN : BREA ANNE WHITE Plaintiff
AND
MARK STEVEN MCKENZIE
Defendant
Catchwords: Practice - Leave to issue subpoena duces tecum returnable before trial - Leave may be granted to require production of identified documents
Legislation: Rules of the Supreme Court, O 36 r 12(4)
Result: Appeal allowed
(Page 2)
Representation:
Counsel:
Plaintiff : No appearance
Defendant : Mr K N Allan
Solicitors:
Plaintiff : Edwards Lawyers
Defendant : K N Allan
Case(s) referred to in judgment(s):
Commissioner for Railways v Small (1938) 38 S.R. (NSW) 564
Jefferies & Anor v O'Donovan [2001] WADC 11
Case(s) also cited:
Nil
(Page 3)
1 COMMISSIONER GREAVES: This is an appeal from the decision of the learned Deputy Registrar delivered on 16 May 2002, whereby for reasons given he refused leave to issue subpoenas duces tecum to the Commissioner of Police and the Administrator of the Joondalup Health Campus. The learned Deputy Registrar sets out the orders sought in his reasons and I do not repeat them. The application is, of course, one which was made pursuant to O 36 r 12(4). The learned Deputy Registrar referred to Commissioner for Railways v Small (1938) 38 S.R. (NSW) 564 at 573, where it was acknowledged that a writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. The court went on to point out that if the writ be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter.
2 At par 17 of his reasons the learned Deputy Registrar expressed the view in this case that the applicant seeks production of unidentified documents from each of the parties. Before me, counsel for the appellant conceded in part that this is so, particularly in the case of the Commissioner of Police. He submitted, however, the identification of "the complete file relating to the following motor vehicle accident …" and "relating to the admission to hospital of the abovenamed plaintiff for injuries received in the motor vehicle accident which occurred on …" is sufficient identification of the documents required to be produced. 3 Counsel for the appellant submitted that given that the forensic purpose of the documents contained in these files is obvious to the Commissioner of Police and hospital administrators, they should have no difficulty in excluding material which was generated for what the learned Deputy Registrar described as "business purposes". 4 This is a case where I take the same view as I expressed in Jefferies & Anor v O'Donovan [2001] WADC 11. In the circumstances, I am of the view that the appellant has sufficiently identified the documents sought to be produced. 5 Accordingly, the appeal will be allowed and leave granted to issue the subpoenas duces tecum in the terms sought.
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