Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd

[2012] WASC 37

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2012] WASC 37

CORAM:   LE MIERE J

HEARD:   7 JUNE 2011

DELIVERED          :   7 FEBRUARY 2012

FILE NO/S:   CIV 3041 of 2010

BETWEEN:   WRIGHT PROSPECTING PTY LTD

Plaintiff

AND

HANCOCK PROSPECTING PTY LTD
First Defendant

HOPE DOWNS IRON ORE PTY LTD
Second Defendant

Catchwords:

Practice and procedures - Subpoenas - Application to set subpoenas aside - Turns on own facts

Legislation:

Supreme Court Rules 1971 (WA), O 1 r 4B(1), O 4A r 2, O 36B r 3(6), O 46B r 4(1)

Result:

Orders given and chamber summons dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr T O Coyle

First Defendant             :     Mr S G Finch SC

Second Defendant         :     Mr S G Finch SC

Solicitors:

Plaintiff:     Lavan Legal

First Defendant             :     Jackson McDonald

Second Defendant         :     Jackson McDonald

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

Nil

1. LE MIERE J:  On or about 4 March 2011 the defendants issued subpoenas to Michael Wright, Angela Wright Bennett, Julian Wright, Natalie Wright, Timothy Wright and Kirsty Sutherland.  Julian Wright, Natalie Wright, Timothy Wright and Kirsty Sutherland have produced documents to the court.  By a chamber summons issued on 28 April 2011 the plaintiff, Michael Wright and Angela Wright Bennett, applied to set aside the subpoenas issued to them.  Alternatively, they applied for the scope of the subpoenas to be amended in accordance with annexures to the chamber summons.  I will some times refer to the plaintiff, Mr Wright and Mrs Bennett, as the applicants.  There were discussions between the defendants and the applicants.  The defendants propose that the court should order that:

   (a)In lieu of categories 2, 3, 5‑12, 14‑16, 18 and 19 of the Schedule to the Wright Subpoena, Mr Wright produce all documents which fall within the categories set out in the 'Proposed Substituted Schedule to Subpoena Issued to Michael John Maynard Wright' annexed to the letter dated 14 April 2011 from the plaintiff's solicitors;

   (b)In lieu of categories 2, 3, 5‑7, 9 and 10 of the Schedule to the Bennett Subpoena, Ms Bennett produce all documents which fall within the categories set out in the Proposed Substituted Schedule to Subpoena Issued to Angela Mary Maynard Wright Bennett' annexed to the letter dated 14 April 2011 from the plaintiff's solicitors; and

   (c)the Chamber Summons be dismissed insofar as it seeks to set aside the Categories in Dispute, being categories 1, 4, 13 and 17 of the Wright Subpoena and categories 1, 4 and 8 of the Bennett Subpoena.

2. The applicants agree that orders should be made in accordance with (a) and (b) of the orders proposed by the defendants.  What remains in issue between the applicants and the defendants are categories 1, 4, 13 and 17 of the Wright subpoena and categories 1, 4 and 8 of the Bennett subpoena.  At the hearing of this application the parties agreed that there is an overlap between the matters in dispute concerning the Wright subpoena and the matters in dispute concerning the Bennett subpoena and that it will be sufficient if I determine the issues in dispute in relation to the Wright subpoena.  Orders in relation to the matters in dispute concerning the Bennett subpoena would then follow.

Applicants' contentions

1. The applicants make two submissions.  First, they contend that the subpoenas should be stood over until after the plaintiff has given discovery.  Secondly, the applicants contend that Mr Wright should not be required to produce all documents which fall within categories 1, 4, 13 and 17 of the Wright subpoena and the subpoena should be amended by reducing the scope of the subpoena to remove those categories.

Subpoena should not be stood over

1. Order 36B r 3(6) of the Rules of the Supreme Court 1971 (WA) (RSC) provides that the date specified in a subpoena must be the date of trial or any other date as permitted by the court. Rule 4(1) provides that the court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. Mr Wright, as the person to whom the subpoena is addressed, has a sufficient interest to apply for relief under O 36B r 4(1). It is arguable that the power of the court to grant other relief in respect of the subpoena is wide enough for the court to order that a subpoena standover until discovery has been completed. Furthermore, O 4A r 2 confers upon the court power to make any procedural direction that in the court's opinion it is just to make in a case to facilitate the attainment of the objects referred to in O 1 r 4B(1). The applicants submit that the outstanding issues concerning the Wright subpoena should be stood over until the plaintiff has given discovery as a matter of case flow management. The applicants submit that it was appropriate to do so because it is likely to save time and money.

2. In this case it is not appropriate to stand over the subpoena until discovery has been completed.  Mr Wright is not a party to the proceeding.  There may be documents which are in the possession of Mr Wright that are not in the possession of the plaintiff.  Even if the plaintiff gave discovery of all the documents falling within relevant categories that are in the possession of Mr Wright and Ms Bennett that would not achieve the purpose the defendants seek to achieve by the subpoenas.  For example, the defendants submit that the category 1 documents are relevant to the defendants abandonment and estoppel defences pleaded in [46] ‑ [68] of their defence and counterclaim.  In particular, these categories are relevant to whether the plaintiff assumed after 1987 that:

   (a)royalties were not payable to the plaintiff in respect of iron ore produced and sold from the Hope Downs Areas;

   (b)further or in the alternative, royalties were not payable to the plaintiff in respect of iron ore produced and sold from the Hope Downs Areas, except insofar as royalties were received by the partnership;

   (c)further or in the alternative, the plaintiff was not entitled to a royalty on iron ore produced pursuant to any joint venture in which the defendant, or a subsidiary of the defendant, holds a percentage interest;

   (d)further or in the alternative, the plaintiff did not have an interest in the Hope Downs Areas, including an interest in royalties that were or would be payable in respect of iron or produced and sold from the Hope Downs Areas; and

   (e)further or in the alternative, the plaintiff did not have an interest in royalties from areas in relation to which the defendants individually or with third parties expended their monies, effort and exposed themselves to risk.

3. The defendants submit that it is necessary to see documents which do not record the Hope Downs areas, or the entitlement to receive royalties from the Hope Downs areas, as an asset of the plaintiff, and which otherwise record the assets of the plaintiff.  A subpoena to produce documents which evidence, record or concern the assets of the plaintiff, the value of the plaintiff and/or the value of Mr Wrights and Ms Bennett's shares in the plaintiff will achieve this end.  The discovery by the plaintiff of documents which record assets of the plaintiff, and their value will not achieve the same purpose.

4. In this case, it is not appropriate to order that the subpoena stand over until after discovery.

The categories of documents in issue

1. The first issue is whether the documents in the categories in issue are relevant in the requisite sense.  I did not understand counsel for the applicants to argue otherwise.  In any event, I find that the documents are relevant.  They are relevant to the defendants' abandonment and estoppel defences pleaded in [46] to [68] of the first and second defendants' defence and counterclaim.

2. The applicants contended that category 1 should be reduced in scope.  I find that that would defeat the forensic purpose that the defendants seek to achieve with the subpoena.  I find that to be a legitimate forensic purpose.

3. The applicants submit that the documents in category 1 are not, but should be, limited in time.  It is common ground that the relevant period, for the purposes of the defendants' abandonment and estoppel argument, commences in 1987.  The category of documents should be confined to documents coming into existence from 1987.  The applicants submit that the relevant estoppel period was 1987 to 2006 and hence the category of documents should be confined to documents originating during that period.  I do not accept that submission.  Counsel for the defendants submitted that although the course of conduct might have ceased in 2006, documents after that time might in the usual way contain admissions as to what had gone before and there is no logical reason to say that only contemporaneous statements of intention or only contemporaneous recording of assets might be relevant.  I accept that submission.

4. The applicants contend that category 4 is too wide.  Category 4 is in similar terms to category 1 in that it relates to the assets of the plaintiff, the value of the plaintiff and the shares in the plaintiff.  The difference between category 1 and category 4 is that the latter calls for communications between certain persons or entities which record or refer to these matters.  The category limits the documents to documents created or received during the period one year prior to the commencement of Supreme Court CIV 2290 of 2001 (the Wright v Wright proceedings) to the conclusion of those proceedings.  The documents are relevant and the category is not too broad.

5. The applicants did not press their objection to category 13 with any vigour.  The essence of counsel's submission appeared to be that the production of this category of documents pursuant to the subpoena may be unnecessary after the plaintiff has given discovery.  I have already dealt with that issue.  In any event, I find that the category 13 documents are relevant and the category is not too broad.

6. The final category of document is category 17.  I find that this category of documents are relevant for the same reasons as the category 1 and category 4 documents are relevant.  The category is confined to documents created or received during the period 1987 to 1995.  That category of documents is not too broad.

Conclusion

1. Orders should be made to the following effect:

   (a)In lieu of categories 2, 3, 5‑12, 14‑16, 18 and 19 of the Schedule to the Wright Subpoena, Mr Wright produce all documents which fall within the categories set out in the 'Proposed Substituted Schedule to Subpoena Issued to Michael John Maynard Wright' annexed to the letter dated 14 April 2011 from the plaintiff's solicitors;

   (b)In lieu of categories 2, 3, 5‑7, 9 and 10 of the Schedule to the Bennett Subpoena, Ms Bennett produce all documents which fall within the categories set out in the 'Proposed Substituted Schedule to Subpoena Issued to Angela Mary Maynard Wright Bennett' annexed to the letter dated 14 April 2011 from the plaintiff's solicitors; and

   (c)the Chamber Summons be dismissed insofar as it seeks to set aside the Categories in Dispute, being categories 1, 4, 13 and 17 of the Wright Subpoena and categories 1, 4 and 8 of the Bennett Subpoena.