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

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.
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…

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: [2012] WASC 37
Decision Date: 7 FEBRUARY 2012

CaseChat Overview and Summary

Wright Prospecting Pty Ltd brought proceedings against Hancock Prospecting Pty Ltd, alleging a breach of contract. In response, Hancock Prospecting issued subpoenas to compel the production of documents and third-party testimony. Wright Prospecting sought to set aside the subpoenas, arguing that they were not necessary for the fair and efficient resolution of the proceedings. The court had to determine whether the subpoenas were justified and whether they were necessary for the fair and efficient resolution of the proceedings. The court found that the subpoenas were not necessary for the fair and efficient resolution of the proceedings, and therefore set them aside. The court held that the requirement to justify the necessity of subpoenas was not limited to situations where the subpoenas were sought to be quashed for non-compliance with the rules of court, but rather turned on the particular facts of the case. The court further held that the necessity of subpoenas for the fair and efficient resolution of proceedings was not limited to situations where the documents or testimony sought were not otherwise available, but rather turned on the particular facts of the case.

The court found that Wright Prospecting had adduced sufficient evidence to establish that the documents and testimony sought by Hancock Prospecting were either already in its possession or could be obtained through other means, and that the subpoenas were therefore not necessary for the fair and efficient resolution of the proceedings. The court also found that Hancock Prospecting had not demonstrated that the documents and testimony sought were necessary for its case, or that the subpoenas were necessary for the fair and efficient resolution of the proceedings. The court held that the requirement to justify the necessity of subpoenas was not limited to situations where the subpoenas were sought to be quashed for non-compliance with the rules of court, but rather turned on the particular facts of the case. The court further held that the necessity of subpoenas for the fair and efficient resolution of proceedings was not limited to situations where the documents or testimony sought were not otherwise available, but rather turned on the particular facts of the case. The court ordered that the subpoenas be set aside.

Orders