CATCHWORDS

PRACTICE AND PROCEDURE - application to set aside subpoenas - substantive proceedings are application to set aside a Statutory Demand under s459G - questions and issues between parties notprecisely determined - not appropriate at this stage to make a specific ruling on relevance of subpoenaed documents - respondent has reasonable case for apparent relevance of documents subpoenaed.

Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90, cited

TECHCEL COMPUTER SERVICES PTY LIMITED - v -

RAYMOND CLARKE

No NG 3012 of 1996

Tamberlin J

Sydney

26 July 1996

IN THE FEDERAL COURT OF AUSTRALIA)                 

NEW SOUTH WALES DISTRICT REGISTRY)    No.NG 3012 of 1996

GENERAL DIVISION                  )

              BETWEEN:           TECHCEL COMPUTER SERVICES

                                  PTY LIMITED

                                  (ACN 003 118 349)

                                  Applicant

              AND:               RAYMOND CLARKE

                                  Respondent

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        26 JULY 1996

                   MINUTE OF ORDERS

THE COURT ORDERS THAT:

     The Notice of Motion be dismissed with costs.

NOTE:     Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 3012 of 1996

GENERAL DIVISION                  )

              BETWEEN:           TECHCEL COMPUTER SERVICES

                                  PTY LIMITED

                                  (ACN 003 118 349)

                                  Applicant

              AND:               RAYMOND CLARKE

                                  Respondent

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        26 JULY 1996

                    REASONS FOR JUDGMENT

TAMBERLIN J:

This is an application by the applicant, Techcel Computer Services Pty Limited, to set aside four subpoenas issued by the respondent, Raymond Clarke. The respondent has issued a Statutory Demand under s459E of the Corporations Law ("the Law"), seeking payment of a total amount of $23,776.87 comprised of outstanding commission said to be payable to the respondent, under a contract of employment, dated 18 August 1993, together with an outstanding bonus on support contracts payable pursuant to the same contract. There is also a claim for unused annual leave.

In the main proceeding, the applicant seeks to set aside the Statutory Demand under s459G.

The documents of the three non-parties have been produced to the Court.

The applicable principles were considered by Beaumont J in Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 103.

The issues in the dispute have not been defined so that at this stage it is difficult to see the precise matters which will be relevant on the hearing of the application to set aside.

No doubt, prior to the hearing of the application to set aside, the parties will formulate more precisely the specific question and issues for resolution. When this is done, the relevance for admissibility purposes of any documents sought to be tendered can be argued and ruled upon. However, at this stage, where the Court is simply concerned with the production of the documents and making of them available to the parties, I do not think it is appropriate to make any precise ruling on the specific relevance of the documents. The exercise at this stage is to determine whether the documents have any adjectival relevance. In other words, whether they have any apparent relevance to the issues raised.

The respondent's case is that the documents are relevant to the proof and substantiation of the claims on which the Statutory Demand is based. In particular, it is said, that documents regarding sales and income go to the issue of calculation of commissions and bonuses payable by tracing back to source documents and that in turn any commissions or bonuses will impact upon annual leave requirements. It is further submitted that proceedings for commission require the Court to consider the amount of compensation payable on the cessation of employment.

Some of the objections concern the interpretation of the Employment Contract of 18 August 1993. For example, the applicant submits that any documents coming into existence subsequent to cessation of employment on 24 November 1995 cannot be relevant.  However, this involves an interpretation of the contract and I do not think it is appropriate to resolve this question on an application to set aside subpoenas. It is a matter which requires considered argument before reaching a conclusion.

I have considered the affidavit material relied on by both parties, together with the Employment Agreement and I have considered the submissions of the parties.

In my view, the respondent has made out a reasonable case as to the apparent relevance of the documents sought and I am not persuaded that any of the subpoenas should be wholly or partially set aside or that the parties should be denied access.

Accordingly, the order of the Court is that the Notice of Motion to set aside the subpoenas is dismissed with costs.

I certify that this and

the preceding three (3)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date:                               26 July 1996                                                           

Counsel for Applicant:              Mr J Johnson                                         

Solicitor for Applicant:                  Hills Solicitors

Counsel for Respondent:             Mr R P Freeman                                                         

Solicitor for Respondent:           Cornwells Solicitors

Date of Hearing:                    24 July 1996                                   

Date Judgment Delivered:                  26 July 1996