FEDERAL COURT OF AUSTRALIA

Showcorp Pty Ltd v Barton [2002] FCA 1546

SHOWCORP PTY LTD v JAMES BARTON ASHCROFT & ANOR

N1334 OF 2001

EMMETT J

29 NOVEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1. the subpoena for production addressed to Augment Communication Pty Limited that was filed 18 October 2002, be set aside;
2. leave be granted for the issue of a subpoena, in the form initialled by Emmett J and placed with the papers, addressed to Augment Communication Pty Limited, upon the applicant providing security in a form satisfactory to the Registrar, no later than 13 December 2002, in the sum of three thousand dollars ($3000) for the costs of complying with such subpoena.
3. any subpoena issued pursuant to Order 2 be made returnable before the Registrar on 5 February 2003.
4. the applicant pay sixty per cent (60%) of the costs of the motion filed on 24 October 2002, which are to include fifty per cent (50%) of the costs of the affidavit of Robert Bonthorne of 11 November 2002.
5. the notice of motion of 26 October 2002 be otherwise dismissed.
6. all subpoenas that were returnable today stand over for return before the Registrar on 18 December 2002.

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

REASONS FOR DECISION

1                     I have before me a motion to set aside a subpoena filed on 18 October 2002 addressed to Augment Communications Pty Ltd (“Augment”).  The subpoena calls for production of a variety of documents including originals of event job files in relation to five organisations.  It also requires production of documents relating to any proposal or quotation including a brief for jobs for eight organisations alleged to be clients of Augment.

2                     In the proceeding Showcorp Pty Limited (“Showcorp”), who requested the issue of the subpoena, alleges as against James Barton Ashcroft (“Mr Ashcroft”), breach of the terms of an employment agreement and a confidentiality agreement between Mr Ashcroft and Showcorp.  Showcorp also alleges that Mr Ashcroft has breached fiduciary duties and obligations owed to it.  The particulars of the conduct alleged to constitute the breach are set out in para. 17 of the Statement of Claim.

3                     Those particulars refer expressly to Hyundai Motor Company but also make allegations concerning other clients and customers of Showcorp and other business of Augment.  No other particulars are contained in the Statement of Claim.  However, exchanges of correspondence between Showcorp and Mr Ashcroft indicate that Showcorp alleges conduct involving several of the organisations referred to in the subpoena.

4                     The Statement of Claim alleges that the conduct said to constitute breach on the part of Mr Ashcroft occurred from about November 2000 to date.  The subpoena, on the other hand, calls for the production of documents in various categories for the period commencing 1 June 2000 in some cases and the period commencing 1 January 2000 in others.

5                     I am not persuaded, on the pleadings as they stand at the moment, that all of the material sought to be the subject of the subpoena is relevant.  In the absence of any allegation concerning a number of the organisations referred to in the subpoena, I do not consider that it is appropriate for the subpoena to stand in relation to those organisations. 

6                     However, I consider that it would be appropriate to permit a subpoena to be issued for the production of the documents described in the subpoena in relation to those organisations that have been particularised as clients or customers of Showcorp in respect of whom Mr Ashcroft is alleged to have committed breaches.  Further, I consider that it is appropriate that documents in relation to those organisations from the beginning of October 2000 are appropriately the subject of the subpoena having regard to the way in which the case has been particularised to date. 

7                     One category of documents referred to in the subpoena is original client lists, including lists of all jobs, projects and exhibitions undertaken for each client in respect of the same period.  Once again, having regard to the particularisation of the claim, I do not consider that it is appropriate to permit the subpoena to stand in relation to such documents if they exist. 

8                     I propose to set aside the subpoena but will give leave for a subpoena to be issued in a form that I shall identify.  I have already ordered security for costs in favour of the respondent Mr Ashcroft.  In the circumstances, I consider that it is appropriate that security be provided by Showcorp for the costs of complying with any fresh subpoena that is to be issued.  I have some evidence before me as to the costs of complying with the subpoena as it exists.  That evidence consists of the affidavit of Robert Bonthorne of 11 November 2002.  Mr Bonthorne claims that the costs would be in the vicinity of nine thousand dollars. 

9                     I consider that it is appropriate to require the provision of security in the sum of $3,000 for the costs of complying with the subpoena.  Whilst there is no particular science involved in the choice of that figure, I have taken into account the evidence given by Mr Bonthorne.  It may be that that amount is excessive, or that it may not be sufficient, but it seems to me that that the interests of justice will be best be served by requiring the provision of security in that sum. 

10                  Augment has been substantially successful in having the subpoena set aside.  The subpoena goes beyond what is permissible and there has been no offer by Showcorp to limit the extent to which the subpoena should be complied with.  In the circumstances I consider that it is appropriate that the applicant Showcorp be required to pay sixty per cent of Augment's costs of the motion.  Counsel for Augment asks for a direction to the taxing officer concerning the costs of the affidavit of Mr Bonthorne.  The affidavit annexes copies of documents filed in the proceeding that are on the Court file.  There was no utility in doing that.  On the other hand, the affidavit does set out, in mostly inadmissible form, the basis upon which an estimate was made of the costs of complying with the subpoena.  While the relevant paragraphs in the affidavit are not strictly admissible, I was prepared to have regard to them in the circumstances. 

11                  The substance of the material is relevant for the purposes of the application made for security for the costs of complying with the subpoena.  In the circumstances I consider that part of the costs for the preparation of the affidavit are properly regarded as costs of the motion and that it is appropriate that the costs of the motion include fifty per cent of the costs of preparation of Mr Bonthorne’s affidavit.  That is a reasonable estimate of the extent to which the affidavit was justifiable. 

Associate:

Dated:              11 December 2002