FEDERAL COURT OF AUSTRALIA
Tamawood Limited (ACN 010 954 499) v Habitare Developments Pty Ltd (ACN 122 935 497) [2009] FCA 364
Held: leave granted to issue subpoenas to third parties – costs reserved
Copyright Act 1968 (Cth) s 115
Federal Court of Australia Act 1976 (Cth) s 33N(1)
Trade Practices Act 1974 (Cth) s 52
Federal Court Rules O 36, O 27A, O 15 r 1, O 15A
Alister v R (1984) 154 CLR 404 cited
Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 cited
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 cited
Hennessy v Wright (No 2) (1890) 24 QBD 445 followed
Hughes v WA Cricket Association (1986) 66 ALR 541 cited
McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 followed
P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 64 ACSR 53 cited
R v Saleam [1999] NSWCCA 86 cited
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 followed
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 cited
NSD 2504 of 2007
COLLIER J
20 APRIL 2009
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
NSD 2504 of 2007 |
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TAMAWOOD LIMITED ACN 010 954 499 Applicant
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AND: |
HABITARE DEVELOPMENTS PTY LTD ACN 122 935 497 First Respondent
BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100 Second Respondent
PETER FREDERICK O'MARA Third Respondent
DAVID GAVIN JOHNSON Fourth Respondent
WAYNE NORMAN BLOOMER Fifth Respondent
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JUDGE: |
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DATE OF ORDER: |
20 APRIL 2009 |
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WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. Leave be granted under Order 27A of the Federal Court Rules to the applicant to issue subpoenas addressed to the Brisbane City Council, ANZ Banking Corporation and Certis Pty Ltd requiring production by them of the following documents:
(a) those documents recording or referring to the responsibilities or role of Habitare Pty Ltd in the property development undertaken at Norris Street and Galwer Street, Bracken Ridge in the relevant period;
(b) those documents recording or referring to the responsibilities or role of Habitare Pty Ltd in the property development undertaken at Hamish Street, Calamvale in the relevant period;
(c) those documents created in the relevant period constituting any application for development approval submitted by or on behalf of Habitare Pty Ltd to the Brisbane City Council, or correspondence in relation thereto, in respect of the property development undertaken at Hamish Street, Calamvale;
(d) those documents created by Habitare Pty Ltd or submitted by it recording any proposal to undertake in the property development undertaken at Hamish Street, Calamvale in the relevant period;
(e) those documents recording or referring to the responsibilities or role of Habitare Developments Pty Ltd in the property development undertaken at Norris Street and Galwer Street, Bracken Ridge in the relevant period;
(f) those documents recording or referring to the responsibilities or role of Habitare Developments Pty Ltd in the property development undertaken at Hamish Street, Calamvale in the relevant period;
(g) those documents created in the relevant period constituting any application for development approval submitted by or on behalf of Habitare Developments Pty Ltd to the Brisbane City Council or correspondence in relation thereto, in respect of the property development undertaken at Hamish Street, Calamvale;
(h) those documents created by Habitare Developments Pty Ltd or submitted by it recording any proposal to undertake the property development undertaken at Hamish Street, Calamvale in the relevant period.
2. So far as concerns subpoenas issued to the Brisbane City Council and Certis Pty Ltd:
(a) the relevant period referred to in paragraph 1(b)-(d) and (f)-(h) hereof is the period between 21 November 2005 and the date that the occupation certificates were issued in respect of the development at Lots 12 and 13 Hamish Street, Calamvale;
(b) the relevant period referred to in paragraph 1(a) and (e) hereof is the period between the earlier of 19 June 2006 or the date that the development application in respect of Lots 211 and 219 Norris Road was lodged, and 27 November 2007.
3. So far as concerns subpoenas issued to ANZ Banking Corporation the relevant period is the period between 20 October 2005 and the date of this judgment.
4. The subpoenas referred to in paragraph 1 be returnable at 4.00 pm fourteen (14) working days after the delivery of this judgment.
5. Costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
NSD 2504 of 2007 |
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BETWEEN: |
TAMAWOOD LIMITED ACN 010 954 499 Applicant
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AND: |
HABITARE DEVELOPMENTS PTY LTD ACN 122 935 497 First Respondent
BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100 Second Respondent
PETER FREDERICK O'MARA Third Respondent
DAVID GAVIN JOHNSON Fourth Respondent
WAYNE NORMAN BLOOMER Fifth Respondent
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JUDGE: |
COLLIER J |
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DATE: |
20 APRIL 2009 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
Background
1 Pursuant to a notice of motion filed 26 November 2008, the applicant to the substantive proceedings before me seeks “an order granting leave to the applicant pursuant to Order 27A or otherwise”. Order 27A Federal Court Rules provides, inter alia, that a subpoena must not be issued without the leave of the Court or a Judge.
2 The application the subject of the substantive proceedings was filed pursuant to s 115 Copyright Act 1968 (Cth) and s 52 Trade Practices Act 1974 (Cth). The applicant has claimed infringement by the respondents of the applicant’s copyright in architectural drawings and plans, and misleading and deceptive conduct. Among other claims, the applicant contends that the first respondent (as developer) and the second respondent (as builder) have used the applicant’s drawings and plans in submissions to the Brisbane City Council for approval of relevant projects, and to build houses in accordance with those drawings.
3 The order sought pursuant to the notice of motion currently before the Court relates to a separate notice of motion filed by the applicant on 17 November 2008 seeking to join three additional respondents (Habitare Pty Limited, Eight March Pty Limited and First Priority Developments Pty Ltd) to the substantive proceedings, and seeking an extension of time for filing and service of an amended application and further amended statement of claim by the applicant. Hearing of the notice of motion filed 17 November 2008 has been adjourned pending determination of the notice of motion currently before the Court.
Rationale for the order sought
4 In summary, the rationale for the order sought is that it is unclear whether either (or both) the first respondent or Habitare Pty Ltd are proper respondents to the substantive proceedings. Some explanation can be found in the affidavit of Mr John Castrission, solicitor for the applicant, sworn 25 November 2008. In his affidavit Mr Castrission deposes that:
· a document (“Engagement Form”) annexed to the affidavit and relating to the development the subject of these proceedings was obtained by a representative of the applicant from the Brisbane City Council pursuant to a Freedom of Information request, and records the relevant applicant/contact as Habitare Pty Ltd.
· A number of plans relating to the development the subject of these proceedings and annexed to the affidavit show, in some cases, the respondent as the client and in other cases “Habitare” as the client.
5 Further, Mr Castrission deposes that:
The applicant seeks to obtain documents further proving the involvement of the First Respondent and the proposed Respondent, Habitare Pty Ltd in the development the subject of these Proceedings. For that purpose it seeks leave to issue subpoenas to the relevant Council, the relevant Certifier or Certifiers and the Bank that financed the project. The documents that will be sought will be documents evidencing the involvement of Habitare Pty Limited (a proposed Respondent) and Habitare Developments Pty Limited (the First Respondent) on the development the subject of these Proceedings. There is already evidence of this issue but the Applicant seeks further evidence because Hopgood Ganim Layers take the position that the Applicant should select either Habitare Developments Pty Limited or Habitare Pty Ltd as a Respondent and not both of them. (John Castrission affidavit sworn 25 November 2008 at [5])
6 More detail as to the nature of the subpoenas sought emerged from the submissions of the applicant during the hearing. I shall return to that detail later in this judgment.
Submissions of the parties
7 In summary the applicant submitted as follows:
· There is dispute between the applicant on the one hand, and a number of the respondents and Habitare Pty Ltd on the other, as to the proper respondents to the substantive proceedings. A key dispute is the identity of the developer of the relevant projects.
· Although the respondents contend that the applicant is “fishing” in seeking to join Habitare Pty Ltd, evidence is already available to the applicant disclosing that both the first respondent and Habitare Pty Ltd were developers of the relevant projects. In fact, the applicant simply wants further evidence to support its application to join Habitare Pty Ltd and amend the statement of claim.
· The subpoenas will be expressed with reasonable particularity.
· The Court should not place too great a burden on a party in granting leave to issue subpoenas. The discretion to grant leave conferred by O 27A cannot be more burdensome than the principles that inform the setting aside of a subpoena.
8 In summary, the respondent submitted that:
· Where leave is sought to issue a subpoena upon a non-party, it must be shown that the terms of the subpoena are not so broad that they are oppressive. The subpoena must not require the delivery of material that is not relevant to the proceedings.
· In this case, in circumstances where there are two developments concerning more than 60 townhouses, the applicant seeks details going to the “involvement” of the first respondent, Habitare Pty Ltd and perhaps other companies. Presumably the subpoenas would mean that the recipients of the subpoenas are required to disclose every aspect of those developments in circumstances where they are likely to be voluminous, they will be largely irrelevant to the instant dispute, and they may be commercially sensitive.
· Subpoenas should not be used against an existing party in substitution of discovery. The applicant could seek discovery against the respondents pursuant to O 15 r 1 Federal Court Rules.
· The notice of motion is in the nature of a “fishing” exercise.
· The applicant’s proposed further amended statement of claim has not been the subject of any leave and is not, in any sense, an operative pleading.
· The applicant does not indicate when the subpoenas would be returnable, nor why it believed such period will not be oppressive to the non-parties. Further, in circumstances where the material may be voluminous, the applicant does not explain how the delivery of the documents to the Court can be managed conveniently.
Evidence
9 Two affidavits sworn by Mr Castrission are on the Court file, and the applicant relied on both for the purposes of this notice of motion. The first affidavit of Mr Castrission was sworn 17 November 2008. The second affidavit of Mr Castrission, to which I have already referred, was sworn 25 November 2008.
10 So far as relevant in these proceedings, annexed to Mr Castrission’s first affidavit are the following documents:
1. Annexure D, which is titled “Development Application Decision Notice” under the letterhead of Express Plans Approval Services Pty Ltd. Mr Castrission deposes that Annexure D is a document obtained by an employee of the applicant pursuant to searches made with the Brisbane City Council. The Development Application Decision Notice is in respect of “Lot 4 & 5 on RP 78240 known also as (address) 211-219 Norris Road, Bracken Ridge”. The “Owner” noted on the notice is “Habitare Pty Ltd”.
2. Annexure E, which is an ASIC search of Habitare Pty Ltd. The search reveals Peter Frederick O’Mara (the third respondent) as the company’s director and David Gavin Johnson (the fourth respondent) as the alternate director. (The applicant claims that Mr O’Mara and Mr Johnson are also officers of the first respondent.)
3. Annexures G to M include correspondence between the respective solicitors of the applicant and the respondents:
3.1 Annexure G is a letter from Hopgood Ganim to Mr Castrission dated 17 April 2008 stating that in preparing the Defence:
…it has become apparent that your client has, respectfully, instituted proceedings against the wrong parties.
Simply stated, Habitare Developments Pty Ltd was not the developer of the properties referred to in the pleadings. It did not make or authorise the making of any submissions to the Council for approval of the said developments, or use them to build houses at the said developments. It was not the builder, nor was it the owner of the houses constructed as part of the developments pleaded.
3.2 Annexure H is Mr Castrission’s letter of 26 September 2008 to Hopgood Ganim in response to the respondent’s letter of 17 April 2008 requesting that the respondents advise:
i. the identity of the person or entity that was the developer of the properties referred to in the pleadings;
ii. the identity of the person or entity that made or authorised the making of any submissions to the Council for approval of the said developments;
iii. the identity of the person or entity that used the plans of the houses that were built at the properties referred to in the pleading.
Mr Castrission then notes that if the respondents are unwilling to advise on the matters requested then his client may make an application for preliminary discovery or interrogatories.
3.3 Annexure I is a letter from Hopgood Gamin dated 3 October 2008 to Mr Castrission in response to Mr Castrission’s letter of 26 September 2008. The letter notes that:
It is…your client that must prove those details in order to support the allegations pleaded, not our clients. Our clients are under no obligation to provide those details sought by your client (if known)… There are a number of other simple and inexpensive options available to your client to obtain the details sought, should it choose to avail itself of them.
11 Annexed to Mr Castrission’s second affidavit are the following documents:
1. Annexure A, which is described in the affidavit as an “Engagement Form”. Mr Castrission deposes this form relates to the development the subject of these proceedings, and that the form was obtained by a representative of the applicant from the Brisbane City Council pursuant to a freedom of information request. The Engagement Form records the relevant applicant/contact as Habitare Pty Ltd. I note from examining Annexure A that:
a. it is under the letterhead of Certis Pty Ltd;
b. it not only describes the applicant/contact as Habitare Pty Ltd, but nominates Habitare Pty Ltd as the addressee of any invoice;
c. the “project details” are described as 40 townhouses at 40-46 Hamish St Calamvale, lots 12 & 13, RP 96255, total value of building work $4.3m estimate.
2. Annexure B, which Mr Castrission deposes are a number of various plans relating to the development the subject of these proceedings. Mr Castrission deposes further that some of these plans record that the first respondent is the client and other plans show “Habitare” as the client, and that these plans were obtained by a representative of the applicant from the Brisbane City Council pursuant to a freedom of information request. I note from examining Annexure B that:
a. it consists of 17 pages;
b. one page is headed “PROPOSED RESIDENTIAL DEVELOPMENT – 47 UNITS 211 & 219 NORRIS ROAD BRACKEN RIDGE (CIVIL WORKS CONTRACT) FOR Eight March Pty Ltd (Community Title)”;
c. four pages, described respectively as “floor plan”, “elevation”, “slab plan” and “N2 framing plan”, all related to Duplex B, Lots 4 & 5, Norris Road Bracken Ridge, and in relation to which the client is named as the first respondent;
d. two pages described respectively as “ground floor” and “elevation”, both related to Duplex A, Lots 4 & 5, Norris Road Bracken Ridge, and in relation to which the client is named as simply “Habitare”;
e. two pages described respectively as “manager plans” and “manager elevation”, both relating to Lots 4 & 5, Norris Road Bracken Ridge, and in relation to which the client is named as simply “Habitare”;
f. two pages described respectively as “elevation” and “floor plan”, both relating to Lots 12 & 13, Hamish Street Calamvale, and in relation to which the client is named as simply “Habitare”;
g. two pages described respectively as “elevation” and “floor plan”, both relating to Duplex 2, Lots 12 & 13, Hamish Street Calamvale, and in relation to which the client is named as simply “Habitare”;
h. one page described as “elevation” Duplex 3 Lots 12 & 13, Hamish Street Calamvale, and in relation to which the client is named as simply “Habitare”;
i. one page described as “House 2” Lots 12 & 13, Hamish Street Calamvale, and in relation to which the client is named as simply “Habitare”;
j. one page described as “Duplex 3 – Plan” Lots 12 & 13, Hamish Street Calamvale, and in relation to which the client is named as simply “Habitare”;
k. one page described as “Site Plan” Lots 12 & 13, Hamish Street Calamvale, and in relation to which the client is named as simply “Habitare”.
Relevant principles
12 Principles governing the grant of leave by the Court to issue subpoenas were considered in detail by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233. In that case his Honour observed, so far as is relevant in these proceedings, that:
· a request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery;
· the documents for production must be identified with reasonable particularity;
· the category of documents must not be so wide as to be oppressive;
· the material sought must have an adjectival relevance, that is, an apparent relevance to the issues in the principal proceedings. The adjectival relevance looks towards the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings (cf Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90);
· more specifically, the documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for the purposes of “fishing” or for the purpose of determining a preliminary question as to whether a party has a supportable case;
· there must be a legitimate forensic purpose for the production of documents;
· a wide-ranging subpoena seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave;
· the issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient.
13 It is also clear that although a mere “fishing” expedition can never justify the issue of subpoenas, it may be enough that it appears to be “on the cards” that the documents will materially assist the applicant: Alister v R (1984) 154 CLR 404; cf R v Saleam [1999] NSWCCA 86 at [11].
14 The practice whereby the Court gives leave for subpoenas to be issued against a third party pursuant to O 27A has survived the introduction of O 15A Federal Court Rules providing for orders of the Court relating to non-party discovery. In relation to a third party, it is clear that a subpoena duces tecum may be directed to a third party prior to trial:
where it appears to the court to be in the interests of justice and the proper and expeditious conduct of a proceeding that a person produce documents before the date of hearing of the application. (Hughes v WA Cricket Association (1986) 66 ALR 541 at 543; cf P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 64 ACSR 53 at 57 [23])
15 Against a third party however a subpoena is not to be used as a substitute for discovery. As Jordan CJ observed in The Commissioner for Railways v Small (1938) 38 SR (NSW):
A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it 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. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant… (at 573)
16 It is common ground that a subpoena may be issued in respect of an interlocutory application, and indeed this is made clear by such cases as Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 (subpoena issued pursuant to a security for costs application by the respondent to produce standard financial documents of a corporate applicant) and Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 (subpoena issued relating to a notice of motion pursuant to s 33N(1) Federal Court of Australia Act 1976 (Cth)).
Consideration
17 As a threshold issue, I consider that it is poor practice (as occurred in this case) for an applicant seeking the issue of a subpoena, without further elaboration or material explaining with particularity the subpoenas sought, to simply file a notice of motion moving for:
An order granting leave to the Applicant pursuant to Order 27A or otherwise.
18 Although the notice of motion was supplemented by an affidavit sworn by Mr Castrission, that affidavit did not particularise the documents sought to be produced. Mr Castrission deposed in para 5 of his affidavit sworn 25 November 2008 that:
The documents that will be sought will be documents evidencing the involvement of Habitare Pty Limited (a proposed Respondent) and Habitare Developments Pty Limited (the First Respondent) on the development the subject of these Proceedings.
19 In my view this description was inadequate.
20 Although Mr Alkadamani submitted that his client did not as at the date of the hearing have an onus to articulate the ambit of the subpoena (TS 19 ll 35-37), nonetheless in making an application to the Court for the exercise its discretion there is an onus on the applicant to make a proper case to the Court supporting its application. I have stated a number of principles relevant to the exercise of judicial discretion in such matters. So, for example, an applicant which does not present a case to the Court explaining with some specificity the categories of documents sought does so at its peril. I agree with the submission of the respondents that it is appropriate for an applicant for a subpoena to at least exhibit a draft identifying proposed recipients and the details of proposed categories of documents to affidavit material seeking leave.
21 Nonetheless in written submissions on behalf of the applicant produced at the hearing, and addressed by Mr Alkadamani, the categories of documents sought by the applicant were explained as follows:
Those documents recording or referring to the responsibilities or role of Habitare Pty Ltd in the property development undertaken at Norris Street and Galwer Street, Brackenridge in the relevant period.
Those documents recording or referring to the responsibilities or role of Habitare Pty Ltd in the property development undertaken at Hamish Street, Calamvale in the relevant period.
Those documents created in the relevant period constituting any application for development approval submitted by or on behalf of Habitare Pty Ltd to the Brisbane City Council, or correspondence in relation thereto, in respect of in (sic) the property development undertaken at Hamish Street, Calamvale.
Those documents created by Habitare Pty Ltd or submitted by it recording any proposal to undertake in the property development undertaken at Hamish Street, Calamvale in the relevant period.
Those documents recording or referring to the responsibilities or role of Habitare Developments Pty Ltd in the property development undertaken at Norris Street and Galwer Street, Brackenridge in the relevant period.
Those documents recording or referring to the responsibilities or role of Habitare Developments Pty Ltd in the property development undertaken at Hamish Street, Calamvale in the relevant period.
Those documents created in the relevant period constituting any application for development approval submitted by or on behalf of Habitare Developments Pty Ltd to the Brisbane City Council or correspondence in relation thereto, in respect of in (sic) the property development undertaken at Hamish Street, Calamvale.
Those documents created by Habitare Developments Pty Ltd or submitted by it recording any proposal to undertake the property development undertaken at Hamish Street, Calamvale in the relevant period.
22 (I note that the applicant’s written submissions actually referred to “Hawler Street, Calamvale” but I understand this is a typographical error, and the appropriate reference is to “Hamish Street, Calamvale”.)
23 The subpoena recipients are envisaged to be the Brisbane City Council, ANZ Bank and Certis Pty Ltd (building certifiers). I note the “relevant period” was not defined in the applicant’s written or oral submissions, nor was a proposed return date provided. Accordingly I asked both parties to provide supplementary written submissions on both these issues. The applicant submitted that:
· the relevant period with respect to the subpoenas issued to the Brisbane City Council should be:
(a) in relation to the development at Lots 12 and 13 Hamish Street, Calamvale – between 21 November 2005 and the date that the occupation certificates were issued in respect of the development at Lots 12 and 13 Hamish Street, Calamvale; and
(b) in relation to Lots 211 and 219 Norris Road – between the earlier of 19 June 2006 or the date that the development application in respect of Lots 211 and 219 Norris Road was lodged, and 27 November 2007.
· the relevant period with respect to the subpoena issued to ANZ Banking Corporation should be from 20 October 2005 to the date of this judgment.
24 No relevant period was articulated in the applicant’s submissions with respect to the proposed subpoena to Certis Pty Ltd however I assume the applicant intended that the relevant period would be the same relevant periods proposed to apply to the Brisbane City Council.
25 The return date for all subpoenas proposed by the applicant is 14 working days after the delivery of judgment.
26 I am prepared to accept Mr Alkadamani’s articulation of the categories of document in the written submissions as defining those sought by the applicant by subpoena in the absence of objection by the respondent to this approach (I note TS 33 ll 35-41).
27 Turning now to the issue of whether I should exercise my discretion in favour of the applicant in relation to the issue of the subpoenas themselves, a number of questions arise which I consider relevant in the circumstances of this case:
· First, does the applicant have a legitimate forensic purpose in seeking to obtain, by subpoena, the production of the documents sought?
· Second, is it “on the cards” that the documentation sought will materially assist the applicant’s case? Are the documents of adjectival relevance?
· Third, and taking into account the description of categories of parties and proposed addressees of the subpoenas to which Mr Alkadamani referred at the hearing – are the categories of documents sought by the applicant sufficiently particularised?
· Fourth, are the orders sought by the applicant oppressive to the third parties to whom the subpoenas would be addressed?
· Fifth, is the order sought by the applicant an improper substitute for a discovery application?
28 I will look at each question in turn.
Legitimate forensic purpose?
29 The substantive proceedings in this case involve claims by the applicant pursuant to s 115 Copyright Act 1968 (Cth) and s 52 Trade Practices Act 1974 (Cth). As I have already observed however, the subpoenas relate to the applicant’s notice of motion filed 17 November 2008, by which it seeks to join Habitare Pty Ltd and a number of other companies to the substantive proceedings, the amendment of the application, and further amendment of the statement of claim.
30 The law is clear that a subpoena cannot issue to facilitate “fishing” by a party. Of particular relevance in the circumstances of this case are comments of Jordan CJ in Small (1938) 38 SR (NSW) 564 at 575 where his Honour observed:
In the absence of special circumstances… A party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of “fishing”, i.e. endeavouring, not to obtain evidence to support his case but to discover whether he has a case at all: Hennessy v Wright… (emphasis added)
31 Indeed it is useful to also note comments of Lord Esher MR in Hennessy v Wright (No 2) (1890) 24 QBD 445 at 448 where his Lordship said in the context of interrogatories and “fishing” by the plaintiff in that case:
In other words, the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present…
32 Significantly, the key issue arising in the notice of motion filed 17 November 2008 is whether Habitare Pty Ltd and other parties should be joined as respondents to the substantive proceedings. The applicant candidly concedes that the purpose of the subpoena is to obtain further evidence:
· primarily to support its notice of motion filed 17 November 2008 to add Habitare Pty Ltd as a respondent and to demonstrate to the Court that adding Habitare Pty Ltd and allowing the proposed amendments to the statement of claim will not be futile; and
· which in due course may be used at final hearing (written submissions of the applicant filed 9 December 2008 para 3.10).
33 On balance, I consider that the applicant in this case has established that the purpose of the subpoenas is to obtain further evidence relevant to the notice of motion filed 17 November 2008, that this is a legitimate forensic purpose, and that the claim cannot be categorised as “fishing”. I form this view because:
· The prohibition against “fishing” does not require that the issuer of a subpoena already have relevant evidence in its possession, only that there exists a prior pleading which raises issues to which the evidence sought by the notice of motion would be relevant or, as here, issues as to whether the correct respondent had been served as raised in correspondence between the parties (including correspondence from the solicitors from the respondent dated 17 April 2008 indicating that the wrong respondent had been named): cf Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at 143.
· In order to determine whether the applicant has identified a legitimate forensic purpose it is necessary to examine the issues it proposes to raise on the notice of motion filed 17 November 2008. By that notice of motion the applicant seeks the joinder of parties including Habitare Pty Ltd to the substantive proceedings, and to amend the application and the statement of claim to, inter alia, reflect the joinder of those parties to the substantive proceedings.
· While it is not necessary that the applicant already be in possession of some evidence, on review of the material before the Court it appears that there is already evidence obtained by the applicant, and before the Court, to support a notice of motion to join Habitare Pty Ltd as a respondent to the substantive proceedings (for example, the identification of Habitare Pty Ltd as the applicant/contact on a document entitled “Engagement Form” (Annexure A to Mr Castrission’s affidavit sworn 25 November 2008), and the identification of Habitare Pty Ltd as owner on a “Development Application Decision Notice” (Annexure D to Mr Castrission’s affidavit sworn 17 November 2008)). Whether that evidence is adequate to warrant the grant of leave by the Court to join Habitare Pty Ltd to the substantive proceedings is an issue I need not decide now. Nonetheless, the existence of some evidence as to the involvement of Habitare Pty Ltd in the relevant projects is a factor which is relevant in substantiating the applicant’s claim that this is not a fishing exercise. In other words, this is not a situation where the applicant “has nothing”, and is fishing for evidence to “produce something” as the foundation for its notice of motion to join Habitare Pty Ltd to the substantive proceedings.
· From correspondence between the parties, the respective roles of the first respondent and Habitare Pty Ltd in the relevant property developments are unclear. Obtaining further evidence as to, inter alia, the involvement of Habitare Pty Ltd in the relevant developments the subject of the substantive proceedings would in turn strengthen the applicant’s current application to join Habitare Pty Ltd as a respondent to the substantive proceedings.
34 Accordingly, I consider that the applicant has demonstrated a legitimate forensic purpose for seeking issue of subpoenas in relation to the documents sought, and that the orders sought by the notice of motion before the Court cannot be characterised as “fishing”.
“On the cards”
35 Is it “on the cards” that the documentation sought by the applicant will materially assist the applicant’s case in relation to the notice of motion filed 17 November 2008?
36 It appears from the correspondence of the parties as annexed to the affidavit of Mr Castrission (and, I note, also annexed to the affidavit of Mr Ivanisevic, solicitor for the respondents, sworn 4 December 2008) that the applicant and the representatives of the first, third and fourth respondents and the proposed respondents are in dispute as to the proper parties to the proceedings. A key aspect of the dispute is the identity of the entity (or entities) that was (or were) the developer or which undertook a similar role in the development.
37 I have already referred to evidence which identifies Habitare Pty Ltd as having a role in the development projects the subject of the substantive proceedings. The additional evidence sought by the applicant as articulated by counsel for the applicant in his written submissions, includes:
· documents recording or referring to the responsibilities of role of Habitare Pty Ltd in relation to relevant property developments;
· documents constituting any application for development approval submitted by or on behalf of Habitare Pty Ltd or correspondence in relation thereto;
· documents created by Habitare Pty Ltd recording any proposal concerning the property developments; and
· similar documents with respect to the first respondent.
38 In my view these documents have apparent relevance to the orders sought in the notice of motion filed 17 November 2008. Although the applicant has some evidence that either or both Habitare Pty Ltd and the first respondent were involved in the relevant property developments, the nature of that involvement is not clear. It is “on the cards” that information in such documents will assist the applicant in relation to the notice of motion filed 17 November 2008, both with respect to seeking leave to join Habitare Pty Ltd and to seeking leave to amend the pleadings.
Are the categories of documents sufficiently particularised?
39 I have already noted the particularisation of the categories of documents sought by the applicant in written submissions, the relevant periods proposed by the applicant, and proposed return dates for the subpoenas.
40 The respondents have submitted, inter alia, that references to documents going to the “involvement” of the first respondent and Habitare Pty Ltd in Mr Castrission’s affidavit sworn 25 November 2008 are too broad because this would mean that the recipients of the subpoenas, if they can, must disclose every aspect of those developments in circumstances where they are likely to be voluminous, largely irrelevant to the instant dispute, and commercially sensitive. That may well be the case. However the proposal of the applicant at the hearing of the notice of motion to limit the categories of documents to those in relation to Habitare Pty Ltd and the first respondent and (as I have already observed) in particular to those:
· recording or referring to their responsibilities or role in relation to relevant property developments;
· constituting any application for development approval or correspondence in relation thereto; and
· recording any proposal concerning the property developments;
are considerably more specific.
41 I also note that the applicant has identified the parties to whom the subpoenas would be addressed as the city council in receipt of the relevant development applications (Brisbane City Council), the financier of the projects (ANZ Bank) and the building certifier (Certis Pty Ltd), which I consider reasonable in the circumstances.
42 Accordingly, I consider the categories of documents sought by the applicant are sufficiently particularised.
Are the orders sought oppressive?
43 Mr Alkadamani on behalf of the applicant submitted at the hearing that it would be appropriate if the Court made an order in the terms outlined in the proposed schedule in the written submissions of the applicant.
44 In addition to the explanation given with respect to categories of documents, the reasons given by the applicant for the “relevant periods” relating to documents requested are as follows.
45 So far as concerns the subpoenas to the Brisbane City Council and Certis Pty Ltd:
· In relation to Lots 12 and 13 Hamish Street, Calamvale – the “relevant period” proposed is actually the period between the date the Hamish Street development application was lodged and the date on which the occupation certificates were issued in respect of the development at Lots 12 and 13 Hamish Street, Calamvale.
· In relation to Lots 211 and 219 Norris Road, Bracken Ridge – the “relevant period” proposed is actually the period between the earlier of 19 June 2006 or the date that the development application in respect of Lots 211 and 219 Norris Road was lodged, and the date that occupation certificates were issued by the Council. The applicant submits that reference to 19 June 2006 is based on a document entitled “Proposed Residential Development – 47 Units” (Annexure B of the affidavit of Mr Castrission filed 26 November 2008) stamped 19 June 2008 by a regulatory authority.
46 Further, the applicant submitted that the relevant period for the proposed subpoenas to ANZ Banking Corporation is from 20 October 2005 to date because:
the Hamish Street development application was lodged on or about 21 November 2005. Prior to the proposed development application being lodged it is reasonable to assume that finance would have been organised or sought. The organisation of the financing would ordinarily involve detailing the framework of the development and the parties involved and their respective roles to the financier…[and]…as the developed lots are being sold and the financier is being repaid it is inevitable that there will be correspondence with the financier disclosing or demonstrating the role of Habitare Pty Ltd and/or Habitare Developments Pty Ltd in the development. The Applicant’s understanding is that the developed lots are still being sold.
47 As noted previously the applicant submitted that the return date for the subpoenas should be 14 working days from the date of the judgment. The date was not disputed by the respondents.
48 The respondents claim that the volume of material sought is oppressive. However there is no evidence before me that such an order as sought by the applicant is oppressive.
49 In my view it would be appropriate to make the order sought by the applicant, but in the terms advanced at the hearing by Mr Alkadamani and as clarified by reference to relevant periods of time, and the return date, as submitted by the applicant.
50 I also note that, in the event that the ambit of the subpoenas proves oppressive to the recipients, they are at liberty to apply to Court to have them set aside.
Substitute for Discovery?
51 In relation to whether the subpoenas sought are inappropriate because the applicant should more appropriately make an application for discovery, I consider that:
· issues raised in the notice of motion filed 17 November 2008 and in correspondence between the parties provide proper support for the notice of motion under consideration and for the orders sought by the applicant in this case; and
· I accept Mr Alkadamani’s submission that it would be inappropriate to wait until there has been discovery on the currently pleaded issues when clearly there is a live issue before the Court as to proposed joinder of other parties including Habitare Pty Ltd.
52 I am prepared to make orders in terms articulated by the applicant in written submissions. Costs are reserved.
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I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
Dated: 20 April 2009
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Counsel for the Applicant: |
Mr R Alkadamani |
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Solicitor for the Applicant: |
Castrission & Co |
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Counsel for the First, Second, Third, Fourth and Fifth Respondents: |
Mr D Atkinson |
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Solicitor for the First, Second, Third, Fourth and Fifth Respondents: |
Hopgood Ganim |
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Date of Hearing: |
9 December 2008 |
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Date of Judgment: |
20 April 2009 |
