FEDERAL COURT OF AUSTRALIA

Idameneo (No. 123) Pty Ltd v Hanna [2009] FCA 565

IDAMENEO (NO. 123) PTY LTD ACN 002 968 185 v DR. NADI KRYOLLOS HANNA

NSD 724 of 2008

GRAHAM J

18 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  Paragraphs 3 and 4 of the schedule to the subpoena directed to the applicant and filed on 12 May 2009 be set aside.

2.                  The applicant produce to the court the documents referred to in paragraphs 1 and 2 of the schedule to the subpoena at 9:30 am on 20 May 2009, provided, however, that the Registrar may extend the time for full compliance with the subpoena if a proper case for such an extension of time is made out on 20 May 2009.

3.                  Access to the documents that are to be produced be limited until further order to the solicitors and counsel for the respondent.

4.                  The Notice of Motion filed 14 May 2009 be otherwise dismissed.

5.                  The applicant to pay one half of the respondent’s costs of the Notice of Motion filed 14 May 2009.

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.

REASONS FOR JUDGMENT

1                     These proceedings were commenced in the Supreme Court of New South Wales Equity Division on 25 September 2007 by a Statement of Claim filed in 4709 of 2007.  The defendant, now respondent, Dr Hanna, filed a Defence in the Supreme Court on 9 January 2008, and an Amended Defence on 16 May 2008. 

2                     On 30 April 2009, judgment was entered for the applicant in relation to the claims made in the Statement of Claim on the issue of liability, and an order was made that damages in relation to the Statement of Claim be assessed.

3                     Paragraphs 30 and 31 of the Statement of Claim detail the loss and damage said to have been suffered by the plaintiff, now applicant, as a result of breaches of a sale deed dated 1 December 2006 and a practitioner contract dated 1 December 2006.  Paragraph 18 of the Amended Defence was expressed in the following terms:

‘18.      The defendant denies the allegations contained in paragraphs 30 and 31 as alleged or at all and says that if plaintiff suffered loss and damage the plaintiff had a duty to mitigate its loss by retaining a replacement medical practitioner to provide skin cancer services.’

4                     It will be apparent from the paragraph in the Amended Defence, to which reference has been made, that the applicant is put to proof in respect of its claims of loss and damage referred to in paragraphs 30 and 31 of the Statement of Claim, and in addition, a failure to mitigate is suggested.  I should observe that paragraph 31 of the Statement of Claim is expressed as being ‘further or in the alternative’ to paragraph 30.

5                     By a Notice of Motion filed 14 May 2009, the applicant sought an order that a subpoena issued to the applicant dated 12 May 2009 be wholly set aside.  The subpoena filed 12 May 2009, to which reference was made in the Notice of Motion, sought the production to the Court by the applicant of documents falling within four numbered paragraphs which were to be read in conjunction with a schedule defining certain terms used in those four paragraphs.  As of last Friday, 15 May 2009, the respondent indicated that it did not press for compliance with paragraphs 3 and 4 of the subpoena.  However, it did press paragraphs 1 and 2.

6                     In a letter dated 14 May 2009 from the solicitors for the applicant to the solicitors for the respondent, it was said that:

‘On the face of the pleadings, the relevance of the documents sought in the subpoena dated 12 May 2009 and served on the applicant is unclear.’

7                     On the hearing of the applicant’s Notice of Motion filed 14 May 2009 today, that is to say, Monday 18 May 2009, the applicant urged that it would be happy to comply with paragraphs 1 and 2 if they were differently expressed and if the time period in respect of which the documents were to be produced was changed from 1 July 2007 to 30 June 2008, as recorded in the subpoena, to 24 September 2007 to 30 March 2008.  

8                     A submission was put that it was not clear on the terms of the subpoena whether the documents sought would embrace documents relating to the engagement or attempted engagement of dentists to work at premises described as the ‘New Premises’.  It seems to me there is no substance in the submission that a requirement for production of documents relating to medical practitioners includes dentists.

9                     A submission was put that the subpoena was broad in that it may well embrace medical practitioners with professional skills different from those of the respondent, who was to serve at the new premises in the area of skin cancer and general practice.  Exception was taken to the use of the word ‘publications’ in paragraphs 1 and 2 of the subpoena, and an issue was raised as to confidentiality. 

10                  It seems to me that paragraphs 1 and 2 of the subpoena are adequately expressed.  It may be that the word ‘publications’ is inappropriate, but in the context of the other words used, it is clear that it has a meaning akin to that of advertisements.  In my opinion the verbiage chosen is satisfactory.

11                  Counsel for the applicant has indicated that reasons are not required.  However, I think it appropriate that reference be made to what I said in Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398, in particular at paragraphs [44] – [54]. 

12                  The only issue which seems to me to cause difficulties is the appropriate order as to costs.  It is clear that the abandonment of paragraphs 3 and 4 in the schedule to the subpoena by the respondent is an acceptance of the propriety of the challenge made by the applicant to the validity of the subpoena by its Notice of Motion of 14 May 2009.  However, the applicant was not content to allow the subpoena to stand in the form in which it was expressed in paragraphs 1 and 2 of the schedule.  Rather, it caused the Motion to come before the Court today to have the sufficiency of paragraphs 1 and 2 determined. 

13                  I would not be disposed to set aside either paragraph 1 or paragraph 2 of the subpoena.  In those circumstances, the applicant’s challenge to the subpoena, which has occupied the time of the Court today, has failed.  In my opinion, the proper order as to costs is that the applicant pay one half of the respondent’s costs of the Notice of Motion filed 14 May 2009.

14                  In draft short minutes of order, the applicant has proposed a restriction upon access to documents that may be produced, limited in the first instance to the respondent’s legal advisers.  The applicant has also expressed concern about the applicant’s ability to fully comply with the subpoena on the return date of 20 May 2009 when the matter will be before a Registrar of the court. 

15                  It seems to me that the applicant should, given the hearing date fixed for this matter of 2 June next, do all that it possibly can to ensure full compliance with the subpoena at 9:30am on 20 May.  No doubt if, at the time, the applicant is able to satisfy the Court that it would be reasonable to allow further time to complete the task of producing documents called for by the subpoena, then an additional allowance of a day or two would no doubt be permitted for that purpose.

Associate:

Dated:         27 May 2009