FEDERAL COURT OF AUSTRALIA

Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 3) [2011] FCA 519

THE COURT ORDERS THAT:

1.    The respondent’s Notice of Motion filed in Court on 16 May 2011 be dismissed.

2.    Costs be reserved.

3.    The documents produced in answer to the Subpoena dated 21 April 2011 be uplifted by the Respondent for the purpose of inspecting and copying, and be returned to the Registry by 4.00 pm on 16 May 2011.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Yesterday morning I dismissed a notice of motion handed up by the respondent to the substantive proceedings. In that notice of motion the respondent sought the following orders:

1.    That the subpoena for production issued by the Deputy Registrar of this Honourable Court on 21 April 2011 to the Proper Officer of Coles Group Limited be set aside pursuant to Order 27 Rule 4 of the Federal Court Rules as being an abuse of process.

2.    That the Applicant forthwith return all copies of documents obtained pursuant to the said subpoena to the Registrar of this Honourable Court.

3.    That the Applicant not use information obtained from the documents produced by Coles Group Limited pursuant to said subpoena for any purpose including cross-examination of the Respondent’s witnesses.

4.    Such further or other Orders as the Court deems fit.

5.    Costs.

2    At the time I indicated that I would give written reasons for my decision as soon as possible. These are those written reasons.

Background

3    The substantive proceedings in this matter concern an application by the applicant for relief in respect of the supply of prawns by the respondent. The matter was heard over several days until 17 March 2011 when I adjourned it part-heard to resume yesterday morning. As at 17 March 2011 the applicant had closed its case, and the respondent anticipated opening its case when Court resumed on 16 May 2011. During the period of adjournment the matter returned before me on 27 April 2011 for mention in relation to a call for production of further documents by the applicant and objections of the applicant to the evidence of one of the respondent’s witnesses.

4    On 21 April 2011 the applicant sought an order from the Court for the issue of a subpoena to Coles Group Limited (Coles). The documents sought by the subpoena were as follows:

1.    The Coles Specifications for farmed cook fresh Black Tiger Prawns that applied to prawns supplied to Coles by Australian prawn farms, including the Respondent, in 2006, 2007 and 2008;

2.    The Coles Specifications for farmed cooked frozen Black Tiger Prawns that applied to prawns supplied to Coles by Australian prawn farms, including the Respondent, in 2006, 2007 and 2008;

3.    Any agreement, including any supply agreement, between Coles and the Respondent concerning the supply by the Respondent to Coles of farmed Black Tiger prawns;

4.    Written communications between Coles and the Respondent in 2006, 2007 and up to 30 September 2008 relating to Coles Specifications and the Respondent’s supply of farmed Black Tiger prawns to Coles pursuant to the Coles Specifications, including the Respondent’s capability to meet the Specifications;

5.    Documents, including letters, emails, orders, invoices, receipts and notes, relating to any dealing between Coles and the Respondent concerning the Respondent’s production, and/or supply to Coles, of farmed Black tiger prawns from the Respondent’s 2005/2006, 2006/2007 and 2007/2008 season harvests, including the Respondent’s supply of cooked fresh Black Tiger Prawns from its 2007/2008 season harvest; and

6.    Without limiting the production of documents in answer to numbered paragraph 5 above, documents, including letters, emails, orders, invoices, receipts and notes, relating to any dealing between Coles and the Respondent concerning the Respondent’s attempt to, or actual, supply of medium (21/30) sized cooked frozen (not fresh) Black Tiger prawns from the Respondent’s 2006/2007 season harvest.

(underlining in original)

5    A subpoena in the terms sought was issued by a Registrar of this Court on 21 April 2011.

6    The terms of the subpoena provided that the last date for service was 29 April 2011. Coles was ordered to comply with the subpoena by 2.15 pm on 6 May 2011. It appears from correspondence on the Court file that Coles may have had difficulty meeting the 6 May 2011. In any event, it appears that date by which Coles was required to comply with the subpoena was extended to Friday, 13 May 2011.

7    On Wednesday 11 May 2011 an order was made by a registrar of this Court allowing the parties’ solicitors to uplift and copy documents produced in response to the subpoena. It appears from material before me that material produced in response to the subpoena was made available by the Federal Court Registry in Brisbane to the parties after midday on Thursday 12 May 2011.

8    The applicant has filed an affidavit sworn by Ms Angela Lowe, the solicitor with carriage of the substantive proceedings on behalf of the respondent. Ms Lowe deposes in summary that:

    She only became aware of the service of a subpoena on Coles by an email communication she received from Mr Ryan of the applicant’s solicitors on Friday 13 May 2011 at 10.18 am.

    She had not been aware of the order of the Court on 11 May 2011 to enable orders to be obtained in relation to the documents produced in answer to the subpoena.

    In the time available on 13 May 2011 following receipt of notice of the issuing of the subpoena there was insufficient time to obtain instructions from the respondent and arrange to inspect or obtain copies of the documents produced in answer to the subpoena. This was particularly so as Ms Lowe is based in Townsville and the documents were in the Federal Court registry in Brisbane.

In Court yesterday morning

9    In Court yesterday morning Mr Drew submitted in summary:

    A subpoena had been issued by the Registrar in response to an application by the applicant, whereas the respondent had been required to make application in Court.

    Order 27 rule 3(6) of the Federal Court Rules provides that the date specified in a subpoena must be the date of trial or any other date as permitted by the Court. In this case the Registrar had simply ordered a date for compliance by Coles.

    Order 27 rule 5(2) of the Federal Court Rules provides that the issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee. In this case not only had the applicant failed to serve the subpoena as soon as practicable after 21 April 2011, but the parties had appeared in Court for mention on 27 April 2011 before me and the applicant had not served the subpoena on the respondent.

    The material the subject of the subpoena is not relevant. No issues relevant to any relationship between Coles and the respondent are pleaded.

10    In response Mr Peden for the applicant submitted in summary:

    The applicant did not propose seeking leave to either amend its application or re-open its case. Similarly, the applicant did not propose seeking leave to adduce fresh evidence.

    The material sought by the subpoena is relevant on the pleadings, and has already been the subject of evidence in the trial.

    No objection to production of the material was made by Coles.

    The material sought by the subpoena relates only to communications between the respondent and Coles. It follows that the respondent would already have this material.

    While the applicant accepts that service of the subpoena on the respondent is late, the applicant intends to rely on material produced in response to the subpoena in cross-examining the respondent’s witnesses.

Consideration

11    In this case the subpoena was issued on 21 May 2011. Ms Lowe was informed of the relevant order on 13 May 2011. Service of a copy of the subpoena on the respondent’s solicitor on 13 May 2011 was not “as soon as practicable after the subpoena has been served on the addressee”. Presumably the delay in so informing Ms Lowe was tactical from the perspective of the applicant’s legal representations. To that extent the conduct of the applicant’s legal representatives is, in one view, shabby, and almost certainly in breach of O 27 r 5(2), particularly as the parties to these proceedings appeared in Court in respect of other issues on 27 April 2011. However I do not consider that the applicant’s conduct constituted an abuse of process entitling the respondent to an order setting aside the subpoena pursuant to O 27 r 4.

12    I form this view for the following reasons.

13    First, it is completely proper for a Registrar of this Court to issue a subpoena in appropriate circumstances. Section 35A of the Federal Court of Australia Act 1976 (Cth) and O 46 r 7AA of the Federal Court Rules provide that certain powers of the Court may be exercised by a Registrar. Schedule 3 to the Federal Court Rules lists powers of the Court which may be exercised by a Registrar. Item 151 in Schedule 3 is:

Order 27, rule 2            Power to issue a subpoena

14    For convenience, the local practice in Queensland allows the leave of a Registrar to be sought by covering letter which annexes the subpoena to be issued. While the respondent complains of the referral by the Registrar to a Judge of the respondent’s own application for a subpoena earlier in the proceedings, there is no material before me to suggest that the Registrar has acted other than with propriety in issuing the subpoena sought by the applicant on 21 April 2011.

15    Second, the material sought by the applicant does, in my view, have an apparent adjectival relevance to the issues in the principal proceedings and were thus legitimately sought by the applicant: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90. In para 14 of the Statement of Claim the applicant claims, in summary, that the respondent was aware in or about May 2007 that a significant proportion of the prawn crop had been affected by protozoan growth with defects including difficulty in peeling them as well as tail rot and burst liver. There is evidence before the Court that the respondent has also supplied prawns to Coles Group Limited for sale in Coles supermarkets, and that the Coles requirements in respect of prawns are similar to those of Woolworths. I note in particular evidence of Dr Trevor Anderson to this effect (witness statement of Trevor Anderson dated 21 January 2011 paras 98, 100). Further, during cross-examination of the applicant’s witnesses a considerable amount of evidence was given in relation to the respondent’s supply of prawns to Coles. In this respect I note extensive cross-examination of Mr Warren Corbett by Mr Greggery on behalf of the respondent in relation to Coles specifications (for example, TS 17 March 2011 pp 18, 20, 35, 37, 51, 52, 54, 55), as well as cross-examination of Mr Warren Lewis by Mr Drew (for example, TS 15 March 2011 pp 70, 79). To that extent, information as to whether or not prawns supplied by the respondent to Coles in or around May 2007 met Coles’ specifications, and material including correspondence between the respondent and Coles, is relevant in these proceedings.

16    Third, I accept that the applicant sought the material produced by Coles for a legitimate forensic purpose, namely to impeach the credit of witnesses of the respondent. Mr Peden summarised this purpose more bluntly during submissions, namely to assist in cross-examination and to establish that certain witnesses had in fact lied. It is clear that the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Fried v National Australia Bank [2000] FCA 911 at [24], Liristis v Gadelrabb [2009] NSWSC 441, Mackintosh v The Commissioner of Police (NSW) [2010] NSWSC 1064, Thomas v SMP (International) (No 2) [2010] NSWSC 870, Jack Brabham Engines Limited v Beare [2010] FCA 35. In particular, in the context of these proceedings I note and adopt the comment of Hunter J in Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425 at [36] where his Honour observed:

I think it is indisputable that, if the subpoenaed documents are by their description, arguably relevant or capable of providing a legitimate basis for cross-examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. It is equally clear, in my view, that, if the description of the documents is such as to admit of a finding that the documents are manifestly irrelevant and incapable of touching matters of credit, then the issuing of such a subpoena represents an abuse of process.

17    The material sought by the applicant pursuant to the subpoena relates to Coles’ specifications for the supply of prawns and, inter alia, any documents relating to any dealing between Coles and the Respondent concerning the Respondent’s attempt to, or actual, supply of medium (21/30) sized cooked frozen (not fresh) Black Tiger prawns from the Respondent’s 2006/2007 season harvest. I accept that the material sought in the subpoena is arguably relevant or capable of providing a legitimate basis for cross-examination on credit matters, particularly as I have also formed the view that the material sought by the applicant has an apparent adjectival relevance to the issues in the principal proceedings.

18    Finally, notwithstanding the lateness of service by the applicant with a copy of the subpoena, in this case it is difficult to see how the respondent has been prejudiced. I note that the documents were not actually made available by the Federal Court Registry to either party until Thursday 12 May 2011. Further, and perhaps more importantly, the material sought by subpoena was within the compass of the respondent in that it related to previous dealings between the respondent and Coles. This was not a case where previously unsighted documents were the subject of a subpoena – the material was or at one time has been in the possession of the respondent, and in all likelihood included material emanating from the respondent.

19    Practically, the material produced by Coles fills a lever arch folder. In light of the nature of the material, I considered the appropriate approach was to adjourn the hearing for several hours, and to enable the respondent to uplift and copy the material produced. This was done, and the material returned to the Court by 4.00 pm yesterday afternoon.

Conclusion

20    In light of those reasons the proper order is that the respondent’s notice of motion be dismissed. However in light of the events, including late delivery of a copy of the subpoena to the respondent, in breach of O 27 r 5(2), it is appropriate to reserve costs.

21    In relation to this matter, at present I will reserve costs.

Associate:

Dated:    17 May 2011