Westpac Banking Corporation v Billgate Pty Ltd

[2013] NSWSC 460

Supreme Court

New South Wales

Medium Neutral Citation:	Westpac Banking Corporation v Billgate Pty Ltd [2013] NSWSC 460
Hearing dates:	26 April 2013
Decision date:	26 April 2013
Jurisdiction:	Equity Division - Commercial List
Before:	Stevenson J
Decision:	Documents produced under subpoena to be made available for inspection by all parties
Catchwords:	PRACTICE AND PROCEDURE - documents "produced to the court in response to a subpoena" - whether documents not within ambit of subpoena should be returned
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Hanlon v Federated Engine Drivers and Firemen's Association [1994] NSWIRComm 210 Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245
Category:	Interlocutory applications
Parties:	Westpac Banking Corporation (plaintiff) Billgate Pty Ltd (first defendant) 101A Darling Point Road Pty Ltd (second defendant) William John Jamieson (third defendant) Jennifer Robyn Jamieson (fourth defendant)
Representation:	Counsel: J M White (plaintiff) J D Little (fourth defendant) Solicitors: Gadens Lawyers (plaintiff) I H Congdon (first, second and third defendants) CLS Legal (fourth defendant)
File Number(s):	SC 2012/312312
Publication restriction:	Nil

EX TEMPORE Judgment (REVISED 26 APRIL 2013)

1. On 18 March 2013, the plaintiff issued a subpoena to Garland Hawthorn Brahe, Solicitors. Garland Hawthorn Brahe were the solicitors acting for the fourth defendant, Mrs Jamieson, in relation to a number of transactions relating to the issues in these proceedings.

1. Orders have been made for the inspection of those documents on the basis that the legal representatives of Mrs Jamieson inspect the documents first.

1. Mrs Jamieson's solicitor has inspected the documents and contends that some of the documents (which have been placed into a sealed envelope) are documents that fall outside the ambit of those sought in the subpoena.

1. Mrs Jamieson makes no claim for privilege in relation to any of the documents produced.

1. Mr White, who appears for the plaintiff, submits that whether or not some of the documents produced by Garland Hawthorn Brahe are beyond those properly within the scope of the documents sought in the subpoena, the documents are all relevant or likely to be relevant to issues in the proceedings.

1. Ms Little, who appears for Mrs Jamieson, did not contest that the documents may be relevant but submitted that, even if they were, to the extent that they are beyond those actually called for by the subpoena, they should now be returned to Garland Hawthorn Brahe.

1. Ms Little relied upon the terms of the Uniform Civil Procedure Rules (UCPR) r 33.8, which provides that the Court can give directions for, amongst other things, inspection of documents that have "been produced to the court in response to a subpoena."

1. Ms Little's submission is that documents produced by a party following service upon that party of a subpoena, but which are not documents within the ambit of the subpoena, are not documents produced to the Court "in response to a subpoena".

1. Ms Little refers to the decision of the High Court in Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245, particularly at 261, where the Court said that: -

"[T]he only legitimate purpose of the subpoena was to secure the production of the documents specified in it."

1. Ms Little also referred to a decision of Marks J in the Industrial Court in Hanlon v Federated Engine Drivers and Firemen's Association [1994] NSWIRComm 210 where his Honour said, in the particular circumstances of that case and where documents had been produced which were not within the ambit of a subpoena, that the proper course was to return those documents to the party who had produced them.

1. I do not read the reference in UCPR r 33.8 to documents "produced to the court in response to a subpoena" as confining the Court's power under that rule to documents that are within the ambit of the subpoena. It appears to me that the plain language of the rule shows that its ambit is wider than that, and applies to any documents which are produced to a court by a party following service on that party of a subpoena. If it were otherwise, the Court could not, in the exercise of its discretion, order that documents beyond those within the ambit of the subpoena be returned.

1. The question for me is whether, in all the circumstances, I should investigate whether any of the documents produced are beyond the ambit of the subpoena in circumstances where there is no dispute that the documents are or may be relevant to the issues in the proceedings.

1. Were I to engage in that exercise and come to a conclusion favourable to Mrs Jamieson, the result would be that any documents beyond those called for by the subpoena would be returned to Garland Hawthorn Brahe. The plaintiff would no doubt then cause a further subpoena to be issued, in broader terms than that with which I am concerned, and the documents then produced.

1. It is hopefully by now well known that the overriding purpose of the Civil Procedure Act 2005 and the rules made there under are to facilitate the just, quick and cheap resolution of proceedings. Further, parties are under a duty to assist the Court to achieve that end.

1. In my opinion, were I to accede to Ms Little's application it would, in the particular circumstances of this case, fly in the face of my duty and that of the parties as prescribed by s 56 of the Civil Procedure Act.

1. In those circumstances, I do not propose to make any order under UCPR r 33.8.

1. I direct that the documents produced by Garland Hawthorn Brahe, which are contained in the envelope that I have initialled and dated today and placed with the papers, be made available for inspection by all parties forthwith.

1. I order that the costs of this argument be the plaintiff's costs in the cause.

1. I order that these orders be taken out forthwith.

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