JUDGMENT No. want 4 SE. Aya TATTUIAHA' k DS CrACTICE AND F9OCEDURE - productien ct ments - subpoena dices cecum dinrected to thicd warty - aoplication by third party 12 2et Alte suotlera - time It¥ Droauction ar documents - differant functions of discovery ana subooena fcr production - wnether niLopoena oporesaive oy fishing - -sag3s 0f decuments idencifiad sufficrently ciearly - surrocena vasidly issued - axsreopriare erger for insts Trade Practices Zor 1974 3.52 Federal Court rules O.°7, 0.37 r.1 GLEN WA wand JAG QUELINE ANNETTE MAISEY, ELIZABETH SMFILEY an2 NICK JAMES 9TY Tl v. MUDGEEPABA VILLAGE ESTATES PTY LTD and ZQGLENE ELISABETH EERPY MUDGEEPABA VILLAGE FSTATES FTY LTD and ZOLENE ELISABETH PEPRY v. FIRST COAST PTY LTD and SURETY INVESTMENTS PTY LTD and DAVID NHITE SPENDEPR J. BPTSPANE 14 SEPTEMBED 1oAa IN THE FETEFAL TOUPT OF AUSTPALTA ' QUEENSLAND DISTRICT FPEGISTPY ' .LO | fa, ilu and il? SENEPAL CIVISTON \ BETWEEN : SLEN WAYNE and JATUNELINE ANNETTE MAISEY, ELICAPETH SMEDLEY and Nick TAMES DOTY LTD Applicants AND: MUDIGEEPABA 7:LLAGE ESTATES PTY LTD Third respondent AND: SOLENE ELTUABETH CEFPY Fourth Pesvondent AND: MUDGEESARBA VILLAGE ESTATES PTV LTb First Cross Claimant AND: ZOLENE ELTUARETH FEPPY Second Cross Claimant AND: FIPST COAST PTY LTD First Crose¢ Pespordenr AND: SUPETY INVESTMENTS PTY LTD Second Cross Respordentr AND: LAVID WHITE Third Cross Fespondent TODGE MAKING GPBER: SPEI DATE GF OFDER: WHEEE MALE: THE CoyPT CEROE £5 THAT: wtfice ef e ard serve an e with respect fore 9.39 a.m, BR Q. a Be rt Q rar) p BHPr D Q 8] ns Pr s ey No order as to inspection of the documents produced to the Court under zubpoena. The Registrar of the orfice of Auctioneers and Agents pay the third and fourth respondents' costs of today to be taxed, otherwise no order as to costs. This matter be adjourned to 9,20 a.m. on Wednesday 19 September 1984. The third réspordent and fourth respondents, in a proceeding for damages pursuant to 3.52 of the Traue Practices Ach 1974 ("the Act") and alternatively damages for fraud cr misrepresentation, are also in those proceedings the first ard rnd croes-claimnants. By metice of omohion tney s#eK the tue ereduction -i doraments pursuant te subeoenas igsued unier rhe provisions of order 1° of the Federar Court Rules. Theis subpoenas were directed to the beqistrar of Ene ffice of Aurrismeers and Agents, and in e2ach of the thres pyarTeeqings the sucpaena required the production of: "Ali files, statemerrs pursuant fo Sectian 44 and 67A sf the Auctioneers and Agents Act MPueengiana', application forms, centracts, statements of witnesses, transcripts of interviews, reports and other decurents velating t> tne investigation carried out by Tnspectors Graham Harman and Garry Gillard cf your Office anto a project known as 'The Lodqe' being a proposed unit development at Broadbeacn, Gold Crast in the tate ot nesland, such investigation being menced towards the end of 1982 or early he affidavit in velation to the eubpoena to produces second, tnira and fecurth respondents to andice tne appiircants te agply for shares in a liwited partnersnip prometed by the first ani second responcents. to enter into a contract for the purchase OF a project krown as "The Lodge", ana to pay out certain moneys, as a result of which it 19 alleged that the apolicants suffered loss and damage The affidavit states that the third and fourth respondents in their defence deny the material allegations in the statement of claim, and allege, inter aiia, that the fourth respondent, on behalf of the third vrespendent, expressly prohibited one David White, a person alleged to have been the actual maker of tne false representations, from offering the saii units for sale and from acting tor the first or second resoondents. it is further stated that a cross-claim by the third and fourth respondents against the first and second respcndents has been filed and served, and joined in that cross-claim :s the third cross-respondent, David White; that if the third cross-respondent made the alleged representations and if the third cross-respondent was then acting on behalf of the farst and second cross-claimants, and the first and/or second cross-claimants were acting on behalf of the first and second cross-respondents, then the representations were made by the third cross-respondent with the authority of and at the implied request of the first and second cross-respondents; and further that 1f the third eross-respondent made the alleged representations, or made them fraudulently or negligently, then the making of such representations constituted a breach of the terms of engagement of the third cross-respondent with the first cross-claimant. Fe Wilie ip may be difficuit ¢t9 appreciate at first pbilucn tne matare of the allegations Dy virtue of the multroeirecrty fhe cress-ciairm 1s the igsae of the selarionshin oetweer Davis '20, Ir the csurse of takinys instructions and der.sing documents discovered pv each of tne marliae bo the oro teeaings and, in barticular, by my Wlients, tne Third Resoonianr 'First Mros3 Claimant an2 the Fourth Respandent/Second Cross Claimant, it hag become apparent to me that early in 1983 "790 unspectors of the Cffice of Ructicneers and Agents, namely 'SPAHAM HAPMAN ana GARRY GiLLARD conducted an investigation into the project known as The Ledge' the subzect of these proceediras. I have in ry possession, the ctranscript of a recorqd of interview, commenced at 1:23 p.m. on the 24th January, 1383 at Lhe affices of the Third Pespondent/First Cross Claimant conducted by the said inseectors, at which time the Fourth Respondent/Second Cross Claimant and one of her fellow directors, DCNALE TOTTEY, were ipterviewed in relation to 'The Lodge'. li. Further to the iistructiers T have *aken ana the aocuments | have peru3zed, 2 have u.scussed with Garry Gillard, the investigaticn carried out by himself and Inspector Harman, 38 a result of which I have formed the belief that the Registrar of the Office of Auctioneers and Agenrs had in his possession various documents uncluding Application forms, Contracts, Statements Pursuant to Sections 66 and 67A of the Auctioneers and Agents Act (Queensland), Auctioneers anid Agents, indicated that while ne did not haye tnen tne Court to seh ag L3gsueq or in Sertemper 1 Statements of Witnesses, Reports and sther sucn documents which relace te the issues in question in these proceedings. 12. I consider 20 13 tmportant fo the crover preoaration and presentation the ca For the Third fegronuent/Firsk Cre ? and the Fourth Respondent: Secuni c ant that LT should nave access co ie tne pegsess1on, mower oar cennrai of cna said Pegistrar far lorporate Affairs sic). in adaition Lata) rhe i I have particularised in the preyvisus raon of ptnas my Affidavit, ak. I ased on my exrerirence, £ tho D{ Oman tne Tries mainca: byt vay for Terporate Af ' contain anforraticon ar man heals Fa my 72198nt3 cage. . 27. 5 consider in ois pcoth riate ana nesezsary for toe Thica spandent/rirst "fos3 Tlaamant ard Fourtn Resoondenc/Second Tross Tlaimant to optain an Teas: for Third Party atscavery directad fo the said Peqretrar in terms of the Orders eourgnr in the fice of Mctian filed herewith ana uven tne OQures deposed to in this my Arfidavit Te this Ddecause the cl 153 ely to be vigcrousl 13 portant tc the prop Tria that access be had that may become relevant ain any way during *he Teial.' When this matter First came betore me iast Wednesday, Mr wno appeared for the Fegyistrar of the he antiticated shortly being ir a sosicion, on behalf of liemt, to file a notice of morion, tne tnrust of for l i a) co 4. NfFfine woalcn e the subpoena for oreducticp which On that afternoon, that material not being available, I adjourned the matter until today to enable the parties to put all the material they wished before me, and, in particular, before the adjournment on Wednesday I indicated that if an objection in respect of privilege or other matters was to be taken in respect of categories of documents, the material taking thar objection as well as the material on which the respondent to the subpcena wished to rely, should be filed by 4 o'clock on Thursday As it turned out, Mr Bourke, on behalf of the Pegistrar of the Office of Auctioneers and Agents, sought merely to rely on the material filed and on his notice of motion; no affidavit material was filed on benalf of the Registrar. Shortly put, the objections he advanced on behalf of his client were these: first, that having regard to the stage at which the proceedings currently stand, the attempt to seek production of documents 1s premature; secondly, that in substance the subpoena 1s an attempt to subject the Registrar, who is not a party to the action, to an obligation tao make discovery; and thirdly, that the subpoena 1s oppressive and fishing. Those obisections are the sare as those formulated in Lucas Industries Ltd ve. Hewrtt (1978) 18 ALL.&. 355. Those formulations were expressly adopted nere as the grounds on whitn ortection was taken to the attempt tc seek oroduction of dccuments ip tnese oro iesiinras, Fu First sf all, @.17, an@ ain articular 7.27 v 2, deals WLEN EAS power fo Lssue subptenas fer the eorcduction of documents. The form of subpoena is ta be founa in Froem 41 of the Federal Court ules, The rales oermit ao party to produce documents rrier tc the eeturn iate of the subpoena and ct red gC ie Lonot2 aiso than O.37 v.l refacs to the powers of tne Tourt tc deal with disobedience of subpoena or other orders, and provides for extensive powers of enforcement of the Court's ue)a o s a \t Qa iw) aa] (b te ot ow 'b So P) fon < a tt Pp oaie) rh nen c a DiT we Se far as the first ground of objection 15 concerred, it was submitted that to require productior of documents prior to the commencement of the trial was particular, was not permitted by the powers of the Federal Court e3 it being uryed, as is the case, that the Federal Cour. 1s Dp @ statutory tourt and must only att within tne statutory powers To that argument I nete that in Trade Practices Commission v. T.N.T. Management Pty Ltd in which judament by the Chiet Judge, Sir Nigel Bowen, was given on 18 September 1981, the plaintiff had served subpoenas on various persons (not being parties ta the main vsroceedings) requiring production of certain documents to the Court some four weeks before the date set for hearing. The persons on which the subpoenas were served arqued that the subpoenas were void on the ground that the Court has no power to issue subpoenas bearing a return date in advance of the hearing, or at least such a course 1s invalid unless specifically ordered by the Court. The Chief Judge held that the subpoenas were not void. The case, while unreported, 1s noted in the ©.C.H. High Court and Federal Court Practice Vol. 2 at para. 24-804, p.61,106. That case anti-dated the precise forms of the Federal Court Rules as we now know them. The Rules of the High Court were then the primary source of the rules applicable in the Federal Court. His Honour said, amongst other things: "Tam of opinion that this Court has power to make cules, pursuant to sec. 59 of the Federal Court of Australia Act 1976, authorising the issue of subpoenas returnable before the date of hearing. Although no such rule has, in fact, been made, the Court ora Judge can give directions on the matter (sec. 38). This being so, these subpoenas, while irregular in form, are not void." ne A later cage, dealing in tact witn the Rules of the Hign gurt, Lucas Industries Lrd vy. Hewitt, supra, spvecificaliy dealt Ehe argument now advances as the f2rict supmissitonm py Che Registrar of the Office af Auctioneers ari aAgenr3. Smithers 7 With whom the Chist Justis, Sis Nigel ewer, ard Nivmo J. ] ry iT ay c s a] r © iT we ip) "s iP] Bnth th Dress PHe £ it) a wtih, ny 7) ts Sing eat bo D Reo Ur 't} o ib Ay w- ia rer a) IT ts O ry re) wh fal sie , » ov s iD Bw B)3 a ty itt) cangers wh + is S £ purpose ft t Yorons Q itis m ry be fa x de cume ana reurt. It 1= acecraina to that persons wno hav? cnow Put Te the inconverrence Tourkh ani required to give a » MD mre t Gb Om re t woop Ot His Honour had earlier dealt with the question of the reasonableness of burdens involvea in Q amplying with tne subpoena. At pr.568-552, line 35, ne said: "Hawever, for purposes of considerirg ereduction of documents ah this stage pursuant to the subpoena under discusaior, cne important consideratior is tnat what is required 15 performance of a step incidental 'a the aumplementatieor of the orders for 'eakirg' the evidence of experts before the hearing. It therefore goes to a matter of substance, namely, the ability of the appellant to collect and formally deliver the complete expert evidence on wnich he relies before the hearing as contemplated by those orders. Orders of this kind are no doubt particularly appropriate for certain classes of litigation, including proceedings concerning letters patert, wher? considerations pertaining to crog3s-examiiing expert witnesses on grounds going 9 credit May not be regarded of primary 31jnificance. At any rate, 1f there 1s a corflict between preserving the 1qnorance of the appellant so emat at may possibiy be emcarrassed in cross-examining witnesses and the collection, Preparation, delivery and filing of the mritical expert evidence befcre tne trial in accordance with the vorocedure cala down oy "ne velevant orders, tne former must give way. fb 13 an incident of the procedure Lari down, wt is a contribution to the eroper presentation of the facts and, ir my viaw, ta Vact oot the Llitigatlor en oa fair ana at op.269, Laine &: is, tTheretoare, that rhe suppesna and trae date it was were not oremature in vhe Tt 1s to pe observed that, were the Oo: aceelding by way of suopyena not available for TALS purpess, vresert to 027, £7 would be avoropriate, Acecardingly, on any view, the Yalidire of the forn and substance of the subpoena must be cansidered." Smithers 7. then turned his actention co the submissions which are the second and third submissions hers So far as these submissions are concerned, essentially tne arqument 1s tnat the subpoena 18 tco wide; and, mcre iurpertantly , 2 purports to eegquise discovery by the Payistrar or the Iftice of Auctioneers and Avyents, a pure sss which is contrary 12 tne cororer purnase of supsoena; art fo" that reason, the matter: ougnt to oe set aside. ll. The principles governing these sorts of questions are not seriously in dispute before me. In that regard, reference wag made to The Commissioner for Pailways v. Small £19387 38 3.R. N.S.W. S64; Elder v. Carter; arte Slide and Spur Gold o ba Mining Company £1899] 25 9.B.D. 194; Burchard v. Macfarlane; ex parte Tindall and Drvhurst (18913 2 Q.B. 241. I particularly acknowledge the great assistance in respect of these matters I derived from the judgment of Moffitt P. speaking for the Court of Appeai in Waind v. Hill and National Employers' Mutual General ed ssoci1ation itd £19781 1 N.S.W.L.R. 372. The Court of Appeal in that case was constituted by Moffitt P, Huttley and Glass JJ.A. In the judgment cf Moffit P the relevant principles appear at p.7A8l letter D: "As Jordan C.J. pointed out in Small's case (1938) 38 S.R. (N.S.W.) 564, at p. 574; 55 W.N. 215 and, as appears in Burchard's case (18913 2 Q.B. 241, at pp 247, 248 there are at least two steps in the procedure of having a third party bring decuments to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them toa the judge. This step invoives the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step 13 the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be Jiven to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision ain the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs. Upon the first step the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was 1mproperly issued andan abuse of the power to compel the production of documents in any one of a number of ways. Such a case 1s where the subfoena is used for the purpose of discovery. The essential feature of discovery in this connection, as appears from Burchard's case and Smali''s case is that the person to whom the subpoena 1s addressed wlll have to make a judgment as to which of his documents relate to 1ssues between the parties. It 1s oppressive to place upon a stranger the opligation to form a judgment as to what 1S relevant to the issue t0eined ina proceeding, to which he is not a party. Hence 1t 15 an anuse of the use of a subpoena to impose this obligation. It follows that 1t 18 an abuse to use any subpoena, 1.8. even to a party to obtain discovery. This was the reasoning in Smalis case. Of course, discovery as such 1s otherwise avaliable to a party. It fcllows that a subpoena can enly properly be used for the production of documents described in particular or general terms which does net involve the making of such a judgment. It does not follow, however, that because the party who issues a subpoena 1s unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of 'discovery'. To state it does involve (sic.) a misconception of the different functions of discovery and of a subpoena far production. Qr course, 1t may be that the terms of a subooena are so wide that it 15 oppressive, but This 1s not because it is used for 'discovery ain the sense used in Small's case and Burchard's case, but because it imposes an onerous task ona stranger to collect and produce documents many of which can have no relevance to the litigation. To require the branch of a bank to produce all cheques received by 1¢ ina particular year in order to find, 1f ait exists, a cheque of the opponent ina false name would be oppressive, whereas, to require a hospital to produce its file in respect of the medical treatment of the opposing party would not. If 1s a misuse bE ta of terms to say the »erson who inspecta the latter ta uatna it fer the purposes of diacevery, because ne 1s unaware of the contents of the documents or some of them. Tk 1.3 not ain poinr te seek ta erine the excessive u of the suspoena. Tne dorm menrs In 1s are rot such, and the witness kcaelf tf so lam. . if T may say so with res a ° t. he ct may be vead with profic and Lt seems ro me that apelyirs peinciples there set out, "his ws nek a case where wrat has reen In this reagird, there 13 79 requiremart by the Regqisctecar ne Office «fF Auctioneers and Agents toa determine the My Blank, 'here can pe n> agoubr Put that such an invesctigatican interview on 24 January 13235 in the offices of the third respendent, at which time the fourtn respondent and one of her alow directors were interviewed in relation to the eraiect of Moreover, it seems to me that, having regard to the observations of the Full Court of Queensland in Re Tallebudgera Estates Pty Ltd £19703 Qd.R. 63, and the single judge decision of Hoare J. un Lisle v. Pasmussen C1971] Q.W.N. 3, what 183 sought here are identified documents, albeit identified by reference to the investigation, documents, which on the material betore me, seem to have a relevance to the issues between the varties. In che last-mentioned case, Hoare J. ruled that what should be produced for inspection were the statements of evidence taken by the police officer, 1f any, and any reports by that or any other police officer relating to the matter in the course of investigation. Here what 1s sought from the third party are the statements made, the documents obtained and the reports produced in the course of the investigation made by these two inspectors in respect of this particular project. In addition to the matters to which I have earlier referred, Mr Bourke, on behalf of the Registrar, drew my attention to a number of other cases, including McAuliffe v. McAuliffe (1973) 4 A.C.T.R. 9, a judgment of Blackburn J. In that regard, I again with respect adopt the view by Moffitt P. an Waind's case in respect of matters dealt with in the former case Dy Blackburn J. Further, valiance waz claced upor tne judament Ff CooK f., in in Mareciage of Malist; Cammorweaith Savirds AM mere oraer, including rule 4A. Nothing an the detarled andic qudgment cr Coon J. leads me to torcrlude that the asprcach thar I Lave acopteca 1 En TALCS2 tirtumstances, Tf ean prarcse t3 s4n aside thig surcoeesr+1 and will vequire che production of documents pay oo veccthirdes osp fhs acre lacet = lonte of the vans dodated ADCRRLS and othe apes sant' 3 rleets browne ct tne Suereme Court : ce r meet Mme Fl Ene dorama Court matrerg, In the other matter in the funveme Court, the orders male oy Ene surrema Court were varled by aetting aside tre order as fo eaogts, sat other £ Jise the apreal was dismissed. What tnis Pours cee int? atcount in tnat instance was that there nad been RubStartlal s.ccess by tne party wno smighkt previsian of the lecurents, wniiszk 2» ovlsicn naa b i) oi) J fr wv rv) B a wt iL p ry r , ae" Oh) D ror '7 Py oo a i Nw at in 9] tT Dv Sswt ty if "y i) and Agents rar "ae thiura ord fourth resnenients onsts of today, co be taxed, Drherwite, 12 Crzer as to ca eryes art avert ee, eG taareaccr. or no Menour ong 341 ES