22 \ CATCHWORDS PRACTICE AND PROCEDURE - application for leave to appeal from unsuccessful application to set aside subpoena duces tecum - whether subpoena too wide - relevance of Supreme Court proceedings to inspect same documents - relevant considerations on application for leave to appeal from interlocutory decision - whether substantial injustice would follow from refusal of leave to appeal. Federal Court of Australia Act 1976 s.24(1)(a) Companies (Victoria) Code s.329(a) ROGER GRAHAM RANDLE AND MESSRS TOUCHE ROSS & CO (A FIRM) v JET CORPORATION OF AUSTRALIA PTY LIMITED (in its capacity as Trustee of the Jet Corporation Australia Trust) No. VG 143 of 1985 Woodward J. Melbourne 5 July 1985 ry IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 143 of 1985 ) ) GENERAL DIVISION BETWEEN ; ROGER GRAHAM RANDLE and MESSRS TOUCHE ROSS & CO. (A FIRM) Applicants and JET CORPORATION OF AUSTRALIA PTY LIMITED (in its capacity as Trustee of the Jet Corporation Australia Trust) Respondent MINUTES OF ORDER COURT: Woodward J. DATE: 5 July 1985 PLACE: Melbourne THE COURT ORDERS THAT: The application for leave to appeal be dismissed with costs. (Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 143 of 1985 GENERAL DIVISION BETWEEN: ROGER GRAHAM RANDLE and MESSRS TOUCHE ROSS & CO. (A FIRM) Applicants and JET CORPORATION OF AUSTRALIA PTY LIMITED (in its capacity as Trustee of the Jet Corporation Australia Trust) Respondent COURT: Woodward J. DATE: 5 July 1985 PLACE: Melbourne EX-TEMPORE JUDGMENT This is an application for leave to appeal from a judgment of Northrop J. given on 23 May 1985. The matter before his Honour was a motion to set aside two subpoenas duces tecum. In the event one was set aside in its entirety and the other set aside in part. The applicants now seek leave to appeal against his Honour's refusal to set aside the remaining two operative Paragraphs of the latter subpoena. Leave is necessary pursuant to section 24(1)(a) of the Federal Court of Australia Act 1976 because the judgment is of a purely interlocutory nature. The relevant facts and authorities are set out clearly in the judgment of Northrop J. and I need not repeat them here in any detail. Counsel for the applicants relied upon two arguments, the first being that the two paragraphs of the remaining subpoena were clearly too wide because they sought in effect all documents, belonging to or relating to three firms involved in the litigation before his Honour, which are in the possession of the applicants, who were the accountants for the three firms at the relevant times. A subpoena couched in such general terms will often be bad because it clearly covers too long a period or too wide a range of subjects, but it will not be bad simply because it is likely to include some documents which will turn out to be irrelevant to the issues before the court. In the present case the issues affecting the three companies are complex and the time span covered by the subpoena is relatively short. All that counsel for the applicants could point to as irrelevant documents likely to be comprehended by the subpoena were records of charges for professional services and administrative office memoranda and, as counsel for the respondent pointed out, the inspection of documents remains within the control of the court and objection may be taken to permitting the parties to inspect these or any other documents which appear to have no relevance to issues being litigated. The width of the subpoena was carefully considered by his Honour in the light of relevant authorities, and in my view this is precisely the type of question which, in the absence of special circumstances, should not be further debated before a Full Court. The other argument pursued by counsel for the applicants was that his Honour should, as a matter of discretion, have set aside the subpoena because the receivers and managers of the present respondent had also sought inspection of much the same documents, although this time they had been categorized in more detail, in the Supreme Court of Victoria pursuant to section 329(a) of the Companies (Victoria) Code. I am informed that, in that matter, a judgment has been given by Gobbo J, which was placed before Northrop J, but no order has been taken out in the Supreme Court. Northrop J. said as to this argument that "the existence of proceedings in the Supreme Court cannot displace the practice and procedures of this Court". I respectfully agree. The production of documents to the Court in furtherance of litigation which is proceeding in the normal way is a matter quite different from the exercise of the powers of receivers and managers to inspect documents; and inmy view there was no obligation on his Honour to exercise a discretionary judgment on the point. I think there is no substance in this argument. Even if I had taken the view that there was some substance in either of the issues raised, I would have refused leave to appeal because, in my view, the applicant for leave in interlocutory proceedings such as these must show that a substantial injustice could follow froma refusal of that leave. I refer to the case of Niemann v Electronic Industries Limited, £19781 VR 431 at page 439. Nothing has been put to me which persuades me that the applicants will suffer any injustice from Northrop d's judgment. The task of producing the documents may well be made easier by the fact that they do not have to be related toa list of specific categories; and any question of irrelevant internal minutes or documents relating to professional charges can be dealt with by the Court at a later stage. The application will accordingly be dismissed with costs. I certify that this and the three (3) preceding pages are a true and accurate copy of the reasons for Judgment herein of The Hon Mr Justice Woodward S. Yambon forassociate Dated: 5 July 1985 Counsel for the applicants: Mr A.J. Myers Counsel for the respondent: Mr P.J. Jopling Solicitors for the applicants: Messrs Madden, Butier, Elder & Graham Solicitors for the respondent: Messrs Madgwicks