JUDGMENT No. 66S. 24, CATCHWORDS SUBPOENA - whether certain paragraphs ought to be set aside - whether too wide - relevance. Trade Practices Act 1974 ss 52, 53, 82 LAKE CUMBELINE PTY LTD and IDOBOOK PTY LIMITED and PETER HORROBIN and RICHARD SANDS and RAYMOND PRIDMORE v EFFEM FOODS PTY LIMITED trading as UNCLE BEN'S OF AUSTRALIA. No. G129 of 1990 RECEIVED Tamberlin J 20 st P 1994 Sydney 20 September 1994 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G129 of 1990 BETWEEN : LAKE CUMBELINE PTY LIMITED First Applicant IDOBOOK PTY LIMITED Second Applicant PETER HORROBIN Third Applicant RICHARD SANDS Fourth Applicant RAYMOND PRIDMORE Fifth Applicant AND : EFFEM FOODS PTY LIMITED trading as UNCLE BEN'S OF AUSTRALIA Respondent CORAM : TAMBERLIN J PLACE : SYDNEY DATED : 20 SEPTEMBER 1994 MINUTES OF ORDER THE COURT ORDERS THAT : 1. Paragraphs 2, 3 (ii) (in) and 4 of each of the subpoenas be set aside. 2. Respondent to pay the costs of the notice of motion. NOTE : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA No. G129 of 1990 BETWEEN : LAKE CUMBELINE PTY LIMITED First Applicant IDOBOOK PTY LIMITED Second Applicant PETER HORROBIN Third Applicant RICHARD SANDS Fourth Apphcant RAYMOND PRIDMORE Fifth Applicant AND : EFFEM FOODS PTY LIMITED trading as UNCLE BEN'S OF AUSTRALIA Respondent CORAM : TAMBERLIN J PLACE : SYDNEY DATED : 20 SEPTEMBER 1994 REASONS FOR JUDGMENT This is a Notice of Motion brought by P R Horrobin Pty Ltd, Kisdall Pty Limited, and Lake Adolphus Pty Limited for orders that certain paragraphs in subpoenas served on each of the three companies should be set aside. The paragraphs in question read as follows : "2. All onginal or copy minutes of any directors' or shareholders' meetings in the period 1 January 1980 to 31 December 1990; 3. All documents relating to any agreement, arrangement or understanding between your company and any one or more of: (11) Lake Cumbeline Pty Limited, and/or (ii) Idobook Pty Limited under or by virtue of which your company received any income, payment or moneys, whether by way of loan or otherwise from any of the abovementioned companies in the period from 30 March 1987 to 30 April 1989; 4 All documents relating to any moneys paid to, or benefits conferred, by your company in the period from 30 March 1987 to date, on any one or more of Peter Horrobin, Richard Sands and/ore (sic) Raymond Pridmore, or any third party at the direction of any one or more of Peter Horrobin, Richard Sands and/or Raymond Pndmore." The amended statement of claim is brought under s 52 and s 53 of the Trade Practices Act 1974 and is based on allegations of deceptive conduct and misrepresentation by the respondent over a period from 16 March 1987 to about mid 1988. It is also alleged that certain representations were made negligently. Damages are claimed pursuant to s 82 of the Trade Practices Act and the common law, and exemplary damages are also claimed . In relation to paragraph 2 of the Schedule to each of the subpoenas which is framed in common terms in each case, the applicants say that the paragraph is too wide and in fact seeks documents that have nothing to do with the issues in the case. It is said that the paragraph is oppressive and should be set aside. This is put on two bases. The first basis is that the paragraph seeks documents outside the relevant time frame which is said to be between 16 March 1987 to mid 1988. That 1s the period in which it is alleged that the misrepresentations and conduct occurred. The second basis is that the paragraph is capable of catching minutes of meetings which cover a period of eleven years which do not have any relationship with the business and affairs of Trawi Industries of Australia Pty Ltd ("Trawl"). In answer, the main submission for the respondent 1s that the business acumen and background experience of the persons to whom the alleged musrepresentations and conduct were directed are relevant to assess the likelhood of such representations having been made. Accordingly, it 1s said that it is appropriate to cover the period 1980 to 1990 in order to obtain evidence as to the business experience, activities and interests of the persons to whom the misrepresentations were made. I am mformed that Mr Peter Horrobin, the third applicant, is a director and shareholder of each of the companies to whom the subpoenas are directed. I can readily see that the business experience of the applicants can be a relevant matter. However, in my opinion paragraph 2 in its present formulation 1s framed too widely. It is capable of covering documents which do not concern or reflect on the business experience and background of the third to fifth applicants in the proceedings. It can cover meetings in which the relevant persons were not involved or present. It further seems to me that the time frame is too extensive. The alleged conduct took place between 16 March 1987 to mid 1988 whereas minutes are sought up to 31 December 1990. On this basis, I consider that paragraph 2 ought to be restricted to original and copy minutes of meetings at which one or more of the third to fifth apphcants were present or which concern transactions in which they were involved. Moreover, I cannot at present see how it can be said that the minutes of directors' or shareholders' meetings after 1988 could be of relevance in the proceedings insofar as they may bear on the busmess experience of the applicants. The relevant period appears to me to be between 1980 and the end of 1988. I set aside paragraph 2 of the subpoena 1 its present form for these reasons. In relation to paragraphs 3 (ii) and (am) and paragraph 4 the moving parties on the Notice of Motion contend that the paragraphs are too wide because no attempt is made to frame the paragraphs in such terms as to limit the documents to income, payments or moneys concerning Trawl or relating to the affairs or dealings of Trawl. As presently formulated the above paragraphs are pressed on the basis that these may disclose material which would indicate the nature of arrangements between the parties generally and provide a foundation against which to test claims that certain payments in respect of which damages are sought related to the affairs of Trawl. However, I think that it is casting the net far too widely to seek all documents concerning any agreements under which the subpoenaed companies received any moneys from Lake Cumbeline Pty Limited or Idobook Pty Limited whether or not such payments had anything to do with Trawl or investments in Trawl. I consider that the same comments apply equally to payments or benefits to the third to fifth applicants and any third party referred to in paragraph 4. The relevant paragraphs need to be confined to payments or benefits which relate to Trawl or investment in Trawil. Accordingly, I consider that paragraphs 2, 3 (1i) and (im) and paragraph 4 of the Schedule to the subpoenas are cast too widely and are oppressive and I therefore think they ought to be set aside. I consider that the respondent should pay the applicants' costs of this motion. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Tamberlin. Date : 20 September 1994 Counsel for Applicant : Mr J B Whittle Solicitors for Applicant : Blake Dawson Waldron Solicitors Counsel for Repondent : Mr R M Smith Solicitors for Respondent : Sly and Weigall Solicitors Date of Hearing : 19 September 1994 Date Judgment Delivered : 20 September 1994