Dorajay Pty Limited v Aristocrat Leisure Limited [2006] FCA 335

FEDERAL COURT OF AUSTRALIA

Dorajay Pty Limited v Aristocrat Leisure Limited [2006] FCA 335 DORAJAY PTY LIMITED v ARISTOCRAT LEISURE LIMITED NSD 362 OF 2004 STONE J 31 MARCH 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 362 OF 2004

BETWEEN: DORAJAY PTY LIMITED

APPLICANT

AND: ARISTOCRAT LEISURE LIMITED

RESPONDENT

JUDGE: STONE J

DATE: 31 MARCH 2006

PLACE: SYDNEY

THE COURT ORDERS THAT: 1. The application made in paragraph 3 of the notice of motion filed on 14 October 2005 is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 362 OF 2004

BETWEEN: DORAJAY PTY LIMITED

APPLICANT

AND: ARISTOCRAT LEISURE LIMITED

RESPONDENT

JUDGE: STONE J

DATE: 31 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 At the request of the applicant, a subpoena was issued addressed to PricewaterhouseCoopers ('PwC'), the auditors of the respondent in this proceeding. PwC produced a number of documents which have been inspected by the applicant's solicitors. Issues have arisen as to whether PwC is required by the subpoena to produce other material. Some issues about what PwC is required to produce under the subpoena have been resolved in correspondence between the parties, however some are still outstanding and on 14 October 2005 the applicant filed a notice of motion directed to compelling PwC to produce certain material. 2 Chief among the disputed material was the hard drive of the computer used by Mark Dow, a partner in PwC. Previous attempts to obtain correspondence and e-mails included in the data stored on the hard drive had been unsuccessful. PwC had advised that the hard drive had been damaged and that it was not possible to retrieve any further material from it. The applicant was not content with this explanation and sought to compel PwC to produce the hard drive to the Registry so that the applicants, with the assistance of technical experts, could attempt to retrieve the data. 3 The applicant also sought to have Mr Dow file and serve an affidavit deposing to the nature of the technical problems affecting the hard drive, the efforts made by PwC to retrieve data from the hard drive and, insofar as it comes within the terms of the subpoena served on PwC, whether any copies were made of data stored on the hard drive. 4 During the course of the hearing the parties came to an agreement as to the terms on which PwC would provide the hard drive to the applicant and, with their consent, I made orders giving effect to their agreement. The applicant also accepted that, depending on what (if anything) could be retrieved from the hard drive, it might not be necessary to press their application for an order that Mr Dow make an affidavit as referred to in [3]. Accordingly argument on that issue was deferred to a later date if required. 5 These arrangements left as the only issue presently to be determined, the application in paragraph 3 of the notice of motion. Paragraph 3 seeks orders requiring PwC to produce documents held by its "affiliated practices, including overseas practices" where those documents fall within the subpoena and relate to work undertaken by the affiliated practice on behalf of, or at the request of, PwC. 6 PwC resisted the application for its affiliates to produce the documents. It provided evidence that the Australian firm is a separate legal entity from the United States firm and from each of the PwC firms in New Zealand, South Africa, Japan, and Europe and that for this reason any documents that are in the possession of its affiliates are not in its possession. PwC submitted that Order 27 of the Federal Court Rules only obliges the addressee of a subpoena to produce relevant documents that it has in its possession and does not oblige the addressee to acquire them from the person who has possession of them. In support of this submission PwC referred to comments made by the High Court in Rochfort v Trade Practices Commission (1982) 153 CLR 134 ('Rochfort') at 138-9 per Gibbs CJ, 143 per Mason J, 149 per Murphy J and 151 per Wilson J. Rochfort certainly is authority for the proposition put forward by PwC but beyond that proposition the case is of limited relevance here. It was concerned with whether an employee who had physical access to documents was required to produce them without the authority of his employer. 7 The issue is different here. PwC's submission relies on the fact that it does not have physical possession of the documents and on a narrow meaning of possession; one that excludes what is sometimes called, 'constructive possession', that is the control of the documents or the right to require that they be delivered. 8 The concept of possession has a long history of ambiguity and controversy. It was discussed by Oliver Wendell Holmes in his classic work, The Common Law published in 1881 and has been considered by the courts on many occasions in the context of disputes over property and ownership. It is not necessary to canvass that long history here or to delve into the nuances of meaning and policy that are involved. The present issue requires a practical solution within the bounds of the law concerning the obligations of the addressee of a subpoena.