WENTWORTH v DE MONTFORT (on application to set aside subpoena duces tecum) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and MAHONY JJA 1 May 1989 [1989] NSWCA 227 Hope JA The Court has before it an application to set aside a subpoena duces tecum served by the claimant, Ms Wentworth, and directed to S and R Nominees Pty Limited for the production of a great number of documents. The documents set out in the schedule to the subpoena are contained in nine paragraphs and range from share registers, minute books, notices of meetings of directors and of shareholders of the company, to profit and loss statements, bank statements, a mass of financial documents, records of disbursements, records of transfers of money, correspondence, notes of telephone conversations and other documents over a period commencing in 1982 until 1987. S and R Nominees Pty Limited has moved to set aside the subpoena. The claimant, Ms Wentworth, seeks to support the issue of the subpoena in this way. She claims that, in addition to the principal issues with which the appeal from the decision of Hodgson J has previously been regarded as being concerned, namely, whether there were documents belonging to her which have not been returned to her by the opponents and whether the moneys which Hodgson J did not order the opponents to return to her should have been returned to her, there was an additional issue, namely, that of damages. She claims that she was entitled to obtain from Hodgson J an order for damages and she submits that the subject-matter of the subpoena is relevant to that claim. As regards the matter presently before the Court, the notices of appeal and cross-appeal in the proceedings are from a judgment given by Hodgson J on 23 February 1987. That judgment was made upon a reference by this Court to the Equity Division of a notice of motion brought by the claimant in this Court asking for orders, none of which related to damages. In the course of the hearing before Hodgson J, it appears that the claimant sought damages, and the order which Hodgson J made in relation to that matter was that the applicant's notice of motion stand over to 27 April 1987 before him to decide whether, among other things, she should be permitted to claim damages and/or compensation in those proceedings. The Court does not have before it any decision made by Hodgson J on 27 April 1987 or any other date in relation to those matters, although Ms Wentworth has told the Court that she will seek to obtain a copy of what took place and produce it to the Court. Subject to what Hodgson J said, it does not seem that the question of damages is before the Court, although in her notice of appeal the claimant did raise a claim for damages. If the claim for damages is not before the Court, no question of adducing fresh evidence relevant to such a claim should be allowed to proceed, and the subpoena would clearly be oppressive and an abuse of process. However, if it be assumed that in some way there is before the Court an issue as to damages, what the claimant seeks to do is to trace the money which she says was improperly paid out of her trust account by the opponents into their own 2 UNREPORTED JUDGMENTS general account, and then transferred from that account to the service company which it ran, the company subpoenaed, S and R Nominees Pty Limited. At no time has the claimant sought any tracing order or sought any relief as a result of tracing money from her trust account to other accounts, but I will put to one side for the time being the consequences that might flow from those omissions. In my opinion the terms of the subpoena are so wide as to be oppressive. It is well established that a subpoena duces tecum cannot be used as a substitute for discovery. This applies to a party but it applies equally, indeed with greater force, to a stranger to the litigation. In my opinion the subpoena is, by reason of its wide terms and the circumstances of the case, designed to obtain discovery, is oppressive and an abuse of process, and should be set aside. I accordingly would order that the subpoena should be set aside. The order of the Court is that the subpoena is set aside.