BAILEY ALUMINIUM PRODUCTS PTY LTD v STEPHENSON [1991] NSWCA 17

BAILEY ALUMINIUM PRODUCTS PTY LTD v STEPHENSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 3 June 1991

[1991] NSWCA 17

APPLICATION FOR LEAVE TO APPEAL under s128(5A) District Court Act — leave granted — subpoena for production of documents improperly broad — subpoena set aside in part.

Priestley JA A District Court ordinary statement of claim was issued on 27 February 1989 which alleged that on or about 3 September 1987 a ladder which the plaintiff's husband had purchased from the first defendant on 18 April 1984 had collapsed and/or bent at about the level of the first step while the plaintiff was standing on the fourth step so that the ladder moved to one side and the plaintiff fell and fractured her right wrist.

Particulars were given which, so far as the negligence side of the action was concerned, elaborated upon the allegation I have just taken from paraS and para6 of the statement of claim. Those particulars all need to be read in the light of those two paragraphs and as making clearer what is proposed to be proved pursuant to those paragraphs.

A defence was filed by the second defendant, against whom those allegations were made, putting the allegations in para5 and para6 in issue, para5 by non-admission and para6 by denial.

There is a procedure in the District Court whereby subpoenas can be issued and the return to them made before the commencement of the hearing of the trial. This procedure was followed and a subpoena, which had been served upon the second defendant, came to be debated when, in the course of this pre-trial procedure, an application was made to set it aside.

The subpoena called for the production of documents relating to the matters specified in four lettered paragraphs. The first of these paragraphs had four sub-headings. In support of the application to set the subpoena aside an affidavit was filed on behalf of the second defendant which went into considerable detail in attempting to show that compliance with the subpoena would involve an extraordinary amount of work on the part of the second defendant, a great deal of which might well be completely wasted as going to matters not in issue in the proceedings. Parts of the affidavit related to the first of the four lettered paragraphs.