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. When the matter came on for argument before Judge Mahoney of the District Court the parties eventually agreed on a reformulation of the second, third and fourth lettered paragraphs in the subpoena, but could not agree on the first. Judge Mahoney varied the terms of that first paragraph and subsequently a subpoena in the form containing the first paragraph as ordered by Judge Mahoney, and the following three paragraphs as agreed between the parties, was issued. Until 1 March of this year an appeal against Judge Mahoney's decision was not competent. There was no jurisdiction in the court, as was held in a series of decisions in recent years, to entertain such an appeal even if the court felt disposed to grant leave in regard to it. 2 UNREPORTED JUDGMENTS That position changed on | March this year when subs5A was inserted into s128 of the District Court Act which with some qualifications gave this court jurisdiction to grant leave to appeal against rulings, orders, directions or decisions which might be made in the District Court in respect of any proceedings ancillary to an action. The rulings etc concerning the subpoena fell within those in respect of which the court was granted jurisdiction. This case is the first on which I have sat under the new jurisdiction and is perhaps an unfortunate example of the jurisdiction - unfortunate because the matter has no doubt been greatly increased in expense by the bringing of the application for leave in the hearing today and concerns issues in regard to the subpoena which one would have hoped could have been agreed upon between the parties without the necessity of asking two courts to settle the argument. However, the court now has the jurisdiction and when the point was explained to the court, it did appear, simply looking at the pleadings and the subpoena in the form issued following Judge Mahoney's order, to be one where, on the face of those documents, the subpoena was unsupportably wide. In regard to the issues which will arise pursuant to the pleading and particulars I have already mentioned, what the first paragraph sought was originals and copies of all correspondence, notes, reports, pleadings, and all other documentation relating to any aluminium step ladder designed or manufactured by the second defendant, its servants or agents, which has, 1, failed and 2, been alleged to have failed, 2, been the subject of complaint, 4, been the subject of claims or litigation and, reading the paragraph in the way the opponent urges, a final limitation - if such it could be called - of those documents to a period from 1 January 1980 to date. I do not think I need to elaborate the much greater width of the documents called for by those four sub-paragraphs than could possibly relate to the issues at the trial. Because the court has felt that there was a clear error in the court below in not appreciating that the paragraph, even in the reduced wide form settled by the judge, should be allowed to stand, the court felt leave should be granted. The parties agreed that if the court were of that view the court should proceed to deal with the appeal instanter on the materials before the court upon the application for leave. Accordingly, an order should be made granting leave to appeal and, in my opinion, the appeal should be upheld for the basic reason that I have already mentioned. For the opponent it was argued that the evidence that had been filed on behalf of the second defendant, and I now summarise the submission in a way that may not do it justice, showed that no inconvenience would be suffered by the second defendant if it were required to comply with the supply with the first paragraph in its present form. lam against this submission for two reasons. One is I am not clear that, on the material, what is asserted follows but, even if it did, I do not see how that is an answer to the very simple proposition advanced by the second defendant, that the subpoena in the first paragraph calls for a range of documents which, by their very description, is a much greater range of documents than could properly be called for by a subpoena limiting itself to the issues to be tried when the proceedings come to trial. URJ BAILEY ALUMINIUM PRODUCTS PTY LTD v STEPHENSON (Handley JA) 3 In my opinion, therefore, the appeal should be upheld and the order asked for by the second defendant, namely, that the first paragraph of the subpoena be set aside, should be made. Costs orders will follow automatically in the circumstances. The second defendant should have its costs of its unsuccessful argument below, concerning the subpoena. It should also have the costs of the application for leave and of the appeal, those costs, of course, being very much bound up together, so that, in effect, I should imagine only one set of costs of today will eventuate. The formal orders which I propose are: appeal upheld; the first paragraph, viz paral(a), of the subpoena set aside; costs of the application for leave and of the appeal to be borne by the opponent/respondent/plaintiff and the costs of the application before Judge Mahoney also to be borne by the plaintiff. There should be a Suitors Fund Certificate. Meagher JA I agree with what my brother Priestley has said. I would wish to add two observations. One is that, towards the end of his able submissions, Mr Williams, counsel for the opponent, handed us a document entitled "Proposed Amendment to paral(A)". My brother Handley JA said in argument it is not open in this Court to formulate a fresh subpoena for use by the plaintiff. Mercifully, that is true. Nonetheless, for my part I would wish to say, as at present advised, I would not have ordered the striking out of the subpoena if it had been worded as in the "Proposed Amendment" document. The other is that this is one of the very few cases in which, in my view, this Court should interfere in an interlocutory matter currently proceeding in the District Court. In most cases it would be most undesirable to grant leave in such cases even if we are of the view that the order in question was wrongly made. Handley JA I agree that the subpoena, even as redrafted by the learned District Court Judge, is still far too wide. I agree generally with what has just fallen from my brother Meagher JA. Further, speaking for myself, I would say that a subpoena which requires documents from 1 January 1980 to date in 1991 when the ladder that collapsed was purchased in 1984 seems, in that respect at all events, still to be too wide. No submission has been made that this Court has no power under the recent amendments to the District Court Act to grant leave to appeal from an interlocutory order of this kind. I am content in this case to assume the power exists. I agree with the orders proposed by my brother Priestley JA. PRIESTLEY JA: (After further submissions on costs.) The order of the Court will be as earlier stated, except that the opponent/respondent/plaintiff should pay three quarters of the costs of the application for leave, and of the appeal. Leave to appeal granted. Appeal upheld. Paral(a) of subpoena set aside. Costs of District Court appeal, and three-quarters of costs of application for leave and of appeal to be borne by respondent, with Suitors Fund Certificate. RYN