Australian Securities and Investments Commission v Sweeney (No 2) [2000] NSWSC 1211

New South Wales Supreme Court

CITATION : Australian Securities and Investments Commission v Sweeney (No 2) [2000] NSWSC 1211 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3339/99 HEARING DATE(S) : 11 and 14 December 2000 JUDGMENT DATE : 14 December 2000

PARTIES : Australian Securities and Investments Commission (P) Charles Augustine Sweeney (D) JUDGMENT OF : Young J

COUNSEL : M A Pembroke SC and J W Stevenson (P) I Barker QC, M Oakes SC and M Gorrick (D) SOLICITORS : Jan Redfern (P) Noel F Bracks & Co (D) CATCHWORDS : PROCEDURE [111]- Subpoena- Non resident defendant setting aside service- Subpoena to provide material for challenge a legitimate forensic purpose- Subpoena may be issued without appearance. LEGISLATION CITED : Supreme Court Rules Part 11 rule 8 Agar v Hyde (2000) 74 ALJR 1219 Arhill Pty Ltd v General Terminal Pty Ltd (1990) 23 NSWLR 545 CASES CITED : Denkman v Denkman 14 NYS (2d) 450 (1939) R v Saleam (1989) 16 NSWLR 14 Sheldon Pallet Manufacturing Co Pty Ltd v New Zealand Forest Productions Ltd [1975] 1 NSWLR 141 DECISION : See para 19

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG J

THURSDAY 14 DECEMBER 2000

3339/99 - AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v SWEENEY (NO 2)

JUDGMENT

1 HIS HONOUR: This is a motion to set aside a subpoena which has been issued by the defendant against the plaintiff ASIC. 2 The case is a very unusual one. I have already considered some aspects of it when dealing with a preliminary point in a judgment I gave yesterday and I will not repeat what I said then. 3 The defendant is not currently in Australia. The plaintiff's claim is one which relates to the defendant's activities when he was in Australia, those activities allegedly taking place on about 30 September 1993. 4 The defendant left Australia, it would seem, on 26 July 1999 and the present proceedings were issued on 27 July 1999. The significance of that is contained in the judgment I gave yesterday. 5 Where process is to be issued for service outside the State, the Court on the decision needs to be very careful to observe two basic principles: (a) that it should not without due cause trespass into the field that is properly filled by a foreign tribunal; and (b) that it should not harass a person who resides outside Australia. This appears from cases such as Sheldon Pallet Manufacturing Co Pty Limited v New Zealand Forest Productions Limited [1975] 1 NSWLR 141 and Arhill Pty Ltd v General Terminal Pty Ltd (1990) 23 NSWLR 545. 6 More recently the High Court of Australia in Agar v Hyde (2000) 74 ALJR 1219, especially at 1227 and following indicated that broadly speaking three matters are examinable when a Court has to consider whether it should set aside an order permitting service outside the jurisdiction or, even stronger in the present case, substituted service outside the jurisdiction. 7 These are: