New South Wales Supreme Court CITATION : Premier Travel v Satellite Centres of Australia [2004] NSWSC 864 HEARING DATE(S) : 13 September 2004 JUDGMENT DATE : 13 September 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Leave granted to use documents for other specified purposes CATCHWORDS : PRACTICE - subpoenas - release from implied undertaking to use documents only for purpose of proceedings - principles applicable CASES CITED : Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 38 FCR 217 Wellness Pty Ltd v Hamilton-Bond & Ors [2002] NSWSC 1259 Premier Travel Pty Ltd - First Plaintiff Noviga Pty Ltd - Second Plaintiff Betaco Pty Ltd - Third Plaintiff Robcox Investments Pty Ltd - Fourth Plaintiff PARTIES : Thomas Peter Cox - Fifth Plaintiff Thelma Mavis Cox - Sixth Plaintiff Satellite Centres of Australia Pty Ltd - First Defendant Hunter Development Company Pty Ltd - Second Defendant Australian Export Resources Pty Ltd - Third Defendant FILE NUMBER(S) : SC 6137/03 COUNSEL : A Ogborne - Plaintiffs SOLICITORS : Cutler Hughes & Harris - Plaintiffs IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST CAMPBELL J MONDAY 13 SEPTEMBER 2004 6137/03 PREMIER TRAVEL PTY LTD & ORS v SATELLITE CENTRES OF AUSTRALIA PTY LTD & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: This is the hearing of a notice of motion which is brought by the plaintiffs. They seek leave to use certain documents which were produced to the Court on 5 and 8 March 2004 by Messrs Yandells solicitors in proceedings which they propose to commence in the Common Law division of the Court, against that firm. The evidence shows that the firm has been notified of the intention of the plaintiffs to seek this leave of the Court, and that that firm has consented to the order being made. In those circumstances I shall make it. 2 The second order which is sought is an order that the plaintiffs have leave to use certain documents which were produced to the Court by a total of 21 different parties in the preparation of their respective books of accounts and financial statements and for their taxation returns and affairs. The principle that is applied when the Court decides whether or not to release or to permit documents which have been produced to the Court on subpoena, and have not been read out in open Court, is that the release of the documents will not be allowed save in special circumstances and when such use will not occasion any injustice to the person who produced the documents under subpoena. Deciding whether special circumstances have been made out involves a balancing exercise which takes into account the particular nature of the material produced, the policy underlying the implied undertaking as to using the documents for the purpose of the proceedings in which they were produced, and any other relevant factors, and asks whether the needs of justice are better served by relieving from or maintaining the undertaking; see Wellness Pty Ltd v Hamilton-Bond & Ors [2002] NSWSC 1259 at paragraph [8]; Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 38 FCR 217 at 225. 3 The evidence shows that all of the documents which are sought are ones which relate to the financial affairs of companies in which a Mr Cox had been involved. Mr Cox has unfortunately begun to suffer from an Alzheimer like disease, the consequence of which is his recollection of the transactions in which his companies have engaged are unreliable. The companies were ones which involved joint ventures between interests associated with Mr Cox, and interests of other people. Attempts have been made to sort out the accounts of those joint venture companies, but Mr Eggleston, the accountant who has been seeking to carry out that task, has been unable to complete it. He finds that there are payments, of millions of dollars to interests associated with a Mr Bourke, or people connected with Mr Bourke, and also to a company known as Satellite, which is one of the joint venture vehicles, which he cannot adequately account for. 4 Mr Eggleston has become a director of Satellite, and hence has come under the statutory obligation to maintain the books and records of that company. For that purpose, and also for the purpose of making more accurate the books of account of the various plaintiff companies, he seeks to use the documents which have been produced on subpoena by those 21 entities. 5 The documents which have been produced on subpoena by those two entities are all documents in the nature of ordinary accounting records. They are the type of documents which can provide the other side to a transaction in which one of the plaintiff companies had been involved. 6 All of the recipients of the subpoenas have been written to. Some of them have consented to the documents being used for the purpose for which it is sought to use them. Two of them have complained that they have not been paid for their efforts in seeking the documents out, and say that they do not consent until they are paid. The significant power which a solicitor has to require, by an order which the Court will issue as of course, a party to go to time and trouble in searching out documents is one which is entrusted to solicitors on the basis that they are meticulous in performing the obligation which the Court Rules impose on the issuer of a subpoena to pay the reasonable costs and expenses of someone served with a subpoena in searching out the documents. In the present case, the solicitors who have issued the subpoenas undertake to the Court that they will pay the proper expenses of the issue of those from whom the subpoenas were issued and who have complained about not being paid. 7 There are some recipients of subpoenas who have not responded to the request for consent at all. There are others where the person who has responded has said in effect, "It is not my position to consent, I need to seek someone else's permission before I can consent", and then nothing more has been heard. 8 The nature of the documents, and the nature of the use to which is sought to make them, is such that in my view it is appropriate to grant the orders which are sought. 9 I make orders 1 and 2 in the notice of motion dated 3 August 2004. I will return the affidavits. I stand the matter over before the Registrar on Monday 20 September 2004 for directions. ********** Last Modified: 09/20/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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