New South Wales Supreme Court CITATION : Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 878 HEARING DATE(S) : 15/6/09, 16/6/09, 23/6/09, 24/06/09, 29/06/09, 30/06/09, 13/07/09, 14/07/09, 23/07/09, 24/07/09, 27/07/09 - 30/07/09, 6/08/09. 10/08/09, 11/08/09, 13/08/09, 17/08/09 - 20/08/09, 24/08/09, 25/08/09 JURISDICTION : Equity Division Commercial List JUDGMENT OF : Einstein J EX TEMPORE JUDGMENT DATE : 26 August 2009 DECISION : Application dismissed. CATCHWORDS : Practice and Procedure - Application for late service of subpoena on overseas witness about to give evidence in Australia - Abuse of process LEGISLATION CITED : Uniform Civil Procedure Act 2005 CATEGORY : Procedural and other rulings Michael Wilson & Partners (Plaintiff) Robert Colin Nicholls (First Defendant) David Ross Slater (Second Defendant) PARTIES : Temujin Services Limited (Third Defendant) Temujin International Limited (Fourth Defendant) Temujin International FZE (Fifth Defendant) Shaikenov & Partners, LLP (Sixth Defendant) Scoulton Holdings Limited (Seventh Defendant) FILE NUMBER(S) : SC 50151/06 Mr M Walton SC, Mr J Carney (Plaintiff) COUNSEL : Mr G McGrath, Mr A Fox (First Defendant) Mr G Lindsay SC, Mr A Fox, Mr S Adair (Second to Fifth Defendants) SOLICITORS : Clayton Utz (Plaintiff) Henry Davis York (First to Fifth Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST Einstein J Monday 26 August 2009 ex tempore Revised 27 August 2009 50151/06 Michael Wilson & Partners v Robert Colin Nicholls & Ors JUDGMENT The notice of motion 1 The plaintiff has sought to file in court a notice of motion which if granted would involve the court making orders in accordance with short minutes of order, annexed to an affidavit of Mr Sidney Wang sworn on 25 August 2009, and marked D. 2 The application is to serve a subpoena to produce documents upon Mr John Emmott, a person who is not a party to these proceedings and on indications previously furnished to the court, whose evidence is likely to commence tomorrow and as I have understood it, whose cross-examination is likely to commence tomorrow. 3 The stage which these proceedings have reached is that the defendants are currently in their case, or cases, and that the prognosis, as I have understood it from the bar table, is that the proceedings are likely to be completed in terms of the evidentiary world at some stage either towards the end of next week, or at some stage early in the following week. 4 Following the completion of the taking of evidence the court will give the parties a short period in which to prepare their submissions, before taking final submissions. 5 In my view the application to issue the subpoena to produce and the application constituted by the notice of motion represents an abuse of the process of the court. The plaintiffs had have open to them for literally years, the opportunity to seek materials from Mr Emmott, albeit that his situation involved his residence overseas [as I have understood it from time to time in the United Kingdom, and or as in Kazakhstan]. Mr Emmott and the plaintiff have been locked into an arbitration in UK and steps to have documents made available in the current proceedings could have followed a number of procedural paths. 6 The materials which are sought by the proposed subpoena are wide ranging. One only example of one of the areas which is sought to be the produced comprises "all documents, including records of communications between 1 September 2005 and the date of the subpoena, received by or copied to Mr Emmott or any of his servants or agents relating to this proceeding". 7 The number of documents which relate to this proceeding would certainly involve probably hundreds of thousands. That particular part of the subpoena seems to me to be indicative of the type of oppression which would be suffered by a witness who is about to be called into the courtroom tomorrow which simply cannot be countenanced at this stage in these proceedings. Other of the materials sought by the subpoena traverse a number of disparate topics but it is quite plain to me that the subpoena has been drawn in a fashion, which almost certainly, and even without hearing from this witness, would interfere with the witnesses ability to be called and give the evidence which he is about to commence to give tomorrow. 8 Section 58 of the New South Wales Uniform Civil Procedure Act 2005 requires that: the court follow the dictates of justice in deciding whether to make any order or direction for the management of proceedings, including the giving of any orders of a procedural nature for the purpose of determining what are the dictates of justice in a particular case. 9 Section 58 of the Uniform Civil Procedure Act includes in subs 2, "That for the purpose of determining what are the dictates of justice in a particular case the court must have regard to the provisions of ss 56 and 57 and may have regard to a number of other matters to the extent to which it considers them relevant". 10 Amongst those other matters are: "v. The use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings". iv. To the degree to which the respective parties have fulfilled their duties under s 56(3) "[which directs attention to a party's duty to assist the court and to further the overriding purpose and to that effect, to participate in the processes of the court and to comply with directions and orders of the court]." 11 Subsection vi of s 58(2) permits the court to have regard to the degree of injustice that will be suffered by the respective parties as a consequence of any order or direction. 12 Finally, vii permits the court to have regard to such other matters as the court considers relevant in the circumstances of the case. 13 This is an unusual case for many reasons, several of which have been referred to in the interlocutory judgments during the course of the hearing. The fact is that Mr Emmott has not been joined as a party to the proceedings. 14 During the course of the plaintiff's application for leave to issue the subpoena, both Mr Lindsay, of senior counsel, and Mr McGrath, of junior counsel, who represent the defendants who are joined to the proceedings, have submitted that they have standing to oppose the issue of the subpoena in this form. 15 The proposition which they put forward was that even without any legal representation from Mr Emmott it was patently clear that the application for leave with which I am now dealing represented an abuse of process in terms of a witness, as I understood them, who must be assumed to be getting ready for stepping into the witness box. 16 In the circumstances it should also be noted that the application is for leave to abridge the time of service of the subpoena to 8.00 pm on 26 August 2009 and for substituted service to be permitted on Mr Emmott at a number of addresses, the application being to permit service by email to a number of addresses. Orders 17 The Court makes the following orders: (1) The court grants leave to the plaintiff to file in court the Notice of Motion in the form which I initial and date 26 August 2009. (2) The court grants leave to the plaintiff to file in court the affidavit of Sidney Wang of 25 August 2009. (3) Order dismissing the Notice of Motion. (4) Reserve costs. ************ 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.