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  • Unreported Judgment

TSPD Pty Ltd v Resortrez Pty Ltd

 

[2008] QSC 1

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

TSPD Pty Ltd v Resortrez Pty Ltd  [2008] QSC 001

PARTIES:

TSPD PTY LTD

ACN  114 480 830

(Applicant)

v

RESORTREZ PTY LTD

ACN  116 629 773

(First Respondent)

 

TERRY SEIRLIS

(Second Respondent)

FILE NO:

9309 of 2007

DIVISION:

Trial

PROCEEDING:

Application

COURT:

Supreme Court

DELIVERED ON:

18 January 2008

DELIVERED AT:

Brisbane 

HEARING DATE:

Application without oral hearing

JUDGE:

Fryberg J

ORDER:

1)The parties be granted leave to inspect and copy the documents produced by Suncorp-Metway Limited pursuant to the subpoena dated 22 October 2007 and returnable 26 October 2007

2)The costs of this application be reserved

CATCHWORDS:

Procedure – Existence of legitimate forensic purpose – No objection to production of documents

Procedure – Discovery and interrogatories – Production and inspection – Generally – Documents in possession of person not a party – Rule 242(2) applicable only where documents are used to prove matter in them

Uniform Civil Procedure Rules 1999 r 242, r 415, r 489

Rules of the Supreme Court 1900 O 40, r 29

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Director-General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320

Greyhound Australia Pty Ltd and Ors v Deluxe Coachlines Pty Ltd and Ors (1986) 67 ALR 93.

National Employers’ Mutual General Association Ltd v Waind (1978) 1 NSWLR 372

NSW Commission of Police v Tuxford [2002] NSWCA 139

R v Spizzirri [2000] QCA 469

SOLICITORS:

Applicant:  Home Wilkinson Lowry, Lawyers

First Respondent: Hall Lawyers

Second Respondent:  Hall Lawyers

  1. FRYBERG J:  There is before me an application by TSPD Pty Ltd for an order that the parties be granted leave to inspect and copy documents produced to the court by Suncorp-Metway Ltd (Suncorp) pursuant to a subpoena dated 22 October 2007.  The application invokes r 489 of the Uniform Civil Procedure Rules; since none of the exceptions listed in that rule applies, I must decide it without an oral hearing.  As I propose to make an order, it is necessary that I state my reasons for doing so in writing.[1]

The proceedings

  1. TSPD filed an originating application on 17 October seeking a declaration that money held by Suncorp in a certain account was held on trust for it by the first respondent, Resortrez Pty Ltd, or that it was the property of TSPD, and for certain other relief.  On the following day it obtained an interim injunction restraining Resortrez from, among other things, dealing with the money in the account without consent.  The interlocutory application was adjourned to 26 October.
  1. On 22 October TSPD obtained a subpoena for production directed to the proper officer of Suncorp for the production of documents specified therein before the court on 26 October. On 24 October the documents were produced to the Registry in accordance with r 420.
  1. The application duly came before the court on 26 October. On that day orders (in effect) for the continuation of the injunctions were made by consent. It was ordered that the proceedings continue as if started by claim; and various directions were given. There was no direction under r 420(3)(b) for the production of the documents. Presumably they remained in the Registry. There is nothing to suggest that they were produced to the judge. There has of course been no appeal from those orders and directions.
  1. The documents remain in the Registry. The Uniform Civil Procedure Rules make no provision for the return of subpoenaed documents after the event for which they are subpoenaed.  The practice of the court in the absence of an appeal, I am informed, is to return such documents to their owner after the appeal period has expired.  If the documents were subpoenaed only for the purposes of the hearing on 26 October, that period expired on 23 November.  The evidence before me does not disclose why the documents remain in the Registry.
  1. Neither Suncorp nor Resortrez has made submissions on this application.
  1. TSPD asserts that when the matter was before the court on 26 October no orders were made for the inspection and copying of the documents as a result of oversight by the parties. There is no evidence to support the latter part of that assertion. I am unable to conclude that Resortrez had or would have consented to such an order. I do however infer from the course taken by Suncorp that it had no objection to the validity of the subpoena, no claim for privilege and no objection to the parties’ inspecting the documents. There is no reason to think that Suncorp's position has change.

Discussion

  1. Until the introduction of the Uniform Civil Procedure Rules, a litigant in this court was entitled to the issue of a subpoena as of course; but only to procure the attendance of a person or the production of a document at a hearing, trial, enquiry or examination of witnesses.[2]  That is no longer the position.  Under the Uniform Civil Procedure Rules, a litigant may request the court to issue a subpoena, and the registrar may issue it as a matter of discretion.[3]   Even under the previous rules, a subpoena might have been set aside,[4] or inspection of documents produced pursuant to it refused,[5] if the person causing the issue of the subpoena lacked a legitimate forensic purpose in procuring its issue.  There is no reason to doubt that this continues to be the position.
  1. The evidence does not explicitly disclose why TSPD wishes to inspect and copy the documents. It asserts that without access to them, it could not further particularise the allegations in its statement of claim, but there is no evidence that either respondent has sought further particulars.
  1. TSPD frankly concedes that in principle it could obtain what it seeks in this application by serving a notice of non-party disclosure on Suncorp. It is I think to be inferred that the purpose of the application is to obtain limited discovery against Suncorp. TSPD submits that whatever might be the position in principle, it could not serve such a notice if there exists another simple and inexpensive way of proving the matter sought to be proved by the documents the subject of the notice: r 242(2); and that what is sought in the present application constitutes another such way.  I do not think that sub-rule would prevent the service of a notice in the present case.  In my judgment r 242(2) applies only when the forensic purpose of a notice under r 242(1) is the proof of a matter in the document.  It has no application where, for example the purpose of seeking non-party disclosure is to obtain information leading to further enquiries or to found cross examination, nor is it to be construed as limiting r 242(1) to cases where documents are required to prove some matter in them.  There is no evidence in the present case that TSPD's purpose is simply to use the documents to prove matters in them.  Consequently there is no obstacle to the use of r 242.
  1. There has been disagreement over whether the purpose (in effect) of seeking discovery against a third party constitutes a legitimate forensic purpose in the context of a subpoena for the production of documents.[6]  It is unnecessary to discuss that disagreement or analyse the cases here; its resolution might depend upon differences in the wording of relevant rules and the presence or absence of a rule enabling applications for non-party disclosure.  Nor is it necessary to consider whether the absence of such a purpose might justify a refusal by the Registrar to issue a subpoena.  The court does not ordinarily investigate the purpose for which the subpoena was issued or for which application for inspection of subpoenaed documents is made in the absence of an objection by any interested party (there is no such objection in the present case); and there is no reason to doubt the existence of a legitimate purpose at the time the subpoena was issued.
  1. On the face of things it seems possible that the purpose for which the subpoena was issued expired after the hearing on 26 October, and that the documents should have been returned to Suncorp in accordance with the usual practice after 23 November. There may however be good reasons why this has not occurred. In my judgment it does not matter whether the documents are held by the court for a continuing legitimate purpose or simply by inadvertence. They are here and no one objects to the order sought. In my judgment it should be made.

Footnotes

[1] Rule 498.

[2] Rules of the Supreme Court 1900 (Qld), O 40, r 29.

[3] Rule 415.

[4] National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372; Director-General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320.

[5] NSW Commissioner of Police v Tuxford [2002] NSWCA 139; R v Spizzirri [2000] QCA 469 at para [24].  Although the latter was a decision in the criminal jurisdiction the reasoning was of general application and based on the older authorities.

[6] Compare Commissioner for Railways v Small (1938) 38 SR (NSW) 564 and Greyhound Australia Pty Ltd and Ors v Deluxe Coachlines Pty Ltd and Ors (1986) 67 ALR 93.

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Editorial Notes

  • Published Case Name:

    TSPD Pty Ltd v Resortrez Pty Ltd

  • Shortened Case Name:

    TSPD Pty Ltd v Resortrez Pty Ltd

  • MNC:

    [2008] QSC 1

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    18 Jan 2008

Litigation History

No Litigation History

Appeal Status

No Status