Re Universal Press Pty Limited v Provest Limited [1989] FCA 259 (14 July 1989)

FEDERAL COURT OF AUSTRALIA

Re: UNIVERSAL PRESS PTY LIMITED
And: PROVEST LIMITED
No. G136 of 1989
FED No. 402
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Practice and Procedure - motion for setting aside of subpoena duces tecum to third party - whether subpoena constituted an abuse of process because too widely framed - whether subpoena must specify that addressee is required to produce only documents in his possession - whether subpoena premature or abuse of process as being issued to obtain discovery.

Federal Court Rules: O 27 r 2, 6(1), 7(1).

HEARING

SYDNEY
14:7:1989

Counsel and Solicitors Mr A J Bannon instructed by Clayton Utz for Applicant:

Counsel and Solicitors Mr J M Ireland instructed by Baker & McKenzie
for Respondent:

ORDER

The subpoena for production issued herein on 26 May 1989 against Steven Seymour of lo4 Crescent Street Newport New South Wales, be set aside.

The applicant pay the costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Mr Steven Seymour moves the Court to set aside a subpoena served upon him in the present proceedings and issued at the request of the applicant. The grounds upon which it is submitted that the subpoena should be set aside are:

(a) The subpoena is too wide and therefore oppressive.
(b) The subpoena in terms is not limited to requiring the
production of documents which are now in the possession
or power of Mr Seymour.
(c) The subpoena is an attempt to obtain discovery by a
third party to the litigation and so should for that
reason be set aside.
(d) The issue of the subpoena at the present stage of the
litigation is premature.

Background

2. The subpoena under challenge is in the form prescribed by the Federal Court Rules (Order 27 Rule 2; Form 41) and requires the attendance of the addressee, the production of the subpoena itself and the production of the "things" described in the schedule to the subpoena. Three exceptions are stated on the face of the documents in accordance with the form appearing in the Rules, but there is no exception from the requirement of production of documents not within the possession or power of the applicant. The schedule to the subpoena is in the following form:

"1. All maps, plans, diagrams and other documents
(including any disc, tape or other articles
from which sounds, images or messages are
capable of being reproduced) used in the
creation of the maps reproduced in the
publications entitled "Premier Sydney Easy to
Read Street Directory, First Edition",
"Premier Sydney Easy to Read Street Directory,
Special Bicentenary Year Edition", "Glovebox
Sydney Street Directory Special Bicentenary
Year Edition", "Premier Guide Greater Sydney
Street Directory 1989 Edition" and "Premier
Greater Sydney Street Directory Compact
Edition" ("the Premier Directories") including
all drafts of maps used or rejected but
created for the purpose of producing the
Premier Directories.
2. All drawings and other documents showing the
various stages of compilation of the maps
created and reproduced in the Premier
Directories.
3. All documents concerning or recording searches
and enquiries undertaken or recording the
results of any such searches or enquiries or
obtained as a result of searches and enquiries
undertaken as to the locations of classes of
places and objects depicted in the maps
created and reproduced in the Premier
Directories including post offices, parks,
golf courses, schools, hospitals, police
stations, churches and Girl Guide and Scout
halls.
4. Copies of all correspondence including any
agreements to or with Lawline Pty Limited or
Provest Limited or any person associated with
either of these two companies relating to the
Premier Directories or any of them or any
employment or engagement of you by the
Respondent.
5. All transfers produced for the purpose of the
preparation and publication of the Premier
Directories.
6. All maps, plans, diagrams and other documents
(including any disc, tape or other articles
from which sounds, images or messages are
capable of being reproduced) used in the
creation of the maps reproduced in the
publication entitled "Weldons Street Directory
Sydney" ("the Weldons Directory") including
all drafts of maps used or rejected but
created for the purpose of producing the
Weldons Directory.
7. All drawings and other documents showing the
various stages of compilation of the maps
created and reproduced in the Weldons
Directory.
8. All documents concerning or recording searches
and enquiries undertaken or recording the
results of any such searches or enquiries or
obtained as a result of searches and enquiries
undertaken as to the locations of classes of
places and objects depicted in the maps
created and reproduced in the Weldons
Directory including post offices, parks, golf
courses, schools, hospitals, police stations,
churches and Girl Guide and Scout halls.
9. All documents prepared in connection with the
production, publishing, sales and distribution
of the Weldons Directory.
10. Copies of all correspondence including any
agreements to or with Sosure Pty Limited,
Weldon Hardie Pty Limited or RPLA Pty or any
person associated with any of these three
companies relating to the Weldons Directory
and any service, employment or other agreement
between these three companies and you.
11. All transfers produced for the purpose of the
preparation and publication of the Weldons
Directory.
12. All maps, plans, diagrams and other documents
(including any disc, tape or other articles
from which sounds, images or messages are
capable of being reproduced) used in the
creation of the maps reproduced in the
publications entitled "UBD Sydney Street
Directory" ("the UBD Directory") including all
drafts of maps used or rejected but created
for the purpose of producing the UBD
Directory.
13. All drawings and other documents showing the
various stages of compilation of the maps
created and reproduced in the UBD Directory.
14. All documents concerning or recording searches
and enquiries undertaken or recording the
results of any such searches or enquiries or
obtained as a result of searches and enquiries
undertaken as to the locations of classes of
places and objects depicted in the maps
created and reproduced in the UBD Directory
including post offices, parks, golf courses,
schools, hospitals, police stations, churches
and Girl Guide and Scout halls.
15. Copies of all correspondence including any
agreements to or with Universal Business
Directories (Aust) Pty Limited, Universal
Business Directories Pty Limited, Australian
Map Publishers Pty Limited or Universal Press
Pty Limited or any person associated with any
of these companies relating to the UBD
Directory or any employment or engagement of
you by any of these companies.
16. All transfers produced for the purpose of the
preparation and publication of the UBD
Directory.
17. All copies of the following directories:
(a) the UBD Directory;
(b) the Weldons Directory;
(c) Gregory's Sydney Street Directory."

3. The proceedings between the applicant and the respondent were initiated by application and statement of claim filed in this Court on 22 March 1989. The applicant, which publishes the well known Gregory's and UBD Street Directories alleges that the respondent in breach of the applicant's copyright reproduced artistic works comprised in or by these street directories and seeks an injunction, damages or an accounting of profits. The reproductions are alleged to be contained in certain street directories published by the respondent. No defence has yet been filed to the statement of claim but the respondent has commenced proceedings by motion to strike out the statement of claim which proceedings are presently before me. Discovery has been sought by the applicant but not yet given.

4. I was informed from the bar table that Mr Seymour was an employee and director of a company which had contracted with the present respondent to provide maps for use in the respondent's directories. Mr Seymour was also a director of Premier Street Maps against whom the applicant has commenced proceedings in the Supreme Court of New South Wales also alleging infringement of the applicant's copyright.

5. The power to issue subpoena is dealt with in Order 27 Rule 2 of the Federal Court Rules. A subpoena, either to give evidence or for production of documents or both, is issued at the request of a party by the Registrar and is required to be issued by him unless the Court otherwise orders: (Rule 6(1)), or unless the document or thing required to be produced is in the custody of the Court or another court (Rule 7(1)).
Was the Subpoena too wide and therefore an abuse of process?

6. It has long been held that a subpoena will be set aside as an abuse of the process of the Court if the subpoena is so widely framed as to be oppressive to the recipient. The general test for determining whether a subpoena should be set aside was stated by Beaumont J in Trade Practices Commission v. Arnotts Ltd (unreported) 7 July 1989 as being whether the subpoena is used for a legitimate forensic purpose: if it is not then its issue will be an abuse of process. In that case his Honour, without necessarily restricting the matters to be considered asked two questions:

"1. Does the material sought have an apparent
relevance to the issues in the principal
proceedings, i.e., is adjectival, as distinct from
substantive, relevance established? Does the
subpoena have a legitimate forensic purpose to this
extent? ...
2. Is the subpoena seriously and unfairly
burdensome or prejudicial?" (p 22 unreported
judgment)

7. In Commissioner for Railways v. Small (1938) 38 SR 564 Jordan CJ said at p 573:

"A writ of subpoena duces tecum may be addressed to
a stranger to the cause or to a party. If it be
addressed to a stranger, it must specify with
reasonable particularity the documents which are
required to be produced. A subpoena duces tecum
ought not to be issued to such a person requiring
him to search for and produce all such documents as
he may have in his possession or power relating to
a particular subject matter. It is not legitimate
to use a subpoena for the purpose of endeavouring
to obtain what would be in effect discovery of
documents against a person who, being a stranger,
is not liable to make discovery. A stranger to the
cause ought not to be required to go to trouble and
perhaps to expense in ransacking his records and
endeavouring to form a judgment as to whether any
of his papers throw light on a dispute which is to
be litigated upon issues of which he is presumably
ignorant ... And if a subpoena duces tecum is
issued to such a person in an objectionable form,
the witness may apply to the Court to have it set
aside."

8. In Lucas Industries Ltd v. Hewitt (1977-78) 18 ALR 555 Smithers J, with whom Bowen CJ and Nimmo J agreed, while accepting that documents must be specified with reasonable particularity in a subpoena commented that: "a degree of generality in the description of the documents may, according to circumstances, be compatible with reasonableness ...". As his Honour points out at p 570:

"The purpose of the process of subpoena is to
facilitate the proper administration of justice
between parties. For that purpose it is the policy
of the law that strangers who have documents may be
put to certain trouble in searching for and
gathering together relevant documents and bringing
them to court. It is according to the same
principle that persons who have knowledge of facts
are put to the inconvenience of being brought to
court and required to give evidence.
Assessment of the reasonableness of burdens
involved in complying with a subpoena must take
account, inter alia, of the desirability that
justice be administered effectively. The capacity
of a party to collect and produce the documents
referred to is a relevant circumstance. Large
business entities may be thought to be highly
organised and well staffed. What may be burdensome
to lesser entities may be of small significance to
a large one."

9. Like Clark J, as his Honour then was, in Southern Pacific Hotel Inc v. Southern Pacific Hotel Corporation (1984) 1 NSWLR 710 at p 717, I am of the view that there are two separate grounds for setting aside a subpoena that are often confused. The first, to which I have already referred, is the ground that the subpoena is so widely framed as to be burdensome and oppressive and therefore an abuse of process. The second, often linked with the first, is that the subpoena requires the addressee, being a third party to the litigation, to produce all documents which may afford evidence of the matters in dispute between the parties, is thus used as a way of obtaining discovery against a person not party to the litigation and so should be set aside (cf. Small's case supra).

10. Where the objection to a subpoena is that it is a misuse of the process of the Court for the purpose of discovery, what is usually meant is that it is an abuse of process to require a person not a party to litigation to form a judgment as to what is relevant to the issues joined in a proceeding to which he is not a party: National Employers' Mutual Association Ltd v. Waind & Hill [1979] HCA 11; (1978) 1 NSWLR 372 at p 382. It does not follow that a subpoena, issued in circumstances where the person requesting its issue is uncertain whether any documents exist which fall within the description in the subpoena, that description being otherwise precise, will be bad. I will deal with this issue in more detail later in the judgment.

11. In the present case, although Mr Seymour is a stranger to the present litigation, he appears to have played a significant part in the acts of infringement alleged. Had the maps in question been drawn by an employee of the respondent they would have been available to the applicant on discovery in the ordinary way and there would have been no need for a subpoena to be addressed to a third person. Does the fact that a contractor, albeit an independent contractor, was used to prepare the maps require the result that a subpoena directed against the contractor (or as here the employee of the contractor) is to be treated as issued to a person who is a stranger to the litigation? Cf. Southern Pacific Hotel Inc v. Southern Pacific Hotel Corporation supra.

12. In deciding whether it is burdensome upon Mr Seymour to produce the documents required I am entitled to consider the circumstances, including the part that Mr Seymour appears to have played in the preparation of the directories, the publication of which is said to infringe the applicant's copyright. I am not required to consider the burden of producing the documents in the abstract but rather to ask whether production would be burdensome for a person in Mr Seymour's position.

13. It is true that the subpoena requires on its face a large number of documents to be produced. The documents required to be produced are documents which can be seen from the description of them to go to the subject matter of the litigation in so far as it is possible to determine those issues prior to the close of pleadings. In my view the subpoena is not so burdensome, having regard to the apparent relevance of the document to the litigation and the part Mr Seymour played in the events said to be an infringement, that it can be said for that reason to be oppressive and an abuse of process.
Must a Subpoena state that only documents in possession and power
are required?

14. The second submission was that the subpoena was bad because it did not inform the person to whom it was addressed that the obligation to produce the documents to the Court was limited to producing only those documents that were in existence and in the addressee's possession and power.

15. A subpoena is an intrusion upon the liberty of the subject so that there is much to be said for the view that, a subpoena should make it crystal clear to the addressee (without the necessity for costly legal advice) precisely what it is that he is obliged to produce and what it is that he is not obliged to produce. Failure to comply with a subpoena constitutes a contempt of court and is a serious matter.

16. No matter how desirable it may be that a subpoena make it quite clear that the recipient is not bound to seek out from others the documents referred to in the subpoena, that, in my view, is not a requirement for the issue of a subpoena and failure to specify that documents not in the custody and control of the addressee need not be produced, will not lead to the subpoena being set aside.

17. It was not an issue between the parties that a person was not required to seek out documents not in his own possession and power and produce them to the Court. In O'Born v. Commissioner for Government Transport (1960) 77 WN 81 it was pointed out by the Full Court of the Supreme Court of New South Wales that if the person subpoenaed stated he did not produce a document because he knew nothing of it:

"it would not have been possible to deal with him
for disobedience to the subpoena, unless some proof
were given, not only that the document existed at
the time, but also that it was in his possession
and control." (p 83)

18. In Rochfort v. Trade Practices Commission [1982] HCA 66; (1983) 57 ALJR 31, Gibbs CJ said at p 32:

"A person who is properly served with a subpoena
duces tecum in due form requiring him to produce
specified documents must (subject to payment of any
necessary conduct money) attend at the place
directed by the subpoena and produce such of the
specified documents as are in his possession. If
the documents are not in his possession, however,
he is not obliged to endeavour to acquire them from
the person who has possession of them, "no man
being obliged, according to any sense of the effect
of such a subpoena, to sue and labour in order to
obtain the possession of any instrument from
another for the purpose of its production
afterwards by himself, in obedience to the
subpoena": Amey v. Long (1808) 9 East 473, at
p 483; 103 ER 653, at p 657."

19. It is made clear in the same case that it is unnecessary that the form of the subpoena limit the documents required to be produced to those in the possession and power of the addressee. Such a limit is to be implied from the very nature of a subpoena itself. Thus Mason J, as his Honour then was, said at p 34:

"Neither the Federal Court Rules nor the form of
the subpoena issued by the Court explicitly limit
the obligation to produce documents owed by a
person served with a subpoena to documents which he
holds. The subpoena, which has the effect of a
court order, requires the person to whom it is
addressed to produce the documents which it
describes. It assumes that he has the ability or
capacity to produce them. At times this idea has
been expressed by saying that the person served is
bound to produce any documents which is in his
possession, custody or control. But these
statements should not be allowed to obscure the
true effect of the subpoena - it binds a person who
can produce the documents to do so."

20. Accordingly the second submission must fail.
Was the Subpoena an abuse of process as requiring discovery?

21. Since a subpoena of necessity involves an intrusion into the privacy and liberty of a subject, when a subpoena is issued or access is sought by one or other party to the litigation to documents belonging to a stranger to the litigation there will always be a question of balancing the desire to keep the intrusion into privacy at a minimum with the ends of justice, the right of a party to litigation to obtain access to documents even if they are in the custody of others: cf. R v. Barton (1981) 2 NSWLR 414 at p 419.

22. As I have already noted the rule is now too well settled to be brought into doubt that the Court will not permit the process of the issue of a subpoena to be used as a means of obtaining discovery from a third party to the litigation. Although, as I have suggested above, Mr Seymour was no mere passive third party, nevertheless he is not a party to the present litigation and for the purpose of the present submission must be seen to be a third party. One reason for the rule, at least in modern times is that the Rules of the Court define in detail the procedures and circumstances in which discovery can be compelled and so by implication define the circumstances in which no discovery can be compelled. Clearly the Rules do not contemplate that discovery can be obtained from a non party. In earlier times, of course, it was not possible to obtain discovery at all in court proceedings.

23. But what is meant by the rule and how is it to be determined whether the issue of a subpoena is in truth being used as a means of obtaining discovery?

24. The subpoena at issue in Commissioner for Railways v. Small (supra) was a subpoena expressed in terms of requiring the production of documents relevant to the matters in issue between the parties. Such form of subpoena is by its terms the direct equivalent of an order for discovery and is both embarrassing to, and burdensome upon, the recipient who to comply with it would have to determine first what the issues between the parties were and then determine whether his documents fell into the category of documents required to be produced.

25. Moffitt P, with whose judgment Hutley JA and Glass JA agreed, in National Employers' Mutual General Association Ltd v. Waind & Hill; Waind v. Hill [1979] HCA 11; (1978) 1 NSWLR 372 at p 379 said of the subpoena in Small's case:

"The subpoena in that case was one issued by one
party to the opposing party, but the Court referred
in general terms to the use of such a subpoena and,
in so doing, to the use of a subpoena for the
spurious purpose of having discovery against a
stranger. The essential nature of discovery there
under consideration was imposing upon a stranger an
obligation to form a judgment whether any of his
papers throw light on the dispute between the
parties. In Burchard's case ((1891) 2 QB 241), the
Court of Appeal was concerned with a like question,
arising under a particular statute which conferred
powers exercisable prior to the trial in relation
to the documents of strangers. As Fry LJ pointed
out ((1891) 2 QB 241, at p 251), it was impossible,
on the law as it then was, to obtain discovery
against a witness by any process, adding ((1891) 2
QB 241, at p 251): "In the same manner with regard
to a subpoena duces tecum. You never could call on
a witness to ascertain whether documents related to
a particular matter in controversy.""

26. Later in his judgment the learned President considered what was meant by a subpoena used for the purpose of discovery. His Honour said at p 382:

"The essential feature of discovery in this
connection, as appears from Burchard's case ((1891)
2 QB 241, at pp 247, 248) and Small's case ((1938)
38 SR(NSW) 564, at p 574; 55 WN 215) is that the
person to whom the subpoena is addressed will have
to make a judgment as to which of his documents
relate to issues between the parties. It is
oppressive to place upon a stranger the obligation
to form a judgment as to what is relevant to the
issue joined in a proceeding, to which he is not a
party. Hence it is an abuse of the use of a
subpoena to impose this obligation. It follows
that it is an abuse to use any subpoena, i.e. even
to a party to obtain discovery. This was the
reasoning in Small's case. ... It follows that a
subpoena can only properly be used for the
production of documents described in particular or
general terms which does not involve the making of
such a judgment. It does not follow, however, that
because the party who issues a subpoena is unaware
of the precise description of a particular
document, or whether a particular document or
documents is in the possession of the witness, or
even whether it exists, or is unaware of its
contents, that the subpoena, or even a subpoena in
general terms, amounts to the use of the subpoena
for the purpose of "discovery". To state it does
involve (sic) a misconception of the different
functions of discovery and of a subpoena for
production. Of course, it may be that the terms of
a subpoena are so wide that it is oppressive, but
this is not because it is used for "discovery" in
the sense used in Small's case ... and Burchard's
case ..., but because it imposes an onerous task on
a stranger to collect and produce documents many of
which can have no relevance to the litigation."

27. What was there said was subsequently followed by Rath J in Finnie v. Dalglish (1982) 1 NSWLR 400, where the subpoena again was one requiring the production of documents expressed as relating to particular matters. The subpoenas were set aside as oppressive. Rath J said at p 407:

"The central question is whether these subpoenas
are oppressive in the sense that they place on the
persons to whom they are addressed an obligation to
form a judgment as to which of their documents
relate to issues between the parties. In substance
each subpoena requires the person to whom it is
addressed to form a judgment as to the relevance of
his papers to a subject matter. The subject matter
is not stated in terms of an issue between the
parties, and indeed there are presently no issues
joined between the parties except in the broadest
and most imprecise terms. On the authorities I
think it is apparent that a subpoena is oppressive
as requiring discovery when it requires the person
to whom it is addressed to produce documents
described as relating to a matter of fact that is
capable of being an issue in the proceedings. A
subpoena requiring such production is as oppressive
upon the person to whom it is addressed, whether a
stranger or a party, as a subpoena which describes
the documents in terms of a defined issue in the
proceedings."

28. It is not necessary to consider whether Rath J went further than principle requires in setting aside the particular subpoena in that case. (See Southern Pacific (supra) at p 719).

29. In Elder v. Carter (1890) 25 QBD 194 the order in the form of a subpoena that was there set aside was an order for the production of documents containing entries relating to dealings in certain shares where the matter in issue concerned an interest in those shares. In Burchard v. McFarlane (supra), the order in the form of a subpoena which was set aside was one requiring the production of documents specified as correspondence between Lloyds and a surveyor at Hamburg relating to the condition of the surveys of a vessel between certain dates and all reports and communications addressed to Lloyds by their agents at Hamburg relating to these matters.

30. In Federal Commissioner of Taxation; Ex parte Swiss Aluminium Australia Ltd (1986) 68 ALR 587, Beaumont J rejected a submission that the Court had power to order a stranger to produce documents only where a hearing of the proceeding was "pending". His Honour however commented at p 589:

"This is not to say that it is not possible to set
aside the issue of a subpoena to a stranger on the
ground that it is an abuse of process. If the
proper inference to be drawn from the facts of the
case is that a subpoena has been issued to a
stranger, not with a view to obtaining documents
for use at a trial, but in order to discover, for
some other purpose, what documents the stranger
holds, an abuse of process may have occurred. In
my view this is the proper explanation of the
decisions in Elder v. Carter and the Botany Bay
case; they do not establish that the Court lacks
power, in a proper case, to order a stranger to
produce documents before trial."

31. In that case his Honour was of the view that the true purpose underlying the request for the production of the third party's documents could not at that stage be ascertained at least until discovery had been made by the parties to the litigation.

32. The passage which I have quoted from the judgment of Beaumont J appears to proceed upon the basis that the question whether a subpoena is being used for the purpose of discovery is essentially a question of fact. But, with respect to his Honour to so classify the question must involve some qualification in the light of the authorities. Were it a mere question of fact, then if it could be shown that the person seeking to issue the subpoena did not know of the existence of a document or class of documents, the production of which was required, that would be a ground for setting aside the subpoena; that however does not appear to be the law, cf. Finnie v. Dalglish (ante). However, subject to the qualification that the test of determining whether a subpoena is being used for the improper purpose of obtaining discovery against a third person is an objective one so that the court does not investigate on a motion to strike out the subpoena either the knowledge of the person causing the issue of the subpoena as to the existence of documents required to be produced, or the subjective purpose of that person in seeking the issue of the subpoena, it seems to me correct in principle that the question must, as Beaumont J held, be a matter to be determined by inference from the facts and circumstances of each case. The most important fact will be whether the subpoena requires the addressee, as in Small's case, to determine the relevance of documents described to issues in the proceedings. But this will not be the only relevant matter. In some cases the very stage in the proceedings at which the subpoena was issued may, coupled with a consideration of the documents required to be produced, be telling in leading to the conclusion that the subpoena is, in the relevant sense, an abuse of the Court's process. It is accordingly desirable to consider the question together with the final submission that the issue of the subpoena was premature.
The issue of the Subpoena is premature

33. In Hughes v. Western Australian Cricket Association Inc & Ors (1986) 66 ALR 541 Toohey J in holding that the Court had power to order the production of documents by way of subpoena in advance of a hearing, said at p 543:

"In my view, where it appears to the Court to be in
the interests of justice and the proper and
expeditious conduct of a proceeding that a person
produce documents before the date of hearing of the
application, such a power exists."

34. However, his Honour added two qualifications, the first, that the subpoena should not be used to obtain discovery; the second, that the power should be exercised with economy for it could lead to fragmentation of proceedings and arguments about access by the parties to documents in the hands of a stranger prior to the hearing when those arguments might better be dealt with at the hearing itself. His Honour then continued at p 544:

"But there will be cases in which the issue of a
subpoena duces tecum to produce specified documents
or classes of documents before the hearing will be
conducive to the proper presentation of a party's
case and possibly avoid an adjournment with
attendant delay and expense. Indeed, it may
incommode a witness far less to produce documents
before the hearing, as O 27, r 4 contemplates."

35. In the Swiss Aluminium case Beaumont J accepted the correctness of the Western Australian Cricket Association case.

36. In Lucas Industries (ante), Smithers J with whom Bowen CJ and Nimmo J agreed said at p 568

"But from the point of view of the administrtion of
justice the suggestion that production of
documents, otherwise appropriate according to the
procedures prescribed in relation to a particular
action, should be regarded as inappropriate because
it would relieve a party from the disadvantage of
cross-examining in the dark, is not attractive.
Indeed, there is support for the view that
production of documents before trial would normally
have merit. Thus Denning MR in American Express
Warehousing Ltd v. Doe (1967) 1 Lloyds Rep 222 at
225) said: "Hitherto our courts have refused to
grant discovery against a person not a party ...
Several people have regretted our self-imposed
limitation ... It has been done by judicial
decision. It seems to me an undesirable
limitation. After all, we do allow a subpoena
duces tecum to produce documents at the trial. We
command any individual to come to the court to give
evidence and to produce related documents. I would
like to be able to do the same before the trial.
Subject to proper safeguards, we ought to be able
in a proper case to order a person to produce his
documents before the trial. I would be quite
prepared to reconsider the earlier decisions on
this point.""

37. That was a case where production on subpoena would facilitate affidavits by experts by allowing the experts to comment on the material produced and it was held that the subpoena was not premature.

38. With respect, the interests of justice and efficiency, will in most cases be best served if subpoenas are issued requiring documents to be produced at a time before the hearing but it does not follow from that that it will ordinarily be appropriate in the interest of justice for a subpoena to be made returnable before discovery itself has been given by the parties to each other or indeed before, as in this case, the defendant has even filed a statement of defence in the proceedings. Rather it seems to me, so that the issues are defined, that it will be a rare case indeed where the interests of justice will require a subpoena to be issued until the ordinary interlocutory steps have been completed.

39. It must ultimately be borne in mind that a subpoena is intended to require the production of documents so that those documents can be available for tender during a trial and for the purposes of it. I use trial as encompassing of course interlocutory motions should such motions be relevant. In this context I would refer to what was said by Bowen LJ in Elder v. Carter (supra) (at p 201, 202):

"But I am as certain as one can be of anything with
regard to practice, that does not intend to enact
that at any stage of a proceeding a judge may make,
subject to his discretion, an order on a third
person for production of a document which belongs
to the third person, unless the production of it at
that moment is a thing to which the parties are
entitled for the purpose of justice; and you are
not entitled, for the purpose of justice at any
moment during suit, simply because you are a
litigant, to see what is in the possession of a
third person and to have production of it. Such a
thing was never heard of ..."

40. For this reason I am of the view that the subpoena should be set aside on the ground that its issue at the present stage of the proceedings is premature. From the timing of the subpoena and its terms there is no conclusion that could be drawn other than that the purpose of the subpoena being issued at the present time was to obtain discovery of documents in the hands of Mr Seymour. This is an abuse of the Court's process.

41. Accordingly, I make the following orders:

1. That the subpoena for production issued herein on
26 May 1989 against Steven Seymour lo4 Crescent
Street Newport New South Wales, be set aside.
2. That the applicant pay the costs of the motion.