Hudson v Whalan [1999] FCA 199 (3 March 1999)

Last Updated: 19 March 1999

CATEGORY: NO QUESTION OF PRINCIPLE

FEDERAL COURT OF AUSTRALIA

Hudson v Whalan [1999] FCA 199

PRACTICE AND PROCEDURE - whether subpoena should be set aside.

ROBERT HUDSON JNR V STEPHEN WILLIAM MICHAEL WHALAN & THOMAS JAMES DONALD

NG 931 OF 1998

SACKVILLE, NORTH & HELY JJ

SYDNEY

3 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 931 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ROBERT HUDSON JNR Appellant
AND:	STEPHEN WILLIAM MICHAEL WHALAN First Respondent THOMAS JAMES DONALD Second Respondent

JUDGE:	SACKVILLE, NORTH & HELY JJ
DATE:	3 MARCH 1999
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The respondent's motion filed on 17 February 1999 be dismissed.

2. The appellant have leave to inspect the documents produced to the Court by Gosford City Council, save for documents in respect of which client legal privilege has been claimed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 931 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ROBERT HUDSON JNR Appellant
AND:	STEPHEN WILLIAM MICHAEL WHALAN First Respondent THOMAS JAMES DONALD Second Respondent

JUDGE:	SACKVILLE, NORTH & HELY JJ
DATE:	3 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

THE COURT

1 The Court has two motions before it, which must be determined before the hearing of the appeal. In essence, the respondents seek to set aside a subpoena that was issued on 18 January 1999 at the instance of the appellant and directed to Gosford City Council ("the Council"). For his part, the appellant seeks access to the documents that have already been produced to the Court by the Council, although there are certain documents in respect of which a claim for privilege has been made by the Council. The respondents' motion assumes that they have standing to apply to set aside the subpoena.

2 The first question that arises is whether the subpoena ought to be set aside. Ms Winfield has submitted on behalf of the respondents that it should be set aside on the ground that it is essentially a fishing expedition. There is a curious feature to the application made by Ms Winfield, namely, that an order has already been made by a Deputy Registrar of the Court permitting the respondents to inspect the subpoenaed material. Although Ms Winfield suggested at one point that the respondents were essentially the Council or at least acting on behalf of the Council, she did not persist with that submission.

3 The consequence is that the respondents have gained access to subpoenaed material in reliance upon the very subpoena which they now seek to set aside. In these circumstances, we do not think it appropriate to set aside the subpoena. We should add that, in any event, the appellant has been quite specific as to the nature of the material that he seeks to obtain from the subpoenaed documents. Having regard to the fact that he is not legally represented, we do not think that the subpoena can be regarded as a "fishing expedition".

4 The next question is whether the appellant should be entitled to have access to the documents that have been produced to the Court on subpoena by Gosford Council. The appellant has said that the reason he wishes to have access to the subpoenaed documents is that he has reason to believe that there is documentation demonstrating that, prior to 19 May 1998 (the date of the sequestration order), a binding arrangement was entered into by the Council and the respondents whereby the Council agreed to indemnify the respondents against, or to pay, the costs incurred in the litigation between the respondents and the appellant.

5 If there is such documentation, the appellant wishes to submit that the power conferred by s 153B of the Bankruptcy Act (Cth) 1966 ("Bankruptcy Act") to annul his bankruptcy, has been enlivened. He says that this is so because any binding arrangement of the kind to which we have referred would mean that the sequestration order "ought not to have been made".

6 At this stage, it is inappropriate to make any comment on whether that submission would succeed if it were to be made. Our view, however, is that Mr Hudson ought to be entitled to inspect the documents produced on subpoena by the Council for the purpose that he has indicated. There is material in the affidavits which provides a possible foundation for suggesting that there may be documents prior to 19 May 1998 which have the effect to which the appellant has referred. This is, of course, not to say that there are any such documents in the subpoenaed documents, merely that it is not an altogether fanciful suggestion.

7 Accordingly, the Court proposes to allow the appellant to inspect the documents that have been produced on subpoena, other than the documents in respect of which client legal privilege has been claimed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Sackville, North & Hely JJ.

Associate:

Dated: 3 March 1999

Counsel for the Appellant:	Self represented
Counsel for the Respondent:	Ms R Winfield
Solicitor for the Respondent:	Tonkin Drysdale Partners
Counsel for Gosford Council	Mr P Newton
Date of Hearing:	3 March 1999
Date of Judgment:	3 March 1999