Davis v Mobil Oil Australia Ltd [1986] NSWCC 3; (1986) 2 NSWCCR 51 (21 August 1986)

[1986] NSWCC 3; (1986) 2 NSWCCR 51 (Matter No. 6428-85)

DAVIS v. MOBIL OIL AUSTRALIA LTD

Compensation Court of New South Wales: Davidson J

24 June 1986 (H)

21 August 1986 (J)

PRACTICE AND PROCEDURE - SUBPOENAS - ABUSE OF PROCESS - IMPROPER USE OF SUBPOENA TO PRODUCE - SUBPOENA AMOUNTED TO DISCOVERY AND WAS OPPRESSIVE

M.J. Joseph, for the applicant.

J.D. Harris, for the respondent.

Cur adv vult

DAVIDSON J: On 2 June 1986, the applicant issued a summons to produce documents to the respondent, returnable before the Court on Tuesday 24 June 1986. The summons itself sought production to the Court of "the following books, papers and writings in your possession, custody or control, that is to say: ... (b) see annexure A hereto". Annexure A to the summons was in the following form:

1. All statements, reports, memoranda, record, documents, correspondence, summaries, and submissions made by Russell Taylor relating to any discussions, directions, orders, rules, arguments, confrontations or disagreements involving Mr Taylor, Mr Bruce Davis and/or Mr Graham Bond.

2. Any statement made by Mr Bruce or Mr Graham Bond in respect of any discussions, conversations, disagreements or confrontations between either of them and Mr Russell Taylor, in respect of the period between 1 January 1980 to the present.

3. Any statement, memoranda or document arising out of or relating to discussions between Mr Russell Taylor, Mr Bruce Davis, and Mr Graham Bond, in respect of the period between 1 January and the present."

Upon the matter being listed for Tuesday 24 June 1986 upon the summons, the respondent took objection to the summons and moved to have it set aside. In summary, Mr Harris, counsel for the respondent, submitted that the issue of the summons was an abuse for two reasons. Firstly, that it imposed an obligation upon the respondent which was oppressive, and secondly that it required what was tantamount to discovery. He referred to COMMISSIONER FOR RAILWAYS V. SMALL (1938) 38 SR (NSW) 564 and FINNIE V. DALGLISH [1982] 1 NSWLR 400.

The question of oppressiveness and discovery was the subject of a recent decision by Clarke J in SOUTHERN PACIFIC HOTEL SERVICES INC V.

SOUTHERN PACIFIC HOTEL CORPORATION LTD [1984] 1 NSWLR 710. In distinguishing these two separate grounds of objection, his Honour said at 717f:

"A party who is called upon to provide discovery is obliged to discover all documents which are, or have been, in his possession relating to the issues joined between the litigants, in the sense, as the passage from Halsbury's Laws of England, 4th ed, vol 13, paragraph 38 at 34, quoted by Waddell J in SPENCER MOTORS PTY LTD V. LNC INDUSTRIES LTD [1982] 2 NSWLR 921 at 929 makes clear, that they contain information which may, not which must, either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary or which may fairly lead to a train of enquiry which may have either of these two consequences.

A subpoena which imposes upon a stranger the task of forming a judgment as to whether a document or documents relates or relate to issues between the litigants imposes an obligation upon the stranger tantamount to discovery and is, for that reason, an abuse of process."

Reference was also made to the judgment of Moffitt P in WAIND V. HILL & NATIONAL EMPLOYERS' MUTUAL GENERAL ASSOCIATION LTD [1978]1 NSWLR 372 at 382:

"The essential feature of discovery in this connection, as appears from Burchard's case [1981] 2 QB 241 at 247, 248, and Small's case (1938) 38 SR (NSW) 564 at 574; 55 WN (NSW) 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. Thus was reasoning in Small's case. Of course discovery, as such, is otherwise available to a party. 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 a subpoena for the purpose of "discovery". To state it does involves 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 that is not because it is used for 'discovery' in the sense use 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."

In addition to these two grounds of objection to a subpoena, the Southern Pacific Hotel case dealt with the need for the Court to carry out an exercise of judgment in considering whether or not a subpoena which calls for the production of a large number of documents of doubtful possible relevance should be regarded as oppressive and an abuse of process. It was said that that judgment included the need to balance the reasonableness of the burden imposed upon the recipient of the subpoena with the public interest in the due administration of justice and in particular that all material relevant to the issue be available to the parties to enable them to advance their respective cases. It was said that it is that later interest which is predominant. At 720 Clarke J in this regard said:

"If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents then the subpoena calling upon the stranger to produce those documents will be upheld. ... On the other hand a subpoena couched in vague or wide terms and requiring the production of many documents will be open to the objection that it probably calls for many documents that can have no possible relevance to the issue and may well be set aside."

In this same vein Cantor J in R V. BARTON [1981] 2 NSWLR 414 at 428 said:

"It seems to me all the circumstances must be looked at including the identity and situation of the recipient of the subpoena. The fact is, that he may well know from his very position the nature of the documents which he is required to produce ... that a degree of generality in the description of the documents might, according to the circumstances of the particular case, be compatible with reasonableness ... The fundamental consideration, in my view, is whether, in all the circumstances including the identity and situation of the recipient, the class of documents is sufficiently clearly identified."

It is in my view that each of the three paragraphs in Annexure A to the subpoena imposes an obligation upon the respondent tantamount to discovery and for that reason is an abuse of the process. Each of those paragraphs is couched in such terms as to require compliance with such an obligation although they do not themselves expressly refer to the issues.

Applying the test referred to by Smithers J in LUCAS INDUSTRIES LTD V. HEWITT (1978) 18 ALR 555 at 569, it seems to me that this subpoena imposes a duty upon the respondent to decide for itself with respect to documents in its possession whether, in the relevant sense, they relate to the issue in the action. It does not seek production of documents the contents of which relate to specified objects. The wide ranging nature of the demands expressed in Annexure A, in my view, brings about this state of affairs. As drafted, that requirement touches upon almost every conceivable recorded document that may have been brought into existence for whatever reason as a result of contact between the parties nominated in the course of their relationship as employees of the respondent.

In addition to it being my view that the subpoena does in effect amount to discovery, I also am of the view that the terms of the subpoena are so wide that it is oppressive because it imposes an onerous task on the respondent to collect and produce documents many of which can have no relevance to the litigation. In all the circumstances including the identity and situation of the respondent, the recipient, I do not consider that the class of documents is sufficiently clearly identified.

I have had regard to the need to balance the reasonableness of the burden imposed upon the recipient and the public interest in the due administration of justice, in particular that all material relevant to the issues be available to the parties to enable them to advance their respective cases. It seems to me that in this particular instance it is not so much the burden imposed upon the recipient which causes the subpoena to be an abuse of the process but rather that it is objectionable on the basis that is so wide that it calls for many documents that can have no possible relevance to any issue.

Accordingly I uphold the objection to the subpoena made by the respondent and set it aside as being an abuse of the process.

Subpoena set aside

Solicitors for the applicant: Turner Freeman

Solicitors for the respondent: Robert Leahy & Co