Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 at 504; Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564, referred to.

Judgment Number: [2017] TASSC 58

BROCKLANDS PTY LTD v TASMANIAN NETWORKS PTY LTD

1. The plaintiff has applied for the setting aside of a subpoena that was issued at the request of the defendant.
2. The plaintiff conducts a nursery business at Winkleigh in the north of Tasmania. The defendant conducts an electricity distribution business. By virtue of a provision in the Electricity Reform Act 2012, it is responsible for the liabilities of the previous proprietor of that business, Aurora Energy Pty Ltd. The plaintiff alleges that something went wrong with the electricity supply to its nursery business on 10 December 2010 as the result of negligence on the part of Aurora, and that it suffered substantial damage as a result. The action has been listed for trial.
3. In 2011 or 2012 the plaintiff company engaged an electrical engineer named Rayner Page to undertake an assessment of the electrical infrastructure at its nursery. He provided a report to the directors of the plaintiff company. He was subsequently engaged by its solicitors to be an expert witness in the forthcoming trial. Mr Page is the sole director of a company named Arowana Energy Pty Ltd. On 2 October 2017 the solicitors for the defendant arranged the issue of a subpoena requiring that company to produce documents. That is the subpoena that the plaintiff seeks to have set aside.
4. The plaintiff contends that (a) the subpoena does not serve any legitimate forensic purpose; (b) it is too vague in certain respects; (c) it is too wide; and (d) it is "fishing".
5. The subpoena requires Arowana to produce the following:

1. All documents in your possession, custody or control, including but not limited to letters, emails, invoices, notes and drawings, relating to any contact between you and:

concerning or relating to electrical equipment, circuitry, wiring, works, fault and/or malfunction at the premises located at 460 Rookery Road, Winkleigh, Tasmania (or any part of that premises), from 1 January 2003 to 26 August 2015.

1. All documents in your possession, custody or control, including but not limited to letters, emails, invoices, notes and drawings created from 10 December 2010 to 31 December 2012, relating to any contact between you and:

Concerning or relating to your investigation and/or rectification or repair of damage to electrical equipment at the premises located at 460 Rookery Road, Winkleigh, Tasmania (or any part of that premises), such damage which occurred on or about 10 December 2010."

1. Timothy Francis Phillips and Karen Natalie Brock are the directors of the plaintiff company.
2. The subpoena should be set aside unless the defendant is able to "identify expressly and precisely the legitimate forensic purpose for which access to documents is sought": Principal Registrar of the Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 at 504; R v Turner (No 5) [2001] TASSC 60 at [8]. It is sufficient if the material sought has an apparent relevance to the issues in the proceedings, in the sense that it could possibly throw light on the issues: Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 102-103.
3. Apparently the defendant's expert witness, Mr Gillespie, did not inspect the electrical infrastructure at the nursery until 26 August 2015. Between the events of 10 December 2010 and the time of his inspection, some modifications may have been made to that infrastructure. Other modifications may have been made before 10 December 2010. Arowana has documents relating to the work Mr Page did prior to his engagement as an expert witness. Those documents are not privileged. Some or all of them were not made available to the defendant when the plaintiff made discovery. They include Mr Page's diary and notes made in the course of his work. They may contain information not yet known to the defendant relating to the state of the infrastructure as at 10 December 2010, and as to subsequent modifications. I am therefore satisfied that the production of the documents will serve a legitimate forensic purpose.
4. Mr Kendall, who appeared for the plaintiff, made a submission to the effect that the word "documents" in the subpoena lacked sufficient specificity as to what Arowana was required to produce. I reject that submission. Plainly the subpoena requires the production of anything that contains information in written or diagrammatic form.
5. Mr Kendall submitted that the word "concerning" was too wide. I disagree. It is a word that everyone understands. It makes no difference to the scope of the subpoena because the author of the document has used the words "concerning or relating to". "Concerning" and "relating" mean the same thing in this context.
6. Mr Kendall submitted that the word "contact" was too broad. I disagree. That word obviously refers to any meeting, telephone conversation, or written communication, by hard copy or electronic means.
7. Mr Kendall argued that it was inappropriate to mention the directors of the plaintiff's company, Mr Phillips and Ms Brock, because there was no reason to "pierce the corporate veil". I disagree. If the subpoena had required Arowana to produce documents relating only to contact between it and the plaintiff company, its proper officer may have had difficulty deciding whether communications with Mr Phillips and/or Ms Brock were made with them in their capacities as directors of the plaintiff or in any other capacities. Adding the names of the directors reduced the risk that Arowana would be embarrassed as a result of having to decide whether or not particular communications were made with individuals as agents of the plaintiff company.
8. In relation to the words, "damage which occurred on or about 10 December 2010", Mr Kendall argued that the words "on or about" were inappropriate. I disagree. Arowana did not run the nursery, and may not have had precise information as to the date when damage is alleged to have been suffered. Lawyers traditionally use the words "on or about" to guard against risks associated with minor mistakes as to dates. In the circumstances, there was nothing inappropriate about the use of those words.
9. Mr Kendall submitted that the date, 1 January 2003, was an arbitrary date. However the defendant understands that the plaintiff commenced to carry on its nursery business at the Winkleigh site on that date. That date is therefore not inappropriate.
10. The obvious purpose of the subpoena is to seek the production of all the documents in the possession of Arowana relating to the work done by Mr Page, and anyone else that Arowana engaged, relating to the plaintiff's nursery at Winkleigh. Nothing in the subpoena could be interpreted as requiring Arowana to produce documents relating to any other subject. It is therefore not too wide in its scope.
11. A party is not entitled to use a subpoena for the production of documents for the purpose of "fishing". That term was defined by Jordan CJ in Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 575 as "endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all". Apparently there will be evidence that there was a voltage surge in December 2010, and there is a controversy as to whether that surge was caused by equipment installed by the plaintiff or by something that occurred in Aurora's infrastructure. Nothing that has been put to me suggests that the defendant does not already have a case in relation to the cause of the alleged voltage surge. The documents sought from Arowana are potentially relevant to that issue. I am not persuaded that the subpoena is bad as a result of fishing.
12. Counsel for the defendant told me that Mr Page's credibility will be in issue as a result of him having undertaken work for the plaintiff before he was engaged as an expert witness. I was a little surprised by that information. When a treating doctor gives expert evidence at the trial of an injured plaintiff, it does not follow as night follows day that there will be a credibility issue. The credibility issue relating to Mr Page was relied upon in the defendant's submissions as to the legitimate forensic purpose question and the fishing question. Because of the apparent relevance of the documents whose production is sought to issues other than credibility, it has not been necessary for me to evaluate the submissions made as to the issue of Mr Page's credibility.
13. For these reasons, I refuse the application for the setting aside of the subpoena.