Solicitors for Applicant/First defendant: Page Seager

Solicitors for Respondent/Plaintiff: Piggott Wood and Baker

ZEEMAN J There are aspects of this matter which I would have preferred to have given more detailed consideration. However the urgency of a determination requires that I dispose of the application now.

2. On 29 October 1996 the plaintiff filed a writ in which it claimed against the first defendant injunctions restraining it from acting in breach of a contract and requiring it perform provisions of the contract; an injunction against the second defendant restraining it from inducing, procuring or attempting to induce or procure the first defendant from acting in breach of that contract; and, against both defendants, damages, interest and costs. Delivered with the writ was a statement of claim. Appearances were entered by the defendants on 7 and 13 November 1996 respectively. As yet, no defences have been delivered and the time for doing so has not yet expired.

3. It appears to be common ground between the parties that pursuant to a distribution agreement the plaintiff acquired from the first defendant the exclusive right to distribute in Tasmania beer products bearing a "Cascade Brand"; that the first defendant sells a beer under the brand name of "Southern Draught"; and that the first defendant has not permitted the plaintiff to distribute that. The matter at issue between the parties is whether or not "Southern Draught" beer bears a "Cascade Brand", as that expression is defined by the agreement.

4. On 12 November 1996 the plaintiff filed an application seeking interim injunctions against each of the defendants. That application is listed before me on 19 November next at 10am. The plaintiff has filed an affidavit in support of that application. Neither defendant has filed an affidavit and I do not know whether either intends to do so.

5. On 13 November 1996 the plaintiff procured the issue out of the Court of a writ of subpoena duces tecum addressed to "The Proper Officer, Cascade Brewery Company Pty Ltd, Cascade Road, South Hobart". The subpoena commands the person to whom it is addressed:

"... to attend at the sittings of our Supreme Court of Tasmania

to be holden at the Supreme Court, Salamanca Place, Hobart on

Friday the 15th day of November, 1996 at the hour of

9.30 o'clock in the fore noon and so from day to day until the

above cause is tried to give evidence on behalf of the Plaintiff

and also to bring with you and produce at the time aforesaid:

...

1 The original Cascade Supply and Exclusive Distribution

Agreement dated 21 January 1993.

2 All instructions and briefs to market researchers by the

Defendants or either of them, and all market research reports

(including any market surveys and any focus groups) issued by

any market researcher to the Defendants or either of them, in

relation to the use of the word 'Cascade' on the packaging,

labelling, advertising and/or other promotional material

relating to the product named 'Southern Draught' ('Southern

Draught'), dated or brought into existence since 1 January 1996.

3 All documents dated or brought into existence since 1 January

1996, relating to, recording or evidencing the decision by the

Defendants, or either of them, to include reference to the word

'Cascade' on the labelling, advertising and/or other promotional

material relating to Southern Draught, including any briefs or

instructions to any advertising agencies and any designers, and

any contact reports of any conferences or meetings with any

advertising agencies and any designers.

4 All originals and copies of letters and facsimile

transmissions between the First Defendant and the Second

Defendant during the period from 1 January 1996 to the date of

the issuing of this Notice to Produce (sic) concerning or in any

way relating to:

(a) the supply and/or delivery by the First Defendant to the

Second Defendant in Tasmania of Southern Draught beer;

(b) the marketing and/or sale by the Second Defendant in

Tasmania of Southern Draught beer."

6. The first defendant has applied for an order that the subpoena be set aside. It is common ground that there are no sittings of the Court at 9.30am today. The intention of the plaintiff has been to have the subpoena returned before the Master at that time, although there are no relevant proceedings pending before the Master. The obvious purpose of the subpoena is to enable the plaintiff to inspect such documents as are produced in answer to it. I will assume that the subpoena as issued has been properly directed to the first defendant and served upon it, although there may be some doubt about that. A subpoena duces tecum which seeks that a corporation produce documents should be directed to it. It is then a matter for it to comply with it through its proper officer.

7. I very much doubt whether it is permissible for a party to issue a subpoena duces tecum requiring the production to the Court, a judge or the Master of documents other than for the purpose of proceedings to be dealt with by the Court, or that judge or the Master, as the case may be. The essence of a subpoena duces tecum is that it requires the person to whom it is addressed to produce a document to the Court at trial (Burchard v McFarlane (1891) 2 QB 241, per Lord Esher MR at 247 - 248).

8. In the time available I have not been able to carry out a full review of the authorities but the principles to be distilled from that case and cases such as Commissioner for Railways v Small (1938) 38 SR (NSW) 564; Elder v Carter (1890) 25 QBD 194 suggest that the course taken by the plaintiff is not permissible. Where it is desired that a party produce a document in circumstances such as the present the Rules of the Supreme Court, O33, r25 may be availed of. Where it is desired that a stranger to a proceeding produce a document, an order may be sought under O40, r11 although an order under that rule confers no right of inspection (Hedges v Burchell [1913] HCA 56; (1913) 17 CLR 327 at 330 - 334).

9. I will not delay consideration of the matter by reference to these matters because I have concluded that the subpoena should be set aside in any event on the principal basis argued by the first defendant. It submitted on the authority of Finnie v Dalglish (1982) 1 NSWLR 407 and the authorities cited therein, in particular Commissioner for Railways v Small (supra), that:

1 A subpoena will be set aside if it is oppressive.

2 A subpoena which requires that the person to whom it is

addressed to form a judgment as to relevance of documents to a

particular subject matter is oppressive.

3 The present subpoena is oppressive in that sense.

10. The plaintiff did not submit to the contrary of the first two of those propositions but argued that the subpoena did not require the first defendant to form a judgment as to relevance of documents to a particular subject matter. I have concluded that it does purport to impose such a requirement.

11. Paragraph 3 of the list of documents which the plaintiff seeks to have produced focuses on "the decision" of the defendants or either of them to include reference to the word "Cascade" on the labelling, advertising and/or other promotional material relating to "Southern Draught". It describes the documents in such terms that all documents which relate to a matter of fact, that is capable of being an issue in the proceedings are encompassed by the description. The first defendant must direct its mind to, and make a decision on, whether a document relates to that matter of fact, whether it records that matter and whether it evidences that matter. In each case, and in particular in considering whether a particular document relates to or evidences "the decision", a judgment must be formed by the first defendant. That makes par3 oppressive. The oppressiveness is compounded by the requirement to identify "the decision".

12. In substance the subpoena seeks discovery. It is unnecessary to give detailed consideration to the other documents sought. The first defendant submitted that the subpoena should be taken as a whole and, on the authority of Finnie v Dalglish (supra) at 408, that, if part of it is oppressive, it should be wholly set aside. The plaintiff did not submit to the contrary.

13. Accordingly I order that the subpoena be set aside as an abuse of process.