BETWEEN : JANIFER ANN DARBYSHIRE as Executor of the Will of MARGARET GILBERT

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Practice and procedure - Subpoena - Early return of subpoena duces tecem - Principles governing application - Whether order should be made if evidence to be given at hearing of originating summons to be by way of affidavit

Rules of The Supreme Court 1971 (WA), O 36 r 2(3), O 36 r 12(4), O 36 r 13, O 58 r 12

Australian Gas Light Co v Australian Competition & Consumer Commission [2003] FCA 1101

Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98

Carter v Mallesons Stephen Jacques (1993) 11 WAR 159

Commissioner for Railways v Small (1938) 3 SR NSW 564

National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372

R v Spizzirri [2001] 2 Qd R 686

Maddison v Goldrick [1976] 1 NSWLR 651

Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201

Stanley v Layne Christensen Co [2004] WASCA 50

1 ROBERTS-SMITH JA: I agree with the reasons for judgment Pullin JA is about to give and have nothing to add.

2 PULLIN JA: This is an application for leave to appeal against an interlocutory decision of Commissioner Sanderson dated 14 December 2005, by which he dismissed an application for leave to issue certain early return subpoenas. The appeal is also listed before the Court. Both matters have been expedited because the substantive hearing is to take place in February. Leave to appeal will only be granted if it can shown that the decision of the Commissioner is wrong or attended by doubt and that injustice will be suffered by the appellant if the decision is not reversed.

3 The proceedings below involve an application by the respondent under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA). In deciding whether the respondent has been left without adequate provision for his maintenance, education and advancement in life, the Court will have to consider the respondent's financial position. In those proceedings the respondent filed an affidavit containing a statement of assets and liabilities and of income and expenses. These reveal the existence of a secured loan, an unsecured loan, credit card debt owed by the respondent's wife and a source of income from Centrelink.

4 The respondent's affidavit says that he occasionally drives a taxi but no more than once a week and that he last worked full time two years ago. The appellant has deposed to conversations with the respondent, who said to her in October 2003 that he was still driving taxis and was at one time in that year to attend a compulsory seminar for taxi drivers.

5 The appellant sought specific discovery of the documents relating to the employment as a taxi driver, documents relating to the Centrelink payments, documents relating to the loans and relating to the credit cards. This application was refused by Master Sanderson but no reasons were given. On 9 December 2005 the appellant applied for early return subpoenas directed to:

(1) Keystart Loan Ltd, relating to the plaintiff's loan application;

(2) Narrogin Taxis, relating to the respondent's income and period of employment, and

(3) Bartercard Australia Pty Ltd, relating to the respondent's wife's application for a credit card.

6 This application was supported by an affidavit by the solicitor for the appellant, who referred to an affidavit sworn by the respondent on

23 November 2005 in which the respondent stated that he and his wife obtained a loan from Keystart for an amount of $79,000 in order to purchase their Narrogin property and that he continued to drive a taxi for a friend or for Narrogin Taxis. The solicitor's affidavit refers to a commercial report concerning the respondent's wife, which shows that she possesses a credit card from Bartercard Australia Pty Ltd. The affidavit says that on 28 October 2005 the solicitor carried out a search on the Internet and found a web page regarding Bartercard that said that it was only available to the owners of businesses.

7 Counsel who appeared before Commissioner Sanderson on the application for leave to issue the subpoena says that Commissioner Sanderson refused to issue the subpoena on the basis that the matters referred to above were peripheral and not relevant to the respondent's application, and that the Commissioner perceived the subpoena to be an attempt to obtain discovery in circumstances where discovery had already been denied.

8 The grounds of appeal (without the particulars) are as follows:

"1. The learned Master erred in law and in fact in finding that the financial documents sought to be subpoenaed were peripheral to the issue to be decided.

2. The learned Master erred in law and in fact in finding that the application for leave to issue early return subpoenae was an attempt to obtain discovery in circumstances where discovery had already been denied.

3. The learned Master erred in law and in fact in refusing to grant leave to issue early return subpoenae."

9 A subpoena requiring a person to appear or give evidence at a trial of an action may be sealed as of right, although the court will exercise control over the privilege to prevent abuse, see Carter v Mallesons Stephen Jacques (1993) 11 WAR 159 at 169. However, in the case of early return subpoenas the party seeking to issue the subpoena must obtain leave, see Rules of the Supreme Court 1971 (WA), O 36 r 12(4).

10 The proceedings below were commenced by originating summons, and under O 58 r 21 unless the Court otherwise orders, evidence at the hearing is to be adduced by affidavit. An order commonly made is that deponents attend Court for the purpose of cross-examination. In such a case the evidence is partly on affidavit and partly via oral evidence. See also O 36 r 2(3). No such orders have been made in the proceedings below, and therefore there will be no oral evidence unless an order is made under O 58 r 21 before the hearing. Order 36 r 13 is also relevant. It provides that a subpoena may issue for the purpose of proceedings in chambers, but only upon production of a note from a Judge or Master, as the case may be, authorising the issue of the writ.

11 In my opinion, if an application is made for an early return of subpoena, then it is relevant that the proceedings are to be disposed of in chambers. If the proceedings are to be conducted in chambers then it would also be relevant to inquire whether any orders have been made under O 58 r 21 or O 36 r 13. If no orders have been made then there will be no point in the subpoena of a witness or the subpoena of documents because the witness would not give oral evidence and the documents would not be proved via oral evidence of a witness.

12 If the intention is to ask the Court for an order to lead oral evidence or to supplement affidavit evidence on the hearing of an originating summons then it is necessary to apply for an order under O 58 r 21. If a subpoena is required in order to bring documents before the Court via a witness giving oral evidence, then approval of a Judge or Master under O 36 r 13 is necessary. Then, and only then, should an application under O 36 r 12(4) be made.

13 The appellant has cited no authority as to the considerations which govern the grant of leave under O 36 r 12(4), but my own research has located Australian Gas Light Co v Australian Competition & Consumer Commission [2003] FCA 1101 at [8], where French J said, speaking of O 27 r 6 of the Federal Court Rules:

"It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents may be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed."

14 I agree with the observations made by French J but would add that it is not the task of the judicial officer granting leave to attempt to anticipate and consider every possible ground of objection which might be raised by the recipient of the subpoena. However, factors mentioned by French J would be relevant. The subpoena must prima facie have some legitimate forensic purpose. That extends to the subpoena of material which may relate to cross-examination of a witness, see R v Spizzirri [2001] 2 Qd R 686 at [24].

15 The judicial officer would also examine the proposed subpoena to ensure that it was not in obviously objectionable form. For example, if the subpoena is in a form compelling a party or a third party subpoenaed to consider issues in the case and in effect give discovery, then leave would be refused: see Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100. What is meant here is that the subpoena must not be in a form which will require the person to whom the subpoena is addressed to make a judgment as to which of his or her documents relate to issues between the parties. Thus a subpoena requiring a person to produce documents relevant to the issues in the case is objectionable for this reason: see National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 at 382 and Commissioner for Railways v Small (1938) 3 SR NSW 564.

16 This, however, is not to say that documents which may be the subject of discovery orders may not be subpoenaed merely because they could have been obtained via a discovery order. Because no orders have been made which would authorise the giving of evidence other than by affidavit, and no order has been made under O 36 r 13, it is my opinion that the Master was correct to refuse leave to issue the early return subpoenas, but not for the reasons he gave. If evidence is to be led entirely by affidavit then the material subpoenaed could not be used for cross-examination because there will be none and could not be proved by oral evidence because there will be none. None of the documents are of a kind which the appellant could prove by an affidavit of her own.

17 It is not therefore necessary to consider the grounds of appeal. I should add, however, that if an order is made under O 58 r 21 and a note is given under O 36 r 13, then the proposed subpoenas appear to have a legitimate forensic purpose. The documents relate to the issues in the case. They may also relate to matters of credit. They are not peripheral. I should also add that as long as the subpoena is in proper form, it does not matter in this case that the documents subpoenaed were made the subject of an unsuccessful application for discovery of particular documents. As a result, I would refuse leave to appeal.