Lefta Corporation Pty Limited v Kelly & Rigby Holdings Pty Limited

Judgment - (ex tempore) 1HIS HONOUR: I am concerned today with the plaintiff's notice of motion, filed on 1 September 2011, to set aside (as an abuse of process) a subpoena served on its principal, Mr Chandler. The subpoena seeks production of documents relating to Mr Chandler's financial position, and is intended to identify material relevant to his capacity to meet an undertaking that he has given to be responsible for the plaintiff's costs. 2The background is that on 29 July 2011, Einstein J heard the first defendant's application for security for costs. On that occasion, it became apparent that the first defendant had suggested that, if Mr Chandler gave some evidence as to his financial capacity, the first defendant might accept, in lieu of security for costs, an undertaking or guarantee from him to meet any costs for which the plaintiff might become liable. That position was put by Mr G Inatey SC, who appeared on that occasion with Mr J Hutton of counsel for the first defendant, at T7.48-.50. 3After further argument, his Honour picked up on the proposition that, in lieu of giving security for costs, the plaintiff should accommodate the first defendant's requirement through Mr Chandler's guarantee. The discussion of that point commences essentially at T25, and (if I may put it this way) the position crystallised in the course of argument as demonstrated at T26. I do not propose to set out those passages of the transcript. 4Thus, at T31, Einstein J said that the proposal suggested by the first defendant seemed to him, "to be an entirely appropriate type of approach to what [the first defendant was] interested in" T31.24-.26. 5Mr Inatey then raised the question of Mr Chandler's financial capacity. He did that in the course of advancing the submission that the preferred course was for "some cold hard cash as security. Or a bank guarantee or whatever the position may be" (T31.39-.40). To that, Einstein J replied that he was against the proposition but that, "I think it would be also appropriate to grant leave to your side if push came to shove, when you have more material in relation to Mr Chandler's world, if it's necessary, to come back". (T31.45-.49). 6Mr Inatey indicated that the first defendant would be content with that course (T31.50). 7However, Mr Inatey then asked for a direction that the plaintiff provide some details of Mr Chandler's financial circumstances. Mr McKeand SC, who appeared then and today for the plaintiff, suggested that that was not appropriate but that, "it may be appropriate if they come across something" (T32.16). 8Einstein J commented (T32.19-.20): Mr Inatey, I think that you will have to take your own course in that regard. I think I heard sufficient to be able to rule accordingly. 9I have quoted extensively from the transcript of 29 July 2011 because Einstein J did not give separate reasons. That entirely practical course was taken with the consent of the parties. No doubt, the parties accepted that his Honour's fundamental reasons had emerged sufficiently in the course of argument. 10In the result, his Honour made the following orders (so far as they are of present relevance); I have reformatted them for convenience: