St Frances Xavier Cabrini Hospital v Micallef [2000] VSC 19

11. These reasons for judgment should be read in conjunction with my earlier reasons for judgment.

14. The Master set aside the subpoenas in question on the ground that they were issued for the purposes of obtaining discovery from non-parties to the proceeding and were therefore an abuse of the process of the court.

17. In that regard the Master relied (inter alia) upon my decision in Belsart v. Man Po Holdings (Australia) Limited (unreported 31 August 1998).

20. It is clear that if the terms of a subpoena for production are such that although purporting to be a subpoena it is in substance a notice for discovery, it will be set aside. For a convenient discussion of the matter see the decision of Kaye, J. in McColl v. Lehmann [1987] VicRp 46; (1987) V.R. 503 and the cases there referred to.

23. The requirements of a subpoena duces tecum addressed to a stranger to litigation were described by Jordan, C.J., in the Commissioner for Railways v. Small (1938) 38 S.R. (N.S.W.) 564. At 573 His Honour said:

"It must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make the discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant."

27. In Lucas Industries Ltd. V. Hewitt (1978) 18 A.L.R., Smithers, J., with whose judgment Bowen, C.J., and Nimmo, J., concurred, said at p.570:

"It is true that in a subpoena duces tecum documents required to be produced must be specified with reasonable particularity. But a degree of generality in the description of the documents may according to circumstances be compatible with reasonableness in this respect. Thus, in respect of documents concerning the treatment of a hospital patient, production of which is required from the hospital, a description such as 'the hospital records relating to treatment of Mr.X between January and July 1977' would be acceptable. Such a description places upon the hospital the burden of searching for the records but, having regard to modern business organization and practices, such a burden is reasonable . . . The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence. Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and produce the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organized and well staffed. What may be burdensome to lesser entities may be of small significance to a large one. Later, at p.571, Smithers, J. expressed his opinion that a person to whom a subpoena is directed is required to read it sensibly and with reference to the circumstances known to him."

"I would adopt the opinion of Smithers J. expressed in Lucas Industries v. Hewitt (1978) 18 A.L.R. 555. In my opinion it reflects a realistic approach to a situation presented when the addressee of a subpoena duces tecum, because of all the relevant circumstances, ought reasonably to recognize the documents described by reference to a particular subject matter. To reject as oppressive or as an abuse of process a subpoena because it directs production of documents by reference to those relating to a specific subject matter within the recipient's knowledge, suggests an excessive indulgence in legalism. Determination of whether the description of documents by that mode satisfies the required test of specification by reasonable particularity ought to be made by taking into account the facts and circumstances within the knowledge of the party to whom the subpoena is addressed. It ought to be expected of the addressee, being mindful of the facts about the subject matter known to him, that he will read the subpoena sensibly."

33. The first point to note about the subpoenas is that the subpoenas have been complied with by the 15 hospitals, the Maribyrnong branch of the Commonwealth Bank, William Henry Woodhouse, and as I understand it, Anaequip (Vic) Pty. Ltd., and the documents required by the subpoenas produced to the Prothonotary.

36. Tanner has sworn an affidavit to the effect that he does not have any of the documents sought by the subpoena served upon him.

39. Save for one category of documents sought from it, Wainwright Ryan has complied with the subpoena.

42. I have examined the subpoenas in question. In my opinion they specify with reasonable particularity the documents which are required to be produced.

45. That that is so, is in my opinion borne out by the fact that of the 20 persons or institutions served, 19 have complied with the subpoenas and one recipient has sworn that he has no documents fulfilling the description of those documents set out in the subpoena served upon him.

48. The form of the subpoenas served on the 15 hospitals is identical. It requires each hospital to produce:

"1. All correspondence including: (a) tender or contract documents between Edmond Micallef and any other representative of Anaequip Vic Services Pty. Ltd. Including William Tanner; and (b) all notes or other records of dealings including invoices, payment slips, price listings and notes of telephone conversations with Edmond/or representatives of Anaequip Vic Services Pty. Ltd., concerning the services available or offered by Anaequip Vic Services Pty. Ltd. and/or William Tanner and/or Edmond Micallef made or brought into existence between October 1998 and the date of this subpoena. 2. All correspondence and all notes or other records of dealings between any employee or director of Anaequip (Vic) Pty. Ltd. Including William Woodhouse, concerning the services available or offered by Anaequip Vic Services Pty. Ltd. and/or William Tanner and/or Edmond Micallef, made or brought into existence between October 1998 and the date of this subpoena."

52. Although there may be a degree of generality in the description of the documents sought from the hospitals, if one takes into account the facts and circumstances within the knowledge of those parties, it can properly be said in my view that the documents are specified with reasonable particularity.

55. Similar observations can be made concerning the remaining subpoenas. Two examples will suffice.

58. Tanner was required to produce the following documents :

"1. Your 1998 Business Diary and 1999 Business Diary. 2. Any correspondence occurring between October 1998 and 30 June 1999 and passing between you and the First Defendant or the first Defendant's solicitors Wainwright Ryan in respect of:- (a) the incorporation of Anaequip Vic Services Pty. Ltd.; (b) the transfer of shares in Anaequip Vic Services Pty. Ltd. To you; (c) the appointment of you as a director of Anaequip Vic Services Pty. Ltd.; (d) the provision of services by yourself or the Defendants or any of them to any of the hospitals set out in the attached list to this subpoena ('the hospitals'); (e) the provision of services by you or the Defendants or any of them to Anaequip Vic Pty. Ltd."

The Commonwealth Bank was required to produce the following documents:

"1. The file or documents of the bank for the period October 1998 to 30 June 1999 with respect to: (a) account number 1004-2491 (BSB 063-240) or any other account (joint or otherwise) in the name of Edmond Micallef or Anaequip Vic Services Pty. Ltd. (b) payments made by the Defendants or either of them to Anaequip Vic Pty. Ltd. Or William Woodhouse; or (c) payments made to Rita Micallef in respect of the transfer of Edmond Micallef's interest in Certificate of Title Volume 9106 Folio 256 to Mrs Micallef. 2. Correspondence between, file notes and notes of conversations between any representative of the Commonwealth Bank of Australia (Maribyrnong) and Edmond Micallef or any other representative of Anaequip Vic Services Pty. Ltd., including William Tanner, made or brought into existence in the period from October 1998 to the date of this subpoena. 3. Any business plan provided to the Commonwealth Bank by the Defendants or either of them since October 1998."

64. Tanner had no difficulty complying with the subpoena in that he was able to swear that he was not in possession of any such documentation.

67. The Commonwealth Bank had no difficulty in complying with the subpoena.

70. In a letter of 25 November 1999 written by the defendants' solicitors to the Prothonotary, the defendants' solicitors have stated:

"We are instructed that in relation to subpoenas numbered 1-15, in the letter, namely, those served on various hospitals, discovery has been given and/or the Plaintiff otherwise has copies of the relevant documents. Further, our instructions are that the subpoenas have not been issued for the obtaining of evidence for the use in the hearing but rather for an improper purpose, namely, to deter those hospitals from having any dealings with the Defendants. In those circumstances we are instructed to object to any inspection being had of any documents produced upon a subpoena by any of the hospitals corresponding to those listed as numbers 1-15 in the letter. This objection is made pursuant to Order 42.10(9) of the Rules. In addition, objection is taken to production of the documents referred to in the subpoena listed as number 16 in the letter, namely, that to Commonwealth Bank of Australia, on the grounds that they are not relevant to the issues and are fishing. The objection is also made pursuant to Order 42.10(9). Objection is taken to the documents referred to in the subpoenas numbered 17, 18, 19 and 20 in the letter on the grounds of legal professional privilege, relevance and on the basis that documents have already been produced upon discovery. The objection is also made pursuant to Order 42.10(9)."

74. There is no evidence that the plaintiff has served the 15 subpoenas on the hospitals to deter those hospitals having any dealings with the defendants.

77. The documents sought from the Commonwealth Bank may well be relevant to the issues in the proceeding. Subpoena no. 19 is the subpoena served on Tanner. Tanner has sworn, as the defendants' solicitors well know, that he does not have the documents sought. How then can it be said that any question of legal professional privilege arises in respect of them?

80. If any question of legal professional privilege arises in relation to the documents sought from Wainwright Ryan (subpoena no. 17), William Woodhouse (subpoena no. 18), and Anaequip (Vic) Pty. Ltd. (Subpoena no. 20) then that matter should be determined by a Master of the court.

83. In my opinion the twenty subpoenas in this case cannot be said to be notices for discovery and in that situation were properly complied with by the persons and institutions upon whom they were served.

86. Paragraphs 1 and 2 of the orders made by the Master on 9 December 1999 are set aside.

89. I order that the defendants pay the costs of the plaintiff of the application to the Master on 9 December.

92. I order that the defendants pay the plaintiff's costs of the appeal to a judge of the court.

95. I grant to the defendants an appropriate certificate pursuant to the provisions of the Appeal Costs Act in respect of their costs of the appeal and the costs of the appeal they are required to pay to the plaintiff.

98. I give leave to the solicitors for the plaintiff and the defendants to inspect and if necessary take copies of the documentation produced to the Prothonotary by the fifteen hospitals, and the Commonwealth Bank.

101. I request the Master dealing with the directions hearing on 4 February 2000 to either hear or to fix a date for the hearing by a Master of the defendants' claim of legal professional privilege in relation to the documents produced to the Prothonotary by Anaequip (Vic) Pty. Ltd., William Henry Woodhouse and Wainwright Ryan.