UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd [2003] VSC 87

5. In my opinion, based upon the authorities to which I have been referred, s.131 does not preclude the issue of a subpoena directing the proper officer of the TAC to produce documents which are relevant to a proceeding being heard or about to be heard in this court. For the reasons given in such decisions as Royal Melbourne Hospital v. Mathews [1993] VicRp 47; [1993] 1 V.R. 665, Fitzgerald v. Munro and Others [1998] VSC 30, a decision of Beach, J. published on 17 August 1998, and Transport Industries Insurance Co. Ltd. v. Masel, an unreported decision of Byrne, J., published 28 June 1996, s.131 does not affect the authority of the court to require the production pursuant to a subpoena otherwise properly issued of documents held by the Transport Accident Commission. Clearly, however, the court must ensure that the production of documents pursuant to a subpoena is not followed by the indiscriminate inspection of those documents by anybody who might seek to inspect them. Documents produced under a subpoena of the kind to which I have referred should not be produced to the party subpoenaing those documents or any other interested party in relevant litigation unless those documents are relevant to the issues between the parties, and, of course, unless they are free from any privilege that might otherwise properly be claimed in respect of them.

8. In this case, as I understand it, the documents sought to be inspected are documents going to the amounts received by a witness in the proceeding, one M.O. Jordan. He claimed certain expenses, a claim which the plaintiff, the present applicant, seeks to challenge. The plaintiff alleges that the claim is not justified because at the relevant time Mr Jordan was in receipt of moneys from the Commission, the receipt of which resulted in his suffering no loss, or at least a limited loss, as a result of his being called as a witness in the proceeding. Mr Sedawie has informed me that there are, as he recalls it, documents on the Commission's file which go to that issue. It seems to me that the plaintiff should be entitled to inspect those documents, but, since the relevance of no other documents held by the Commission has been asserted, the plaintiff should not be permitted to otherwise inspect the Commission's file.

11. Accordingly, I propose, given, as I understand it, that Mr Sedawie presently has the file in court, to ask him, if he would, to remove from it those documents that are properly classified as being relevant, as I have sought to describe them in these oral reasons, and produce those documents to the court. When that has been done, I would anticipate that I would allow their release on the usual conditions to the plaintiff and to Mr Bullard, as representative of Mr Jordan, so that both interested persons may have recourse to them.

(Discussion ensued.)

HIS HONOUR: Given the reasons that I have expressed for coming to the conclusion to which I have come, Mr Bullard, on the basis of those reasons, now gives consent on behalf of his client to the production of those documents pursuant to paragraph (f) of sub-s.(2) of s.131.

(Discussion ensued.)

HIS HONOUR: It seems sensible to make an order that the appeal be referred to the Listing Master for listing with such priority as she can give it.

(Discussion ensued re costs.)

HIS HONOUR: The only reason, it seems to me, why I should reserve the costs of the hearing today is if the documents sought turn out to be irrelevant, but it seems clear enough that there are relevant documents on the file of the TAC and, that being the case, it seems to me that costs should follow the event as they generally do. Accordingly I will order that the plaintiff's costs of this application be paid by Mr Jordan.

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