Kouimanis Enterprises Pty Ltd & Anor v Territory Insurance Office [2002] NTSC 53

PARTIES:	KOUIMANIS ENTERPRISES PTY LTD & ANOR

v 

TERRITORY INSURANCE OFFICE

TITLE OF COURT:		SUPREME COURT OF THE NORTHERN TERRITORY 	
OF AUSTRALIA

JURISDICTION:		Subpoena for Discovery of Documents

FILE NUMBER:		105/00 (20012584)

DELIVERED:			29 August 2002

HEARING DATE:		15 August 2002

REASONS OF:		Master Coulehan

CATCHWORDS

PRACTICE - Northern Territory – subpoena to produce documents – O.42 Supreme Court Rules – non-party discovery – O.32.07 Supreme Court Rules – use of subpoena for discovery when specific process available

CASES FOLLOWED
Greyhound Australia v Deluxe Coaches 11 FCR 592
J. Boag & Son Brewing v Cascade Brewery (1997) 7 TAS R 119
Leighton Contractors v Western Metal Resources (2001) 1 Qd R 261

CASES REFERRED TO
ACCC v Shell 161 ALR 686
Giblin v Beach (2001) NTSC 67
Kennedy Taylor v Grocon (1999) VSC 242
Lucas Industries v Hewitt 18 ALR 555
Queensland Trustees v White 72 ALR 287
R v Commissioner of Taxation; ex parte Swiss Aluminium 13 FCR 66

REPRESENTATION
	
Solicitors:
Plaintiff		De Silva Hebron
	Defendant		Ward Keller

Judgment category classification
Judgment ID number 			mas19
Number of pages			5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. 105 of 2000 (20012584)

BETWEEN:

KOUIMANIS ENTERPRISES PTY LTD
(ACN: 009 611 554)
TRADING AS TERRITORY MOTOR TRIMMERS
	First Plaintiff
and

DAVID KOUIMANIS
	Second Plaintiff

and

TERRITORY INSURANCE OFFICE
	Defendant

MASTER COULEHAN: REASONS FOR DECISION

(Delivered 29 August 2002)

[1]	In this proceeding, the plaintiffs claim damages for breach of a contract of insurance, the defendant having failed to indemnify them for the loss of property and income as a result of a fire in June 1998.  Pleadings have closed, but the proceeding has not yet been listed for trial.

[2]	The defendants solicitors have issued and served subpoenas for the production of documents.  The subpoenas were not returnable on a date for trial or a hearing.  The documents have been produced and the persons named have consented in writing to the inspection and copying of the documents produced.  The defendants solicitors seek access to inspect and copy and the plaintiffs do not object, subject to a right of first inspection and the right to claim privilege.

[3]	There are four subpoenas, two are directed to accountants, one to a property consultant and one to a conveyancing agent.  The subpoena directed to the property consultant seeks all valuations prepared during 1998 relating to the damaged premises.  The subpoena’s directed to the accountants seek all documents relating to the financial affairs of the plaintiffs for a period of several years.  The subpoena directed to the conveyancing agent seeks all documents relating to the sale of the damaged premises in October 1998.  These documents appear to be relevant to the quantum of damages claimed, and possibly, to liability. 

[4]	The only evidence in support of this application was a copy of a letter from the plaintiffs solicitors to the defendants solicitors relating to the paucity of documentation, apparently because of the fire.  There was no suggestion in argument that any particular documents were required.

[5]	A question arises as to whether the documents are required “for evidence” (see 0.42.02(1)). It has been suggested by Gillard J in Kennedy Taylor v Grocon, (1999) VSC 242, that this procedure is only available where a document is potentially required for evidence at the trial (paragraph 71), or for making a decision whether it should be used in evidence (paragraph 92).  The wide scope of the documentation sought in relation to the financial affairs of the plaintiffs, and the conveyancing documents, suggests that these documents have been sought for a purpose of ascertaining whether or not they contain useful information.  I am of the opinion that these subpoenas are being used for the purpose of investigation, rather than for evidence, although it is possible that documents may be disclosed which will be used in evidence.  The subpoena directed to the valuer is much more limited in its scope, and is arguably for the purpose of evidence, although its association with the other subpoenas suggests that it was also being used for the purpose of investigation.  It is not easy to distinguish the difference. 

[6]	It has been held that a subpoena may be used for the purpose of investigation (see Lucas Industries v Hewitt 18 ALR 555, Greyhound Australia v Deluxe Coaches 11 FCR 592, R v Commissioner of Taxation; ex parte Swiss Aluminium 13 FCR 66 and Queensland Trustees v White 72 ALR 287).  Consideration of these cases suggest that such use was regarded as exceptional, and there were no rules providing for non-party discovery (see J Boag and Son Brewing v Cascade Brewery (1997) 7 TAS R 119, 124 and Leighton Contractors v Western Metal Resources (2001) Qd. R. 261,264).

[7]	O.32.07 provides for discovery from a non-party.  This procedure requires notice to be given to the person against whom the order is sought, and the other parties to a proceeding, which gives an opportunity for objections to be heard before an order is made. 

[8]	It has been suggested that where the rules prescribe a particular method for the achievement of a particular object, it is not permissible to attempt to achieve that object by use of the subpoena process (ACCC v Shell 161 ALR 686,696).  In Re Leighton Contractors v Western Mineral Resources it was held that the rules relating to non-party disclosure of documents precluded the use of a subpoena for the same purpose.  The relevant rule was said to reflect the traditional difference between discovery and obtaining documents by subpoena (p. 265).

[9]	The difference has been said to be that a subpoena is being used for the purpose of discovery when it requires a person to whom it is addressed to decide what documents relate to the issues in the proceeding (see Lucas Industries v Hewitt p. 569).  However, this is more relevant to the issue of oppression (see Greyhound Australia v Deluxe Coaches p. 596-7 and J. Boag & Son Brewing v Cascade Brewery p. 124).

[10]	The defendant relies on Giblin v Beach, an unreported decision of Bailey J. dated 2 August 2001.  In that proceeding the defendant caused subpoenas to be issued and served on medical services providers for the production of the plaintiff’s medical records.  The subpoenas were returnable before the Court, but not on a date fixed for trial or a hearing. 

[11]	His Honour held that the express terms of O.42.02 did not confine the return date of subpoena’s to a date fixed for trial or a hearing.  He found that there was no issue that the persons to whom the subpoenas were addressed were in possession of relevant medical records, and the defendants were not “fishing”, or using the subpoenas to circumvent the provisions of O.32.  He also found that the pleadings were closed and the plaintiff had provided particulars of damages, and concluded that the proceeding were at an advanced stage such that the issue of subpoenas was appropriate.

[12]	His Honour does not appear to have been referred to Re Leighton Contractors v Western Metal Resources, and did not specifically canvass the effect of O.32.07, or the question of when a proceeding may have reached a stage appropriate for the issue of subpoenas.  It may be that these were not issues of concern, the main point being whether the return date should be a date fixed for trial or a hearing. 

[13]	The reasoning in Re Leighton Contractors v Western Metals Resources is persuasive, and it is not clear what effect it may have had in Giblin v Beach had it been cited. There would be little work for O.32.07 if a subpoena could be routinely issued for the purpose of non-party discovery of documents.  With some hesitation, I consider that I should follow Leighton Contractors until such time as this issue receives further consideration.

[14]	I conclude that the defendant is attempting to use the subpoena process to effect non-party discovery.  There is no justification for the use of the subpoena process for this purpose at this stage of the proceeding, particularly as there is a specific procedure available.  The subpoenas should be set aside.

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