Nevro Medical Pty Ltd v McKelvie (No 2) [2020] FCA 1876

Nevro Medical Pty Ltd v McKelvie (No 2) [2020] FCA 1876

The subpoenas were not an impermissible substitute for discovery and were not a fishing expedition because the documents sought from the banks were clearly particularised, limited in scope, would not require substantial searches, and had apparent or potential relevance to Nevro's pleaded allegations. Mr McKelvie's bank records could be used to compare expense claims with actual expenditure, Mrs McKelvie's records could bear on whether reimbursed expenses were incurred through her accounts and whether Sutton Executive Services was a legitimate business, and records from the first year of employment remained sufficiently relevant because the pleading left open the possibility of earlier...

Jurisdiction
Australia
Judgment Date
23 December 2020
Procedural Posture
Practice and Procedure; Fair Work Division Proceeding / Respondent's Interlocutory Application to Set Aside Subpoenas Issued to Non Parties at the Applicant's Request
Outcome
The respondent's interlocutory application to set aside the subpoenas was dismissed with costs.
Legal Topics
['subpoenas to Non Parties' 'setting Aside Subpoenas' 'discovery' 'fishing Expedition' 'legitimate Forensic Purpose' 'apparent or Potential Relevance']
['practice and Procedure' 'employment and Industrial Relations'] ['subpoenas to Non Parties' 'setting Aside Subpoenas' 'discovery' 'fishing Expedition' 'legitimate Forensic Purpose' 'apparent or Potential Relevance']

Case Brief

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Procedural Posture

Practice and Procedure; Fair Work Division Proceeding / Respondent's Interlocutory Application to Set Aside Subpoenas Issued to Non Parties at the Applicant's Request

Legal Issues

  1. 1 ["Whether three subpoenas issued to Mr McKelvie's and his wife's banks should be set aside as an impermissible substitute for discovery." 'Whether the subpoenas were a fishing expedition or sought documents with apparent or potential relevance to the issues in the proceeding.' "Whether bank records of Mr McKelvie and Mrs McKelvie from May 2013 to August 2020 were sufficiently relevant to Nevro's claims about alleged misappropriation and expense reimbursements."]

Ratio Decidendi

The subpoenas were not an impermissible substitute for discovery and were not a fishing expedition because the documents sought from the banks were clearly particularised, limited in scope, would not require substantial searches, and had apparent or potential relevance to Nevro's pleaded allegations. Mr McKelvie's bank records could be used to compare expense claims with actual expenditure, Mrs McKelvie's records could bear on whether reimbursed expenses were incurred through her accounts and whether Sutton Executive Services was a legitimate business, and records from the first year of employment remained sufficiently relevant because the pleading left open the possibility of earlier...

Court Disposition

The respondent's interlocutory application to set aside the subpoenas was dismissed with costs.

Orders

  • ["The respondent's interlocutory application dated 30 November 2020 is dismissed." "The respondent pay the applicant's costs of the application."]