(re Floro) Bluescope Steel (AIS) Pty Limited v Amaca Pty Limited [2007] NSWDDT 12

(re Floro) Bluescope Steel (AIS) Pty Limited v Amaca Pty Limited [2007] NSWDDT 12

The subpoena was set aside because the evidence and the face of the subpoena indicated that the documents, or at least their contents, were otherwise available to Amaca through Bluescope, and Amaca had not put evidence before the Tribunal to show otherwise. In those circumstances the subpoena to BHP was properly viewed as being used as a substitute for discovery.

Jurisdiction
Australia
Judgment Date
24 July 2007
Procedural Posture
Dust Diseases Tribunal Cross Claim / Motion to Set Aside Subpoena to Third Party
Outcome
Subpoena set aside; Amaca Pty Limited ordered to pay BHP Billiton Limited's costs of the motion.
Legal Topics
['subpoena to Third Party' 'discovery' 'subpoena as Substitute for Discovery' 'documents Discovered in Other Proceedings' 'implied Undertaking' 'legitimate Forensic Purpose' 'asbestos Related Documents']
['civil Procedure' 'dust Diseases Litigation'] ['subpoena to Third Party' 'discovery' 'subpoena as Substitute for Discovery' 'documents Discovered in Other Proceedings' 'implied Undertaking' 'legitimate Forensic Purpose' 'asbestos Related Documents']

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Procedural Posture

Dust Diseases Tribunal Cross Claim / Motion to Set Aside Subpoena to Third Party

Legal Issues

  1. 1 ['Whether the subpoena issued by Amaca Pty Limited to BHP Billiton Limited should be set aside because it was being used as a substitute for discovery from Bluescope Steel (AIS) Pty Limited.' 'Whether Amaca Pty Limited had shown that the documents sought were not otherwise available to it through subpoena or discovery against Bluescope Steel (AIS) Pty Limited.' 'Whether the implied undertaking arising from discovery in other proceedings prevented production or access to the documents.']

Ratio Decidendi

The subpoena was set aside because the evidence and the face of the subpoena indicated that the documents, or at least their contents, were otherwise available to Amaca through Bluescope, and Amaca had not put evidence before the Tribunal to show otherwise. In those circumstances the subpoena to BHP was properly viewed as being used as a substitute for discovery.

Court Disposition

Subpoena set aside; Amaca Pty Limited ordered to pay BHP Billiton Limited's costs of the motion.

Orders

  • ['The subpoena issued to BHP Billiton Limited filed on 21 May 2007 by Amaca Pty Limited be set aside.' "Amaca Pty Limited pay BHP Billiton Limited's costs of the motion."]