In the matter of Felan’s Fisheries Pty Limited [2017] NSWSC 1347

In the matter of Felan’s Fisheries Pty Limited [2017] NSWSC 1347

The subpoenas were assessed category by category. Narrow categories with sufficient connection to the evidence, pleaded context or legitimate cross-examination of relevant directors were permitted, even where they overlapped with documents not ordered on discovery. Categories not pressed were set aside. Categories that sought to obtain by subpoena what had not been permitted on discovery without sufficient support from pleaded issues or legitimate credit cross-examination, or that were temporally overbroad, were set aside.

Jurisdiction
Australia
Judgment Date
05 October 2017
Procedural Posture
Civil Procedure Application to Set Aside Subpoenas in Equity Corporations List Proceedings / Procedural Ruling on Notices of Motion Under R 33.4 of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
The applications to set aside subpoenas were allowed in part and otherwise dismissed in part; no order was made as to costs.
Legal Topics
['subpoenas to Produce' 'application to Set Aside Subpoenas' 'discovery' 'legitimate Forensic Purpose' 'cross Examination and Credit' 'legal Professional Privilege']
['civil Procedure' 'corporations'] ['subpoenas to Produce' 'application to Set Aside Subpoenas' 'discovery' 'legitimate Forensic Purpose' 'cross Examination and Credit' 'legal Professional Privilege']

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Procedural Posture

Civil Procedure Application to Set Aside Subpoenas in Equity Corporations List Proceedings / Procedural Ruling on Notices of Motion Under R 33.4 of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ["Whether subpoenas issued by Felan's to third parties should be set aside in whole or in part under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether subpoena categories that overlapped with earlier unsuccessful or limited discovery applications had a legitimate forensic purpose or were an abuse of process.' 'Whether documents sought were apparently relevant or capable of providing a legitimate basis for cross-examination, including on credit.' 'Whether subpoenas seeking legal advice and instructions should be permitted notwithstanding possible claims of legal professional privilege.']

Ratio Decidendi

The subpoenas were assessed category by category. Narrow categories with sufficient connection to the evidence, pleaded context or legitimate cross-examination of relevant directors were permitted, even where they overlapped with documents not ordered on discovery. Categories not pressed were set aside. Categories that sought to obtain by subpoena what had not been permitted on discovery without sufficient support from pleaded issues or legitimate credit cross-examination, or that were temporally overbroad, were set aside.

Court Disposition

The applications to set aside subpoenas were allowed in part and otherwise dismissed in part; no order was made as to costs.

Orders

  • ["Paragraphs 1 and 4 of the subpoena to NSW Fishermen's Holding Company Pty Ltd were set aside; paragraphs 2, 3, 5 and 6 were not set aside." 'Paragraph 1 of the subpoena to SFM Tenants & Merchants Pty Ltd was not set aside but was read down to require production of minutes of a meeting of directors held on 24...