Marsh Pty Ltd v Vickery [2014] FCA 484

Marsh Pty Ltd v Vickery [2014] FCA 484

The electronic properties of documents and the specified emails fell within the amended subpoena and had not been produced. Although compliance would be costly and time consuming, the burden did not make the subpoena oppressive in light of the nature of the applicant's case, the availability of orders for costs and expenses under r 24.22, and the ability to allow extended time for compliance. Gallagher Australia was therefore required to make further and better production in electronic form preserving original electronic properties.

Jurisdiction
Australia
Judgment Date
15 May 2014
Procedural Posture
Practice and Procedure; Interlocutory Application for Further and Better Production of Documents Under Subpoena and Oral Application to Set Aside Subpoena on the Ground of Oppression / Interlocutory Application in Preparation for Trial
Outcome
Application for further and better production allowed; oral application to set aside the amended subpoena on the ground of oppression dismissed; orders made for production of documents under subpoena.
Legal Topics
['subpoena for Production' 'further and Better Production' 'electronic Documents' 'electronic Properties of Documents' 'oppression' 'confidentiality' 'costs and Expenses of Compliance']
['practice and Procedure' 'evidence' 'civil Procedure'] ['subpoena for Production' 'further and Better Production' 'electronic Documents' 'electronic Properties of Documents' 'oppression' 'confidentiality' 'costs and Expenses of Compliance']

Case Brief

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Procedural Posture

Practice and Procedure; Interlocutory Application for Further and Better Production of Documents Under Subpoena and Oral Application to Set Aside Subpoena on the Ground of Oppression / Interlocutory Application in Preparation for Trial

Legal Issues

  1. 1 ['Whether Gallagher Australia had complied with the amended subpoena by producing hard copies of documents that originated in electronic form.' 'Whether electronic copies preserving the original electronic properties of documents fell within the terms of the amended subpoena.' 'Whether emails between the specified email addresses and Gallagher Australia employees fell within the terms of the amended subpoena.' 'Whether compliance with the amended subpoena, including access to archived electronic material located in the United States, would be oppressive.']

Ratio Decidendi

The electronic properties of documents and the specified emails fell within the amended subpoena and had not been produced. Although compliance would be costly and time consuming, the burden did not make the subpoena oppressive in light of the nature of the applicant's case, the availability of orders for costs and expenses under r 24.22, and the ability to allow extended time for compliance. Gallagher Australia was therefore required to make further and better production in electronic form preserving original electronic properties.

Court Disposition

Application for further and better production allowed; oral application to set aside the amended subpoena on the ground of oppression dismissed; orders made for production of documents under subpoena.

Orders

  • ["Arthur J Gallagher (Aus) Pty Limited is to produce to the Registry electronic copies of all documents which originated in electronic form and were previously produced by hard copy, specified emails between noelvickery1@bigpond.com and employees of the addressee, and specified emails to and from Noel Vickery's...