Hawksford v Hawksford [2006] NSWSC 1285

New South Wales Supreme Court

CITATION : Hawksford v Hawksford [2006] NSWSC 1285

HEARING DATE(S) : 18/09/06 JURISDICTION : Equity

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 09/18/2006

DECISION : Application adjourned to hearing of motion for discovery.

CATCHWORDS : PROCEDURE – Discovery – Subpoenas - Abuse of process – where subpoena issued seeking production of documents the subject of contested applications for discovery – whether application to set aside order for access and to set aside subpoenas should be heard instanter or with specially fixed motion for discovery.

Michael Jeffrey Hawksford (P1) Calm Family Investment Pty Ltd ACN 000 067 553 860 (P2) Heads and Threads Pty Ltd ACN 000 549 628 (P3) PARTIES : Brett Paul Hawksford (D1) BHM Management Pty Ltd ACN 065 451 327 (D2) Bremick Pty Ltd ACN 000 496 131 (D3) BMB Investments Pty Ltd ACN 000 223 745 (D4)

FILE NUMBER(S) : SC 3487/05

COUNSEL : GKJ Rich (P1) (Respondent) E Patakas (sol) (Ds) (Applicant)

SOLICITORS : Clayton Utz (P) (Respondent) Evangelos Patakos & Associates (Ds) (Applicant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Monday 18 September 2006

3487/05 Michael Jeffrey Hawksford & 2 Ors v Brett Hawksford & 3 Ors JUDGMENT (Ex tempore) 1 HIS HONOUR: In the substantive proceedings, the defendants apply for leave under Corporations Act 2001 (Cth), s 237, to intervene (in other proceedings in the Court) on behalf of Bremick Pty Limited and BMB Investments Pty Limited. On 13 July 2006, the plaintiffs filed an interlocutory process seeking, inter alia, that the first and second defendants, Brett Hawksford and BHM Management Pty Ltd, give discovery of documents in classes specified in an annexed request for discovery, which classes include: (3) All bank statements for National Australia Bank account BSB 084-862 account number 571735019 operated solely or jointly by Brett Hawksford or BHM from 1 January 2004 to May 2006.

(4) All bank statements for St George Bank account BSB 112-879 account number 117844485 operated solely or jointly by Brett Hawksford or BHM from 1 January 2004 to May 2006.

2 That application for discovery is opposed by the defendants, who contend that the documents discovery of which is sought do not relate to an issue in the substantive proceedings. On 31 July 2006, Barrett J made directions in respect of the plaintiffs' application for discovery, and also in respect of an application for discovery by the defendants. Those directions provided for the service of affidavit evidence by the plaintiff by 21 August; the service of affidavit evidence by the defendants by 28 August; inspection and copying of discovered documents (presumably relating to undisputed categories) by 14 August; and the standing over of the Notices of Motion in respect of the disputed categories for hearing before the Corporations Judge on 2 November 2006.

3 Meanwhile, on 22 August 2006, the plaintiffs issued subpoenas addressed to the St George Bank and the National Australia Bank. The subpoena addressed to St George required production on 11 September 2006 of "all bank statements for St George bank account BSB 112-879 account number 117844485 operated solely or jointly by Brett Hawksford or BHM Management Pty Limited or Brett Hawksford Nominees Pty Limited during the period 1 January 2004 to 21 August 2006". It will be apparent that this overlaps with, though it is slightly wider than, category 3 of the plaintiffs' request for discovery - being wider in that it extends to Brett Hawksford Nominees Pty Limited. The subpoena addressed to National Australia Bank required production also on 11 September 2006 of "all bank statements for National Australia Bank account BSB 084-862 account number 571735019 operated solely or jointly by Brett Hawksford, Brett Hawksford Management Pty Limited or Brett Hawksford Nominees Pty Limited during the period 1 January 2004 to 21 August 2006". Again, it will be seen that this overlaps with, though it is slightly wider than, category 4 of the plaintiffs' request for discovery.

4 The defendants were notified of the subpoenas, and intended to take objection to them. However, when the subpoenas were returnable before the Registrar on 11 September 2006, the plaintiffs called on the subpoenas and sought and were granted access to the documents produced, in the absence of an appearance on behalf of the defendants. The defendants' representatives arrived late to Court, and discovered that access had already been granted. They then had the matter referred to the Duty Judge later that day, and sought and obtained leave to file a Sixth Interlocutory Process, claiming orders (1) vacating the Registrar's order for access and (2) setting aside the subpoenas. On the same day, the plaintiffs gave an undertaking to the Court that they would not exercise access to any of the documents to which access had been granted by the Registrar, until the Sixth Interlocutory Process has been determined. I agreed to list the matter today on the basis that today's hearing would first involve consideration as to whether the Sixth Interlocutory Process should be heard today at all (as the plaintiffs would wish) or should be adjourned to 2 November (as the defendants propose), and at the plaintiffs' risk as to costs of today.

5 The defendants propose that the Sixth Interlocutory Process be determined in conjunction with the interlocutory discovery dispute on 2 November. The plaintiffs wish to have the Sixth Interlocutory Process determined immediately.

6 The defendants wish to argue that the subpoenas are an abuse of process, in that (1) they seek production of substantially the same documents as are the subject of the disputed discovery application, and (2) those documents are not apparently relevant, in the sense in which that term is used in ancillary applications about subpoenas. The second of those issues is exactly the same argument which will take place on 2 November, on the application for discovery in respect of categories 3 and 4.

7 Prima facie there seems great force in the argument that the subpoenas are an abuse of process, in seeking to obtain, albeit from a different source, documents the relevance of which for the purpose of discovery is already the subject of disputed interlocutory litigation in these proceedings. However, the defendants do not press for a determination of that question at this stage. The question of relevance, as I have said, is substantially the same question as is to be argued on the contested discovery applications set down for hearing on 2 November next. As I understand the plaintiffs' position, it is suggested that in some way obtaining these documents on subpoena will further the argument on the discovery application itself, but that seems to me to beg the question. It would entirely preempt the relevance argument on the discovery application, to permit the same documents, the subject of the dispute in that application, to be obtained by subpoena in advance of the hearing of that application.

8 In my view, it is obvious that the hearing of the Sixth Interlocutory Process should take place in conjunction with the hearing of the discovery applications. It is plain enough that, had the defendants appeared earlier on 11 September, the dispute about the subpoenas would have been adjourned to the hearing of the discovery application. While it is the fault of the defendants that they were not represented at that time, that could have been cured by a costs order in respect of the appearance that day.

9 I note that the plaintiffs on 11 September 2006 undertook to the Court that they would not exercise the access to documents which was granted by the Registrar on the morning of 11 September 2006, until the Sixth Interlocutory Process has been determined. I stand over the hearing of the sixth interlocutory process to 2 November 2006 at 10am before the Corporations Judge. I order that the order for access made by the Registrar on 11 September 2006 be stayed until and including 2 November 2006. I order that the defendants pay the plaintiffs' costs of Monday 11 September 2006. I order that the plaintiffs pay the defendants' costs of today.

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