Western metropolitan regional council v. Dicom AWT Operations Pty Ltd

Australia

19.03.2018

Civil

Inspection should only be refused if the redacted paragraphs are manifestly irrelevant

In present case, on 8 February 2018, the Plaintiff issued a subpoena to Mr Simon Guy Theobald, former administrator of the Defendant, requiring production of various documents relating to the sale of units and shares in the Defendant. In response to the subpoena, on 15 February 2018 Mr Theobald's solicitors delivered various documents to the Court. These documents included a document headed 'Amending Agreement' between Shenton Engery Pty Ltd, Brockway DiCOM Facility Pty Ltd (Administrator appointed), Mr Theobald in his capacity as administrator of Brockway DiCOM Facility Pty Ltd, and other parties. The Amending Agreement was produced to the court in a sealed envelope, subject to objections set out in Mr Theobald's solicitors' letter dated 15 February 2018. On 23 February 2018 Mr Theobald provided the plaintiff with a redacted copy of the Amending Agreement. The Plaintiff objected to being provided with only a redacted copy of the Amending Agreement.

It is always open to a third party who is required to produce a document pursuant to a subpoena to object to that production. But the grounds upon which such objection can be made are limited. The most obvious and most frequently raised objection is a claim of privilege. But commercial confidentiality is not in and of itself a ground for refusing to produce a document. It may lead to the imposition of a confidentiality regime but that is a different issue. The document itself is produced but on certain terms and conditions.

In present case, not only was there no claim of privilege but Mr Theobald seems to be attempting to protect the interests of parties not involved in the litigation. There is no basis upon which that can be done and the objection to production of the entire document must be rejected on that basis.

However assuming that, it was open to Mr Theobald to raise an objection to production of the unredacted version of the amended agreement, production should nonetheless be ordered. The relevant principles governing the production of documents are set out in Stanley v Layne Christensen Co [2004] WASCA 50 [9] and Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd[2007] WASC 276 [14] and [23] - [24]. Inspection should only be refused if the redacted paragraphs are manifestly irrelevant.

All submissions made by the Plaintiff were based upon the redacted version of the Amended Agreement. Effectively, they amounted to extrapolations based upon what was available from the redacted version. The plaintiff wished to know what the actual nature of the Agreement was involving the Defendant. It wanted to see the whole picture and its request was both reasonable and justified by an analysis of the redacted version of the Amended Agreement. Accordingly, a copy of the Agreement in unredacted form be provided by Mr Theobald to the Plaintiff is ordered

Tags : Amending Agreement Unredacted version Inspection

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