The plaintiff, the defendants and other parties resolved a proceeding in VCAT in respect of a development at Falls Creek. As part of the terms of settlement in the VCAT proceeding, the plaintiff agreed to pay to the defendants $1,800,000 in costs.
The plaintiff subsequently issued proceedings for declaratory and injunctive relief in the Supreme Court of Victoria seeking to restrain the defendants from enforcing the terms of settlement in respect of their costs. The plaintiff took this action as the plaintiff believed that the defendants would obtain double recovery for their costs, as the defendants also obtained payments in respect of their costs from the other parties in the VCAT proceeding. The plaintiff issued a subpoena and notice to produce against the defendants seeking to obtain trust account records and tax invoices, which the plaintiff says would demonstrate the double recovery alleged.
The defendants made three objections to the subpoena and the notice to produce. The only successful objection was that the issue of a subpoena and a notice to produce in the circumstances was an abuse of process as the plaintiff ought to have sought further and better discovery. The defendants said that they had already given discovery and there was no further pursuit of the defendants for further and better discovery.
At  the Court noted the submission of the defendants in support of their abuse of process argument, citing Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 57:
“... but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place. It would great impede the trial of actions at nisi prius, and impose an intolerable burden upon the presiding judge, if he were required from to time to suspend proceedings and wade for himself through masses of documents for the purpose of endeavouring to determine whether any of them are relevant.”Gardiner AsJ agreed with the submission that the issue of the subpoena and notice to produce in the circumstances amounted to an abuse of process. The Court held as follows at :
I am however, attracted to the defendants’ submission that the plaintiff has employed the subpoena and notice to produce as an alternative to an application for further and better discovery. The plaintiff’s resort to these mechanisms to obtain production of the documents sought rather than make an application for wider orders for discovery is not explained. There has already been discovery in the proceeding, albeit limited by order of the Court on 7 October last year and the defendants have complied with that order. In my view, the plaintiff is not entitled to pursue production of the documents sought in the manner adopted here and in this regard, I make reference to the comments extracted above from the decision of The Commissioner for Railways v Small (1938) SR (NSW) 564 at 574 of the judgment of Jordan CJ.This decision means that parties must be careful to select the right process for obtaining documents in a proceeding.
If a party wants relevant documents from another party to a proceeding, then it must seek discovery of those documents first. If that party is not satisfied with the discovery given, then that party may seek an order for further and better discovery under rules 29.08 or 29.11 of the uniform Victorian Court Rules.
If a party wants to inspect a document that has been discovered, then that party needs to follow the rules for inspection, being rules 29.09, 29.10 and 29.12 of the uniform Victorian Court Rules. A notice to produce is a prerequisite for formal inspection of discovered documents, and it is not a standalone procedure for obtaining documents which have not been discovered or referred to in pleadings. For instance, rules 29.09 and 29.10 of the uniform Victorian Court Rules oblige a party to produce for inspection any documents which that party has included in an affidavit of documents or court document, respectively.
If a party wants to obtain relevant documents from a non-party, then that party should issue a subpoena under orders 42 or 42A of the uniform Victorian Court Rules.
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