Barker v Australian Labor Party (No 2)

[2018] VSC 646

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01633

GEOFFREY GORDON BARKER	Plaintiff
v
AUSTRALIAN LABOR PARTY (AND OTHERS ACCORDING TO THE ATTACHED SCHEDULE)	Defendants

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2018
DATE OF RULING:	15 October 2018, revised 26 October 2018
CASE MAY BE CITED AS:	Barker v Australian Labor Party & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 646

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PRACTICE AND PROCEDURE – Subpoenas - Issue of subpoenas with less than five days’ notice – Urgent proceeding - Witnesses to give confined evidence – Potential prejudice to plaintiff – Risk of oppression limited by timetabling orders - Supreme Court (General Civil Procedure Rules 2015) r 42.03(8).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Barrington	Davies Lawyers
For the Defendants	Mr J Kirkwood	Holding Redlich

HER HONOUR:

1. This was an urgent application by Mr Geoffrey Barker seeking to have the time for the last day of service of some 10 subpoenas fixed for less than 5 days prior to trial pursuant to r 42.03(8)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).[1] The subpoenas were to be issued to individuals, being certain members of the Administrative Committee of the second defendant, to attend and give evidence at the trial of this proceeding on 18 October 2018.

   [1]Rule 42.03(8)(a) provides the last day for service of a subpoena is the date falling 5 days before the earliest date on which an addressee is required to comply with the subpoena or an earlier or later date fixed by the Court.

1. On 15 October 2018 I ordered the last day for service of 6 of the subpoenas be 5.00 pm that same day, giving oral reasons which are hereby revised and set out below.

Proceeding

1. The proceeding was commenced by originating motion on 2 October 2018, wherein the plaintiff sought various relief, including relief by way of a declaration that the resolution of the Administrative Committee of the second defendant made on 30 August 2018 to open nominations for the Legislative Council Eastern Victorian Region Position 1, was not in accordance with rule 18 of the Australian Labor Party Victorian Branch Rules (Rules) and is void and of no force and effect.

1. A directions hearing was then heard by Judicial Registrar Clayton on 10 October 2018 where orders were made for the urgent listing of the trial of the proceeding on 18  October 2018, given the upcoming State election to be held on 24 November 2018. Orders were also made for the exchange of submissions. No orders were made for the issue of any subpoenas.

Subpoenas

Plaintiff’s application

1. On Friday 12 October 2018, the Court received an urgent request by the plaintiff for time to issue and serve some 10 subpoenas notwithstanding that the time for service had expired under r 42.03(8)(a). The application was listed urgently on Monday 15 October 2018 at 9.00 am.

1. The Court sought submissions to support the application and received an email from the plaintiff’s solicitor on 15 October 2018 at 4.00 pm. The first paragraph of that email relevantly recites: 

The only factual issue in controversy in the proceeding is whether a vote at the meeting on 30 August 2018 of the Administrative Committee of the Victorian ALP was passed with a 75% majority.  The plaintiff believes that it was not but has been unable to get anyone to swear an affidavit to that effect….

1. Later that day the Court also received the plaintiff’s outline of submissions which included the grounds in support of his originating motion. In particular, at paragraph 23 and 24 of the outline of submissions, it was said:

Accordingly, the resolution put to the Administrative Committee meeting on 30 August 2018 concerning Eastern Victoria Position 1 required a 75% majority.

Evidence will be led at the hearing that there was no vote or even a show of hands when the resolution was put to the meeting. If that evidence is accepted it certainly means that there was no 75% majority recorded…. 

1. Accordingly, Mr Barker wished to subpoena certain members of the Administrative Committee of the second defendant to ask them about the relevant vote at the meeting on 30 August 2018. He did not know how many people he would be able to serve with a subpoena. Counsel for the plaintiff gave a time estimate for each witness of only ‘about five minutes’.

1. Further, at the hearing on 15 October 2018, the plaintiff only pursued the issue of subpoenas to 6 of the addressees.

Resolution

1. The defendants maintained an objection to the issue of the 6 subpoenas, submitting that the exercise is one of ‘fishing’ and lacks a legitimate forensic purpose. Further, that it risks being oppressive by potentially derailing the urgent trial and the steps leading to up to it.

1. The defendants also maintained that there was no need for a special resolution at the meeting on 30 August 2018 on a proper construction of the Rules.

1. I have considered carefully the submissions of the defendants. There is some merit in the suggestion that the exercise may be somewhat speculative.   

1. Nevertheless, the question of the construction of the Rule is one for trial.

1. Further, the risk of oppression may be alleviated by an extremely tight timetable (ie by requiring service to take place by 5.00 pm today). There also appears to be the potential of serious prejudice if the plaintiff is not allowed to subpoena evidence which may support a ground for review.

1. Overall, I have taken into account the overarching purpose and the factors in s 9 of the Civil Procedure Act 2010 (Vic), including, particularly, the just determination of this proceeding and the potential prejudice to the plaintiff. I will therefore make the orders sought for short service of 6 subpoenas.

1. The following orders were made:

(a) Pursuant to rule 42.03(8)(a) of the Supreme Court (General Civil Procedure) Rules 2015 the last day for the service of subpoenas addressed to the following persons:

·    Stephen Donnelly

·    Raff Ciccone

·    Mathew Hilakari

·    Michael De Bryun

·    Kosmos Samaras

·    Katherine Cozens

is 5.00 pm 15 October 2018.

(b)      On or before 10.00 am on 16 October 2018 the plaintiff is to file and serve a document which sets out the substance of the evidence of any subpoenaed witness he proposes to rely upon.

(c)       Order 4 of the orders of Judicial Registrar Clayton made 10 October 2018 (October Orders) is extended so that the time for the defendants to file and serve any affidavits, outline of submissions and list of authorities is 17 October 2018 at 10.00 am.

(d)      Order 6 of the October Orders is extended so that the time for the plaintiff to file and serve outline of submissions in reply and any additions to the list of authorities is 17 October 2018 at 4.15 pm.

(e)       Order 8 of the October Orders is extended so that the time for the plaintiff to file and serve a court book is extended to 17 October 2018 at 12.00 pm.

(f)       Costs reserved.

SCHEDULE OF PARTIES

BETWEEN:
GEOFFREY GORDON BARKER	Plaintiff
- and -
AUSTRALIAN LABOR PARTY	First Defendant
- and -
AUSTRALIAN LABOR PARTY (VICTORIAN BRANCH)	Second Defendant
- and -
SAMUEL RAE	Third Defendant
- and -
NOAH CARROLL	Fourth Defendant