Chen v Jiang & He (Residential Tenancies)
[2022] ACAT 100
•7 September 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CHEN & ORS v JIANG & HE (Residential Tenancies) [2022] ACAT 100
RT 95/2022
Catchwords: RESIDENTIAL TENANCIES – subpoena – leave to use subpoenaed documents in another proceedings – exceptional circumstances
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 24, 41
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Rule 2022 rule 84, 85
Cases cited:Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2019] FCA 1027
Crest Homes Plc v Marks [1987] 1 AC 829 at 860
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Tribunal:Presidential Member H Robinson
Date of Orders: 7 September 2022
Date of Reasons for Decision: 23 November 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 95/2022
BETWEEN:
JIESHAN CHEN
First Applicant
JIAHOU XU
Second Applicant
KEREN HE
Third Applicant
SIMIN ZENG
Fourth Applicant
YUCHEN XIE
Fifth Applicant
HUAHUA LIU
Sixth Applicant
AND:
LI JIANG
First Respondent
HONGGUANG HE
Second Respondent
TRIBUNAL:Presidential Member H Robinson
DATE:7 September 2022
ORDER
The Tribunal orders that:
The interim application seeking leave under rule 85 of the ACT Civil and Administrative Tribunal Act 2008 to use material produced under subpoena RT 95/2022(a) in a proceeding in another jurisdiction is refused on the ground that the Tribunal cannot be satisfied on the material before it, that there are special circumstances that justify a departure from the usual position.
………………………………..
Presidential Member H Robinson
REASONS FOR DECISION
These are my reasons for refusing the applicant’s request for leave to use documents obtained under a subpoena issued by the Tribunal in these proceedings in proceedings in the ACT Magistrates Court (the other proceedings).
This matter was heard on 7 September 2022 and, given that other proceeding was listed for 12 September 2022, I delivered my decision on the day and delivered brief oral reasons. I advised the parties I would provide written reasons. These are those reasons.
Background
The present proceedings arise in the context of a residential tenancy dispute and related civil proceedings.
The subpoena in issue, subpoena RT95/2022(a) was issued to the respondent, Mr He, at the request of the second applicant, Mr Jiahou Xu. It requested the production of bank statements for the period 1 January 2010 to 30 June 2018 with respect to three accounts, one in Mr He’s name and two in the names of other persons. Pursuant to that subpoena, Mr He produced two bundles of documents:
(a)records relating to an ANZ One account in his name; and
(b)records relating to an ANZ Access Advantage Account which appears to be in the name of another person who shares his residential address.
Mr Xu only wished to use the documents relating to Mr He’s account (Mr He’s bank statements) – the ANZ One account.
Briefly stated, Mr Xu submitted in his application that the Magistrates Court proceedings are “highly correlated and similar to” the ACAT case, and that the bank statements would be useful evidence. Mr He denied the documents were relevant to the Magistrates Court proceedings and objected in any case on the basis that the documents should be used only for the purpose of Tribunal proceedings.
The hearing
The parties were self-represented at the hearing and appeared remotely.
The hearing did not go as smoothly as could be hoped. Prior to the hearing, Mr Xu asked for the assistance on an interpreter, and one was arranged by the Tribunal. Unfortunately, the connection to the translator was lost during the early stages of the hearing. Given that the other proceedings were mere days away, I pressed on with the hearing, as did, admirably, Mr Xu. I am confident that he sufficiently understood the proceedings, and indeed he represented himself effectively despite the language barrier. Nonetheless, some of the inadequacies in the applicant’s case may have been better addressed had he been represented. I apologise to the parties for the inconvenience this technology failure caused.
The law
Section 41(1) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that the tribunal may, by subpoena, require a person to appear before the tribunal and produce a stated document or other thing. Section 41(3) provide that the tribunal may give a party leave to inspect or may a copy of a document produced under subpoena.
Section 24 of the ACAT Act provides that the tribunal may make rules in relation to the practice and procedure of the tribunal and the tribunal registry. The ACT Civil and Administrative Tribunal Procedures Rules 2020 (the ACAT Rules) are made under this section.
Rule 85 of the ACAT Rules provides as follows:
85 Use of subpoenaed material
Unless the tribunal orders otherwise, a document or thing produced under a subpoena must be used only in the proceeding in which the subpoena has been issued.
The Rules contain no guidance as to when the tribunal may “order otherwise”.
Rule 85 appears to draw upon a common law principle known as the ‘Harman Principle’, which was established in Harman v Secretary of State for the Home Department.[1] In that case, the House of Lords opined that there was an ‘implied undertaking’ to a Court to use documents produced under compulsion only for the purposes of the proceedings in which production was compelled.
[1] [1983] 1 AC 280
The content of the rule was more recently summarised by the plurality of the Australian High Court in Hearne v Street as follows:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it is given unless it is received into evidence.[2]
[2] Hearne v Street [2008] HCA 36 [96]
This obligation of non-disclosure is said to arise from the compulsion under which the documents were produced. Because the state is compelling a party to provide personal or confidential information, that information must be handled carefully and appropriately having regard to the circumstances under which the compulsion was exercise.
Under the Hearne v Street formulation, the undertaking is discharged once a document is ‘received into evidence’[3], as it is then effectively on the public record.
[3] Hearne v Street [2008] HCA 36 [92]
Arguably, ACAT Rule 85 goes even further than the common law Harman rule, as the prohibition in that rule applies notwithstanding whether the documents have been tendered in evidence. Any party wishing to use a document produced on subpoena in the tribunal, no matter the stage of the proceedings, or the use to which that document has been put in the tribunal, must seek leave from the tribunal to do so.
Mr He’s bank records had in any case not been received into evidence in the Tribunal as at the date of this hearing.
Principles re the granting of leave
Notwithstanding that the obligation in the tribunal arises under the Rules, rather than the common law, I was satisfied that it is appropriate to apply the Harman Principle, its parameters having been long developed under the common law. It was particularly appropriate to do so where, as here, the documents had not received into evidence or otherwise dealt with in a hearing by the Tribunal.
In Crest Homes Plc v Marks, Lord Oliver stated that a court will not release or modify the obligation to use documents only for the purpose for which they were obtained except in “special circumstances”.[4]
[4] [1987] 1 AC 829 page 860
In Liberty Funding Pty Ltd v Phoenix Capital Ltd (Liberty Funding), a Full Court of the Federal Court considered what “special circumstances” to be as follows:
... It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.[5]
[5] Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31]
Logan J in Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation (Anglo American Investments) reviewed the case law and summarised the factors as follows:
5 In Springfield Nominees, Wilcox J, as later authorities bear out: see Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [31], identified a number of considerations which, depending on the circumstances, are relevant to what is, when all is said and done, an exercise of a broad judicial discretion. Those were:
·the nature of the document;
·the circumstances under which the document came into existence;
·the attitude of the author of the document and any prejudice the author may sustain;
·whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
·the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
·the circumstances in which the document came into the hands of the applicant; and
·most importantly of all, the likely contribution of the document to achieving justice in the other proceeding
6. Another observation which is frequently cited in applications of this kind is that made by McMurdo P in Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145 at 150, [16], wherein her Honour stated:
The important public policy consideration behind implied undertakings of this kind are about securing justice between the parties and maintaining public confidence in the judicial system. It follows then that courts will usually relieve a party from its implied undertaking where, after giving proper consideration to the public policy reasons behind it the circumstances of the case demonstrated this is plainly in the interests of justice, ....[6]
[6] Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2019] FCA 1027 at [5] – [6]
His Honour’s list of considerations provided a useful framework for considering the applicant’s application.
The nature of the document
The document in issue contains a record of transactions on a bank account in Mr He’s name. The information includes Mr He’s personal financial information, such as his pay from an ACT Government engagement and rent received from various persons, including several named persons who are not parties to these proceedings, as well as the payment of some energy bills and some cash withdrawals. It discloses little in the way of personal spending.
The circumstances under which the document came into existence
It is likely that the document was printed for the purposes of these proceedings, but the information in it is stored on a server and readily available to Mr He or from the banking institution under subpoena. The document is distinct from, for example, a witness statement or medical report created for the purposes of these proceedings, to which different considerations would apply.
The attitude of the author of the document and any prejudice the author may sustain
Mr He objected to the document being used for any purpose other than these proceedings. Although he could point to any particular prejudice that would be caused by reliance on the document in the Magistrates Court, the use of his personal information for reasons he was not advised in advance was a serious consideration, albeit one that must be viewed in the context of the proceedings and the broader interests of justice.
Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain
Absent legal proceedings, the documents would not have been expected to enter the public domain.
The nature of the information in the document – in particular whether it contains personal data or commercially sensitive information
The bank records contain the personal information of Mr He and others, albeit not of the most highly personal kind – as noted, they do not disclose personal spending.
The circumstances in which the document came into the hands of the applicant
The bank records came into the hands of the applicant by way of a subpoena issued by the Tribunal.
The likely contribution of the document to achieving justice in the other proceeding
The issue was both the most important consideration in this case, and the most difficult to deal with because of the minimal information before the Tribunal.
The starting point was the nature of the Magistrates Court proceedings. It is therefore necessary to set out what I knew of those proceedings (which was not very much).
The applicant was a tenant in a property owned by the first respondent, Ms Jiang. In the course of that tenancy, the tenant had interactions with Mr He, who was acting on behalf of Ms Jiang. At issue in the proceedings in the Tribunal is the capacity in which Mr He was acting when dealing with the applicant, along with a number of required residential tenancy and civil claims arising from the tenancy.
The events the subject of the Magistrates Court proceedings arise from that relationship. I understand that Mr He alleges that Mr Xu published material online that Mr He considers defamatory. Mr He has commenced proceedings against Mr Xu. These were due to be heard on 16 September 2022.
As at the date of the hearing of this application, the parties had already filed their evidence in the Magistrates Court as per directions made in that matter.
Mr Xu initially submitted that the bank records were relevant to the defamation proceedings in that they show who he paid rent to pursuant to the residential tenancy agreement. The evidence produced on subpoena will help him establish his defence that the comments the subject of the proceedings are true – presumably by showing, showing, for example, that Mr He had some role in the management of the tenancy (for example, by receiving rent).
Mr He initially argued that the bank records were not relevant at all. However, he later told the Tribunal that he had produced his own “excel spreadsheet” of “relevant” transactions from the same bank account (the spreadsheet), which he had filed in the Magistrates Court in advance of the hearing. Given such a document had been filed, presumably Mr He, or his legal advisor thought that evidence of those transactions was relevant, as there would be no purpose in filing the excel spreadsheet otherwise.
Mr Xu conceded that he had seen the spreadsheet, but submitted that it was inaccurate and that he needed to bank records to prove this. Mr He denied any mistakes, but also offered to offered to sit down with the applicant and go through the document to identify and correct any errors. Given the history of these proceedings, and the state of the relationship between Mr Xu and Mr He, it seems extremely unlikely that would be productive and I did not consider it to be a serious offer or a solution to the matter before me.
Mr Xu further submitted that Mr He intended to put this incomplete or limited evidence before the Magistrates Court and hence deceive the Court, and that the bank record was needed to prevent this.
Mr He, unsurprisingly, denied any intent to deceive the court. He also stated that he decided not to oppose the subpoena on the understanding that the documents would only be used for the Tribunal proceedings. The covering email to the Tribunal, under which the documents were produced, reiterates this position.[7]
[7] Email from “Gavin Henry” to ACAT Residential Disputes 28 June 2022 at 2:03pm
It may be that an allegation of deception of this nature is sufficient to constitute “exceptional circumstances” as per Liberty Funding and would in any case be reason to grant leave. The difficulty, however, was that the allegation was just that – an allegation. It is not unusual for allegations of fraud or deception to made in the Tribunal, particularly by self-represented litigants who do not quite comprehend the seriousness or nature of the allegation (and who are not bound by the ethical obligations of lawyers). It was impossible for the Tribunal, on the material available, to make any assessment about the veracity of the allegation.
It also seemed to me that there were ways to alleviate this risk that did not require the use of the material produced on subpoena before the Tribunal. If Mr He were to seek to tender the spreadsheet summary in the hearing, Mr Xu would be entitled to put into question its relevance. He would be able to call for the production of the bank record upon which the summary is based. The Magistrate hearing the matter may call for the production of the bank statement too. Mr He was, by the end of the hearing of this applicatrion, on notice that this was a possibility.
I also note that the applicant could have obtained the bank records in the Magistrates Court proceedings, had he used the subpoena process there. “On the cards” relevancy could have been considered at that stage by the Magistrates Court. He did not do so.
Ultimately, however, my greatest difficulty in granting leave was that I simply did not have enough information to determine whether I should grant leave to use these documents in another proceeding. Where a party is seeking leave to use documents produced under subpoena in this tribunal in another forum, particularly where those documents contain personal information, it is incumbent upon the applicant to make out a case as to why leave should be granted. All I had been able to do in this matter is speculate.
This is no criticism of the applicant, who was self-represented and clearly struggling to articulate his argument at times – a situation not helped by the absence of an interpreter and the complexity of the legal position. Had we more time, I may have adjourned the proceedings to allow more evidence, but as they were brought at the last moment, and with the Magistrates Court hearing pending, I was not able to do so.
In delivering my oral reasons, I acknowledged to Mr Xu that my decision would be disappointing. However, as I said in those comments, consistent with these reasons, he was not without a remedy should he be concerned that the foreshadowed spreadsheet was not an accurate representation of the primary documents.
There was nothing before me to suggest ‘exceptional circumstances’ were established.
I may have decided differently had the bank records already been put in evidence before the Tribunal in a hearing. Such documents would likely, in any case, be available to be viewed on the relevant file under the Tribunal’s policy on access to documents and material on ACAT case files.
Order
The application for leave under Rule 95 of the ACAT Rules is dismissed.
………………………………..
Presidential Member H Robinson
| Date(s) of hearing: | 7 September 2022 |
| Applicant: | In person |
| Respondent: | In person |
0
4
3