Christos v Curtin University of Technology
[2013] WASC 310
•20 AUGUST 2013
CHRISTOS -v- CURTIN UNIVERSITY OF TECHNOLOGY [2013] WASC 310
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 310 | |
| 20/08/2013 | |||
| Case No: | CIV:1363/2009 | 2 AUGUST 2013 | |
| Coram: | MASTER SANDERSON | 6/08/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Subpoena to produce documents set aside Subpoena to attend and give evidence to stand | ||
| B | |||
| PDF Version |
| Parties: | GEORGE ARTHUR CHRISTOS CURTIN UNIVERSITY OF TECHNOLOGY |
Catchwords: | Practice and procedure Application to set aside subpoenas on grounds, inter alia, they are oppressive Turns on own facts |
Legislation: | Nil |
Case References: | Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Stanley v Layne Christensen Co [2004] WASCA 50 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CURTIN UNIVERSITY OF TECHNOLOGY
Defendant
Catchwords:
Practice and procedure - Application to set aside subpoenas on grounds, inter alia, they are oppressive - Turns on own facts
Legislation:
Nil
Result:
Subpoena to produce documents set aside
Subpoena to attend and give evidence to stand
Category: B
Representation:
Counsel:
Plaintiff : Mr M A Tedeschi
Defendant : Mr G R Hancy
Solicitors:
Plaintiff : Blatchfords Lawyers
Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
Stanley v Layne Christensen Co [2004] WASCA 50
1 MASTER SANDERSON: This matter is set down for trial commencing mid-October 2013. The plaintiff issued 18 subpoenas to various individuals requiring production of documents and attendance at trial to give evidence. The defendant applied to set all the subpoenas aside. After hearing argument I reserved my decision and a few days later advised the parties I would set the subpoenas aside so far as they required the production of documents. The witnesses would still be required to attend the hearing pursuant to the subpoenas. I indicated to the parties I would publish reasons for my decision. These are those reasons.
2 The application of the defendant was supported by an affidavit of Benn Simon Mark Wallace sworn 27 June 2013. In opposition to the application, the plaintiff filed an affidavit sworn 24 July 2013. In keeping with what has been a trend in this matter, the plaintiff produced a vast amount of irrelevant material. The affidavit itself runs to 71 paragraphs and 180 pages. It is not easy to ascertain the purpose to be served by the provision of all this material.
3 It is convenient to begin with a short statement of the issues in the case. In his written outline of submissions, counsel for the defendant summarised the issues in the action. He pointed out the plaintiff claimed damages for psychiatric illness allegedly caused by breach of industrial agreements, a common law duty of care or a statutory duty of care. The alleged breaches are the defendant's:
1. failure to have grievances made by the plaintiff against the defendant or staff members assessed and resolved; and
2. failure to take steps to protect the plaintiff against alleged bullying, harassment and victimisation that allegedly occurred between 20 February 2003 and 28 October 2004.
4 During the course of his submissions, I inquired of counsel for the plaintiff whether he accepted that summary of the issues. He indicated he did. So despite the vast number of documents which have been lodged over the years and the protracted interlocutory skirmishing, the issues are quite narrow and defined - both legally and temporarily. Moreover, the allegation is the defendant failed to do certain things - not that it did things improperly or it acted in a positive way against the plaintiff's interests. An alleged failure to act suggests documents would not have been produced because that would have showed some action. But that has not stopped the plaintiff. He has been on an unending quest to obtain copies of documents he fervently believes were brought into existence and would assist his claim. This, despite the fact there has presently been discovery of 2,265 documents of which 1,771 have been produced by the defendant. No wonder the world's forests are shrinking.
5 In times past, there were two types of subpoenas a party could issue - subpoena duces tecum and subpoena ad testificandum. These days a party can issue subpoenas without leave and he is required to tick one of the available boxes. There are three boxes - one requires a party's attendance to give evidence, one requires a party's attendance to produce documents and the third requires the party to attend to give evidence and produce documents. All of the subpoenas issued by the plaintiff are of the last type.
6 The subpoenas vary considerably as to the extent to which documents must be produced. By way of example, one of the subpoenas is addressed to Professor Jeanette Hackett, the present Vice Chancellor of Curtin University. The schedule to that subpoena runs to 120 paragraphs. Some of the paragraphs require production of a variety of documents; some are directed at a single document. To give an example of the way the schedule reads, it is enough if I quote par (1):
An earlier version of appendix 2 of functional review report 1999 of the School of Mathematics and Statistics, typed or handwritten, that explicitly or by exclusion, named which staff members Lou Caccetta wanted to keep or possibly retrench. Produce also any emails or notes from Lou Caccetta to any other members of staff in the then School of Mathematics and Statistics suggesting they were safe, or that the plaintiff was being targeted by the functional review.
7 There was no dispute between the parties as to the legal principles applicable in an application such as this. However I should briefly set out these principles to provide the legal background against which I determined the application. A subpoena can be issued where there is a legitimate forensic purpose. A party issuing a subpoena is required to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought. Unless that identification is made, the subpoena can be set aside: see Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667, 681.
8 Counsel identified from the cases four points of principle which go to determining what is a legitimate forensic purpose. They are as follows:
1. A legitimate forensic purpose will be established if a document gives rise to a line of inquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination.
2. In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may for example, become apparent when a document is used in cross-examination to refute unforeseen evidence-in-chief. Thus, whether a document is necessary to fully dispose of proceedings is to be understood in the broad sense of embracing any document which has value in the sense of at least apparent relevance and fairly disposing of proceedings, even if it might not readily be seen at the pre-inspection stage necessarily to be admissible in evidence. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings.
3. At least one object of the rule permitting early return of subpoenas is to apprise the parties of the strengths and weaknesses of their case at an early stage. Hence no narrow view as to the legitimate purposes of a subpoena ought be taken.
4. There is no requirement that to avoid the stigma of fishing a party must already be in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with prior possession of evidence but rather the prior pleading of issues for which the evidence sought would be relevant. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available.
9 The above is taken directly from par (3) of the written submissions of counsel for the defendant. It is I think a fair summary of the principles set out in Stanley v Layne Christensen Co [2004] WASCA 50 [9].
10 A subpoena may be set aside as an abuse of process because it is considered by the court to be oppressive or because it is tantamount to seeking discovery. It is oppressive to place upon a third party the obligation to form a judgment as to what is relevant to the issue in the proceedings to which the person is not a party. The subpoena must be couched in terms which allows a party to understand what it is that is to be produced. If great numbers of documents are called for and it appears they are not sufficiently relevant, that may be a case of oppression.
11 It was the defendant's position these subpoenas were an abuse of process for two reasons. First, they were tantamount to obtaining discovery. They did not sufficiently describe the documents which were to be produced so as to allow the recipient of the subpoena to understand precisely what had to be brought into court. Second, the volume of documents requested was oppressive. When the extensive discovery was taken into account, there was no warrant for subpoenas as wide as those drafted by the plaintiff.
12 Counsel for the plaintiff in his written and oral submissions, attempted to justify the subpoenas and their width. Interestingly enough he did not deal with the subpoena addressed to Professor Hackett. But the flavour of his submissions can be illustrated by reference to the subpoena directed to Ms Terri Zhang. The schedule to this subpoena is brief. It reads as follows:
The documents or workplace agreements to show what amount of gross income would have been paid by Curtin University of Technology if his employment was not terminated in October 2004 in his employment as a tenured lecturer in applied mathematics taking into account any increments received by staff during due to increasing years of service over the 4 [sic] the financial years ending 30 June 2003 until 30 June 2013, inclusive.
13 Counsel submitted the subpoena containing that schedule was reasonable. But what it actually does is require some assessment by Ms Zhang of what career path the plaintiff would have followed and to calculate a hypothetical entitlement. It was not a matter just to produce documents but of actually going further and making certain calculations based on those documents. That can never be the purpose of a subpoena.
14 Without going through each of the subpoenaed individuals, I can say in each case I took into account the terms of the subpoena and counsel's submissions as to its purpose. In each case I came to the conclusion the requirement that those subpoenaed produce documents was oppressive and an abuse of process and to that extent the subpoenas should be set aside.
15 Having said that I could see no objection to the plaintiff subpoenaing the 18 individuals concerned. True it is no witness statements have been produced for any of these individuals, nor is it clear to what issue their evidence will be addressed. But I am not in a position to say a subpoena requiring their attendance would serve no legitimate forensic purpose and ought be set aside. Of course whether any or all of these witnesses give evidence is a matter for the plaintiff's counsel and ultimately the trial judge. But I would allow the subpoenas to stand insofar as they require the attendance of the recipients at the trial.
16 This matter has been bedevilled by a belief on behalf of the plaintiff that certain documents exist and are being actively hidden by the defendant and its solicitors. Short of actually picking up the defendant - and I mean this literally not metaphorically - and shaking it to see what further documents emerge, it is clear the plaintiff will not be content. But the issue of production of documents has gone on long enough. It now comes to an end. The best thing to do is move this matter to trial without further delay.
17 For these reasons I granted, in part, the orders sought by the defendant. Costs of the application will be reserved to the trial judge.
0
2
1