Cohen v Fealy

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DISTRICT COURT OF QUEENSLAND

CITATION:

Cohen v Fealy [2020] QDC 271

PARTIES:

PHILLIP COHEN

(Respondent/Plaintiff)

v

DAMON PETER FEALY

(Applicant/Defendant)
FILE NO/S:

D9/2020

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Beenleigh District Court

DELIVERED ON:

30 October 2020

DELIVERED AT:

Beenleigh

HEARING DATE:

18 September 2020

JUDGE:

Chowdhury DCJ

ORDER:

1.   Application allowed.

2.   The subpoenas issued to the persons named in the application on 29 June 2020 are set aside.

3.   The plaintiff pay the defendant’s costs of and incidental to this application to be agreed by the parties or to be assessed on a standard basis.

4.   All conduct monies provided with the subpoenas are to be returned to the plaintiff

CATCHWORDS:

ACTION FOR DEFAMATION – SUBPOENAS ISSUED IN LIEU OF NON-PARTY DISCLOSURE – WHETHER ABUSE OF PROCESS – WHETHER SPECIAL CIRCUMSTANCES EXIST FOR ISSUE OF SUBPOENAS

LEGISLATION:

CASES:
COUNSEL:

The respondent plaintiff appeared in person

J. Jeffrey for the applicant defendant

SOLICITORS:

The respondent plaintiff appeared in person
Barry Nilsson for the applicant defendant

Introduction

  1. By way of application filed on 28 August 2020, the defendant has applied to this court for the following orders:

    1.   That all subpoenas issued by the court in connection with the request for subpoena filed by the plaintiff on 29 June 2020 be set aside nunc pro tunc as an abuse of process, pursuant to the court’s inherent jurisdiction.

    2.   Alternatively, that all subpoenas issued by the court in connection with the request for subpoena filed by the plaintiff on 29 June 2020 be set aside nunc pro tunc pursuant to rules 371(2) and/or 416 of the Uniform Civil Procedure Rules1999 (Qld).

    3.   The plaintiff pay the defendant’s costs of the application.

  2. By way of ex parte applications filed on 31 August 2020, the plaintiff applies for the following ex parte orders against six named persons:

    1.   That [named person] be arrested and brought before the District Court of Queensland at Beenleigh for contempt as soon as practicable and to detain him in custody until released by the court.

    2.   [Named person] has, without lawful excuse, failed to comply with the subpoena filed in this court on 29 June 2020 and mailed to him by way of service on 29 June 2020.

    3.   The third party/respondent pay the costs of the application.

  3. The named persons are: Paul Holland, Alan Townson, Martin Overman, William Bass, Brad Shanahan and Ian Tomlinson.

  4. All of the applications before this court depend on a fundamental issue, whether the subpoenas issued by the plaintiffs to the named persons are an abuse of process.

    Background to the applications

  5. By way of claim and statement of claim filed on 20 May 2020, the plaintiff is seeking damages in the sum of $500,000 plus interest as a result of allegedly defamatory statements made by the defendant at the monthly board meeting of the “United Grand Lodge of Antient Free and Accepted Freemasons of Queensland” on 21 May 2019.  The statement of claim alleges that the defendant in the course of…

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Details
Case
[2020] QDC 271
Decision Date

CaseChat Overview and Summary

In the matter of Cohen v Fealy, the plaintiff, Cohen, sought damages for defamation arising from statements made by the defendant, Fealy, at a meeting of the United Grand Lodge of Antient Free and Accepted Freemasons of Queensland. Cohen alleged that Fealy had defamed him by stating that Cohen had paid someone to lie in a court affidavit. The defendant denied the allegations. In order to support the claim, Cohen issued subpoenas to non-party witnesses who were present at the meeting. The defendants sought to set aside the subpoenas, arguing that they constituted an abuse of process. The central legal issue was whether the subpoenas were an abuse of process and whether there were special circumstances justifying their issuance. The court considered the nature of subpoenas, which are intended to compel witnesses to appear at trial, not to enable parties to access documents during the proceedings prior to trial. The court also noted that the Uniform Civil Procedure Rules 1999 regulate disclosure of documents between parties, and from non-parties via non-party disclosure.

The court found that the subpoenas were indeed an abuse of process as they were not intended for the purpose they were being used for. The court relied on the case of Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors, where it was held that issuing a subpoena in an attempt to achieve compliance with a notice of non-party disclosure was an abuse of process. The court further found that the defendant had standing to set aside the subpoenas as there was sufficient support for the view that an application to set aside a subpoena may be made by a party to the litigation. The court also noted that the subpoenaed persons had engaged lawyers specifically to respond to the subpoenas, indicating they had no prejudice by not being named as parties to the application. The plaintiff’s argument that the subpoenas were necessary to preserve potentially relevant evidence was rejected as the subpoenas were not an appropriate means to achieve that goal. The court set aside the subpoenas and ordered that the plaintiff pay the defendant's costs of and incidental to the application.

Orders

Orders of the court

1. Application allowed.

2. The subpoenas issued to the persons named in the application on 29 June 2020 are set aside.

3. The plaintiff pay the defendant’s costs of and incidental to this application to be agreed by the parties or to be assessed on a standard basis.

4. All conduct monies provided with the subpoenas are to be returned to the plaintiff

Background

Background to the litigation

All of the applications before this court depend on a fundamental issue, whether the subpoenas issued by the plaintiffs to the named persons are an abuse of process.Background to the applications By way of claim and statement of claim filed on 20 May 2020, the plaintiff is seeking damages in the sum of $500,000 plus interest as a result of allegedly defamatory statements made by the defendant at the monthly board meeting of the “United Grand Lodge of Antient Free and Accepted Freemasons of Queensland” on 21 May 2019. The statement of claim alleges that the defendant in the course of the board meeting uttered these words to the plaintiff: “You paid Kerri Smith Douglas to lie for you in an affidavit that was filed in court”. A number of people are alleged to have been present at the time those words were uttered, including the six persons named above. A notice of intention to defend was filed on 18 June 2020. Relevantly for the purpose of the applications, the defendant denies speaking or publishing the words alleged. In support of the plaintiff’s claim, an affidavit of Raymond John Saunders was filed on 2 July 2020, in which he states that he chaired the board meeting of the United Grand Lodge of Antient Free and Accepted Masons of Queensland on 21 May 2019. He asserts that he heard the defendant in raised voice say the alleged defamatory words to the plaintiff in the company of the other members present.The subpoenas The affidavit of the plaintiff filed on 31 August 2020 attaches the subpoenas that were issued by the registry to the named persons, and the covering letters that were sent to each of the named persons. A cheque of $50 as conduct money was provided to each of the named persons. The terms of each subpoena are the same. The subpoenas required the named persons to produce documents described in the schedule by 31 July 2020 at 10.00 am. The documents required were:“Whether in paper form or electronic form, whether originals, copies or backups –1. All correspondence between yourself and any other director, employee, contractor, member or any other person, which contains the name (or any variation thereof) of the plaintiff and/or his role or refers to the plaintiff and/or his role for the period 1 May 2018 to date.2. All diaries, correspondence and notes of discussions, phone calls, meeting minutes, and copies of all recordings relating to paragraph 1 above.3. All electronic communication records, including emails and texts, relating to paragraph 1 above.” Attached to the affidavit of the plaintiff is an email exchange between one of the named persons, Mr Bass, and the plaintiff. Mr Bass contacted the District Court Registry and was advised that he should respond to the subpoena. He queried whether a memory stick was required to be produced. In the return email the plaintiff advised that a memory stick was included within the words “electronic form” of the subpoena. Also attached to the plaintiff’s affidavit of 31 August 2020 is a letter dated 14 July 2020 from Barry.Nilsson.Lawyers, marked “Urgent”. The letter advised the plaintiff that the law firm had been engaged to act for the named persons for the “discrete purpose of responding to the subpoenas for production”. The letter advised the plaintiff that subpoenas are designed to have witnesses appear in person or with documents at the trial of proceedings. It was stated that “They are not designed to enable a party to access documents during the currency of proceedings prior to trial. The Uniform Civil Procedure Rules 1999 (Qld) regulates disclosure of documents between parties in the first instance, and therefore from non-parties via non-party disclosure.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The plaintiff raised the issue of whether the defendant had standing to set aside subpoenas issued to non-parties. The defendant referred to Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPEC 29. In that case His Honour Alan Wilson SC, DCJ, as His Honour then was, was sitting in the Planning and Environment Court of Queensland. In that case there was an argument about costs where a subpoena had been issued in order to ensure compliance with an original notice of non-party disclosure. At the outset of the hearing counsel appearing for the applicants advised the court that compliance with the notice of non-party disclosure would not be pursued, and as a result the subpoena was also to be discharged. Consent orders were made to that effect. His Honour said the following:“[9]It is unarguable that the subpoena was issued in an attempt to achieve compliance with the Notice of Non-Party Disclosure which had previously been directly to Mr Burch’s employer, but by an alternative method. On its face that is an abuse of process, and was so described by Mackenzie J in Re Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 Qd R 262, at 265.…[10]The right of a party to argue that a subpoena issued by another party should be set aside (with costs) was apparently accepted, without debate, in this court in Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2003] QPELR 151. The question had, however, been earlier explored by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98 in which his Honour, while unable to locate any authority on the point, was nevertheless satisfied that (as two earlier practice decisions suggested) there was sufficient support for the view that an application to set aside a subpoena which is, on its face, an abuse of process may be made not only by the person to whom the subpoena is directed, but also by a party to the litigation.”Consideration During the course of the hearing before me the plaintiff made a reasonable submission that the defendant, applying to have the subpoenas set aside, failed to name the subpoenaed persons as parties to the application, pursuant to r 31(3). The defendant submits that this is a minor irregularity, and that the court could order pursuant to r 371 that the application is effectual, and that the application is not a nullity. On the material before me it is clear that the lawyers for the defendant have been engaged by the subpoenaed persons the subject of the application, and therefore there is no prejudice to those persons by the court considering this application without them being specifically named as parties. In essence the plaintiff submitted that it was essential to issue the subpoenas in order to preserve potentially relevant evidence. Reference was made to Lucas Industries Ltd v Hewitt (1978) 45 FLR 91; 18 ALR 555. In that case, orders were made about the filing and serving of affidavits of expert witnesses. The affidavits of the experts on each side had been filed and delivered, and the next step was that the parties should prepare and file affidavits in reply to the experts of each side. In that case the appellant issued subpoenas to non-parties which were necessary for the consideration of the experts. Smithers J, with whom Bowen CJ and Nimmo J agreed, said this at 565 of the Australian Law Report version:“In a case where the filing and serving of affidavits of experts before the hearing is ordered, and where there are documents in the possession of a stranger to the litigation, the existence and relevance of which appears from the affidavits filed and served by way of evidence in chief, and the contents of those documents is seen to be proper for consideration of and comment by experts by affidavit in reply, practical considerations point to the desirability of those documents being produced when the time of the preparation of affidavits of experts in reply has arrived. In these proceedings that time has arrived.”