Commonwealth Bank of Australia v Sky Empire Pty Ltd & Ors
[2009] VSC 22
•12 January 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 6454 of 2005
| COMMONWEALTH BANK OF AUSTRALIA | Plaintiff and Defendant by Counterclaim |
| v | |
| SKY EMPIRE PTY LTD and others | Defendants and Plaintiffs by Counterclaim |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 January 2009 | |
DATE OF RULING: | 12 January 2009 | |
CASE MAY BE CITED AS: | Commonwealth Bank of Australia v Sky Empire Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 22 | |
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CIVIL PROCEDURE – Subpoenas – appeal against Master's orders setting aside subpoenas – subpoenas issued under Order 42A of the Supreme Court (General Civil Procedure) Rules 2005 – subpoenas not issued by a solicitor as required by Order 42A – appeal dismissed.
Further subpoena – appeal against Master's order to set aside – no legitimate forensic purpose – not compliant with Service and Execution of Process Act 1992 (Cth) – appeal dismissed.
Appeal against Master's order that no further subpoenas be filed by the first or second defendants without the leave of the Court – need for Court control over issuing of subpoenas in vexatious or oppressive circumstances – appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Maiden | Gadens Lawyers |
| For the Defendant | Mr L. Sloveski in person |
HIS HONOUR:
The first application
This is the first of a series of appeals against orders made by Master Evans concerning subpoenas in this case. The first bundle of those subpoenas which I will deal with are those issued pursuant to Order 42A of the Supreme Court (General Civil Procedure) Rules 2005. They are subpoenas for production to the Prothonotary of certain documents.
Those subpoenas were issued on 1 December 2008 by the Prothonotary to Ralph Norris, Pennie Swan, Paul Auglys, Glen Dent, Erric Fliss, the Proper Officer, Margaret Springo, Richard Jakeman, Paul Charles and Garry Carter.
Master Evans, on 12 December, set those subpoenas aside, principally because they were issued by a party who does not have a solicitor as required by RSC 42A.01(1). I have heard Mr Sloveski, who appears by leave on behalf of Sky Empire Pty Ltd and, it would appear, on his own behalf as well. Having heard his argument, I am satisfied that Master Evans, as his Honour then was, was correct. There was no basis for Mr Sloveski to file the subpoena. The appeal against the Master’s order of 12 December, in respect of those subpoenas, should be dismissed.
The second application
In his decision of 12 December, Master Evans set aside a subpoena directed to Mr Ralph Norris, the chief executive officer of the Commonwealth Bank.
The matter now before me is an appeal from Master Evans' order. In support of the appeal, Mr Sloveski, who has appeared again by leave for Sky Empire Pty Ltd and for himself as the issuer of the subpoena, has relied upon an affidavit which was sworn on 11 December 2008 and was before Master Evans. In particular he referred the court to paragraph 33 of that affidavit.
That paragraph refers to an invitation which Mr Slaveski says he received from a Mr Paul Auglys, who invited him to the Sydney head office of the Commonwealth Bank at some unstated time. He referred then to Exhibit SSL8, which is a print-out of some kind of phone call involving a Commonwealth Bank group account on 12 May 2008. That phone call is not referred to in the affidavit, but is referred to in the exhibit.
He also referred to Exhibit SSL9, which is a series of photographs of what he described from the Bar table as his having gone to the Commonwealth Bank and been arrested by some people there on a date which does not appear in the affidavit. It must have been 14 May 2008.
The issues in this case concern loans made by the Bank some years ago and the case itself commenced almost four years ago.
The issues in the proceeding, whilst complex, have no obvious connection with any events that occurred in 2008, and if there is anything in the material which could be obtained from Mr Norris in 2008, then one would have thought that even Mr Sloveski could have put it in the affidavit. It is not there.
On the other hand, the affidavit of the Bank, sworn by Annette Leigh Gaber on 28 November 2008, and the subsequent affidavit sworn on 10 December 2008, depose to enquiries which she, as a solicitor, made of the Bank and in particular of the Bank's in‑house counsel at its head office in Sydney, as a result of which she has deposed, from knowledge, information and belief, that there is no admissible or relevant evidence that Mr Norris would give in respect of the issues in this case.
Certainly on the face of it there would appear to be no such relevance, despite the complexity of the proceedings and the complexity of issues which Mr Sloveski would like to raise. It is important to realise, in determining whether a subpoena has a legitimate forensic purpose, that it is the issues in the case that are relevant. The court is not concerned to conduct an inquiry into matters that are irrelevant to those issues.
That would be enough to set aside the subpoena, but there are two other problems with it at least. The first is that it does not comply with the provisions of the Service and Execution of Process Act 1992 (Cth), insofar as it did not contain the notice required by that Act for interstate service, and further, it was not accompanied by conduct money as required by Order 42 of the Supreme Court (General Civil Procedure) Rules 2005. Mr Sloveski says that if the Bank told him that it required more conduct money, he would send it, but they have not done so and accordingly he has no obligation to supply more than the $87, which he did.
Principally for the reason of the lack of any legitimate forensic purpose, the affidavit should have been set aside. It was set aside by Master Evans and should remain set aside. However, it is also defective in form. Mr Maiden, for the Bank, adverted to the fact that the Bank did not take any technical objection to service. The question of the Service and Execution of Process Act 1992 (Cth) may be fatal in any event, although such an objection was not taken.
In the circumstances, the appeal from Master Evans will be dismissed.
The third application
The second part of the appeal in respect of Master Evans' order of 12 December, concerning the subpoena which he set aside directed to the CEO of the Commonwealth Bank, is against the second order that Master Evans made, which was that no further subpoenas be filed by or on behalf of the first and second defendants without the leave of this Court.
Mr Sloveski has argued forcefully that that order is wrong and has reverted and returned to the long list of people he wishes to subpoena in respect of the matters which he says are relevant to this case.
I have already ruled that he was unable to demonstrate any legitimate forensic purpose in respect of Mr Norris. He also issued a bundle of subpoenas pursuant to Order 42A, which were set aside by Master Evans, and in respect of which he appealed and which appeal was unsuccessful.
Those facts on their own would be sufficient to justify a court in placing a ban on a litigant from indiscriminately issuing subpoenas, and requiring the litigant to do so only after leave is sought.
As I pointed out to Mr Sloveski in argument, a subpoena is an order of the Court requiring a person, effectively, to drop what they are doing and come to court and sometimes be considerably inconvenienced in so doing. It is important that the Court controls the issue of subpoenas when they are issued in circumstances which might give rise to vexation or oppression to people who are subpoenaed by parties to litigation.
I can see no reason whatsoever to disturb the order of Master Evans with respect to the requirement upon Mr Sloveski to seek the leave of the Court to issue subpoenas. That leave can be sought from an Associate Justice upon proper material, that is to say affidavit material, demonstrating that there is a legitimate forensic purpose to be served by requiring a citizen, that is the citizen against whom the subpoena is sought to be issued, in having that person come to court.
I might say that the list of proposed persons who are to be subpoenaed, which is exhibited to the affidavit of Ms Gabor, has a large number of names on it with annotations against those names, and does not give me any confidence whatsoever that Mr Sloveski, if left unchecked, would exercise any restraint or appropriate discretion in issuing subpoenas. For that reason the order of Master Evans of 12 December will be upheld. The appeal will be dismissed.
I will further order that the defendant, Sky Empire Pty Ltd, and the second defendant, Mr Sloveski, pay the plaintiff's costs of all of these applications.
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