Di Cesare v Bird (Subpoena application)
[2020] VSC 336
•9 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2019 01839
| MARK DOMENIC DI CESARE | Plaintiff |
| v | |
| BISHOP PAUL BIRD | Defendant |
---
JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Submissions filed 5 May 2020; 6 May 2020; 8 May 2020. |
DATE OF RULING: | 9 June 2020 |
CASE MAY BE CITED AS: | Di Cesare v Bird (Subpoena application) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 336 |
---
PRACTICE AND PROCEDURE – Subpoena issues – Defendant issued five subpoenas without leave of the Court – Plaintiff opposed subpoenas on the basis they were improperly issued – Defendant acknowledged subpoenas improperly issued but sought to rely upon them – Subpoenas set wholly aside – Indemnity costs – Evidence (Miscellaneous Provisions) Act 1958 div 2A – Supreme Court (General Civil Procedure) Rules 2015 O 42A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr G Boas | Wood Fussell |
| For the Defendant | Mr P G Hamilton | Wotton & Kearney |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 1
Plaintiff’s submissions..................................................................................................................... 2
Defendant’s submissions................................................................................................................. 3
Plaintiff’s reply submissions........................................................................................................... 4
Applicable principles........................................................................................................................ 6
Analysis.............................................................................................................................................. 10
HER HONOUR:
This ruling concerns the plaintiff’s objection to five subpoenas that the defendant caused to be issued.
Summary
I will make orders setting aside the subpoenas. I will make orders that the defendant pay the plaintiff’s costs of and incidental to his objection to the subpoenas on an indemnity basis.
Background
In this proceeding, it is alleged that a Catholic priest, Father Claffy, sexually abused the plaintiff when he was aged 13 years.
On 18 December 2019, the defendant caused the five subpoenas to be issued. The five addressees of the subpoenas were: the Albert Road Clinic, the Department of Defence, Delmont Private Hospital, Drummond Street Services, and New Street Medical Centre. The documents sought for production related to the medical treatment of the plaintiff. The subpoenas were served on the plaintiff’s solicitors on 3 January 2020.
By letter dated 9 January 2020 to the defendant’s solicitors, the plaintiff raised his concerns about the subpoenas.[1] The letter stated that the subpoenas were directed to the plaintiff’s treating practitioners and the schedules were too broad. Further, that the schedule would cover ‘confidential communications’ within the meaning of s 32B of the Evidence (Miscellaneous Provisions) Act 1958 (‘EMPA’). The letter referred to s 32C of the EMPA and stated the subpoenas should not have been issued and should be withdrawn. The letter stated that the defendant should comply with the proper process pursuant to the EMPA.
[1]Exhibit ‘TWP-A’ to the affidavit of Thomas Wallace-Pannell, solicitor for the plaintiff, affirmed on 30 April 2020 (‘the Pannell affidavit’).
By letters dated 17 January and 3 February 2020 to the Prothonotary, the plaintiff lodged an objection to the subpoenas.
On 17 and 30 January 2020, the plaintiff’s solicitors wrote follow up letters to the defendant’s solicitors. On 3 March 2020, there was further correspondence between the parties. By letter dated 28 April 2020 from the defendant’s solicitor, the defendant conceded that the subpoenas had been issued improperly, without the leave of the Court as required pursuant to the EMPA.[2] The letter asserted that the Court would almost certainly grant such leave as the records are of significance to issues in dispute in the proceeding. The letter foreshadowed that if the subpoenas were set aside, an application would be made to the Court to reissue the subpoenas. The defendant invited the plaintiff to withdraw the objections to the subpoenas, regularise their issuing by consent, and then inspect the records to determine whether there was an objection.
[2]Exhibit ‘TWP-K’ to the Pannell affidavit.
By letter dated 29 April 2020, the plaintiff’s solicitor responded, acknowledging the defendant’s concession and rejecting the defendant’s assertion that it would almost certainly succeed in obtaining leave of the Court, as required by the EMPA.[3] The plaintiff stated that the course proposed by the defendant would require him to surrender his rights under the EMPA.
[3]Exhibit ‘TWP-L’ to the Pannell affidavit.
Plaintiff’s submissions
The defendant acknowledges it failed to comply with pt II of the EMPA. The clear requirement for a party seeking to access documents that may contain ‘confidential communication’ is to issue a summons seeking leave pursuant to s 32C of the EMPA to file and serve subpoenas. The Court can waive the notice requirements under s 32C(3) only in clear circumstance where an application is made.
The defendant has asked the plaintiff whether it has sought to inspect such documents as may have been produced. The plaintiff has not done so as the subpoenas were issued unlawfully. The defendant seeks to avoid pt II of the EMPA by having the Court make an order nunc pro tunc without summons or properly made application.
The issued subpoenas are likely to elicit production of confidential communication as they are addressed to the plaintiff’s treating practitioners. Section 32C is the first and necessary step. It is not a matter for discretion. The Pannell affidavit evidences the plaintiff’s solicitor writing immediately to the defendant’s solicitor explaining the EMPA requirements and requesting the subpoenas be withdrawn and proceed in accordance with the law. The defendant failed to take any steps to remedy its breach.
The defendant requested the plaintiff consent to an order that required the plaintiff to surrender his rights under the EMPA by retrospectively granting leave nunc pro tunc. The plaintiff does not wish to stand in the way of the defendant accessing documents to which it is properly entitled. The plaintiff objects to the defendant ignoring legislation that is of great importance to victims of sexual assault.
Further, the affidavit that the defendant relies upon is objectionable.[4]
[4]The defendant relies on an unsworn affidavit filed on 5 May 2020.
The plaintiff will consent to a process that protects the plaintiff’s legal rights while enabling the defendant to seek material is it lawfully permitted to obtain. The defendant has failed to withdraw subpoenas in violation of the EMPA. The subpoenas should be set aside.
Defendant’s submissions
The defendant accepts that it, inadvertently, issued subpoenas without leave of the Court as required by s 32C(1) of the EMPA. It seeks leave retrospectively, nunc pro tunc. The subpoenaed entities have responded without any objection on their part. The defendant seeks a pragmatic approach on whether the defendant should have leave to issue the subpoenas and permit the plaintiff’s solicitors to inspect the documents produced and raise any objections. The defendant is not aware of any direct authority on leave being granted for an irregularity in complying with the timeframes in s 32C. General principles apply.
The fact the defendant did not seek leave before issuing subpoenas is a mere irregularity not a nullity. Section 32C does not indicate that the defect cannot be rectified by leave nunc pro tunc. It is not a jurisdiction conferring provision. It requires the Court to exercise a supervisory role. It is procedural far more so than the statutory provision considered in Emanuele v ASC.[5] This is a mere procedural irregularity that could be rectified by Court order nunc pro tunc. If issuing a subpoena without leave were a nullity it would be against the Civil Procedure Act 2010 (‘CPA’).
[5](1997) 188 CLR 114 (‘Emanuele v ASC’).
It is not practical to set aside the subpoenas, return the subpoenaed documents and start afresh. It would not be in accordance with the CPA. The plaintiff’s representatives have identified no specific prejudice to their client or impingement on his substantive rights by the defendant’s proposed course.
The defendant has an evidential burden to disentangle injuries relating to the alleged incident and other causes. Without evidence from the plaintiff’s treating doctors on his medical condition, the defendant’s ability to lead evidence is hampered. The defendant’s ability to defend the allegations would be significantly prejudiced. The Court should be satisfied, on the balance of probabilities and in accordance with ss 32D(1)(a)–(c) and 32D(2), to grant leave to issue the subpoenas.
Leave to inspect the records is a separate question for the plaintiff’s solicitor after they review the material and take any objections.
The defendant seeks costs to be reserved.
Plaintiff’s reply submissions
The defendant’s conduct cannot be properly described as inadvertent. It was clearly deliberate. Even if it were inadvertent, or more properly described as erroneous, the defendant persisted in its error for four months. The defendant must have been aware of its statutory obligations before it ever issued the subpoenas. Paragraph 10 of the Court’s orders dated 21 October 2019 made reference to div 2A of pt II of the EMPA and for leave to compel production to be made by 24 April 2020. The defendant persisted and compounded its breach by:
(a) initially refusing to concede its error and continued to press the subpoenas despite the 9 January 2020 correspondence from the plaintiff’s solicitor explaining the defendant’s error, EMPA obligations and the requirement to withdraw the subpoenas; and
(b) later, by letter of 28 April 2020, conceding it issued the subpoenas improperly.
The defendant’s submission that this is merely procedural and capable of an order nunc pro tunc is incorrect. Parliament has implemented a rigorous legislative scheme to protect rights to confidentiality. Section 32C could not be clearer in preventing the compulsion of protected evidence. Section 32AB denotes a serious public policy issue of Parliament’s intention to prevent confidential communication from being sought except where a high test is met. Reliance on Emanuele v ASC is inapposite. It relates to supervisory powers under corporations law before a company to be wound up. Section 32C is quite different. It cannot be determined without an opportunity for affected parties to object. The purpose, nature and intent of the legislation in Emanuele v ASC is different to the EMPA. The Court should not treat this as analogous.
The submission that failure to comply with s 32C is a ‘mere procedural error’ and is consistent with ’the plain reading of s 32C’ is without merit. There is no mere procedural error. Section 32C is not open on the wording of that provision. The defendant does not point to any language to support that. The submission on the CPA is unsustainable. Sections 7, 8, 9 and 11 of the CPA are general in nature and say nothing about the rights and obligations in s 32C of the EMPA.
The defendant makes submissions about efficiency. This is an inconvenience entirely at the feet of the defendant. It is an unyielding refusal to rectify its own error. The entire tenor of the defendant’s submission is to shift responsibility to the plaintiff and the Court. The defendant is inviting the Court down a path that has the hallmarks of an abuse of process. The risk to the Court and administration of justice is clear.
The defendant’s submission on the merits of its claim under s 32C are beside the point. The plaintiff does not know if he will be prejudiced by the content of the documents he has not seen. The likelihood of the defendant satisfying the test under s 32D(1) are far from certain. The providers have not objected as they have not been advised of their right to do so. The defendant’s half-hearted submissions on the merits are no substitute for a properly conducted process in accordance with law. The defendant’s treatment of the Court and plaintiff is at best flippant and disrespectful.
Any inconvenience, inefficiency or cost occasioned by the unlawful issuing of the subpoenas, is entirely the fault of the defendant and should not be permitted to brush off its obligations.
The defendant seeks costs be reserved. The plaintiff seeks that the defendant must pay the plaintiff’s costs of and incidental to this application on an indemnity basis. It issued subpoenas contrary to the EMPA and the 21 October 2019 orders. On 28 April 2020, it acknowledged it was wrong. It persisted with the subpoenas leading to the requirement for submissions and affidavit material to be prepared.
Applicable principles
Section 32AB of the EMPA outlines the guiding principles for div 2A Confidential communications of the EMPA:
It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly under-reported; and
(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
(d) offenders are commonly known to their victims; and
(e)sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
Section 32B of the EMPA defines ‘confidential communication’:
means a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred
Section 32C of the EMPA follows.
Exclusion of evidence of confidential communications
(1) In a legal proceeding—
(a)a party cannot seek to compel another party to produce a document containing a confidential communication;
(b)a document is not to be produced if it would disclose a confidential communication;
(c) evidence is not to be adduced if it would disclose—
(i) a confidential communication; or
(ii)the contents of a document recording a confidential communication—
unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention in accordance with subsection (2).
(2)A party seeking to compel the production of, or to produce or adduce, protected evidence must, not less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced, give notice in writing of their intention to—
(a)each other party to the proceeding; and
(b) in the case of a criminal proceeding, the informant; and
(c)the medical practitioner or counsellor, as the case requires, if not a party.
(3) The court may—
(a)fix a period of notice shorter than that referred to in subsection (2); or
(b) waive the requirement to give notice under subsection (2).
(4)On receipt of a notice under subsection (2)(b), the informant must give a copy of the notice to the protected confider within a reasonable time after its receipt.
(5)Whether or not notice has been given under subsection (2) or (4), the medical practitioner or counsellor, as the case requires, and the protected confider may, with the leave of the court, appear in the proceeding and make submissions.
(6)For the purpose of determining an application for leave under subsection (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave.
(7)Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding.
In R v Lyons (Subpoena leave application),[6] Riordan J outlined the history of div 2A of the EMPA as follows.
[6][2018] VSC 256 [37]–[41] (emphasis removed).
Division 2A was introduced into the Act (then the Evidence Act 1958) by the Evidence (Confidential Communications) Act 1998. By that amendment, Division 2A only required leave for the adducing of evidence of a confidential communication in a legal proceeding. However, the Act was further amended by the Crimes (Sexual Offences) Act 2006 (‘the amending Act’) which:
(a) inserted the ‘Guiding Principles’ in s 32AB; and
(b) extended the requirement for leave, from the adducing of evidence, to a party seeking to subpoena a document containing a confidential communication.[7]
[7][7] Sections 27–32 of the Crimes (Sexual Offences) Act 2006.
Section 1 of the Crimes (Sexual Offences) Act 2006 sets out the following with respect to the purpose of that Act:
The main purpose of this Act is to amend the Crimes Act 1958, the Crimes (Criminal Trials) Act 1999, the Evidence Act 1958 and the Magistrates' Court Act 1989 to make further provision in relation to sexual offences, including the definition of offences and the giving of evidence in legal proceedings that relate to a charge for a sexual offence.
The explanatory memorandum to the Crimes (Sexual Offences) Bill stated as to the object of the Bill:
The object of this Bill is to amend the Crimes Act 1958, the Crimes (Criminal Trials) Act 1999, the Evidence Act 1958 and the Magistrates Court Act 1989 —
•to improve the experiences of complainants who are children or persons with a cognitive impairment in the prosecution of sexual offences; and
•to further provide for the protection of children and persons with a cognitive impairment from sexual assault; and
•to improve the rules of evidence applicable in the prosecution of sexual offences to provide a better balance of fairness between the defendant and the complainant.
With respect to the ‘Guiding Principles’ included in the amending Act, the explanatory memorandum states as follows:
Clause 27 inserts guiding principles to assist courts in interpreting and applying Divisions 3 and 3AA of Part II of the Evidence Act 1958. These guiding principles state the social problem that sexual offence laws and procedures, including those in this Bill, aim to address, and provide further guidance where ambiguity may exist in the interpretation.
In the second reading of the amending Act, the Attorney-General referred to the purpose of the amending Act to provide certain protections for ‘complainants’. In particular, he stated as follows:
The bill will amend the Evidence Act to ensure that a complainant's privacy and dignity are better preserved through clearer and tighter restrictions on the use of evidence related to the complainant's sexual history or activities with the accused person or with another person, and to confidential counselling communications between a complainant and their counsellor.[8]
[8][8] Victoria, Parliamentary Debates, Legislative Assembly (Rob Hulls, Attorney-General, 16 November 2005) 2184.
Rule 42A.08 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) follows.
Objection by party to inspection by other party
(1)Subject to paragraph (2), if a party has any objection to the inspection by another party of a document identified in the subpoena, the party having the objection shall notify the Prothonotary in writing of that objection and state the grounds of that objection before the day specified in the subpoena.
(2)If a party other than the plaintiff seeks by subpoena the production of any hospital or medical file or record concerning the plaintiff or the plaintiff's condition, the plaintiff may, before taking objection under paragraph (1), inspect the file or record produced to the Prothonotary and notify the Prothonotary thereafter of any objection the plaintiff has to inspection by any other party, provided that the plaintiff makes that inspection and notifies that objection and the grounds of that objection in writing within seven days after the day specified in the subpoena for production of the file or record to the Prothonotary.
Analysis
The Court’s 21 October 2019 orders included:
10.Any application for leave to compel the production of a document containing a ‘confidential communication’ within the meaning of Division 2A of Part II of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) is to be made by 24 April 2020.
11.Any subpoena under Order 42A of the Rules be issued and served by 5 June 2020.
The defendant acted inconsistently with the orders by causing the subpoenas to be issued without making an application for leave by 24 April 2020.
The defendant has not complied with s 32C(2) of the EMPA. There are important public policy reasons for compliance with the requirements in s 32C(2). They are reflected in the guiding principles in s 32AB of the EMPA. I reject the defendant’s submission that failure to comply is a mere procedural irregularity.
The defendant’s conduct has shifted the burden of making an application from it to the plaintiff. It had the burden of making an application under the 21 October 2019 orders. It did not properly do so. The failure to do so, and to resile from its position, necessitated the plaintiff making this subpoena objection under O 42A of the Rules.
For completeness, I will address a submission by the defendant. A party has the right to make an application pursuant to O 42A even if the subpoena addressees do not object to the subpoena. Although documents have been produced in response to the subpoena, this is not determinative of the issues here. Importantly, because the defendant did not comply with s 32C(2) of the EMPA, the addressees to the subpoenas were not on notice prior to being served. The subpoenas appear to have been served sometime in the period of the week before Christmas and the first week of the New Year.
I reject the defendant’s submission that setting aside the subpoenas would be inconsistent with the CPA on the basis of inefficiency. The overarching purpose of the CPA is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute. It would be unjust and inconsistent with the EMPA to disregard the statutory process established in s 32C(2).
Turning now to costs.
The correspondence set out in the background section above discloses that the defendant was on notice almost immediately of the plaintiff’s objection to the subpoenas and the grounds of the objection. Inexplicably the defendant persisted in maintaining the subpoenas should remain on foot. The defendant then improperly sought – by submission and an irregular affidavit rather than by an application properly issued – leave from the Court to issue the application nunc pro tunc. This was in wilful disregard of the 21 October 2019 orders. The defendant should pay the plaintiff’s costs of and incidental to the subpoena objection on an indemnity basis.
2
0