Di Cesare v Bird (Subpoena application) - [2020] VSC 336

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

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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

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Di Cesare v Bird (Subpoena application)

Details

AGLC: Di Cesare v Bird (Subpoena application) [2020] VSC 336
Case: [2020] VSC 336
Decision Date: 9 June 2020

CaseChat Overview and Summary

The matter of Di Cesare v Bird involved a subpoena application where the defendant had issued five subpoenas without obtaining leave from the court. The plaintiff objected to the subpoenas on the grounds that they were improperly issued. The defendant conceded the subpoenas were issued incorrectly but sought to rely on them in the case. The court had to determine whether the subpoenas should be set aside and whether the plaintiff should be awarded indemnity costs.

The legal issues centred around the proper procedures for issuing subpoenas and the consequences of improperly issued subpoenas. The court needed to consider whether the improperly issued subpoenas could be relied upon and if the plaintiff was entitled to indemnity costs under the Evidence (Miscellaneous Provisions) Act 1958 and the Supreme Court (General Civil Procedure) Rules 2015. The court also had to decide on the appropriate remedy for the improper issuance of the subpoenas.

The court found that the subpoenas were indeed improperly issued as the defendant had not obtained leave as required. Despite the defendant’s concession, the court held that the improperly issued subpoenas could not be relied upon. The court awarded indemnity costs to the plaintiff as the defendant’s actions were considered to be an abuse of the court process. The court set the subpoenas wholly aside and ordered that the defendant pay the plaintiff’s costs on an indemnity basis.

Orders