Ezekiel-Hart v The Council of the Law Society of the ACT (No 2)
[2023] ACTSC 207
•31 July 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ezekiel-Hart v The Council of the Law Society of the ACT (No 2) |
Citation: | [2023] ACTSC 207 |
Hearing Date: | 31 July 2023 |
Decision Date: | 31 July 2023 |
Before: | Curtin AJ |
Decision: | (1) The plaintiff's application in proceeding filed 26 July 2023 is dismissed. (2) The plaintiff is to pay the defendants' costs. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – application to issue subpoenas – whether there is a legitimate forensic purpose – whether subpoenas were oppressive – application dismissed CIVIL LAW – PRACTICE AND PROCEDURE – injunctive relief – application to restrain tribunal proceedings instituted by the first defendant – where plaintiff claims “victimisation” and “discrimination” – application dismissed |
Legislation Cited: | Australian Human Rights Commission Act 1986 (Cth), s 26 |
Cases Cited: | Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687 |
Parties: | Emmanuel Ezekiel-Hart ( Plaintiff) Council of the Law Society of the ACT ( First Defendant) Robert Anthony Reis (Second Defendant) Simone Carton (Third Defendant) Farzana Choudhury (Fourth Defendant) Katie Elizabeth Binstock (Fifth Defendant) Samuel Harper (Sixth Defendant) Attorney-General of the ACT (Seventh Defendant) Director of Public Prosecution (ACT) (Eighth Defendant) ACT Police Commissioner (Ninth Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) D Moujalli ( First to Sixth Defendants) T Miller (Ninth Defendant) |
| Solicitors Self-represented ( Plaintiff) Thomson Geer ( First to Sixth Defendants) MinterEllison (Ninth Defendant) | |
File Number: | SC 139 of 2023 |
CURTIN AJ:
EX TEMPORE (REVISED)
Introduction
1․This is an application by the plaintiff for leave to issue subpoenas to produce to the first, second, fourth, fifth, seventh, eighth and ninth defendants and to restrain the first to sixth defendants from:
Pursuing any further complaint or disciplinary action from the dismissed application in the tribunal on 19 July 2023, which was commenced after the plaintiff had lodged his human rights claim before this court and has taken discrimination action against any of the defendants.
2․For the reasons that follow the application is dismissed.
Applications Background
3․This application was brought on quickly because four applications in proceedings were listed before me for hearing on 7 and 8 August 2023, four clear working days from today. One of those applications was brought by the plaintiff and could be described as a summary judgment application. The plaintiff has indicated that he will not be proceeding with that application on 7 August 2023.
4․What remains on that date is an application by the first to sixth defendant seeking orders striking out the statement of claim and orders setting aside a notice to admit facts, summary judgment, and seeking a declaration that the plaintiff be declared a vexatious litigant.
5․The seventh defendant's application listed for hearing on 7 August 2023 seeks an order that he be removed as party to the proceedings.
6․The eighth defendant makes a similar application.
7․The ninth defendant seeks an order that the statement of claim be struck out.
8․In light of those applications, there is a need for judgment on the plaintiff's present application to be delivered quickly.
The Seventh and Eighth Defendants
9․The seventh and eighth defendants did not appear today. Counsel for the first to sixth defendants informed me that so far as he was aware the seventh and eighth defendants were of the view that the plaintiff's application listed for hearing today did not affect them. I asked the plaintiff whether he had evidence to prove to me that the seventh and eighth defendants were on notice that he sought substantive orders against them, namely, for the issuing of subpoenas against them. No evidence was provided.
10․Subsequently, at 11.38am today, an email was sent by the plaintiff to my associates saying:
I refer to the matter stood down this morning for break. Please, find below evidence that the seventh and eighth defendants were informed of this application today.
11․Underneath that email was an email purportedly sent by the plaintiff to the solicitors for all the parties on 26 July 2023 which said:
Please, find attached sealed copy of the application. The subpoena is to produce all the documents requested of you which you have failed to produce and provide the information required in the interest of justice and progress of the matter before the court.
12․Attached to that email was a copy of the application in proceeding (which was before me today) and a copy of the plaintiff's affidavit in support affirmed on 25 July 2023.
13․A copy of the subpoenas which the plaintiff seeks leave to issue was not attached to that email, nor the affidavit, nor is there any evidence that the plaintiff notified the seventh and eighth defendants that he sought leave to issue subpoenas directed to them.
14․In the absence of being satisfied that proper notice had been given to the seventh and eight defendants of the application brought against them, the application in relation to the seventh and eighth defendants is dismissed.
15․For completeness, I note that the subpoenas the plaintiff desired to issue against the seventh and eighth defendants have been marked MFI A and MFI B and will remain with the Court file.
Subpoenas
16․The plaintiff requires leave to issue these subpoenas because of the terms of r 6601A of the Court Procedure Rules 2006 (ACT). That rule says:
6601A Issuing subpoena to produce—originating claim
(1) This rule applies to a proceeding started by—
(a)originating claim; or
(b)originating application, if the court has ordered that the proceeding continue as if started by originating claim; or
(c)an application for arbitration under part 3.13 (Workers compensation); or
(d)an application in a family violence or personal violence proceeding under part 3.12 (Family violence and personal violence proceedings).
(2) An issuing officer must not issue a subpoena to produce in the proceeding without the court’s leave unless the court has set a date for hearing.
(3) Subrule (2) does not apply to a subpoena in a proceeding under part 3.13 that is addressed to a party to the proceeding.
17․Subrule 2 of that rule refers to a “date for hearing”. That expression is not defined in the rules so far as I can see but the words “hearing date” appear in the rules elsewhere and it seems to me from the context in which those words appear that those words, and the words “date for hearing”, refer to the date for the final hearing of the proceedings and not for the hearing of interlocutory applications.
18․If I were wrong about that, and the plaintiff did not require leave, I would have treated this as an application by the defendants to set aside the subpoenas pursuant to r 6604 and would have granted that application for the same reasons as appear below. I would have entertained that application pursuant to s 5A of the Court Procedures Act 2004 (ACT) in order to facilitate the just resolution of the real disputes between the parties as quickly, inexpensively and efficiently as possible and exercising my power under r 1401 to so conduct the proceedings in the interests of justice.
19․Rule 6601A does not set out any considerations which the Court is to take into account in the granting of leave for issuing a subpoena prior to the setting of a date for hearing.
Background
20․I shall briefly describe the chronology of significant events.
21․The plaintiff has been embroiled in litigation against the first defendant, amongst others, since 2009. The first such proceedings arose out of allegations made by him to the effect that the first defendant delayed in issuing him with an unrestricted practising certificate. According to the plaintiff, the first defendant gave an undertaking to the Court in 2013. The precise language of the purported undertaking is unclear and there was no evidence of the contents of the undertaking other than what is set out in paragraph 12 of the plaintiff's affidavit which said:
This complaint is supported by the fact that they issue certificate to those found guilty of offences including professional misconduct or facing complaint, and despite giving undertaking to Court of Law in 2013, had refused to grant me any form of certificate from the very date of giving the undertaking to the Court of Law till date.
22․That evidence does not describe to me the precise contents of the undertaking given, nor was there any evidence of the undertaking having been given or the circumstances in which it was given.
23․The plaintiff tendered a document titled “Minutes of the Council Meeting of the Law Society of the Australian Capital Territory” which was dated 18 April 2016. This document was marked Exhibit B in these proceedings.
24․Exhibit B recorded that the Council of the Law Society of the Australian Capital Territory was considering a complaint brought against the plaintiff, the alleged grounds being:
Vexatious proceedings; breach of rule 24 - offensive, improper, or threatening communications; breach of rules 20.1 and 20.2 - abuse of privilege and grossly disrespectful communications with associate to Justice Foster of the Federal Court of Australia.
25․But the Minute referred to earlier events. Exhibit B revealed that:
(a)the Council of the Law Society resolved on 17 August 2015 to undertake various actions including the filing and service of an application for disciplinary action;
(b)following that resolution, attempts were made to locate the plaintiff without success until February 2016;
(c)the plaintiff made an application for an unrestricted practising certificate which was refused by the Council at its meeting on 21 March 2016;
(d)the plaintiff had not appealed that decision as at 18 April 2016; and
(e)the professional standards manager said that if the Society did not file and serve an application for disciplinary action then the issue was how the complaint was to be concluded.
26․Exhibit B then said:
Following discussion it was resolved … that Council does not proceed to file and serve the application for disciplinary action pursuant to section 410 of the Legal Profession Act 2006 on the grounds that it is in the public interest not to do so.
27․The plaintiff submitted that the Legal Profession Act 2006 (ACT) (the LPA) required him to be notified in writing of the resolution of the Council on 18 April 2016 but the Council had failed to do so. The relevance of that fact to these applications escapes me and was not explained.
28․Suffice to say that in 2020 the plaintiff commenced proceedings in this Court for alleged discrimination and breach of human rights. No materials from those proceedings have been placed before me but it appears that Kennett J dismissed those proceedings (see Ezekiel-Hart v Council of the Law Society of the ACT (No 3) [2022] ACTSC 300) and an application for leave to appeal from the dismissal was refused (see Ezekiel-Hart v Council of the Law Society of the ACT [2023] ACTCA 5).
29․It appears the application for leave to appeal was refused on 13 February 2023.
30․On 20 February 2023, the Council of the Law Society met and made an own-motion complaint against the plaintiff pursuant to s 394 of the LPA.
31․In a letter dated 24 February 2023, the Law Society informed the plaintiff of that fact and requested a response by 10 March 2023, including whether the Council should dispose of the matter under s 412 of the LPA, whether it should summarily conclude the matter under s 413 or by making an application under s 419.
32․On the evidence, no response was provided by the date nominated.
33․On 11 April 2023 the plaintiff commenced these proceedings in this Court. The plaintiff filed an originating claim and a statement of claim.
34․Both documents, in my view and without any disrespect to the plaintiff, are obscure, vague, unclear, impenetrable at times and at other times unfathomable. For example, paragraph 1 of the statement of claim says:
1. The Defendants, and or their servants or agents acting alone in the capacity of their employment and authority or acting together in concert:
a) Weaponize their regulatory powers to victimize me, the Applicant, for asserting my rights under the law with lawful proceedings and asking the whole of Australia the single question how does it make sense and demonstrably justified , that for 10 years I don’t have certificate and those who may have committed crime of manslaughter or other serious criminal offence of 10 years imprisonment will be out on parole and be given certificate to work by the 1st 2nd, 3rd and 4th Defendants why?, and I am a victim.
b) no court of law or Tribunal in this world has charged me or found me guilty of any offence in my entire life, yet I am victimized for approaching lawful process of the Court to protect my rights under the law.
c) I believe that it is the answer to this question that will enable the Court of human rights against victimization, the Court of Equity and Justice to either kill me and authorize victimization against me for the benefit of the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants or free and protect me by applying the law, not discretion, for me to provide food for my children. I believe the law say I should not face detriment from self help of the Defendants for my approaching the Court of law to make them admit recklessness.
d) Weaponize their power to victimize the Applicant for asserting his rights under the law, and the Applicant would be a victim.
e) On or about 24 February 2023 the Defendants weaponized their power not to progress human rights or to do good and obey law but weaponize their power to victimize me for asserting my rights under the law and cause them to admit recklessness.
f) weaponize their power in self-help to threaten me with detriments and through a letter dated 24 February 2023 victimize me, bully and coerce me from pursuing my rights before the Court under the law and for causing them to admit recklessness, and their conduct is contrary to my human rights under the Human rights Act sections as stated above.
g) Weaponize their power to reject advice given by Beaumont of Counsel since April 2003 and I be invited and provided with conditional certificate in consonant with section 27B HRA, the Defendants refused that advice, hid it from me and victimize me without certificate for 10 years and counting, and continue the victimization and self-help on 24 February 2023 to change the status quo in their benefit in defiance and treatment of the Court with disdain, which cannot be demonstrably justified in a democratic fair-go setting in Australia.
h) Weaponize their power to reject advice put before the Council on 30 September 2020 to consider conditional certificate as put froward [sic] in minute by Ms Farzana Choudhury in consonant with section 8 and 27B HRA, the Defendants refused that advice saying that they had no time, hid it from me and victimize me without certificate for 10 years and counting, and continue the victimization and self-help on 24 February 2023 to change the status quo in their benefit in defiance and treatment of the Court with disdain, which cannot be demonstrably justified in a democratic fair-go setting in Australia.
i) Weaponize their power by taking advantage of being in control of a regulatory body to pursue selfish interest in breach of the law that protect me from victimization while my matter in which I assert my rights under the law were still before the Court, and I had written petition against the Defendants conducts.
j) The Defendants conduct amounted to self-help, victimization, and distinction and unfavourable treatment and denied me the right to work by causing refusal of certificate to work for 10 years contrary to section 27B(1) Human Rights Act 2004; section 98 HRCA 2005, section 68 DA 1991 and section 19A and 26 AHRCA which cannot be demonstrably justified.
k) I provided the 7th Defendant with petition against the 1st Defendant citing its power under section 466 of LPA 2006 but was reckless or negligent as to whether the 1st Defendant and its servants complies with law or victimizes me, and the 7th Defendant was aware that the 1st Defendants and their servants does not obey laws.
l) I provided the 8th Defendant with petition and conduct of criminal nature involving the first and 2nd Defendants in approved information form, the 8th Defendants refused to invite me or respond to the matters raised in the information form, by that conduct was reckless or negligent as to whether the 1st and 2nd Defendants victimized me or breach the peace or destroy the image of the court by their conducts in breach of the law.
m) I provided the 9th Defendant with petition and conduct of criminal nature involving the 1st and 2nd Defendants, 9th Defendants refused to invite me or respond to the matters raised in the information, by that conduct was reckless or negligent as to whether the 1st and 2nd Defendants victimized me or breach the peace or destroy the image of the court by their conducts in breach of the law.
n) But for the failure of the 7th, 8th and 9th Defendants to act to protect me I would not have suffered the continued harm, detriment and victimization meted on me for asserting my rights under the Act. And fail to ask why the 1st, 2nd, 3rd and 4th Defendants continue to look for trouble and create troubles despite their knowledge that the parties have undecided matters before Court.
o) I believe that All the Defendants act individually or in concert to deny me protection under the law because I am a Black man.
p) The 2nd, 3rd, 4th, 5th and 6th Defendants in concert created a parallel unelected Council contrary to my privacy and section 14(f) of the Constitution of the Law Society of the ACT, and in a matter not before any court or Tribunal in breach of procedures send victimization authorization to the 5th and 6th Defendants with pecuniary interest, and the 5th and 6th Defendants in pursuant to their pecuniary interest failed to advice the Defendants on the victimization effect of their conduct and unconstitutionality of their conduct.
q) The conducts of the Defendants are contrary to human rights, and in breach of section 27B(1) Human Rights Act 2004; causing an impendent or impediment to seek work thereby causing deny of right to work contrary to section 27B(1) Human Rights Act 2004;
r) making difficult my choice to occupation unrealizable and not free contrary to section 27B(1) Human Rights Act 2004, ss8, 7, 40B and 40C;
s) Victimize against the plaintiff when in the meantime taking personal or professional circumstances of White lawyers into account to issue them certificates to enable them work and feed their family while denying me any opportunity or option to work contrary to section 27B(5) of the Human Rights Act 2004;
…
35․I cannot discern any clear or cogent cause of action or the material facts relevant to that cause of action in this document. In Mendonca v Legal Services Commissioner [2020] NSWCA 84 McCallum JA, with whom Basten and Leeming JJA agreed, said at [21] that the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point. In my view that same observation applies to pleadings in that the Court is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions in a pleading to attempt to identify any cause or causes of action sought to be advanced.
36․The relevance of those observations concerns the principles relating to subpoenas and the oft quoted expression that subpoenas should have some legitimate forensic purpose. I will return to that matter later in this judgment.
37․On 13 April 2023, the plaintiff sought summary judgment in these proceedings, but that application was dismissed (see Ezekiel-Hart v Council of the Law Society of the ACT [2023] ACTSC 78).
38․On 17 April 2023, the Council of the Law Society resolved to file an application for disciplinary action in the Tribunal against the plaintiff pursuant to s 419 of the LPA.
39․On 1 May 2023, that application was filed in the Tribunal and was allocated file number OR6/2023.
40․On the same date, the plaintiff filed two information and summons in the ACT Magistrates Court against the first defendant. One involved alleged breaches of a Commonwealth Act, being s 26(2)(d) of the Australian Human Rights Commission Act 1986 (Cth). The other information alleged a breach of s 28 of the Human Rights Commission Act 2005 (ACT).
41․On 27 June 2023, the plaintiff filed two further information and summons in the ACT Magistrates Court, this time against the second defendant. One made allegations against the second defendant for a breach of s 26(2)(d) of the Australian Human Rights Commission Act 1986 (Cth). The second information and summons alleges breaches by the second defendant of the Human Rights Commission Act 2005 (ACT).
42․The significance of those four proceedings is that two of them were commenced on the same date that the first defendant filed its application for disciplinary action against the plaintiff in the Tribunal, but the second two proceedings were filed approximately seven weeks later.
Subpoenas
43․The plaintiff submitted the subpoenas were necessary because they would likely produce information for the Court. He submitted that without those documents the Court would be misled and he submitted that the subpoenas should be issued to allow him to amend the Statement of Claim to reflect the correct position of what the plaintiff's claim is about.
44․I asked the plaintiff during his submissions in reply whether the subpoenas were really about providing him the opportunity to amend the Statement of Claim. He confirmed that that was the case.
45․The first to sixth defendants submitted that leave should be refused to issue the subpoenas, at least at this stage, because in effect it was putting the cart before the horse. That is, the present pleadings were obscure and did not properly conform with the rules regarding pleadings and, most particularly, did not inform the first to sixth defendants of the case they had to meet, and that the pleading was therefore liable to be struck out next week when I hear the strikeout applications.
46․Put another way, the first to sixth defendants submitted that whilst the pleading was (in its present form) incompetent in a legal sense, it would be impossible to determine what legitimate forensic purpose the subpoenas would serve.
47․The ninth defendant submitted that the application to issue a subpoena against it should be refused because granting leave would be inconsistent with the terms of s 5A of the Court Procedures Act 2004 (ACT). Section 5A says:
5A Main purpose of civil procedure provisions
(1) The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes—
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
(2) Without limiting subsection (1), the main purpose includes the following objectives:
(a)the just resolution of the real issues in civil proceedings;
(b)the efficient use of the judicial and administrative resources available for the purposes of the court;
(c)the efficient disposal of a court’s overall caseload;
(d)the timely disposal of civil proceedings;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil procedure provisions must be interpreted and applied, and any power or duty imposed by them (including the power to make rules) must be exercised or carried out, in the way that best promotes the main purpose.
(4) The parties to a civil proceeding must help the court to achieve the objectives.
…
48․The ninth defendant submitted that the only specific allegation made against it was contained in paragraph 1(m) of the statement of claim which has been quoted above. I note that there is no specifically identifiable claim for relief brought against the ninth defendant separate and distinct from any claim for relief brought against the other defendants.
49․The relevant principles to apply an application for the issue of subpoenas such as these were comprehensively set out by Kennett J in Wornes v Freewater Australia Pty Limited [2022] ACTSC 147. In that judgment his Honour said at [13]-[19]:
13. Rule 6604 of the Court Procedures Rules 2006 (ACT) gives the Court power to set aside a subpoena completely or partly. This power, its predecessors and comparable powers in other jurisdictions have been the subject of reported cases stretching back to the late nineteenth century discussing the grounds upon which a subpoena can or should be set aside. One such ground, recognised in this country since the expression was used in Maddison v Goldrick [1976] 1 NSWLR 651 at 666, 668 (Samuels JA, with whom Street CJ and Moffitt P agreed), is that the documents identified in the subpoena are not being sought for a “legitimate forensic purpose”.
14. “Legitimate forensic purpose” is a protean concept. What one regards as legitimate in the context of a subpoena for production in a civil proceeding will depend on the nature of the proceeding in which it has been issued, and contemporary approaches to civil litigation more generally. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown CC) Bell P (with whom Brereton and McCallum JJA agreed) said at [58]:
As Moffitt P observed in [National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372], writing in 1978, “concepts as to what is appropriate between parties have changed in favour of fuller disclosure of relevant matters”: at 384. Examining the question more than 40 years later, one important contemporary contextual matter that informs the Court’s consideration of the proper use of subpoenas in civil litigation is s 56 of the Civil Procedure Act and its identification of the overriding purpose of that Act and of the Uniform Civil Procedure Rules in their application to civil proceedings, namely to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. An appropriately targeted subpoena may advance the overriding purpose in a particular case, even though it may not be able to be shown that the documents subpoenaed either will or will be likely to assist the case of the party that has issued the subpoena.
15. Blacktown CC concerned a subpoena issued in proceedings in the Land and Environment Court of NSW. However, what was said in that case is relevant here. Rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW), which applied in that case, is in substantially the same terms as r 6604, and decisions on setting aside subpoenas in other common law jurisdictions have long been regarded as providing useful guidance. In addition, s 56 of the Civil Procedure Act 2005 (NSW), referred to by Bell P in the passage set out above, is a direct analogue of s 5A of the Court Procedures Act 2004 (ACT). The decision has been relied on in this Court: Bloc (ACT) Pty Ltd v Crafted Capitol Pty Ltd (in liq) (No 3) [2021] ACTSC 178, [17]–[18] (McWilliam AsJ).
16. Consideration of whether a subpoena lacks any legitimate forensic purpose, and is therefore to be set aside, must now proceed by reference to the main purpose set out in s 5A. In particular, attention needs to focus on whether the subpoena is apt to assist “the just resolution of the real issues” in the proceeding rather than taking any narrow view of what is put in issue by the pleadings or what material is apparently relevant to those issues. It must also recognise that a “subpoena to produce documents is an important means of establishing the facts in issue in litigation and thereby enabling justice to be done”: Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245, 259. However, other considerations referred to in s 5A (including proportionality between the importance of the dispute and the costs generated) should not be ignored.
17. In Blacktown CC, Bell P continued:
There is a danger in using the language of “tests” for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court’s general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories: see CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392. The variety of grounds on which a subpoena may be set aside is illustrated by the list of examples supplied by Powell J in [Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98] at 100 (see [45] above).
As Brereton J said in [A v Z [2007] NSWSC 899; 212 FLR 255] at [3], a “subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining relevant evidence.” Evidence in that sense need not be admissible evidence and, as Samuels JA observed in Maddison v Goldrick [1976] 1 NSWLR 651] at 663, documents subpoenaed for the purposes of cross-examining a witness have been treated as documents required for the purposes of evidence. This extends to cross-examination on issues of credit: see, eg, [Brand v Digi-Tech [2001] NSWSC 425] at [36]; Norris v Kandiah [2007] NSWSC 1296 at [3]; and Liristis v Gadelrabb [2009] NSWSC 441 at [5] (Liristis). In Liristis, copies of the plaintiff’s criminal records regarding any convictions for dishonesty, particularly perjury, and any convictions under the Oaths Act 1900 (NSW) were successfully subpoenaed in circumstances where there was evidence before the Court that an earlier conviction for perjury had been quashed but a new trial ordered; see also Lowery at [10], [54].
18. The particular controversy in Blacktown CC was as to whether it was necessary to demonstrate any degree of likelihood that the documents sought would assist the party that issued the subpoena. It was held that that need not be demonstrated; it was sufficient that the documents were such as to be likely to “materially assist on an identified issue” (at [65]; see also Brereton JA at [89], McCallum JA at [98]). As it had been put by Young JA in Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 100 at [34] (cited in Blacktown CC at [67]), a legitimate forensic purpose exists if the person issuing the subpoena “has a reasonable cause to believe the documents subpoenaed have the capacity to throw some light on the issues in the proceedings”.
19. The party issuing the subpoena bears at least the forensic onus of demonstrating potential relevance in that sense: Sahore v Ahmad [2021] ACTSC 30, [22]. Faced with an application to set the subpoena aside, that party will need to explain the way in which the documents sought have the potential to shed light on the issues in the proceeding. That explanation will normally proceed by reference to the pleadings (if there are pleadings), the evidence likely to be adduced at the hearing, and such other evidence as is adduced specifically on the application to set aside the subpoena.
50․Paragraph 19 of his Honour’s judgment is particularly relevant. In my view the plaintiff has not demonstrated the relevance or forensic purpose of any of the documents sought in the subpoenas concerning the applications listed for hearing before me next week or in relation to the present pleadings. The plaintiff did not explain the way in which the documents sought had the potential to shed light on the issues in the proceedings other than generalised statements that they would assist in determining the issues and in doing justice in the case. There are no submissions by the plaintiff which took me to any part of the pleadings nor is there any matter in his affidavit (as submitted by the ninth defendant) which explains how the documents sought in the subpoenas might be relevant.
51․In Wornes, Kennett J had evidently followed the holding in the Court of Appeals decision mentioned in [14] of his Honour’s judgment to the effect that older common law cases dealing with what is meant by “legitimate forensic purpose” had now to be understood in the light of s 5A of the Court Procedures Act and its analogues in other jurisdictions.
52․However, one should not ignore completely the common law principles developed before the introduction of s 5A (and nor do I think Kennett J was suggesting otherwise). A useful summary of those common law principles was set out by Flick J in Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists [2019] FCA 1687.
53․In that case, his Honour said at [72]-[80]:
72 A party seeking to issue a subpoena requires the leave of the Court: r 24.01 of the Federal Court Rules.
73 The party seeking leave “bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings”: Wong v Sklavos [2014] FCAFC 120 at [12]; (2014) 319 ALR 378 at 381- 382 per Jacobson, White and Gleeson JJ.
74 Normally the grant or refusal of leave takes place ex parte in chambers, although there may be circumstances in which an application for leave may be heard in open court: Spencer v Commonwealth [2014] FCA 1234 at [11] per Mortimer J.
75 The general principles to be applied when exercising the discretion to grant or refuse leave to issue a subpoena have long been established. In McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at 802-804 Greenwood J summarised these principles, in relevant part, as follows:
[35] In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge:
(a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: …
(b) A request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery. It is not permissible to use to a writ of subpoena duces tecum as a substitute for discovery of documents against a party to the proceeding. The subpoena process should not have the effect of discovery against a person who, as a stranger to the proceeding, is not liable to make discovery: … The subpoena process cannot be used to initiate an inquiry as to relevance outside of the time and place identified by the rules for discovery.
(c) Reference has already been made to the principles identified by Branson J in Diddams v Commonwealth Bank of Australia.
(d) The documents for production must be identified with reasonable particularity. … The category of documents must not be so wide as to be oppressive.
(e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case … or to investigate the character of the opposing party’s evidence …
(f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave:
[8] It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.
(g) The same notion was expressed in Small (at 575) and Dorajay Pty Ltd v Aristocratic Leisure Ltd [2005] FCA 588 at [34] in requiring the existence of a legitimate forensic purpose for the production of documents.
(h) In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?
(i) Spender J in Cosco Holdings Pty Ltd v Cmr for Taxation (1997) 37 ATR 432; [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.
(j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by s 55(1) of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.
(k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: …
(l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the Court to read documents which could have been obtained at an earlier stage in the proceedings: …
(m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustified trouble and harassment’. …
(n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: …
(o) In Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers’ Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether “it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”. Her Honour said at [18]:
[18] These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades (1989) 85 ALR 1 at 11] in the comments quoted by Beaumont J [in Trade Practices Commission v Arnotts Ltd], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive.
(some citations omitted)
76 As is apparent from (inter alia) the observations of French J in Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 and those of Stone J in Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 , considerations to be taken into account when exercising the discretion to grant or refuse leave to issue a subpoena go well beyond an assessment as to whether the party seeking leave has demonstrated a legitimate forensic purpose: cf. Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 at [26]; (2011) 195 FCR 43 at 50 to 51 per Bromberg J.
The power to set aside a subpoena
77 The power to set aside a subpoena is to be now found in r 24.15 of the Federal Court Rules. That rule provides as follows:
Setting aside or other relief
(1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in relation to it.
(2) An application under subrule (1) must be made on notice to the issuing party.
(3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.
The power conferred by r 24.15 is an incident of the Court’s “inherent power to regulate the use of its processes by parties to the litigation”: Kaboko Mining Limited v Van Heerden [2016] FCA 1532 at [10] per McKerracher J.
78 An application to set aside a subpoena, in many cases, may most conveniently be made to the Judge who granted leave to issue the subpoena and the application may be stood over for hearing at the trial of the case in which the subpoenas were issued: cf. Haile-Michael v Konstantinidis (No 3) [2013] FCA 53 at [18] per Jessup J.
79 The grounds upon which such an application may be made are comparatively well-recognised. One summary of those grounds was provided by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows:
Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:
1. unless the subpoena was issued for the purpose of a pending trial, hearing or application …
2. where to require the attendance of a witness would be oppressive …
3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence …
4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party …
5. where the subpoena has been used for the purpose of obtaining discovery against a third party…
6. where to require a party to comply with a subpoena to produce documents would be oppressive …
7. where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing” …
(citations omitted)
See also: Mandic v Phillis [2005] FCA 1279 at [33]; (2005) 225 ALR 760 at 771-772 per Conti J; Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia [2009] FCA 1203 at [20] per Flick J.
80 Differently expressed, Jacobson, White and Gleeson JJ in Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378 at 381-382 expressed the general principles as follows:
Apparent Relevance
12. Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well-established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: … A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: … Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative …, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case …, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: …
(citations omitted)
54․Of relevance is that his Honour referred to common law principles to the effect that a subpoena cannot be used for the purpose of fishing, that is for discovering information for the purpose of propounding some new case not then pleaded.
55․As mentioned earlier in this judgment, the plaintiff has expressly made clear his desire to obtain these documents for the purpose of amending the Statement of Claim, that is for the purpose of propounding some different case to that which is presently contained in the Statement of Claim.
56․The other relevant matter in Flick J’s judgment was the Federal Court’s power to set aside a subpoena in whole or in part, a power found in r 6604 of the Court Procedure Rules 2006 and which was the subject of examination by Kennett J in Wornes.
57․In my view the principles applicable to provisions such as r 6604 apply equally to the granting of leave under r 6601A in that there is no point granting leave to issue a subpoena if an application would be made and granted for setting aside that subpoena under r 6604.
58․Rules such as the rule I have just mentioned are, as Flick J observed at [77] in Chandrasekaran, an incident of the Court’s “inherent power to regulate the use of its processes by parties to the litigation”.
The terms of the subpoenas
59․The subpoena the plaintiff desired to issue against the first defendant was not in evidence, but the plaintiff told me that the documents he sought were described as follows:
Produce response to each of the paragraphs to the form 219, notice to admit facts, served on you.
60․That notice to admit facts is not in evidence before me and no submissions were made as to how those documents were of any relevance to the proceedings.
61․The other subpoenas were, I am told, in substantially the same form as each other (but more extensive to that directed to the first defendant). The documents sought in Exhibit C, the subpoena directed to the second defendant, to take an example, sought the following documents:
1. Copy of the specific email attaching and distributing material before the Council meetings, on or before 15 February 2023
2. Any communication between Ms Binstock and Mr Reis about Emmanuel Ezekiel-Hart from 1st January 2023 to 31 May 2023.
3. Any communication between Mr Reis and Ms Carton about Emmanuel Ezekiel-Hart from 1st January 2023 to 31 May 2023.
4. Any communication between Mr Reis and Ms Choudhury about Emmanuel Ezekiel-Hart from 1st January 2023 to 31 May 2023.
5. Any communication between Mr Reis and the Council about Emmanuel Ezekiel-Hart from 1st January 2023 to 15 May 2023.
6. Any communication between Ms Binstock and Ms Carton about Emmanuel Ezekiel-Hart from 1st January 2023 to 31 May 2023.
7. Any communication between Mr Reis, Ms Carton, Ms Binstock and Ms Choudbury about Emmanuel Ezekiel-Hart from 1st January 2023 to 31 May 2023.
8. Any communication between Ms Choudhury and Ms Carton about Emmanuel Ezekiel-Hart from 1st January 2023 to 31 May 2023.
9. Minutes of meetings of Council and Executive about Emmanuel Ezekiel-Hart from 1st January 2023 to 31 May 2023.
10. The email that conveyed the out of session Council meeting of 18 April 2023.
11. The emails leading to the signing on 16 May 2023 by Susan Platis of 18 April 2023 meeting.
12. Please provide the emails and papers prepared and sent on 15 February 2023 by Mr Robert Reis.
13. Please provide the email responses to the emails of Mr Reis to members of Council or executive about Emmanuel Ezekiel-Hart on 15 February 2023.
14. Provide and open the redacted portion of the minutes about Emmanuel Ezekiel-Hart between paragraphs 5.2 and 5.5 on the 20 February 2023 minutes.
15. Provide the email conveying the minute and papers about Emmanuel Ezekiel-Hart signed by Susan Platis on 21 March 2023.
16. Minutes of Council and the Executive between 30 June 2020 and 13 July 2020.
17. All documents signed by the President of the ACT Law Society about Emmanuel Ezekiel-Hart from 15 February 2023 to 31 May 2023.
18. Any other documents created about Emmanuel Tam Ezekiel-Hart for the period between 30 January 2023 and 31 May 2023.
Decision on the subpoenas
62․As I have said earlier, no attempt was made by the plaintiff to explain what legitimate forensic purpose (in the relevant sense) was served by seeking these documents other than for purposes which, in my view, are impermissible (such as for the purpose of amending a statement of claim).
63․The terms of the subpoenas are broad and so broad, in my view, as to be oppressive in the circumstances where the pleadings are legally incompetent.
64․In all of those circumstances, I am not satisfied that there is any legitimate forensic purpose (in the relevant sense) to be served by granting leave to issue these subpoenas and I refuse the application.
Application to restrain the first defendant
65․I will turn now to the application to restrain the Tribunal proceedings instituted by the first defendant against the plaintiff on 1 May 2023.
66․The plaintiff made four submissions.
67․The first submission was that those Tribunal proceedings were brought by the first defendant to frustrate the present Supreme Court proceedings before me.
68․The second submission was that the Tribunal proceedings creates family difficulties for the plaintiff because after attending to the matters necessary for the prosecution of the present Supreme Court proceedings, the plaintiff spends the balance of his time looking for work to provide for his family and the continuation of the Tribunal proceedings would interfere with him looking for paid work.
69․His third submission was that, in effect, those Tribunal proceedings (commenced in 2023) placed him in “double jeopardy”. What he meant by that, as I understood it, is that the present Tribunal proceedings cover the same ground as the matters referred to in Exhibit B, namely the resolution of the Council not to proceed with certain disciplinary action because it was in the public interest not to do so.
70․The fourth submission was based on the terms of s 26(2)(d) of the Australian Human Rights Commission Act 1986.
71․I am not satisfied on the evidence that the Tribunal proceedings were brought for the purpose of frustrating the plaintiff's prosecution of the present proceedings in this Court.
72․The first defendant informed the plaintiff of its own-motion complaint by letter dated 24 February 2023 and the present proceedings were not commenced until 11 April 2023. That is, steps had been instituted prior to 1 May 2023 which could naturally result in the commencement of the Tribunal proceedings and at a point in time before the plaintiff had commenced the present Supreme Court proceedings. There is simply no evidence that the bringing of the Tribunal proceedings on 1 May 2023 was for any purpose other than a legitimate purpose and so I reject the submission.
73․I do not accept the submission that the Tribunal proceedings creates family difficulties for the plaintiff. There is no evidence placed before me of how much time the plaintiff spends either on the Supreme Court proceedings or on the Tribunal proceedings. There is no evidence before me of the amount of time taken by the plaintiff to look for work. There is no evidence placed before me of facts by which any judgement could be made that the continuation of the Tribunal proceedings would interfere with the plaintiff's attempts to find paid work after dealing with the matters necessary for the prosecution of these Supreme Court proceedings.
74․No doubt in some general sense the Tribunal proceedings create a degree of stress for the plaintiff. There is no doubt that the plaintiff is very concerned for his family, and they are legitimate concerns.
75․However, those concerns, of themselves, and the absence of any of the facts that I have mentioned, are insufficient to persuade me to issue an injunction to restrain the Tribunal proceedings which otherwise have the appearance of being legitimately brought.
76․I do not accept the plaintiff's third submission about double jeopardy. It is clear from the terms of the application for disciplinary action, which was provided to the plaintiff under cover of a letter dated 28 April 2023, that there are a large number of facts and circumstances which postdate 2016 and which are relied upon in the present disciplinary proceedings. In addition, as I have said previously, I do not know what the facts and circumstances were which led to the resolution set out in Exhibit B. Thus I cannot determine what degree of overlap, if any, exist.
77․I also do not accept the plaintiff's fourth submission. Section 26 of the Australian Human Rights Commission Act 1986 says:
26Offences relating to administration of Act
(1) A person shall not hinder, obstruct, molest or interfere with:
(a)a member participating in an inquiry or examination under this Act; or
(b)a person acting for or on behalf of the Commission, while that person is holding an inquiry or carrying out an investigation under this Act.
Penalty: 10 penalty units.
(2) A person who:
(a)refuses to employ another person; or
(b)dismisses, or threatens to dismiss, another person from the other person’s employment; or
(c)prejudices, or threatens to prejudice, another person in the other person’s employment; or
(d)intimidates or coerces, imposes any pecuniary or other penalty upon, or takes any other disciplinary action in relation to, another person;
by reason that the other person:
(e)has made, or proposes to make, a complaint to the Commission; or
(f)has alleged, or proposes to allege, that a person has done an act or engaged in a practice that is inconsistent with or contrary to any human right; or
(g)has furnished, or proposes to furnish, any information or documents to the Commission or to a person acting for or on behalf of the Commission; or
(h)has given or proposes to give evidence before the Commission or to a person acting on behalf of the Commission;
commits an offence punishable upon conviction:
(j)in the case of a natural person—by a fine not exceeding 25 penalty units or imprisonment for a period not exceeding 3 months, or both; or
(k)in the case of a body corporate—by a fine not exceeding 100 penalty units.
(3) It is a defence to a prosecution for an offence under subsection (2) constituted by subjecting, or threatening to subject, a person to a detriment specified in paragraph (2)(a), (b), (c) or (d) on the ground that the person has alleged that another person has done an act or engaged in a practice that is inconsistent with or contrary to any human right if it is proved that the allegation was false and was not made in good faith.
Note: Sections 136.1, 137.1 and 137.2 of the Criminal Code deal with making false or misleading statements, giving false or misleading information and producing false or misleading documents.
78․To make good this submission, the plaintiff would need to provide proof that any one or more of the first to sixth defendants have intimidated or coerced or imposed any pecuniary or other penalty upon or taken any other disciplinary action in relation to the plaintiff by reason that the first to sixth defendants have done the particular matters set out in s 26(2)(e) to (h).
79․There is no evidence before me that the Tribunal proceedings were commenced for any of the purposes set out in s 26(2) upon which the plaintiff relies. Mere suspicion is not enough.
80․In all of those circumstances, I am unpersuaded that the injunction sought by the plaintiff ought to be granted.
Orders
81․Accordingly, I make the following Orders:
(1)The plaintiff's application in proceeding filed 26 July 2023 is dismissed.
(2)The plaintiff is to pay the defendants' costs.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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