Fay Marie Kelsall and Paul Anthony Kelsall and Eunice Ying Teng Kelsall v Brisbane City Council
[2010] QLC 117
•19 August 2010
LAND COURT OF QUEENSLAND
CITATION: Fay Marie Kelsall and Paul Anthony Kelsall and Eunice Ying Teng Kelsall v Brisbane City Council [2010] QLC 0117 PARTIES: Fay Marie Kelsall and Paul Anthony Kelsall and Eunice Ying Teng Kelsall
(Applicants/Respondents)v. Brisbane City Council
(Respondent/Applicant)FILE NO: AQL016-08 DIVISION: Land Court of Queensland PROCEEDINGS: Hearing of an Application DELIVERED ON: 19 August 2010 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour, Mr WL Cochrane, Member ORDERS:
1. Grant an abridgement of time for the bringing of the application and the giving of notice to the respondents to the application
2. Set aside the subpoena issued on 6 August 2010 directed to Campbell Newman to produce documents and give evidence.
3. The respondents to the application Fay Marie Kelsall, Paul Anthony Kelsall and Eunice Ying Teng Kelsall pay the costs of the subpoenaed person Campbell Newman and of the Brisbane City Council of and incidental to the application on a standard basis, such costs being limited to one counsel.
CATCHWORDS: Subpoenae – Application to set aside considerations – Production of documents
APPEARANCES: Mr GJ Gibson QC with Mr DA Quayle for Applicant (Subpoenaed Person Newman) and Brisbane City Council
Mr PA Kelsall in person
Background
On the 6 August 2010 Fay Marie Kelsall, Paul Anthony Kelsall and Eunice Ying Teng Kelsall filed a request for subpoena which was accompanied by a pro forma of a subpoena for production and to give evidence directed towards one Campbell Newman who, relevantly, happens to be the Lord Mayor of Brisbane City. The request and subpoena were, respectively, in form 12 and form 15 of the Land Court forms issued pursuant to s. 24 of the Land Court Rules 2000.
Rule 24 of the Land Court Rules provides:
“24 Subpoenas
Chapter 11, part 4 of the uniform rules applies, with necessary changes, to subpoenas in relation to proceedings in the court.”
By application filed on 13 August 2010 the Subpoenaed person, Campbell Newman, has applied for the following relief:
“1.That, as necessary, the time for the bringing of the Application be abridged.
2.That the Subpoena issued on 6 August, 2010 be set aside.
3.That the Applicants (in the substantive proceeding) pay the Subpoenaed person’s costs of and incidental to this Application.”
The grounds upon which that relief are sought are expressed as follows:
“1.For the subpoenaed person to comply with the Subpoena would be oppressive because the Subpoenaed person can give no evidence relevant to the proceeding to which the Subpoena relates, namely, the Application for rehearing referred to above.
2.The Subpoena has been brought for an improper purpose and is an abuse of process.
3.The Subpoena is embarrassing because it does not satisfy the requirements for a valid Subpoena by reason of not identifying the documents which the Subpoenaed person is required to produce.”
The application by the Brisbane City Council was accompanied by an affidavit sworn by Geoffrey John Evans on 13 August 2010. Mr Evans deposes to having been advised by the Chief Legal Counsel of the Brisbane City Council, one David Askern, that he holds instructions from the Lord Mayor to apply to the Court to set aside the purported Subpoena of 6 August 2010.
The application filed on 13 August 2010 also seeks an abridgement of time for the bringing of the application and a consequential shortening of the time required by the Rules from the five days required by Rule 19(3) to a shorter period, presumably three or four days. Given the circumstances and the fact that the subpoena is otherwise returnable tomorrow I see no reason not to grant an abridgement of time.
The return date and time for the subpoena which was sought by the Kelsalls is at 12 noon on Friday 20 August 2010. That is the return date for a general application filed by the Kelsalls on 6 August 2010 which general application seeks a rehearing and is said, on its face, to be based upon the following:
“the Kelsall family request that the Land Court rehear the applactian (sic) made on the 5 July 2010 which was then heard on the 4 August 2010. Because the Land Court member Mr W.L. Cochrane showed bias and granted favour to the Brisbane City Council.”
The articulation in the general application of “grounds on which orders or other relief is sought” is as follows:
“the land Court Member Mr W.L. Cochrane showed bias and granted favour to the Brisbane City Council in all of his hearings.
Human Rights and Equal Opportunity Commission Act 1986 No. 125 of 1986 Schedule 2.
Article 14. (1)
Article 19 (1)(2).”
Rule 416 of the UCPR permits the Court to make an order setting aside all or part of a subpoena.
It is convenient to deal with each of the two parts of the subpoena, namely:
(a) on the one hand the identification of the documents required to be produced and
(b) on the other hand the utility of having Mr Newman appear to give evidence. The utility of Mr Newman being called to give evidence would seemingly have two parts as well, namely whether he is to give evidence about documents which remain unspecified and whether he can otherwise give evidence which would be of assistance to the Court in the context of the application made by the Kelsalls and filed on 6 August 2010 whereby they seek a rehearing.
Chapter 11 Part 4 of the Uniform Civil Procedure Rules 1999 deals with subpoenas. Rule 414(5) provides that a subpoena must not be filed.
More importantly Rule 414(8) provides:
“A subpoena requiring a person to produce a document or thing must include an adequate description of the document or thing.”
It is noteworthy that form 15 of the Land Court forms provides, at about the middle of the form:
“SCHEDULE
(description of document or thing)”
The subpoena prepared by the Kelsalls neither contains nor has attached to it a schedule of any sort so that there is no description of what documents or things are required to be produced by Mr Newman.
The subpoena clearly does not comply with the UCPR.
It is unjust to issue a subpoena for all documents without specifying any of them. See S v J.[1]
[1] (1958) 75 WN 313.
I must of course also be mindful of the provisions of Rule 371 of the UCPR which at 371(1) provides:
“A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.”
As commented by the learned authors of Civil Procedure Queensland (edited by the Honourable Justice J S Douglas) (Butterworths) Australia 1999:
“The effect of Rule 371(1) is that a non-complying document or step is not ineffectual merely for non-compliance with the UCPR unless there are additional complications. It may, however, be appropriate to set aside the step taken or document made; Collie v Edmunds (2006) QSC 343.”
In the Collie decision Mackenzie J observed:
“where there has been non-compliance with the UCPR, the non-complying document or step is not ineffectual, in the absence of any additional complication, merely because the UCPR have not been complied with (Bates v Queensland Newspapers Pty Ltd [2001] QSC 83; New Asian Shipping Company Ltd v Omar Farooq Sultan [2005] QSC 228). There is no reason why, if there is a withdrawal of an admission without leave, it should not be treated as an irregularity, not an ineffectual step.”
In the current case there is an “additional complication” and that is that it is difficult to see how an individual, let alone a Lord Mayor of one of the largest local governments in the world, could be expected to simply turn up in court and produce a vast array of documents in answer to a subpoena which clearly fails to identify any documents whatsoever. I regard that as an “additional complication” which of itself would justify setting aside the step taken by the issue of a subpoena in response to a request made by the Kelsalls or at least the part of the subpoena requiring the production of documents.
The learned authors of Civil Procedure Queensland observe as follows:
“A subpoena for production, whether addressed to a party or a stranger to the litigation, must specify the documents required to be produced to the Court with sufficient precision to enable the witness to identify the documents sought: Rule 414(8); Earl of Powis v Negus [1923] 1 Chance 186 at 190; Commissioner for Railways v Small [1938] 38 SR (NSW) 564 at 573. Should the subpoena not do so it will be oppressive and be set aside upon application of the witness. The rationale is that where documents commanded to be produced by a subpoena are vaguely or insufficiently identified the witness will be required to search through their documents and decide which are relevant to the issues. Such an imposition upon the witness is both oppressive and improper because as a stranger to the litigation they would be unaware of the issues involved and it is also an ursupation of the judicial function to decide relevance; Burchard v MacFarlane; ex parte Tindall [1891] 2 QB 241 at 247 per Esher MR and at 251 per Fry LJ; Finney v Dalgleash [1982] 1 NSWLR 400; Air Pacific Limited v Transport Workers Union of Australia [1993] 40 FCR 1. Therefore a party cannot use a subpoena to “fish for information” or to obtain “defacto discovery”; (my underlining)
Rule 415 of the UCPR provides at sub-rule (2):
“(2) Also, a subpoena for production must bear a notice, to be set out in the approved form advising the person required to comply with it that the person has the right to apply to the court to have the subpoena set aside on any sufficient grounds, including—
(a) want of relevance; or
(b) privilege; or
(c) oppressiveness, including oppressiveness because substantial expenses may not be reimbursed; or
(d) noncompliance with these rules.”
Having regard to UCPR 371 I gave Mr Kelsall an opportunity in Court this morning to identify with some particularity the documents which he sought be produced by the Lord Mayor pursuant to the subpoena.
Mr Kelsall told the Court (and confirmed on several occasions) that all of the documents he wishes to have produced pursuant to the subpoena were copies of documents prepared by him and sent by him to the Lord Mayor. That is to say that the subpoena was directed towards recovering documents of which Mr Kelsall was the author and of which, presumably, he retains copies.
Mr Gibson QC for the Brisbane City Council advised the Court that according to his instructions he did not anticipate there would be any dispute about the receipt by the Lord Mayor of documents sent by Mr Kelsall.
In that regard, once the Court has become aware of the nature and detail of the documents sought it becomes clear that that part of the subpoena really has no utility whatsoever. It is not a case where Mr Kelsall is trying to obtain documents which he does not otherwise have.
As to the failure by the Kelsalls to identify any documents in the request for a subpoena or on the subpoena document itself, I have little difficulty with the notion that that aspect of the subpoena should be set aside, having already observed above that it does not comply with the UCPR and that the documents sought really have no utility for tomorrow’s proceedings.
Once the part of the subpoena requiring production of documents is set aside all that remains then is to consider whether there is any utility in having Mr Newman continue to answer the subpoena in the context of giving evidence about documents and secondly, whether his presence pursuant to a subpoena would constitute oppression.
There is good authority for the proposition that an application to set aside a subpoena may be made not only by the person to whom the subpoena is directed but also by a party to the litigation and any other person or party who might be shown to have legitimate interest in having a subpoena set aside. See Botany Bay Instrumentation and Control Pty Ltd v Stuart.[2] Further, there is also authority for the proposition that a Court may act of its own motion to set aside an oppressive subpoena which is addressed to a non-party. See Compsyd Pty Ltd v Streamline Travel Service Pty Ltd.[3] Accordingly, even though this application is expressed to have brought by the subpoenaed person Campbell Newman, it was at all times open to the Brisbane City Council to bring an application to set aside the subpoena and it remains within the ambit of the Court’s inherent jurisdiction to act of its own volition to set aside a subpoena if it satisfied that it is oppressive.
[2] (1984) 3 NSWLR 98.
[3] 10 NSWLR 648.
Mr Paul Kelsall who appeared for all of the applicants told the Court that the basis upon which he sought to have Mr Newman attend and give evidence was, in the first place, to identify the documents which had been sent to him by Mr Kelsall and secondly to give evidence about whether or not he would support what Mr Kelsall persisted in referring to as a “discontinuance” of the application (which seems to have been clarified by Mr Kelsall as generally meaning that he wishes to have a permanent stay of the proceedings).
Both of those purposes smack of utilising the subpoena process to get evidence which has no relevance at all to the application on Friday which seeks a rehearing of an earlier application in which it is alleged by the Kelsalls that I as the Land Court Member showed bias and granted favour to the Brisbane City Council. It is difficult to see any basis upon which the view of the Lord Mayor as to the utility of a permanent stay could be made relevant to an application for rehearing of a matter in which bias is alleged.
It is impossible to see how Mr Campbell Newman, either in his role as a private citizen or, more particularly in his role as the Lord Mayor of Brisbane, could provide any evidence which would go towards establishing either bias or favouritism on my part in the exercise of discretions by me, either with respect to staying the whole proceeding brought by the Kelsalls or with respect to costs orders I made consequent upon dismissing an application by Mr Kelsall.
Arguably, Mr Newman may from time to time have had in his possession documents which might properly be characterised as the property of the Brisbane City Council and which related to the resumption of the Kelsall land. While it is unnecessary for me to determine the point today, it seems unlikely that Mr Newman is the proper officer to whom subpoenas should be directed in order to obtain documents the property of the Brisbane City Council.
The courts have on a number of occasions considered cases where it is alleged that the issue of a subpoena constitutes an abuse of process. In R v Baines,[4] R v Hove Justices, ex parte Donne,[5] and in Botany Bay Instrumentation and Control Pty Ltd v Stewart,[6] it was confirmed that where a subpoena has not been served bonafide for the purpose of obtaining relevant evidence and the witness named therein is in fact unable to give relevant evidence then that constitutes an abuse of process.
[4] [1909] 1 KB 258, 3 QJP 11.
[5] [1967] 2 All England 1253(n).
[6] [1984] 3 NSWLR 98.
Further, Commissioner for Railways v Small,[7] and Hennessy v Wright (No. 2),[8] also stand for the proposition that it is an abuse of process where a subpoena is being used as a substitute for discovery against a party or as an attempt to obtain discovery from a stranger to litigation. The proper party in the current litigation is the Brisbane City Council which is a corporate entity in its own right and as an individual the Lord Mayor is a stranger to the litigation.
[7] [1938] 38 SR 564.
[8] [1890] 24 QBD. 445.
Mr Gibson in written submissions to the Court which have become Exhibit 1 in this application usefully set out some relevant principles which can be gleaned from a number of reported decisions.
I can do no better than recite those principles as set out in Mr Gibson’s written submissions:
“Some relevant principles are:
(a)it is generally undesirable to use a subpoena at a very early stage of the litigation as a means of investigation[9];
[9] Queensland Trustees Limited v. White and Gardener Pty Ltd (1987) 72 ALR 287; Kennedy Taylor (Vic) Pty Ltd v. Grocom Pty Ltd [1999] VSC 242.
(b)a subpoena for production of documents must specify with particularity the documents required to be produced[10];
[10] Caltex Refining Co Pty Ltd v. Amalgamated Metal Workers Union (1990) 51 IR 113.
(c)when a party desires the production of documents in the custody of a public office, the subpoena should be directed to the office or department itself to produce documents by its “proper officer”[11];
(d)an application to set aside a subpoena will, in general, be determined by reference to whether the production of the documents is necessary and proper for disposing fairly of the proceedings and whether the process of subpoena has been abused[12];
(e)a subpoena must be issued in good faith and with the object and reasonable expectation of obtaining evidence which is relevant to the proceeding in which it is issued[13];
(f)a subpoena issued for an improper purpose will be set aside as an abuse of process[14];
(g)a subpoena must only be used for a legitimate forensic purpose and this will only be so where the documents sought to be produced, or evidence to be elicited from the subpoenaed person are relevant to the proceeding to which the subpoena is directed. A subpoena will be set aside if the party who issued the subpoena fails to establish that it has been issued for a legitimate forensic purpose[15];
(h)a subpoena to produce documents will be set aside as an abuse of process if it is tantamount to discovery of the person subpoenaed, whether or not that person is a party to the proceeding[16];
(i)a subpoena to produce documents will be set aside if it represents an exercise in “fishing”, that is, it is served not for the purpose of requiring production of specific documents or a specific class of documents which the person subpoenaed is reasonably expected to hold and which are likely to advance the issue in a party’s case but with the real intention of seeing what documents the parties served may have and whether the issuing party has a case at all[17];
(j)a subpoena which is ambiguous or is too wide or improperly broad is oppressive and will be set aside[18];
(k)a subpoena for production will be set aside as oppressive or an abuse of process where the documents sought are not specified with sufficient particularity;
(l)a subpoena will be set aside if the potential witness is unable to give relevant evidence or produce relevant documents[19].
[11] Hayden v. Ditfort (1988) 93 FLR 131 at 136.
[12] Harhill Pty Ltd v. General Terminal Co Pty Ltd (1990) 23 NSWLR 545; Permell Bros Pty Ltd v. Transport Engineers Pty Ltd (1984) 73 FLR 160.
[13] Ex Parte: Swiss Aluminium Australia Ltd (1986) 13 FCR 66.
[14] Hadid v. Lenfest Communications Inc [1996] FCA 36/1995 per Hill J.
[15] New South Wales Commissioner of Police v. Tuxford (2002) NSWCA 139; Maddison v. Goldrick [1975] 1 NSWLR 557; Leighton Contractors Pty Ltd v. Western Metals Resources (2001) 1 Qd.R. 261 per Mackenzie J; Xstrata Queensland Ltd v. Santos Ltd [2005] QSC 323.
[16] Finnie v. Dalglish [2002] 1 NSWLR 400.
[17] Alister v. R (1984) 154 CLR 404 at 451.
[18] Gilligan v. National Nationwide News Pty Ltd (1990) 101 FLR 139.
[19] Dingle v. Commonwealth Development Bank of Australia (1989) 23 FCR 63.
In his oral submissions Mr Gibson drew the Court’s attention to the decision in New South Wales Commissioner of Police v Tuxford and in particular at paragraphs 20 to 23. Those paragraphs are as follows:
“20 Next, the claimant contended that the subpoena lacked a legitimate forensic purpose. Once again, it is plain beyond argument that, if documents are produced on subpoena, and objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose. In that context it is said that a party is not entitled to go on a fishing expedition, nor should the court do so: Small at 575; R V Saleam (1989) 16 NSWLR 14 at 1718; and Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. See to Air Canada v Secretary for State for Trade [1983] 2 AC 394 at 439 and 453 and Alister v The Queen (1984) 154 CLR 404 at 414.
21 However, it is not necessary for the recipient of a subpoena to actually produce the documents to the court, and then to argue that inspection should not be permitted. The respondent may instead move to set aside the subpoena: Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498.
22 In the case, at 504, Barr AJ, as he then was, said:- ‘It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made’.
23 The opponents did not, either in the District court or in this Court, attempt to do this, except in terms of the utmost generality, and without reference to the numbered paragraphs of the subpoena. In the District Court, it was apparently thought that it was the obligation of the judge herself to go through the paragraphs of the subpoena, and to give rulings on the sixty-six paragraphs. However, it was the obligation of the opponents to justify the subpoena, and in a case such as the present one, to do it be reference to the sixty-six paragraphs, either individually or, where appropriate, by grouping different paragraphs together.”
Further with respect to the failure to identify any particular documents to be produced pursuant to the subpoena, that failure also constitutes oppression as discussed in the extract from Civil Procedure Queensland. (see para 21)
Those observations are all entirely apposite to the present case. They fully explain why the Court is justified in setting aside the subpoena in its entirety, that is to say both with respect to the production of documents and with respect to the attendance of Mr Newman at the hearing on Friday.
I observe as an aside that the failure by the Kelsalls to provide conduct money or any sums of money payable as normal witness expenses would also have justified Mr Newman being excused for compliance with the subpoena.
I allow the application by the subpoenaed person Newman and set aside the subpoena issued on 6 August 2020 in its entirety.
Because Mr Newman was compelled to bring this application and because I think it entirely reasonable that the application should have been brought prior to the date upon which compliance with the subpoena was required it seems to me inescapable that the Kelsalls ought pay his and the Brisbane City Council’s costs of and incidental to the application on a standard basis. I note that the Brisbane City Council saw fit to engage senior counsel together with a relatively senior junior barrister and in those circumstances direct that the order for costs should be limited to one counsel. The order will be that the applicants in the primary proceedings, the Kelsalls pay Campbell Newman’s and the Brisbane City Council’s costs of and incidental to the application on a standard basis.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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