Gao v ANZ Banking Group Limited
[2003] VSC 170
•29 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 6371 of 1999
| PENG YUAN GAO | Applicant |
| v | |
| ANZ BANKING GROUP LTD | Respondent |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 MAY 2003 | |
DATE OF JUDGMENT: | 29 MAY 2003 | |
CASE MAY BE CITED AS: | PENG YUAN GAO v ANZ BANKING GROUP LTD | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 170 | |
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practice and procedure – Failure to comply with subpoena – Summons for contempt of court and damages – Summons dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr P. Crutchfield | Counsel for Australia and New Zealand Banking Ltd |
HIS HONOUR:
By summons dated 2 May 2003, the applicant, Peng Yuan Gao, sought the following orders against the respondent, ANZ Banking Group Ltd (“the Bank”):
“1.A declaration that pursuant to the legal principle that a subpoenaed party is required to comply with a subpoena, the respondent [ANZ Banking Group Ltd] was required to comply with the subpoena issued by the applicant on 12 February 2002 and failed to do so, prima facie contempt of court.
2.Pursuant to legal principle that a party on whose behalf a subpoena is served may recover damages from a witness for not complying with the subpoena, the applicant be awarded damages resulting from non-production by the respondent to the subpoena issued by the applicant on 12 February 2002.
3.Such further or other orders as the Court may deem fit.”
In his affidavit sworn on 2 May 2003, the applicant sets out a portion of the factual background to the issuing of the 12 February 2002 subpoena.
In litigation against his former de facto wife, Yu Jing Zhu (“Zhu”), the applicant obtained a partial judgment in default of appearance of Zhu for $163,000 plus interest by way of damages of $35,681.37. It is unnecessary to set out all the twists and turns in this legal saga but I note that subsequently, on 19 July 2001, Gillard J made an interim Mareva order which, inter alia, restrained Zhu from disposing of her assets.
According to the affidavit of Mr Travis Iglewski, a corporate lawyer employed by the respondent, there is no record of this order being served on it.
On the material before the Court, Zhu disposed of $30,064.78 on 20 July 2001 from ANZ Account 9862-96476 by way of a bank cheque to herself for $25,064.78 and a withdrawal of $5,000 cash. This emptied the account of funds.
On 26 July, the applicant filed a summons seeking $30,000 and $20,000 for disobedience of the Court Order of 19 July 2001. This apparently related to the alleged transfer by Zhu of a Mazda vehicle to her then boyfriend on 23 July in contravention of the restraining order. According to an earlier affidavit of the applicant, dated 26 July, the restraining order was served on Zhu on the twentieth of that month.
The 26 July summons was finally determined by Eames J on 12 December 2001. In his judgment, his Honour effectively found that Zhu was aware of the existence of the restraining order by 20 July 2001. Justice Eames found her guilty of contempt of court and imposed a fine of $2,000 suspended upon payment of that amount into court within 14 days. Justice Eames declined to make an order for the $30,000 to $35,000 sought by the applicant as representing the lost value of an asset otherwise available to him in satisfying the default judgment. An appeal against this refusal was unsuccessful. Other orders were made by Eames J but are not relevant to the background history of this matter.
It was not until 30 July 2001 that a subpoena was served by the applicant on the respondent. This was at a time subsequent to the final withdrawal of money from Zhu’s account. It provoked a letter dated 30 July forwarded to the Court with a copy faxed to the applicant. The letter sought further details such as the address and date of birth of Zhu. As I understand the applicant, he claims not to have received that letter. I do not accept that as being accurate. Indeed, the records of the respondent reveal a further subpoena dated 1 August and received on that date which, significantly, contained the very details sought from the applicant in the respondent’s letter.
According to the respondent there was a response to that subpoena on 1 August 2001. It comprised a letter of that date signed by a Ms. Sue Grubb, Compliance Officer of the respondent, and provided full details of the sole account of Zhu at the Bank for its operational period. The letter was addressed to “The Prothonotary (sic) Office”.
As I understand the submissions of the applicant, he claimed not to have seen this information. Indeed, in his May affidavit, he claimed to have had subsequent conversations with Ms Grubb about the future provision of this information. That the requisite information was compiled by the respondent tends to be confirmed by the documents provided to the Court by the applicant himself – namely a letter of advice as to the cost of collation and production of the relevant documentation and a specific tax invoice for the same. All these documents were dated 1 August 2001. According to the applicant, he wrote to the respondent in effect seeking postponement of payment of the amount sought on the basis that he was unemployed and impecunious.
Whilst I am satisfied that the Bank collated the information it is more problematic as to whether it was forwarded to the Court. The applicant asserted that a search of the Court file conducted on 18 December 2001 failed to reveal the relevant information and a perusal of the file which I conducted, also failed to locate the material. Moreover, and significantly, there is a faxed letter from Ms. Sue Grubb addressed to “The Registrar, Supreme Court Victoria” relating to the subpoena received on 1 August by the Bank. The fax which bears the time and date of 10.40 am 1 August 2001 states, among other things:
“I wish to advise that the ANZ Bank is unable to comply with the subpoena due to insufficient time allocated for the collation and delivery of the documentation. The requested documents will be retrieved and forwarded to the court as soon as possible.”
The document also contains the handwritten comment: “Please note, no conduct money received with either subpoena”. (The relevant subpoena is attached.) I note that this fax was not exhibited to the affidavit of Mr Iglewski.
It is highly likely, in my view, that the material sought by the applicant did not find its way onto the Court file. This may have been because of the non-provision of conduct money or perhaps because of the erroneous view that non-payment of the costs of collation and production absolved the respondent from compliance. The general attitude of the respondent is revealed in a letter of 7 January 2002 addressed to “The Registrar, Supreme Court, Prothonotary Office”. It refers to the next subpoena in this sequence, namely that of 28 December 2001, and states that the subpoena would not be complied with as no conduct money was received with it.
It was pointed out by Mr Crutchfield, who appeared on behalf of the respondent, that both the 1 August subpoena and the response to it bore the notation 6371/2001, whereas the action involved was 6371/1999. It was suggested that the documentation could, therefore, have been misplaced. Given the unusual names of the parties in this action I regard that as unlikely.
The further subpoena to the respondent, dated 28 December 2001, to which I have already referred, essentially sought the same information as the earlier subpoenas but, in addition, requested information about accounts held jointly or singly by a person named Wen Ai Chen. As I have indicated, conduct money was not supplied with this subpoena and the respondent declined to comply with it.
A further subpoena was served on the respondent on 12 February 2002 together with conduct money. The Bank responded on 19 February 2002 and the Court records indicate the receipt of the documents.
The information supplied related to the account of Wen Ai Chen (Account No. 9862-54532), and the account of Wen Ai Chen and Zhenggen Zhu (Account No. 9803-24552). However, for some reason, the information requested about the account of Yu Jing Zhu (Account No. 9862-96476) was not provided by the respondent.
According to the applicant, he thereafter telephoned the Bank on 6 March 2002. He thought he spoke to Ms Sue Grubb requesting more detailed information than that produced in response to the 12 February subpoena. To this stage all the Bank had produced in relation to Zhu was the undated notation of the transfer of $94,000 from the account of Wen Ai Chen into the account of Zhu. When the applicant asked why the requested material had not been produced, he claimed in his affidavit that he was told that the Bank had forgotten to produce that material and would do so next day. In fact, early on 7 March 2002 (as the facsimile times indicate), the detailed information sought by the applicant as to the operation of Zhu’s account was provided to the Court by the respondent. It also contained disbursement details not included in the material apparently prepared on 1 August 2001.
Meanwhile, on 26 February, acting on the incomplete response to the 12 February subpoena, Habersberger J remarked, in his reasons for judgment:
“There is no evidence before me that the withdrawal of $94,000 from the ANZ Bank [by Zhu] if that is what happened, took place after the making of the restraining order.”[1]
[1]Para 14.
Let it be assumed (as I think probable), first, that the respondent did not provide the information sought by the applicant in the month following the 1 August subpoena; and, secondly, that the detailed information sought on the Zhu account (Account No 9862-96476) was not provided by the Bank until 7 March 2002. What follows from this?
It is clear that the balance of that account, much reduced by the date of the restraining order on 19 July 2001, was paid out on 20 July 2001. Whether this was before or after the restraining order was actually served on Zhu, is far from clear. What is clear is that the balance of the money in Zhu’s account had been paid out of it some 10 days before the first subpoena was issued by the applicant. Accordingly, had the full information been provided by the respondent at that time, there was no money in the account left to restrain and, further, on the material it was problematic whether there had been a breach of that order on 20 July.
By summons dated 17 April 2002, the applicant claimed the following relief:
“Defendant pays $30,064 + $20,000 to the Court or plaintiff with respect to contempt of Court by the virtue of disobedience of the Court order made on 19 July 2001 for purpose of hiding her assets from it would have been asset available for plaintiff in satisfaction of judgment.”
This summons came before Byrne J some 11 months later. In his judgment, delivered on 28 March 2003, his Honour saw this summons in the same terms as the earlier one determined by Eames J on 12 December 2001. He declined to take any further action against Zhu.
In his affidavit of 2 May, the applicant claimed damages for $30,064.78 for himself. Additionally, if I heard him correctly (and without the aid of an interpreter which the applicant refuses to utilise, he is difficult to understand), he also sought the imposition of a fine on the respondent for contempt of court of $20,000. In other words, it appears that the applicant is now pursuing the respondent in an endeavour to obtain the same damages and pecuniary penalty that he unsuccessfully attempted to obtain in his April 2002 summons against Zhu.
In terms of damages, this action is misconceived. Nothing the Bank did has any bearing on the money already disposed of by Zhu prior to the issuing of any subpoena.
Insofar as contempt of court is alleged against the respondent, I make the following points. The respondent was not obliged to answer the subpoena of 30 July or 1 August in the absence of the appropriate conduct money[2]. It would, however, have been appropriate and desirable for a large corporation such as the respondent dealing with a litigant in person to have informed the applicant of the invalidity of his subpoena. Insofar as it is submitted that the failure of the applicant to tender an amount of money sufficient to cover the expenses involved in production of the subpoenaed material, absolved the respondent from compliance with the subpoena, such argument is flawed. Whilst r. 42.08 of the Supreme Court Rules permits the recovery of expenses reasonably incurred in complying with the subpoena and substantially in excess of any conduct money provided, this is a matter for application to the Court and does not warrant a refusal to comply with the subpoena[3].
[2]See Barnes; Rule nisi for Contempt of Court (1968) 1 NSWR 697.
[3]See Pyramid Building Society (In Liq) and Ors v Farrow Finance Corporation (In Liq) and Ors (1995) 1 VR 464.
Further, I do not accept the respondent's assertion that the subpoena of 12 February was ambiguous. It is a matter of regret that the respondent did not initially comply with it fully. I note that, at the time, there was no claim that the conduct money provided was inadequate.
On the other hand I do not accept that the Bank, which knew nothing of the actual litigation in which the applicant was involved, consciously failed to produce all the information sought in the 12 February subpoena.
In the circumstances I do not find the respondent Bank to be in contempt of court.
One result of the course of events that I have outlined is that both Eames J and Habersberger J were not in possession of all the facts relating to Zhu’s conduct when making their decisions. It does not follow, however, that their decisions would necessarily have been any different given the factual circumstances that I have outlined.
It was submitted, on behalf of the respondent, that this proceeding was not properly brought and that, pursuant to r. 75.06(3) of the Supreme Court Rules, it should have been brought by way of originating summons. There would appear to be merit in the submission. However, I have dealt with the substantive matters to dispose of any further action on this topic. In any event, the summons of 2 May must be dismissed.
Finally, given the circumstances that led to this matter coming before the Court, I order that each party bear its own costs.
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