Hanson-Young v Leyonhjelm (No 2)

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FEDERAL COURT OF AUSTRALIA

Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393

File number: NSD 1370 of 2018
Judge: WHITE J
Date of judgment: 21 March 2019
Catchwords:

PRACTICE AND PROCEDURE – application pursuant to r 21.01 of the Federal Court Rules 2011 (Cth) for an order that the Applicant provide written answers to interrogatories – whether such an order is necessary for the fair disposition of the proceeding or to save costs – application refused.

PRACTICE AND PROCEDURE – application by interlocutory application for leave to issue two subpoenas for two persons to attend trial to give evidence – consideration of circumstances in which the Court grants leave – leave granted.

Legislation:

Parliamentary Privileges Act 1987 (Cth) s 16(3)

Federal Court Rules 2011 (Cth) rr 21.01, 24.01

Cases cited:

Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN(NSW) 250

Austal Ships Pty Ltd v Incat Australia Pty Ltd [2010] FCA 795; (2010) 272 ALR 177

Lynch v Cash Converters Personal Finance Pty Ltd (No 4) [2018] FCA 988

Date of hearing: 12 March 2019
Registry: New South Wales
Division: General Division
National Practice Area: Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 84
Counsel for the Applicant: Ms S Chrysanthou with Mr B Dean
Solicitor for the Applicant: Kennedys
Counsel for the Respondent: Mr AJH Morris QC with Mr KE Stoyle
Solicitor for the Respondent: Sterling Law

ORDERS

NSD 1370 of 2018
BETWEEN:

SARAH HANSON-YOUNG

Applicant
AND:

DAVID EAN LEYONHJELM

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

21 MARCH 2019

THE COURT ORDERS THAT:

1.The Respondent’s application for an order that the Applicant provide written answers to the interrogatories in the form of Exhibit LB1 to the affidavit of Mr Leon Bertrand made on 15 February 2019 is refused.

2.Subject to the approval by a Registrar of the content of the proposed subpoenas, the Respondent is granted leave to issue subpoenas to Senators Stirling Griff and Derryn Hinch to attend to give evidence at the trial.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

WHITE J:

  1. The principal issue presently before the Court is whether the applicant should be ordered, pursuant to r 21.01 of the Federal Court Rules 2011 (Cth) (the FCR), to provide written answers to interrogatories. The respondent also seeks leave to issue two subpoenas.

  2. In the underlying proceedings, the applicant seeks damages (including aggravated damages) from the respondent in respect of alleged defamatory statements made by him commencing on 28 June 2018 and continuing until 2 July 2018, with some republications.  The circumstances of the action are substantially, but not wholly, set out in my judgment on the respondent’s application seeking the striking out of the applicant’s Amended Statement of Claim (ASC) and for the permanent stay or dismissal of the proceedings: Hanson-Young v Leyonhjelm [2018] FCA 1688 (the Strike Out Judgment).

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Details
Case
[2019] FCA 393
Decision Date

CaseChat Overview and Summary

This case involved an application by Senator Derryn Hinch against Senator Sarah Hanson-Young in the Federal Court of Australia. The primary issue was whether Hanson-Young was required to provide written answers to interrogatories posed by Hinch, as well as Hinch's request for leave to issue subpoenas to two other Senators, Stirling Griff and Derryn Hinch, to attend and give evidence at the trial. The application by Hinch raised questions about the necessity for such interrogatories and subpoenas in the fair disposition of the proceeding and to save costs. Additionally, it examined the circumstances under which the court grants leave to issue subpoenas.

The court examined the necessity for ordering Hanson-Young to provide written answers to interrogatories, considering whether such an order was required for the fair disposition of the proceeding or to save costs. The court found that it was not necessary to order Hanson-Young to answer the proposed interrogatories. The court also deliberated on the circumstances that warrant granting leave to issue subpoenas, considering the purpose of the requirement for leave and whether the request for leave was reasonable. The court concluded that leave should be granted if the request was reasonable and there were no negative factors such as the subpoena being vexatious, oppressive, or for an improper purpose. Given that the Senators had declined to cooperate with Hinch’s solicitors in preparing witness affidavits, the court found that issuing subpoenas was reasonable.

The court ruled that Hanson-Young was not required to answer the interrogatories proposed by Hinch. The court also granted Hinch leave to issue subpoenas to Senators Griff and Hinch, subject to the approval by a Registrar of the content of the proposed subpoenas. This decision underscores the court's approach to balancing the necessity for fair disposition of proceedings with the protection against unnecessary coercive measures.

ORDERS:

1. The application for an order that Hanson-Young provide written answers to the interrogatories proposed by Hinch is refused.
2. Hinch is granted leave to issue subpoenas to Senators Griff and Hinch to attend and give evidence at the trial, subject to the approval by a Registrar of the content of the proposed subpoenas.

Orders

Orders of the court

1. The Respondent’s application for an order that the Applicant provide written answers to the interrogatories in the form of Exhibit LB1 to the affidavit of Mr Leon Bertrand made on 15 February 2019 is refused.

2. Subject to the approval by a Registrar of the content of the proposed subpoenas, the Respondent is granted leave to issue subpoenas to Senators Stirling Griff and Derryn Hinch to attend to give evidence at the trial.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I decline to order the applicant to answer this proposed interrogatory.Conclusion on respondent’s application concerning interrogatories For these reasons, I decline to order the applicant to answer any of the interrogatories proposed by the respondent in his Interlocutory Application of 15 February 2019 and the accompanying affidavit.The proposed subpoenas to Senators Griff and Hinch By his Amended Interlocutory Application, the respondent seeks leave pursuant to r 24.01 of the FCR to issue subpoenas to Senators Griff and Hinch to attend to give evidence at the trial of the matter. Each has declined to cooperate with the respondent’s solicitors in the preparation of a witness affidavit. The respondent’s solicitor has deposed to being instructed by the respondent that both Senators were in the Senate Chamber on 28 June 2018 when the applicant “said something during a Senate debate”. What the applicant then said is the subject of dispute between the parties. It appears that it will be necessary for the Court to make findings about what the applicant did say. Rule 24.01 provides (relevantly):24.01 Leave to issue subpoena(1) A subpoena may be issued only with the leave of the Court.(2)A party may apply to the Court for leave to issue a subpoena without notice to any other party.… Generally, applications for leave to issue a subpoena are considered by a Judge in Chambers, and without hearing from either party. The present application is unusual because it has been made by interlocutory application. No doubt because of the Court’s usual practice, there are few reported decisions concerning the exercise of the discretion to grant leave for the issue of a subpoena. In my opinion, regard should be had to the purpose of the requirement for a grant of leave. On one view, the requirement for leave could indicate that the Court should be positively satisfied that there is a real possibility that the proposed witness will be able to give evidence of assistance to the party subpoenaing him or her and that the issue of a subpoena is necessary to secure his or her attendance at trial. Another view is that leave is required in order that the Court may exercise some supervision over the issue of documents in its name which have coercive effect. Instead of seeking to be satisfied that there is a real possibility that the person may be able to give material evidence, the Court is concerned instead with whether its coercive powers are sought to be invoked unnecessarily or in a way which would be vexatious, oppressive or for an improper purpose. On that view, leave would usually be granted if the Court considers, having regard to the circumstances of the case, that the request for leave is reasonable and there is no negative factor of the kinds just mentioned. The difference between these two positions may not be significant, as it is to be expected that if a “real possibility” test was to be applied, it would be done so flexibly. No doubt, it could also take account of factors of the negative kind I have mentioned. On either approach, the threshold for the grant of leave is not high. The Court’s practice with respect to the grant of subpoenas suggests that the second of the two approaches I have mentioned may be more appropriate. It would be unfortunate if applications for leave to issue subpoenas become a more formal process and the subject of interlocutory disputation.

Ratio Decidendi

Legal Principle Established

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