I Cook Foods Pty Ltd v Greater Dandenong City Council (Subpoena Ruling)
[2024] VSC 750
•5 December 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 05525
BETWEEN:
| I COOK FOODS PTY LTD (ACN 094 392 060) & ORS (according to the attached Schedule) | Plaintiffs/Respondents |
| v | |
| GREATER DANDENONG CITY COUNCIL & ORS (according to the attached Schedule) | Defendants/Appellants |
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JUDICIAL REGISTRAR: | McCann JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 November 2024 |
DATE OF RULING: | 5 December 2024 |
CASE MAY BE CITED AS: | I Cook Foods Pty Ltd v Greater Dandenong City Council (Subpoena Ruling) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 750 |
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PRACTICE AND PROCEDURE — Appeal from Associate Judge — Rule 77.06 Supreme Court (General Civil Procedure) Rules 2015 — Notice to produce documents, summons for particular discovery and subpoena for production to Prothonotary — Where documents sought concern legal advice given to party — Where documents subject to legal professional privilege — Nature of an appeal from an Associate Judge — Receipt of further evidence upon questions of fact in the context of an appeal from an Associate Judge — No legitimate forensic purpose — Where it is not on the cards that the production documents would assist in demonstrating error — Notice to produce, summons for particular discovery and subpoena for production dismissed.
Supreme Court (General Civil Procedure) Rules 2015; Civil Procedure Act 2010; Supreme Court Act 1986.
I Cook Foods Pty Ltd v Greater Dandenong City Council [2024] VSC 496; I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654; Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; Smith v Trustees of the Christian Brothers [2023] VSC 171; Chiodo Investments Pty Ltd v Rilac Pty Ltd [2023] VSC 32; Re Ascot Vale Self-Storage Centre Pty Ltd (in liq) [2014] VSC 75; ANZ Banking Group Ltd v Loftus [2014] VSC 342; Metcalf v Wellington (No 2) [2007] VSCA 292; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19) [2018] VSC 798; Madafferi v The Queen [2021] VSCA 1; Victoria (Department of Justice) v Lane [2012] VSC 328.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs/Respondents | Mr J Ribbands | Defteros Lawyers |
| For the Defendants/Appellants | Ms S M Hooper | Maddocks |
TABLE OF CONTENTS
Introduction
Background
The Subpoena
The Notice to Produce
Legal Professional Privilege
An appeal from the decision of an Associate Judge of the Court
The parties’ submissions
Principle regarding compelled production
Application
Ground 1 – error asserted relating to a finding that there was no unjustifiable oppression
Ground 5 – error asserted relating to the finding that the commencement of this proceeding is not going to give rise to a perception that the administration is inefficient, careless of costs and profligate in its application of public moneys
Ground 3 – error asserted relating to the finding that the plaintiffs did not employ a strategy that was abusive of the Court’s process
Conclusion
JUDICIAL REGISTRAR:
Introduction
The three named defendants[1] have appealed the decision of Associate Justice Goulden to refuse their application to stay or dismiss the proceedings brought by the plaintiffs.[2] In that appeal, they seek to inspect documents produced pursuant to subpoena and to have other documents produced pursuant to a notice to produce. The plaintiffs object to inspection of the subpoenaed documents and production of the documents sought by the notice to produce.
[1]In documents filed in this matter the parties have referred to each other as plaintiffs and defendants. This nomenclature is adopted in throughout this ruling for convenience and to avoid confusion.
[2]I Cook Foods Pty Ltd v Greater Dandenong City Council [2024] VSC 496.
Background
On 23 November 2023 the plaintiffs, I Cook Foods Pty Ltd (‘ICF’) and its sole director, Ian William Cook, filed a writ and statement of claim in which it named Greater Dandenong City Council (‘GDCC’) as first defendant and two employees of the GDCC, Leeanne Johnson and Elizabeth Garlick, as second and third defendants respectively. The statement of claim alleges against the defendants the malicious prosecution of both plaintiffs and malfeasance in public office.
The corporate plaintiff had previously joined the GDCC as a defendant in proceedings S ECI 2020 02728 (‘the ICF proceeding’) initiated against the State of Victoria.[3] That proceeding concerned orders made by Dr Brett Sutton, the Acting Chief Health Officer for the State of Victoria and a delegate of the Secretary of the Department of Health and Human Services at the relevant time, requiring ICF, inter alia, to immediately cease production of food and to destroy all food manufactured from 13 January 2019. In that proceeding, ICF claimed that the order was invalid, and that, in making the order, Dr Sutton committed the tort of misfeasance in public office, and that the Department of Health and Human Services was vicariously liable for his conduct. ICF also alleged that GDCC was vicariously liable for the conduct of Ms Johnson and Ms Garlick in respect of, and following, GDCC’s inspections of ICF’s premises, constituting misfeasance in public office.[4]
[3]Approximately eight months after it commenced.
[4]I Cook Foods Pty Ltd v Greater Dandenong City Council [2024] VSC 496, [10].
In early 2022, ICF foreshadowed, but then did not pursue, amendment to their pleadings to include claims of malicious prosecution against GDCC. In June 2023, they sought unsuccessfully to amend their pleading to include a misfeasance claim against GDCC.
Ultimately, the ICF proceeding, as between ICF and GDCC, was dismissed by consent on 25 July 2023 without determination.[5] The proceeding brought by the corporate plaintiff against the state continued to judgment with reasons published on 13 November 2023.[6]
[5]Applicants, ‘Affidavit of Ian William Cook’, 12 March 2024, [17].
[6]I Cook Foods Pty Ltd v State of Victoria [2023] VSC 654.
In the current proceedings, the defendants filed a summons on 13 February 2024 seeking to summarily dismiss or, alternatively, permanently stay the proceeding.
On 27 August 2024 Associate Justice Goulden dismissed the defendants’ summons. On 10 September 2024 the defendants filed a notice of appeal from an Associate Judge.
On 21 October 2024, in the appeal, the defendants filed a notice to produce seeking:
1.Legal advice or records of legal advice given by the Plaintiffs’ legal representatives in January 2022 regarding the decision to bring a claim for malicious prosecution against the First Defendant (Council) in Supreme Court Proceeding No. S ECI 2020 02728 (ICF Proceeding), and the decision not to pursue the claim at that time (referred to in paragraph 7 of the [affidavit of Ian William Cook sworn on 11 March 2024]); and
2.Legal advice or records of legal advice given by the Plaintiffs’ legal representatives in 2023 to make an application to amend the First Plaintiff’s claim in the ICF Proceeding to include a claim for malicious prosecution against Council (referred to in paragraph 11 of the [affidavit of Ian William Cook sworn on 11 March 2024]).
On 21 October 2024, the defendants also filed a subpoena for production to the Prothonotary, directed to BSP Lawyers Pty Ltd, seeking:
1.All legal advice or records of legal advice given to I Cook Foods Pty Ltd (ICF) and/or Ian William Cook (including, without limitation, file notes taken during the mediation held in Supreme Court Proceeding No. S ECI 2020 02728 (ICF Proceeding)), regarding:
(a)settling the claims made by ICF in the ICF Proceeding against the City of Greater Dandenong (Council) on a tactical basis and/or proceeding to trial only against the State of Victoria, and/or commencing a new proceeding against Council for malicious prosecution, and/or the prospects of success of a malicious prosecution claim against Council including as compared to a claim against Council for misfeasance (referred to by Ian Cook in the interview with Peta Credlin on Sky News on 27 July 2023);
(b)ICF pursuing malicious prosecution claims (referred to by Ian Cook in the Herald Sun article entitled ‘Slug Gate: Let the legal games begin’ published on 4 August 2023 (Herald Sun Article));
(c)ICF’s prospects in the ICF Proceeding of proving that Council and/or Elizabeth Garlick and/or Leanne Johnson had caused the loss claimed by ICF in the ICF Proceeding (referred to by Ian Cook in the Herald Sun Article);
(d)the tactics of letting Council out of the ICF Proceeding and ability to bring claims against it in a separate case (referred to by Ben Cook in his Twitter post on 26 July 2023).
By both processes, the defendants seek access to advice given to the plaintiffs by their previous legal representatives.
The appeal is currently listed for hearing on 18 December 2024.
The Subpoena
The subpoena seeks production of any advice given to either plaintiff regarding:
(a)the settlement of ICF’s claims against the Council in the ICF Proceeding on a tactical basis;
(b)proceeding to trial in the ICF Proceeding against only the State of Victoria;
(c)commencing a new proceeding against the Council for malicious prosecution;
(d)the prospects of success of a malicious prosecution claim against the Council, including as compared to a claim against the Council for misfeasance;
(e)ICF pursuing malicious prosecution claims;
(f)ICF’s prospects in the ICF Proceeding of proving that the Council, Garlick and/or Johnson had caused the loss claimed by ICF in the ICF Proceeding; and
(g)the tactics of letting the Council out of the ICF Proceeding and the ability to bring claims against it in a separate case.
Objection to inspection of the documents was taken initially on the ground that the documents contained information subject to client legal privilege. In documents filed with the court, the plaintiffs object to production itself on the basis that the defendants cannot demonstrate legitimate forensic purpose. The plaintiffs maintain their objection on the basis that the documents contain material that is privileged. Legal professional privilege is conceded by the defendants, but they argue that it has been waived by the plaintiffs.
The Notice to Produce
The defendants also seek orders for the production of documents pursuant to Order 29 in accordance with a notice to produce served on the plaintiffs dated 21 October 2024.
The plaintiffs object to the notice to produce because they say that identifiable documents are not described in the affidavit paragraphs referred to in the defendant’s notice. The plaintiffs contend that the notice to produce is invalid because it fails to refer to, or identify, a specific document, as is required by Rule 29.10(2) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The notice to produce refers to two separate paragraphs of the affidavit of Ian William Cook sworn on 11 March 2024, which state:
[7]In January 2022 my then legal representatives proposed a further amendment to the statement of claim in the first proceeding so as to bring a claim for malicious prosecution against the Council.
…
[11]The new legal team then proposed amending the claim as against the Council so as to raise a claim for malicious prosecution…(emphasis added).[7]
[7]Plaintiffs/Respondents, ‘Affidavit of Ian William Cook’, 11 March 2024, [7], [11].
The plaintiffs contend that there is no reference in the notice to produce to any document, that there is nothing to suggest that the advice described was in writing, and that the affidavit paragraphs referred to are better characterised as descriptions of fact in a chronological sequence of events.
In response, the defendants submit that the notice to produce concerns the proposals described in the relevant affidavit paragraphs, and that, by not indicating that there is no documentation of the proposal in writing, the plaintiffs have impliedly indicated that there are documents responsive. In the alternative, the defendants argue that, if the notice to produce was invalid, the documents are also subject of the summons for particular discovery.
The plaintiffs also object to the notice to produce because, they say, there is no legitimate forensic purpose. It will be seen that my decision in relation to the legitimate forensic purpose makes it un-necessary to consider the plaintiff’s arguments pursuant to Order 29.10 of the Rules.
Legal Professional Privilege
All the documents sought (‘the production documents’) are described as ‘advice’. The plaintiffs claim privilege in respect of all. The defendants concede that the production documents would be properly understood to be the subject of legal professional privilege, however, they argue that the plaintiffs have waived that privilege. Waiver was contested by the plaintiffs.
In view of the determination made in relation to the legitimate forensic purpose of the production documents, it has not been necessary to consider the claim of waiver of legal professional privilege further.
The plaintiffs and defendants have each filed affidavits and submissions in support of their respective positions on relevance, legitimate forensic purpose, privilege and Order 29 of the Rules. Counsel for the parties presented oral submissions at the hearing of the matter on 28 November 2024. I have had regard to all of these.
Before considering production, the subpoena and the well-established principles in relation to legitimate forensic purpose, it will be useful to understand the nature of an appeal from a decision of an Associate Judge and the circumstances in which new or fresh evidence might be considered.
An appeal from the decision of an Associate Judge of the Court
An appeal from a decision of an Associate Judge of the Court lies to a Judge of the Court unless expressly provided for.[8] The appeal is brought pursuant to Order 77.06 of the Rules and is in the manner of a re-hearing. Error will need to be shown before appellate intervention will be exercised. Error may be legal, factual or discretionary. An appeal of this nature is different to an appeal in the strict sense. The distinction is made clear by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v AIRC.[9] In contrast to strict appeals in the Court of Appeal, appeals from an Associate Judge concern matters of practice and procedure, where the court is yet to determine the substantive rights in issue between the parties in the dispute.
[8]Supreme Court Act 1986 s 17.
[9][2000] HCA 47, [12-5].
Order 77.06 applies to this appeal.
By Order 77.06.9 of the Rules a Judge of the Court hearing an appeal from a decision of an Associate Judge of the Court has the power to receive further evidence upon questions of fact. This rule, and the decision of Justice John Dixon in Smith v Trustees of the Christian Brothers,[10] were referred to by the defendants. In that case, his Honour had reference to his own recent decision in the matter of Chiodo Investments Pty Ltd v Rilac Pty Ltd:
Rule 77.06.9 does not grant to a party to an appeal the right to reconstitute the evidentiary base of the application.[11]
[10][2023] VSC 171, [12].
[11][2023] VSC 32, [26].
To paraphrase his Honour, the power must be construed by reference to the provisions of the Civil Procedure Act2010, balancing the public interests in finality in litigation with the requirements of justice of the case in hand.
His Honour further stated:
In the ordinary case, an appeal will be determined on the evidence that was before the associate judge, but there will be exceptional cases where to refuse to admit fresh evidence would affront common sense or a sense of justice and would not further the overarching purpose of civil litigation. The need for that assessment explains why the admission of further evidence on appeal is a matter for the judge rather than an entitlement of the appealing parties.[12]
[12][2023] VSC 32, [27].
In Re Ascot Vale Self-Storage Centre Pty Ltd (in liq) Robson J considered the nature of an appeal from an Associate Judge under the revised rules and expressed the view that fresh evidence on such an appeal could only be admitted in the same circumstances as would apply in relation to an appeal to the Court of Appeal.[13]
[13][2014] VSC 75, [16].
In the subsequent judgment of ANZ Banking Group Ltd v Loftus,[14] Ginnane J considered that the applicable principle upon which further evidence could be received on appeal from a decision of an Associate Judge were those identified by the Court of Appeal in Clark v Stingel,[15] namely that:
a)by the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial;
b)it is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced; and,
c)the evidence proposed to be adduced is reasonably credible.[16]
[14][2014] VSC 342.
[15][2007] VSCA 292.
[16]Clark v Stingel [2007] VSCA 292, [25].
Recently, the Court of Appeal in the matter of Metcalf v Wellington (No 2)[17] considered that principles in relation to the receipt of evidence in an appeal were relevant to the determination of applications by parties to compel production, and so, consistently with those principles:
…there may be occasions when an appellate court may consider it appropriate to order the production of a document or a limited category of documents. But those cases will be both exceptional and uncommon.[18]
[17][2024] VSCA 202.
[18]Metcalf v Wellington (No 2) [2024] VSCA 202, [18].
The parties’ submissions
Generally, the courts have been reluctant to permit parties to refer to further or fresh evidence bearing on matters that have been within the field of enquiry the subject of the assessment of the judge at first instance. It will only occur in an exceptional case. The cases, and counsel for the defendants, made clear that the decision about the admission of evidence in such an appeal is a matter for the judge determining the appeal. The exceptionality is a hurdle relevant to consider in the determination of production issues between parties as I am asked to determine here.
In this case, the defendants do not raise any argument in addition to the reliance upon a purpose founded in the grounds of appeal. Those grounds do not include assertions of controversy or facts outside those considered by the Associate Judge. It is not part of the appeal, for example, that there was a deficiency in discovery prior to the decision at first instance.
During the hearing, counsel for the defendants submitted that a legitimate forensic purpose as regards to fresh evidence would be determined once they had seen the advice (that is, the production documents):
…if his Honour is of the view that that goes nowhere, then the evidence won't go in and that will be the end of it. So we wouldn't want to get shut out before even seeing what the advice is and whether we want to seek leave to put it in as fresh evidence.[19]
[19]Transcript of Proceedings, I Cook Foods Pty Ltd v Greater Dandenong City Council (Supreme Court, S ECI 2023 05525, Judicial Registrar McCann, 28 November 2024), 34 [26-30] (Ms M Hooper).
In support of there being a reasonable possibility that the documents sought would materially assist, counsel for the defendants referred me to Grounds 1 and 5 in addition to Ground 3. The defendants denied that their articulation of process in relation to the documents and their possible use revealed an impermissible fishing expedition. Counsel for the plaintiffs submitted that it indicated just that.
I will now turn to established principle on legitimate forensic purpose and a consideration whether it is on the cards that the documents sought will materially assist the defendants in their appeal.
Principle regarding compelled production
The principle in respect of compulsory production and legitimate forensic purpose is well settled and was not in dispute between the parties. The issue is whether there is a purpose in this appeal for the production documents the defendants seek.
The plaintiffs directed me to a useful summary of relevant factors from a relatively recent judgment of Justice Elliott in the matter of Cargill Australia Ltd v Viterra Malt Pty Ltd (No 19):
(a)whether the party calling on the notice to produce expressly and precisely identifies the legitimate forensic purpose for which access to the documents is sought;
(b)whether the notice to produce is too broad or amounts to a fishing expedition (in which case it should not be permitted);
(c)whether an application for discovery or further and better discovery is more appropriate in the circumstances;
(d)the timing of the notice to produce; and
(e)whether the party seeking production can demonstrate that it is ‘on the cards’ or that there ‘reasonable possibility’ the documents will materially assist the case of the party issuing the subpoena.[20]
[20][2018] VSC 798, [27].
His Honour further stated:
A legitimate forensic purpose will exist where, based on the circumstances of the case, the documentation sought to be produced is not only relevant to the proceeding, but will materially assist in resolving an issue in dispute.[21]
[21][2018] VSC 798, [28].
It is also clear from the authorities that legitimate forensic purpose is more than mere relevance and speculation that the documents can or will assist is not sufficient, as this would amount to ‘fishing’.[22]
[22]Madafferi v The Queen [2021] VSCA 1, [98]; Victoria (Department of Justice) v Lane [2012] VSC 328, [20].
Application
In an appeal, the assessment of whether the defendants have a legitimate forensic purpose in seeking the documents falls to be considered by reference to the grounds of appeal and the issues in dispute.
In their notice of appeal and written submissions, the defendants state their appeal grounds with reference to the portions of her Honour’s judgment containing the relevant findings. I reproduce them here:
1.The Associate Judge erred in failing to find that, in all the circumstances, this proceeding is unjustifiably oppressive to the Defendants (‘Ground1’);
2.The Associate Judge erred in finding (at [31], [49]) that the claim against the First Defendant [i.e. Council] in the earlier proceeding ‘was not determined by the Court’, where the evidence established that it was dismissed by this Court (‘Ground 2’);
3.The Associate Judge erred in failing to conclude that the Plaintiffs employed a strategy, in settling the earlier proceeding and commencing this proceeding, that was abusive of this Court’s processes (c.f. [54]-[55], [56(d)]) (‘Ground 3’).
4.The Associate Judge erred in finding (at [56(c)]) that the private and public interest in finality is not undermined by the commencement of this proceeding (‘Ground 4’);
5.The Associate Judge erred in finding (at [56(e)]) that the commencement of this proceeding is not likely to give rise to a perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys (‘Ground 5’).
Following the oral hearing, I understand that the production documents are sought to assist the defendants in advancing their argument on appeal grounds 1, 3 and 5. I also understand that the principle factual issue in dispute is whether the agreement to have the ICF proceedings dismissed against the defendants and then commence the current proceedings was ‘deliberate’ and/or part of a stratagem. At first instance, the defendants had relied upon evidence of what they said was a deliberate strategy by the plaintiffs as establishing an ‘abuse of process’ by them.
I will consider the potential assistance that might be provided by the production documents in respect of Grounds 1, 3 and 5.
Ground 1 – error asserted relating to a finding that there was no unjustifiable oppression
An assessment of oppression calls for an examination of the litigation and its impact on a party, in this instance, the defendants. Whether it is justifiable requires an assessment of the level of oppression against an identifiable standard. I cannot see how material shared between the plaintiffs and their legal advisors could have any relevance at all to the finding relating to the defendants’ experience of the litigation and whether it could be assessed as being unjustifiable. The defendants were unable to point me to factors or evidence that might be contained in the material sought that would assist in demonstrating error on the part of the Associate Judge on this point.
Ground 5 – error asserted relating to the finding that the commencement of this proceeding is not going to give rise to a perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys
The production sought relates to the conduct of the previous proceedings and advice given in respect of that and potentially to advice to commence the current proceedings. The assistance is really sought in respect of the issue raised in relation to Ground 3 and whether there was a strategy and whether it was deliberate. The documents sought have no purpose in relation to Ground 5 outside of the argument raised about the stratagem of the plaintiffs.
Ground 3 – error asserted relating to the finding that the plaintiffs did not employ a strategy that was abusive of the Court’s process
The defendants assert that her Honour was in error finding that the plaintiffs did not employ a strategy in settling the earlier proceeding and commencing this proceeding that was abusive of process.
It is only the strategy that the material sought could have relevance to. The Associate Judge makes clear firstly that she finds that there was no deliberate strategy, but secondly, even if there was such a strategy, she would find that there was no abuse of process. The finding that there was no abuse of process stands independent of her finding that there was no strategy. Evidence, additional or otherwise, of a strategy cannot assist in the defendants’ argument of Ground 3.
Conclusion
I find that the defendants have failed to describe with precision the way in which the production documents and/or information they seek would or could be used on appeal. In my view this indicates impermissible fishing by the defendants.
I find also that it is not on the cards, that is, there is no reasonable possibility, that the production documents would assist the defendants in demonstrating error in Ground 3.
I am unable to find any particular utility for the documents in relation to any of the other grounds.
The plaintiffs’ objection to the subpoena is upheld and the summons seeking production pursuant to the notice to produce is dismissed.
Given my finding, it is unnecessary to consider whether the defendant has complied with Order 29 in the production sought nor whether there has been a waiver by the plaintiff of his legal privilege over the advice contained in the production documents.
My preliminary view is that, subject to submissions from the parties, costs follow the event. I request that the parties confer and provide a draft of orders to the Court including an order as to costs within seven days. In the event that agreement is unable to be reached in that timeframe, the matter will be listed for oral submissions on the question of costs.
SCHEDULE OF PARTIES
BETWEEN: | S ECI 2023 05525 |
| I COOK FOODS PTY LTD (ACN 094 392 060 | First Plaintiff/Respondent |
| IAN WILLIAM COOK | Second Plaintiff/Respondent |
| -v- | |
| GREATER DANDENONG CITY COUNCIL | First Defendant/Appellant |
| LEEANNE JOHNSON | Second Defendant/Appellant |
| ELIZABETH GARLICK | Third Defendant/Appellant |
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