Kennedy v Wallace - [2004] FCA 636

FEDERAL COURT OF AUSTRALIA
Kennedy v Wallace [2004] FCA 636
PRACTICE AND PROCEDURE – subpoenae to third party to produce documents and to give evidence before trial – circumstances in which appropriate
COSTS – where third party has subpoenae set aside
WORDS AND PHRASES – ‘to give evidence’
Federal Court Rules O 27
Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541 referred to
Waind v Hill [1978] 1 NSWLR 372 applied
TREVOR JOHN KENNEDY v ANDREW CHARLES VERSCHUER WALLACE, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AND COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE
N 3065 OF 2003
GYLES J
21 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 3065 OF 2003

BETWEEN:

TREVOR JOHN KENNEDY
APPLICANT

AND:

ANDREW CHARLES VERSCHUER WALLACE
FIRST RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
SECOND RESPONDENT

COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE
THIRD RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

21 MAY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
Australian Securities and Investments Commission pay the costs of Rene Walter Rivkin of the motion to set aside two subpoenae addressed to him, such costs to be taxed on a solicitor/client basis and paid forthwith.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 3065 OF 2003

BETWEEN:

TREVOR JOHN KENNEDY
APPLICANT

AND:

ANDREW CHARLES VERSCHUER WALLACE
FIRST RESPONDENT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
SECOND RESPONDENT

COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE
THIRD RESPONDENT

JUDGE:

GYLES J

DATE:

21 MAY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This motion raises somewhat unusual questions as to the circumstances under which a subpoena might properly be issued. The applicant on the motion is Rene Walter Rivkin (Rivkin). He was served on 27 November 2003 with a subpoena to attend for the purpose of giving evidence on Thursday 4 December at 12 o’clock midday until excused from further attendance, issued by the second respondent Australian Securities and Investments Commission (ASIC). He was served on the same day with a subpoena to attend and produce certain documents and things described in the Schedule to it on 2 December 2003 at 9.30 am until excused from further attendance, also issued by ASIC. The Schedule was as follows:
‘1.The original or copy of the transcript of interview, signed by Rene Rivkin, that was conducted in Zurich before District Prosecutor Nathan Landshut on 10 December 2002, where Rene Rivkin was examined as an interviewee.
2.The original or copy of the written summons addressed to Rene Rivkin to appear before the District Public Prosecutor Nathan Landshut on 10 December 2002.’
Rivkin filed a notice of motion seeking to set aside in whole each of those subpoenae and seeking costs of the motion on an indemnity basis. On 4 December 2003 each subpoena was set aside by consent. The issue is therefore one of costs.
On 30 October 2003 the Australian Financial Review published a series…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 636
Decision Date: 21 MAY 2004

CaseChat Overview and Summary

The case of Kennedy v Wallace involves the Australian Securities and Investments Commission (ASIC) and Rene Walter Rivkin. The dispute centres on whether subpoenas served on Rivkin were validly issued under the relevant rules of court. The case was heard in the Federal Court of Australia. The primary legal issue was whether the subpoenas were issued for the correct purpose, specifically to produce documents and give evidence, or if they were issued for a collateral purpose such as to compel Rivkin to assert privilege or medical inability to give evidence. ASIC argued that the subpoenas were issued to obtain documents relevant to the principal proceeding and to ascertain the availability of these documents or evidence for the proceedings. Rivkin contended that the subpoenas were not issued for the purpose permitted by the rules, but rather to compel assertions of privilege and medical inability.

The court considered the arguments and submissions from both parties, including reliance on the judgment in Waind v Hill. The court found that the subpoenas were issued for the purpose of obtaining evidence and documents relevant to the principal proceedings. The subpoenas were conventional and there was a proper basis for ASIC to serve them, even if it was anticipated that Rivkin might decline to produce documents or give evidence. The court emphasised that the phrase ‘to give evidence’ should not be construed too narrowly. Consequently, the subpoenas were validly issued and the motion to set aside them was dismissed.

In its orders, the court ruled that ASIC must pay the costs of Rene Walter Rivkin for the motion to set aside the subpoenas. These costs were to be taxed on a solicitor/client basis and paid forthwith.

Orders

Orders of the court

Australian Securities and Investments Commission pay the costs of Rene Walter Rivkin of the motion to set aside two subpoenae addressed to him, such costs to be taxed on a solicitor/client basis and paid forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The contention for Rivkin is that the inference from the whole of the evidence was that neither subpoena was procured for the purpose contemplated by O 27 r 1 (as it stood prior to 1 March 2004), namely ‘to attend … and produce a document or thing for the purpose of evidence’ and ‘to attend … for the purpose of giving evidence’. It was further submitted that there was a collateral purpose, namely to compel Rivkin to assert either or both of privilege and medical inability to give evidence and thereby to make other evidence admissible. The submission was that the Court’s compulsory process was sought to be invoked for a purpose other than the only one permitted. Reliance was placed upon the judgment of Moffitt P in Waind v Hill [1978] 1 NSWLR 372 particularly at 381G–382F. It is submitted on behalf of ASIC that there is no basis upon which it should be found that the subpoenas were not issued for the purpose of seeking to adduce evidence from, and the production of documents by Rivkin or, in the alternative, evidence as to the availability or unavailability of Rivkin and/or the documents for the purpose of evidence to be adduced in the principal proceedings. In particular it was submitted that each subpoena was issued for the purpose of having the document in the possession of ASIC that purported to be a copy of the transcript of the examination conducted in Switzerland of 10 December 2002 and the English version of it, admitted, or at least for the purpose of aiding the admission of those documents at the hearing of the principal proceeding. Counsel for each party made a number of points in support of their respective submissions which I need not reproduce. There was debate as to how the various provisions of the Evidence Act that were identified in the particulars supplied by ASIC in the principal proceedings might or might not operate in the circumstances. It was independently argued for ASIC that the present application is misconceived because the question of costs is governed by the former O 27 r 4A which was in force prior to 1 March 2004. The subpoena to produce documents appears conventional on its face. The documents called for would be relevant to the issues in the principal proceeding. There could be no suggestion that there was no proper basis for taking the view that Rivkin might have such a document in his possession or power. It is clearly and properly identified. It is appropriate, and in some circumstances necessary, that steps be taken to obtain an original before secondary evidence of a document might be led. Thus there was an appropriate forensic purpose for the subpoena whether or not it was answered by production of a document. In my opinion there could be no objection to ASIC serving this subpoena at an appropriate time, even if it might have been predicted that Rivkin would decline to produce any document in his possession or power on the basis that it might incriminate him. That was not to be prejudged by ASIC. It was entitled to make the call and have the response. The phrase ‘to give evidence’ is not to be construed too literally (see Waind v Hill at 381).

Decision

Reasons for decision

GYLES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 3065 OF 2003

BETWEEN:	TREVOR JOHN KENNEDY APPLICANT
AND:	ANDREW CHARLES VERSCHUER WALLACE FIRST RESPONDENT AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION SECOND RESPONDENT COMMISSIONER OF POLICE, AUSTRALIAN FEDERAL POLICE THIRD RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	21 MAY 2004
WHERE MADE:	SYDNEY

JUDGE:	GYLES J
DATE:	21 MAY 2004
PLACE:	SYDNEY