Khoury v Kirwan

[2021] VSC 168

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2020 01434

ELIE KHOURY	Plaintiff
v
DAVID KIRWAN	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2021
DATE OF RULING:	31 March 2021 (Reasons: 13 April 2021)
CASE MAY BE CITED AS:	Khoury v Kirwan
MEDIUM NEUTRAL CITATION:	[2021] VSC 168

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PRACTICE AND PROCEDURE – Contempt of court proceedings against plaintiff and another – Breach of Harman undertaking – Two extant summonses to punish for contempt and an application to purge contempt – Application to set aside second contempt summons as vexatious or abuse of process – Subpoenas and notices to produce – Whether subpoenas and notices to produce were fishing – Legitimate forensic purpose identified – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G L Schoff QC with Ms H Jager	Litton Legal
For the Defendant	Ms S Crysanthou SC with Mr E Batrouney	Kennedys
For Dr Jeremy Kolt	Mr T Maxwell	Sparke Helmore Lawyers

HIS HONOUR:

1. Dr Elie Khoury has sued Dr David Kirwan, claiming damages for defamation. The claim is based on a number of publications, most of which were emails, that circulated amongst the medical community in Albury–Wodonga. Dr Jeremy Kolt was a recipient of some publications.

1. In response to a subpoena served upon him by the Dr Khoury, Dr Kolt produced 77 emails to the Prothonotary. Those emails were uplifted by Dr Khoury and came into the possession of Ms Jessica Nowell, his partner, who provided them to Ramsay Healthcare Pty Ltd (‘Ramsay Health’), which owns and operates the Albury Wodonga Private Hospital (‘AWPH’). By that disclosure, Dr Khoury and Ms Nowell breached the implied Harman undertaking,[1] more particularly described in Hearne v Street.[2]

   [1]Harman v Secretary of State for the Home Department [1983] 1 AC 280.

   [2](2008) 235 CLR 125.

1. Following that breach, three summonses were filed in the proceeding. On 23 November 2020, Dr Kolt applied for orders to punish Dr Khoury and Ms Nowell for contempt of court for their breach of the Harman undertaking. On 26 November 2020, Dr Khoury and Ms Nowell applied to be discharged from punishment for their contempt. On 13 January 2021, Dr Kirwan applied for orders for the punishment of Dr Khoury and Ms Nowell for substantially that same contempt of court alleged by Dr Kolt.

1. Each of these applications is listed for hearing on 22 April 2021.

1. On 8 February 2021, Dr Kirwan served:

(a)   a subpoena to produce addressed to Litton Legal Pty Ltd (‘Litton Legal’);

(b)  a subpoena to produce addressed to Ms Nowell;

(c)   a subpoena to produce addressed to Ramsay Health; and

(d)  a notice to produce addressed to Dr Khoury.

1. On 26 February 2021, Dr Khoury and Ms Nowell (‘applicants’) applied for each of Dr Kirwan’s subpoenas and the notice to produce to be set aside as oppressive, vexatious, and/or an abuse of process, and that the addressee be excused from compliance (‘application’).

1. Since the application was filed, Dr Kirwan has issued further subpoenas to each of Ramsay Health, Litton Legal, Ms Nowell and Ms Sheryl Keir (an employee of Ramsay Health), and a further notice to produce to Dr Khoury. It is accepted that the validity of these further processes is incorporated into this application, but the addition of further specific descriptions of material to be produced has not altered the submissions of the parties.

1. During earlier case management, it was determined appropriate to hear the application in advance of the contempt hearing, principally because the applicants contended that Dr Kirwan’s summons ought to be dismissed as vexatious and/or an abuse of process and, consequentially, his subpoenas and notices to produce ought to fall away. Alternatively, if the court did not accept that Dr Kirwan’s contempt summons ought to be dismissed, the subpoenas and notices to produce were themselves oppressive, vexatious and/or an abuse of process, and ought to be set aside.

1. At the conclusion of argument, I announced that the application would be dismissed, with costs reserved until the finalisation of the contempt applications. I stated that I would in due course publish my reasons for so ordering, which now follow.

1. The applicants first contended that Dr Kirwan’s contempt summons was an unwarranted duplication of matters already before the court. It is not disputed that each of Dr Kolt and Dr Kirwan’s contempt summonses seek that the applicants be punished for contempt for the same conduct, the breach of the Harman undertaking. That said, there are differences in the detail of the allegations made about the nature of that conduct and the relief sought.

1. The applicants do not deny that their conduct constituted a contempt. Ms Nowell contends that her conduct was inadvertent, in the sense that while she knowingly disclosed the subpoenaed documents, she did not understand that she was acting in breach of an undertaking.

1. The issues in contention on the contempt application, while relatively narrow, are significant. Dr Kirwan contends that the undertaking was breached in order to jeopardise Dr Kolt’s accreditation at AWPH and/or to obtain an advantage in the defamation proceeding. He also alleges that the breach of the undertaking was contumacious (‘contumacious allegation’), alternatively wilful.

1. Dr Kirwan is properly a party to the contempt applications, and is entitled to be heard on both Dr Kolt’s summons and Dr Khoury and Ms Nowell’s application to purge their contempt. Further, the tendency to interfere with the administration of justice that Dr Kirwan alleges includes:

(a)   unlawfully intending to damage Dr Kolt’s reputation and jeopardise his accreditation at AWPH;

(b)  deterring Dr Kolt and other potential witnesses from giving evidence at the hearing of the proceeding and thereby seeking a collateral advantage in this proceeding;

(c)   deterring recipients of the subpoenas generally from complying with their obligations under subpoenas, if such disclosure by the respondents was not punished or prevented;

(d)  defying the authority of the court; and

(e)   breaching the overarching obligations of the court pursuant to the Civil Procedure Act2010 (Vic).

1. It appears likely that Dr Kolt would, if called at trial, give evidence favourable to Dr Kirwan. Plainly, Dr Kirwan has an obvious and legitimate interest in the contempt committed by the applicants.

1. There is nothing vexatious or oppressive arising from the fact that both Dr Kolt and Dr Kirwan seek to have the applicants punished for contempt. Each of them has a legitimate interest in that conduct. Dr Kirwan is entitled to bring his own application and to frame the allegation of contempt that he contends to be deserving of appropriate punishment as he may be advised. Notwithstanding that contempt is a criminal offence, the application is conducted and resolved by reference to civil procedure.[3] The rules concerning duplicitous charges in criminal procedure are inapposite. There is no risk that the court would punish the applicants twice for the same contempt in these circumstances.

   [3]Construction Forestry Mining & Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375.

1. No issue of prejudice or unfairness was raised as a consequence of the existence of three distinct applications. Rather, what appeared to be suggested was that Dr Kirwan was, by his application, seeking a strategic advantage from which to contend that the contempt to be punished was more serious in nature than the contempt to be purged.

1. Dr Kirwan is entitled to put that contention forward, and I was not persuaded that his contempt summons was an abuse of process. Absent his summons, as a respondent to the other two summonses, Dr Kirwan is entitled to advance the contention that the court should regard the contempt as being more serious than the applicants would have it.

1. The applicants also contended that there was no proper basis for the ‘purpose allegation’[4] or the contumacious allegation put by Dr Kirwan. I do not agree. Those allegations appear to have an appropriate factual and legal foundation, identifiable from the particulars found in Dr Kirwan’s summons.

   [4]Being those allegations referred to in [13(a)] and [13(b)] above.

1. There was debate before me about the distinction between contumacious conduct and wilful acts, and the particularisation of those states of mind. That can be deferred until the resolution of the contempt summonses. That debate simply brought into sharp focus that the critical issue remaining unresolved is the state of mind of the contemptors. I am not persuaded that the allegation of contumacious conduct lacks a proper basis, or that Dr Khoury and Ms Nowell have insufficient particulars to understand what is being alleged against them. As Dr Kirwan noted, the allegations of contumacious conduct and wilfulness are put in the alternative.

1. Accordingly, I rejected the contention that Dr Kirwan’s contempt summons is vexatious or an abuse of process.

1. The second application was that the subpoenas and notices to produce are oppressive, vexatious and/or an abuse of process. The applicants contended that there was no legitimate forensic purpose in the subpoenas and notices to produce. Rather, Dr Kirwan was fishing.[5]

   [5]In this sense described by Lord Esher MR in Hennessy v Wright (No 2) (1888) 24 QBD 445, 448.

1. I was not persuaded to accept this submission. I am satisfied that there is a legitimate forensic purpose to seek the documents nominated for their use in evidence in the relevant sense. The documents immediately surrounding the communications that constitute the breach of the Harman undertaking and the subsequent dealings, in an attempt to rectify that breach, may properly be required to test the explanation advanced to the court by the applicants. There was some suggested ambiguity or inconsistency in the explanations thus far provided, and I am satisfied that the documents being sought are potentially relevant to the issue of purpose and the state of mind of Dr Khoury and Ms Nowell, which Dr Kirwan is entitled to test.

1. Further, it is not appropriate to take an unduly narrow approach on the question of potential relevance, because the court is entitled to expect a full and frank disclosure by applicants seeking to purge a contempt in the evidence that they give of the circumstances of that contempt.[6]

   [6]United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323, 340; Civil Procedure Act 2010 (Vic) s 16. The paramount duty owed to the court to further the administration of justice carries a clear obligation to deal with the court with the utmost candour.

1. It is undesirable to enter into a closely reasoned analysis of potential ambiguities and conflicts in the explanations that have been given. It is sufficient to state that I was satisfied that there appear to be inconsistencies in the accounts given by Ms Rebecca Litton (Dr Khoury’s solicitor), Ms Nowell and Dr Khoury that form a basis for a legitimate forensic purpose in seeking documents and files to enable precision in determining the chronology of events and the proper inferences that might be drawn from those events.

1. Accordingly, the subpoenas and the notice to produce are not properly characterised as a speculative search or a fishing expedition.

1. For these reasons, the application was dismissed.

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