Lu v Minter (No 2)

[2021] NSWDC 503

District Court

New South Wales

Medium Neutral Citation:

Lu v Minter (No 2) [2021] NSWDC 503

Hearing dates:

23 September 2021

Date of orders:

23 September 2021

Decision date:

23 September 2021

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1) Plaintiff’s application for leave under UCPR r 7.3 to issue two subpoenae to give evidence and five subpoenae to produce documents refused.

Catchwords:

TORT – defamation – defendants bring application for summary dismissal of the plaintiff’s claim on the basis of hopeless pleading errors - self-represented plaintiff issues subpoenae to the defendants and third parties to give evidence and produce documents – leave under UCPR r 7.3 required for litigants in person to issue subpoenae – leave refused.

Legislation Cited:

Uniform Civil Procedure Rules (UCPR) rule 7.3

Civil Procedure Act 2005 (NSW) s 56

Cases Cited:

Buswell v Carles [2012] WASC 509

Lu v Minter (District Court (NSW), 12 August 2021, unrep

Mallegowda v Sood [2013] NSWDC 98

NSW Commissioner of Police v Tuxford [2002] NSWCA 139

Rush v Nationwide News Pty Ltd [2018] FCA 357

Walsh v Bennetts (No 2) [2015] WASC122

Category:

Procedural rulings

Parties:

Plaintiff:
Min Lu

Defendants:
1st Defendant: Rick Minter
2nd Defendant: Bronwyn Greene
3rd Defendant: Tara Murphy
4th Defendant: Felix Ter Chian Tan
5th Defendant: Lemuria Carter
6th Defendant: Paul Ajnas
7th Defendant: Yenni Tim

Representation:

Counsel:
Defendants: Mr T Senior

Solicitors:
Defendants: Banki Haddock Fiora

File Number(s):

2020/00279718

Judgment

1. The plaintiff, who is self-represented, has provided the court with a notice of motion (unfiled) seeking the following orders:

1. leave to issue subpoenas pursuant to UCPR r 7.3;

2. waiver of the filing fees.

2. The application is supported by an affidavit of Ms Lu dated 1 September 2021.

3. The plaintiff’s application was referred to me as I am case-managing the defendants’ application for summary dismissal of these proceedings. This application was adjourned part-heard by Judge Wilson SC DCJ on 29 March 2021 to enable a referral of the plaintiff to the pro bono scheme. As is set out below, attempts by the court and by the NSW Bar Association to assist the plaintiff have to date been unsuccessful and the defendants’ summary dismissal application remains before the court for hearing.

4. The plaintiff provides 7 “subpoena requests”, in the form of draft subpoenae, in relation to certain of the defendants and to third parties, including the NSW Police Service. These proposed subpoenae are as follows:

1. A subpoena to Ms Arena (a proposed new defendant) to give evidence. The affidavit in support does not indicate the evidence in question.

2. A subpoena to the first defendant, Mr Minter, to give evidence. The affidavit in support does not indicate the evidence in question.

3. A subpoena to produce addressed to Mr Tony Grech of the New South Wales Police Service. This seeks the following:

1. “Please provide the details including dates of what Rick Minter orally or written [sic] conveyed to you about the plaintiff Min Lu (Yolanda Lu) by each time.”

2. “Please provide the details of what Tara Murphy orally or written [sic] conveyed to you about the plaintiff Min Lu (Yolanda Lu) by each time.”

3. “Please provide names and contexts of any other people conveyed to you regarding to the plaintiff [sic].”

4. “Please provide all other details you know regarding the plaintiff and this case.”

4. A subpoena to produce addressed to the fourth defendant, Mr Tan, seeking the following:

1. “Please provide the name of the lady staff who called the security to attend on 17 October 2018.”

2. Please provide the name of the lady staff who made the incident report with you on 18 October 2018 for the incident 203304, with the title of “criminal threatening behaviour harassment.”

3. “Please provide the message or statements from all too Yenni Tim, Christian Van Toorn and security staff on 17 October 2018.”

4. “Please provide the email, sent from your email [redacted] on 28 Fairbury 2019 1:51 PM to Paul Ajnas, CC to Tara Murphy and Lemuria Carter, with the title ‘Re: application for internal review on revocation license’; ‘I would not like to attend a mediation…(to be released) [sic].”

5. “Please provide the email sent to HR around Friday, 11 October 2019 regarding my case and me.”

6. “Please provide the email sent on 28 February 2019 1:51 PM to Paul Ajnas and cc to Tara Murphy, Lemuria Carter, with the title of ‘Re: application for internal review on revocation license’ [sic].”

7. “Please provide the email sent from you to Alison Richards and cc to Paul Ajnas on 20 March in 2019 1:01 PM, with the title of ‘Re: Yolanda – revocation of license’.”

8. “Please provide any purported concern made on 23 September 2016 to Christopher Evans regarding to this case, if you did [sic].”

9. “Please provide the report required and sent to the security department after the incident happened on 17 October 2018.”

10. Please provide all other correspondents [sic], communications or reports between you and others regarding me and the case including any students or any other people, especially for the following staff members [the names of the first fifth and sixth defendants are provided, as well as ‘Christina Van Toorn’, “HR” and ‘solicitor’].”

5. A subpoena to produce addressed to the second defendant, Mr Greene seeking the following:

1. “Please provide the contents of the discussion with Julia Lines regarding the restrictions on the plaintiff based on the wrong student profile who graduated in 2002.”

2. “Please provide the details and names of decision-makers to expel and place the human rights restrictions on the plaintiff and the nature of the case.”

3. “Please provide all details regarding the lady who called the security and her statements from 17 October 2018.”

4. “Please provide the details about that [sic] Ms Arena requested a threat assessment against the plaintiff and whether you approved it or not.”

5. “Please provide the details and contents what [sic] you discussed orally with Rick Minter or Tara Murphy to classify the plaintiff as the “fixated person unit”.

6. Please provide all corresponds [sic] and speech with all people regarding about [sic] the plaintiff and this case, especially including the external parties against the plaintiff.”

7. “Please provide details why Paul suggested you to [sic] force the plaintiff to send emails to one email address only in 2020.”

8. “Please provide details why the request of mediation with Tara Murphy, Yenni Tim and Lemuria Carter was not organised.”

9. “Why the complaint team did not provide the appeal details to the plaintiff and you requested to report to the fixated person unit (FPIU).”

6. A subpoena to produce to the fifth defendant Ms Carter seeking the following:

1. “Please provide all details about the incident of 17 October 2018, including the name of the academic lady staff.”

2. “Please provide the details about you purported [sic] an incident of September 2016 you published to others on 31 October 2018.”

3. “Please provide all details and decision of the meeting on 31 October 2018. Please provide all names of staff member [sic] had the meeting with you on 31 October 2018.”

4. “Please provide the name(s) of the decision-maker of the exclusion and human right restrictions on the plaintiff on 1 November 2018, 1 April 2019, 26 July 2019 and 29 August 2020.”

5. “Please provide all corresponds [sic] from the University or HR department for your purported instructions regarding the plaintiff.”

6. “Please provide the reason why you removed the plaintiff’s right not to have a chance to contact any staff of your school for PHD.”

7. “Please provide the details you shunned [sic] from the plaintiff and did not allow her to contact any staff of the former school. Please provide the names if there is anyone [sic] instructed you.”

8. “Who else you conveyed to [sic] regarding to [sic] this case and the plaintiff?”

9. “Please provide the name and the contents of all corresponds [sic] and speech from or to you regarding the plaintiff and the case.”

7. A subpoena to produce addressed to the third defendant, Tara Murphy, seeking the following:

1. “Please provide the CCTV footage of the incident [sic] happened to the plaintiff from 6 to 8 PM on 17 October 2018 at a breakout area on the campus of UNSW.”

2. “Please provide the name(s) of the decision-maker of the exclusion and human right restrictions on the plaintiff on 1 November 2018, 1 April 2019, 26 July 2019 and 29 August 2020.”

3. “The content of the threat assessment requested by Ms Arena in December 2019.”

4. “All records including investigation regarding the lady who called the security staff.”

5. “Please provide all corresponds [sic], or communications, all evidence including oral speech with the following staff and other people regarding the plaintiff in this case, especially around 12 December 2019 and with any external parties: [a list including the first, second, fourth, fifth sixth and seventh defendants as well as Mr Grech, Paul Sheehy and ‘anyone of the complaint team on 12 December 2019 after the plaintiff call you’].”

5. The prior history of these proceedings is set out in my earlier judgment of 12 August 2021 (Lu v Minter (District Court (NSW), 12 August 2021, unrep). The plaintiff has brought proceedings for defamation and other causes of action of an indeterminate nature, which were initially conducted in the General List before being transferred to the Defamation List. On 5 February 2021, the defendants brought an application for summary dismissal which has remained before the court since that time without being heard, as the court has been exploring ways to help the plaintiff frame her case.

6. These attempts were as follows:

1. When the application for summary dismissal was listed for hearing before Judge Wilson SC DCJ on 25 March 2021, his Honour adjourned the hearing and referred the plaintiff to the pro bono panel maintained by the court. His Honour adjourned the hearing pending the outcome of the referral to 29 April 2021.

2. The plaintiff was dissatisfied with the services of the pro bono barrister provided to and on 29 April 2021 sought further assistance from the court in obtaining pro bono assistance. Attempts were made to seek assistance from the New South Wales Bar Association’s pro bono scheme without success, as the plaintiff had previously consulted them. The directions hearing was adjourned a second time.

3. On 24 June 2021 the plaintiff was represented by a barrister who appeared as part of the duty barrister scheme. Orders were made for the plaintiff to amend the statement of claim and for the application brought by the defendants to be stood over to 12 August 2021 for further directions.

4. On 12 August 2021 it was apparent to me that the plaintiff statement of claim was still seriously defective. To assist her, I adjourned the hearing and prepared a judgment in which I set out the pleading problems and the relevant court rules. The hearing of the defendants’ application for summary dismissal was once again adjourned, to 23 September 2021. I took this course having regard to this procedure being in use in the Supreme Court of Western Australia where litigants in person have difficulty conducting litigation: Walsh v Bennetts (No 2) [2015] WASC122.

7. On 21 September 2021, rather than amend her pleadings conformably with the material set out in my earlier judgment, the plaintiff approached the registrar seeking leave to issue 2 subpoenae to give evidence and 5 to produce documents, the contents of which are set out above.

8. The registrar took the view that as this matter was being case managed in the defamation list, the plaintiff’s application should be considered in the context of case management of these proceedings generally and in relation to the defendants’ application for summary dismissal in particular.

9. Uniform Civil Procedure Rules2005 (NSW) (“UCPR”) rule 7.3 provides:

“7.3 Issue of subpoena in certain circumstances requires leave

(1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings.

(2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas.

(3) Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court, except by leave of the court, in any circumstances.”

10. The effect of this rule is that unrepresented parties must seek leave of the court before a subpoena may be issued at their request. This rule was introduced to prevent the issuing of subpoenae which could be an abuse of process. Failure to comply with a subpoena may, as the relevant forms warn, amount to a contempt of court and may result in arrest.

11. The plaintiff is not entitled to issue a subpoena at all, let alone subpoenae containing oppressive demands, either to the opposing parties in this litigation (who are entitled to rely upon the discovery procedure) or to third parties such as the New South Wales Police service. This is because:

1. The pleadings have not yet closed and the issue of a subpoenae by any party at this time is premature: Buswell v Carles [2012] WASC 509. This is a longstanding specific rule for defamation proceedings, designed in part to prevent the issuing of subpoenae as fishing expeditions in justification defences; it applies to plaintiffs as well as defendants.

2. Even after the pleadings are closed, a party to defamation proceedings cannot issue a subpoenae as a fishing expedition in the hope of finding something in support of a claim or defence: Rush v Nationwide News Pty Ltd [2018] FCA 357 at [172].

3. There is a procedure for notification of the opposing party of the contents of a subpoena, failure to comply with which may result in a subpoenae is in question being set aside: Mallegowda v Sood [2013] NSWDC 98 (over 20 subpoenae issued in a country registry of the court, unknown to the plaintiff, while defamation proceedings were being case managed in Sydney).

4. Where discovery is available, the issuing of a notice to produce to the opposing party is impermissible: NSW Commissioner of Police v Tuxford [2002] NSWCA 139.

5. The garbled and at times incomprehensible contents of the subpoenae to produce documents and the oppressive nature of the vast range of material sought would make compliance with their terms difficult if not impossible.

6. The plaintiff seeks to be excused from paying any filing fees for the subpoenae. It is my understanding, from her submissions to me this morning, that she does not intend to provide conduct money, which is unacceptable (UCPR r 33(6)).

7. The combined effect of the issue of these 7 subpoenae is to create a burden on court resources, in terms of setting aside time for the plaintiff to call witnesses, as well as upon the resources of the defendants in endeavouring to comply with the plaintiff’s demands. This is contrary to the overarching principles of s 56 of the Civil Procedure Act 2005 (NSW).

12. For these reasons, the application by the plaintiff to issue the two subpoenae and five notices to produce is refused.

Order:

1. Plaintiff’s application for leave under UCPR r 7.3 to issue two subpoenae to give evidence and five subpoenae to produce documents refused.

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Decision last updated: 23 September 2021