Metcalf v Wellington (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0049

KIRSTY METCALF	Applicant
v
HEATHER WELLINGTON	Respondent

---

JUDGES:	LYONS and KENNY JJA, O’MEARA AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2024
DATE OF JUDGMENT:	13 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 202
JUDGMENT APPEALED FROM	[2022] VCC 1759 (Judge Clayton)

---

APPEAL – Subpoena to produce documents under r 42A – Notice to produce documents under r 35.08 – Application to set aside – Documents sought to assist prospects of success on application for leave to appeal and appeal – Whether issued for legitimate forensic purpose – Whether fishing for documents – Differences between nature of trial and appeal – Subpoena and notice to produce set aside.

Supreme Court (General Civil Procedure) Rules 2015, r 35.08.

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Clifton (Liquidator) v Kerry J Investment Pty Ltd (2020) 379 ALR 593; [2020] FCAFC 5; Drapac v Wain (Court of Appeal, Warren CJ, Nettle and Whelan JJA, 7 October 2013); Heaney Enterprises Pty Ltd v Just Cuts Franchising Pty Ltd [2018] VSCA 25; Douglas v Mikhael (No 2) [2024] NSWCA 61.

---

Counsel
Applicant:		Mr T Mullen
Respondent:		Mr D Gilbertson KC with Mr JE McIntyre
Solicitors
Applicant:	LA Warren Lawyers
Respondent:	Verduci Lawyers

LYONS JA
KENNY JA
O’MEARA AJA:

Heather Wellington (‘the plaintiff’) is a local councillor on the Surf Coast Shire Council (the ‘Council’). Kirsty Metcalf (‘the defendant’) and her husband made a planning application to the Council in November 2017. In 2021, the plaintiff commenced a County Court proceeding against the defendant claiming damages for defamation in respect of seven posts published by the defendant on Facebook in relation to that planning application.
On 21 November 2022, following a nine day trial the previous August, the trial judge published reasons which awarded the plaintiff $100,000.[1] On 21 November 2022, judgment was entered for the plaintiff in that sum and, on 15 December 2022, the defendant was ordered to pay the plaintiff’s costs of the proceeding on an indemnity basis.
[1]Wellington v Metcalf [2022] VCC 1759 (‘Reasons’).
The defendant now seeks leave to appeal against those orders on the basis that the interests of justice favour the appeal being allowed with a new trial ordered after further discovery and interlocutory steps.[2] This is because the defendant contends that:
(a)the plaintiff failed to discover a number of relevant and discoverable documents prior to trial, most of which were adverse to the plaintiff’s case, conflicted with the plaintiff’s evidence and submissions, and/or were contrary to the findings of the trial judge on liability and damages; and
(b)the failure to produce these documents was serious misconduct in the course of the proceeding and, in circumstances where the plaintiff has still not produced these documents, the interests of justice favour the granting of the appeal.
[2]In order to do so, the defendant will need to obtain leave to file her application out of time: it was not filed until approximately 18 months after the costs orders were made.
As to the legal basis of the relief sought, in the defendant’s written case for leave to appeal, the defendant contends that:
(a)where the ‘undiscovered’ documents are before the appellate court, in order to obtain a retrial, the onus is on the would-be appellant to establish that there is a real possibility that those documents, if available at trial, would have resulted in a different outcome, relying on Commonwealth Bank of Australia v Quade (‘Quade’);[3] and
(b)where, however, the respondent refuses to explain or fails to remedy a failure to make proper discovery such that the undiscovered documents are not before the Court, then in order to avoid a retrial, the onus shifts to the respondent to show that those documents if available at trial would not have resulted in a different outcome, relying on Clifton (Liquidator) v Kerry J Investment Pty Ltd (‘Clifton’).[4]
[3]Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 (‘Quade’).
[4]Clifton (Liquidator) v Kerry J Investment Pty Ltd (2020) 379 ALR 593; [2020] FCAFC 5 (‘Clifton’); See also Yevad Products Pty Ltd v Brookfield [2005] FCAFC 177.
In support of the application for leave to appeal, the defendant relies upon 59 documents emanating from the Council, obtained under the Freedom of Information Act 1982 (the ‘59 FOI documents’). The defendant obtained these documents after the trial judge published her reasons in the County Court, contending they constituted ‘fresh evidence’. However, in the application for leave to appeal, the defendant relies upon the plaintiff’s failure to provide adequate discovery in the proceeding more generally ie not limited to the 59 FOI documents. In this regard, the defendant relies upon the principles set out in [4(b)] above.
We pause to note that the order for discovery in the proceeding was not general discovery but more limited discovery of the kind described in r 29.01.1,[5] together with documents which the person considers, or ought reasonably consider, are critical to the resolution of the dispute (the ‘discovery orders’).
[5]County Court Civil Procedure Rules 2018.
In support of her application for leave to appeal the defendant had filed:
(a)a notice to produce pursuant to r 35.08 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) dated 3 July 2024 (the ‘notice to produce’); and
(b)a subpoena for production of documents or things pursuant to r 42A of the Rules to the Council dated 5 July 2024 (the ‘subpoena’).
The notice to produce and the subpoena seek a number of broad categories of documents. The defendant seeks four categories under the notice to produce and seven categories under the subpoena. The broad range of categories include:
(a)emails relating to the plaintiff’s FOI requests dated 20 September 2018 and 20 May 2019 which contain the words ‘FOI’ or ‘Freedom of Information’;[6]
(b)‘all emails, notes and correspondence or other documents relating to the investigation of [the plaintiff] in 2018 or 2019 for the alleged misuse of her position as Councillor and/or in relation to an application for documents under FOI’;[7]
(c)all emails to or from the plaintiff’s Council email address between 1 November 2017 and 30 November 2019 which include the word ‘Metcalf’;[8] and
(d)all emails, notes or briefing minutes prepared/sent by the Council and councillors between 1 November 2017 and 30 November 2018 in regard to the defendant’s planning application and the VCAT application P877/2018 for a helicopter landing site, which were either sent or otherwise provided to or from the plaintiff (or which the Council reasonably considers will likely have been provided to or from the plaintiff).[9]
[6]Category 2(f) (revised) of the notice to produce.
[7]Category 4 of the notice to produce.
[8]Category 3 of the subpoena.
[9]Category 5 of the subpoena.
The defendant contends that the documents sought are of apparent relevance to the issues in the application for leave to appeal as they relate to the extent of the plaintiff’s failure to make proper discovery, the degree of her culpability in failing to make proper discovery, and the possibility of a different outcome at trial if those documents had been available. As a result, she submits the notice to produce and the subpoena are issued for a legitimate forensic purpose.
In this application, the plaintiff seeks to set aside the notice to produce and the subpoena on the grounds that, among other things, they were not issued for a legitimate forensic purpose and, in particular, they constitute ‘fishing’ in an attempt to identify other documents to support and expand the defendant’s case on the application for leave to appeal.
We agree with the plaintiff that the notice to produce and the subpoena must be set aside. We can state our reasons shortly.
During oral argument, it became apparent that the genesis of the defendant’s decision to issue the notice to produce and the subpoena lay in observations by this Court in earlier reasons on an interlocutory application by the defendant for a stay of the taxation of the plaintiff’s costs of proceeding below.[10] Those observations were to the effect that the Court:
(a)doubted that a verdict might be set aside on the basis of undisclosed documents unless there is a real possibility that a different result would result on any retrial, consistent with Quade;[11] and
(b)considered, based on some of the 59 FOI documents to which the Court was taken on that application, that it was far from clear how those documents gave reason to believe there was a realistic possibility of a different result on a retrial.[12]
[10]Metcalf v Wellington [2024] VSCA 147.
[11]Metcalf v Wellington [2024] VSCA 147, [19].
[12]Metcalf v Wellington [2024] VSCA 147, [23].
In oral argument, counsel for the defendant acknowledged that the notice to produce and the subpoena were issued in response to these observations in an attempt to bolster or assist the defendant’s application for leave to appeal in the circumstances of this case ie given that it was said the plaintiff has failed to rectify the alleged deficiencies in discovery.[13] Counsel submitted that this was a legitimate forensic purpose of the notice to produce and of the subpoena.[14]
[13]Transcript of Proceedings (6 September 2024) 20.20-20.29 and 66.10-66.15.
[14]Transcript of Proceedings (6 September 2024) 64.28-65.17.
We do not agree that this stated purpose is a legitimate forensic purpose on an application for leave to appeal or an appeal, particularly given the issues raised by the defendant before us. This is because there is a difference between evidence at or before trial and evidence on appeal. At or before trial, each party may investigate and lead evidence as of right. The situation is different in the case of an appeal and an application for leave to appeal. Under r 64.13(1)(b) of the Rules, unless the Court otherwise orders, evidence which was not before the trial judge ‘shall not be relied upon’.
The authorities make plain that leave will only be granted in limited and exceptional circumstances including, relevantly, where the document or documents could not have been obtained before or at trial with reasonable diligence.[15]
[15]Clarke v Stingel [2007] VSCA 292, [25], [29] (Warren CJ, Chernov and Kellam JJA).
While we acknowledge the importance of complying with discovery orders generally and the continuing obligation to do so, we observe that before and at trial, the defendant asserted that the plaintiff had failed to comply with the discovery orders. The defendant has deposed that by about 13 December 2021, about eight months before trial, she formed the view the plaintiff ‘was unlikely to make proper discovery herself’[16] but took no further steps against the plaintiff to obtain further discovery. Further, the plaintiff was cross-examined on the basis that she had failed to make proper discovery.
[16]Affidavit of Kirsty Metcalf affirmed 14 May 2024 [15] [Tab 40].
Further and relatedly, this Court and other appellate courts have emphasised, albeit in a different context, that it is generally neither appropriate nor practical for an appellate court to embark upon factual enquiries.[17] Payne JA recently observed when dealing with a subpoena in the New South Wales of Court of Appeal that an appeal from the orders of the primary judge is not ‘a vehicle for a general investigation’.[18] He also noted the limitations on the ability of appellate courts to receive evidence which was not before the trial judge, with the result that there was no reasonable possibility that the documents sought would be allowed into evidence.[19] We agree with these observations.
[17]See eg Drapac v Wain (Court of Appeal, Warren CJ, Nettle and Whelan JJA, 7 October 2013), [5]; Heaney Enterprises Pty Ltd v Just Cuts Franchising Pty Ltd [2018] VSCA 25, [17].
[18]Douglas v Mikhael (No 2) [2024] NSWCA 61, [15] (Payne JA) (these comments were under the NSW Rules made where leave to issue a subpoena was required).
[19]Douglas v Mikhael (No 2) [2024] NSWCA 61, [13].
We would only add that 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.
In any event, we are not satisfied that this is such case. This is in circumstances where:
(a)the defendant already relies upon the 59 FOI documents which she contends ought to have been discovered and seeks an order for a retrial based upon the principles set out Quade;
(b)to the extent the defendant submits that the plaintiff has failed to produce documents which ought to have been discovered, she relies upon Clifton in support of the reverse onus, see [4(b)] above;
(c)the range of documents sought by the defendant is very broad, as evident from the examples set out in [8] above; and
(d)we consider, and counsel for the defendant properly appeared to concede,[20] that the documents sought to be produced might result in more documents being produced than might have been required to be produced by the plaintiff pursuant to the discovery orders.[21]
[20]Transcript of Proceedings (6 September 2024) 20.20-20.29.
[21]Transcript of Proceedings (6 September 2024) 66.10-66.15.
In all these circumstances, we consider the notice to produce and the subpoena were not issued for a legitimate forensic purpose and constitute fishing. They must be set aside.
As a result of this conclusion, it is unnecessary to deal with many of the other matters raised in oral argument. We would only note that r 35.08 of the Rules may not authorise a party to serve a notice to produce documents in an appeal or in an application in an appeal. This is because that rule is expressed to apply only to the production of documents ‘on any application in or at the trial of the proceeding’. However, we do not need to determine that question.
We shall hear from the parties as to the costs of these applications.
---

[2024] VSCA 202

13 September 2024