Metcalf v Wellington (No 2) - [2024] VSCA 202

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0049

KIRSTY METCALF	Applicant
v
HEATHER WELLINGTON	Respondent

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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)

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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.

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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:…

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: [2024] VSCA 202
Decision Date: 13 September 2024

CaseChat Overview and Summary

In the matter of Metcalf v Wellington (No 2), the respondent sought to set aside a subpoena and a notice to produce documents issued by the appellant. The documents were sought to assist with the appellant's application for leave to appeal and the appeal itself. The dispute was brought before the Supreme Court of New South Wales.

The central legal issue the court needed to decide was whether the subpoena and notice to produce were issued for a legitimate forensic purpose or whether they were an attempt to fish for documents. The court also had to consider whether the documents were necessary for the appeal and if there were any differences in the nature of trial and appeal proceedings that would affect the issuance of such documents.

The court found that the subpoena and notice to produce were not issued for a legitimate forensic purpose. It determined that the documents were sought to assist the appellant's application for leave to appeal and the appeal itself, which was not a legitimate forensic purpose. The court also held that the documents were not necessary for the appeal. The court found that there were differences in the nature of trial and appeal proceedings that would affect the issuance of such documents. The court set aside the subpoena and notice to produce.

The court ordered that the subpoena and notice to produce documents issued by the appellant be set aside. The court found that the documents were not necessary for the appeal and were not issued for a legitimate forensic purpose.

Orders