Michael Van Thanh Quach v Kevin John Daly and Robin Daly
[2023] QCA 176
•31 AUGUST 2023
[2023] QCA 176
COURT OF APPEAL
MULLINS P
FLANAGAN JA
HENRY J
Appeal No 4807 of 2023
SC No 15806 of 2022
MICHAEL VAN THANH QUACH Appellant
v
KEVIN JOHN DALY First Respondent
ROBIN DALY Second Respondent
BRISBANE
THURSDAY, 31 AUGUST 2023
JUDGMENT
MULLINS P: The appellant Dr Quach commenced a proceeding by originating application in the Trial Division of this Court against the respondents Mr and Mrs Daly in relation to the purchase of a business “Daly’s Native Plants” and the related land. The purchase did not proceed and there is an issue between the parties as to whether in July 2021 there was a concluded contract for the sale of the land and the business. The rules concerning disclosure and non-party disclosure do not presently apply to the proceeding, as it was not started by claim and no order has been made by the Court that would otherwise permit disclosure of documents between the parties or non-party disclosure: see r 209 of the Uniform Civil Procedure Rules 1999 (Qld).
On 25 January 2023 Dr Quach caused five subpoenas for production to be issued to Mr and Mrs Daly, a valuer Mr Bristow, a real estate agency RE/MAX Community Realty and Hartmann-Cox Pty Ltd. By application filed on 6 March 2023, the respondents applied to set aside the subpoenas. After the respondents’ solicitors had pointed out that there was no such entity as Hartmann-Cox Pty Ltd, a further subpoena for production was issued at Dr Quach’s request on 9 March 2023 to “The Proper Officer, Hartmann-Cox”.
On 23 March 2023 the learned primary judge heard the respondents’ application and set aside the subpoenas on the basis that the subpoenas were defective on their face. Each of them was described as amounting to a fishing expedition, they were also described as broad requests for disclosure from the respondents and from the non-parties and the primary judge concluded that they were therefore inappropriate and oppressive. The primary judge also stated that “they fail to demonstrate any document or class of document that might be ‘apparently relevant’ to an issue in the proceedings”.
As this appeal concerns a matter of practice and procedure, the Court exercises restraint in interfering with decisions pertaining to such matters: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.
The only ground in Dr Quach’s notice of appeal states: “The State Supreme Court is bound by rulings of the Federal Court of Australia”.
It appears from exhibits 3 and 4 tendered before the primary judge that Dr Quach had been involved in litigation in the Federal Court of Australia and was seeking to rely on statements made during that proceeding by Griffiths J. There is no precedential value to a statement made on the first occasion by his Honour who was explaining to Dr Quach what the contents of his subpoena could be in that particular matter. Likewise, on the second occasion, Griffiths J was explaining to Dr Quach who had received a subpoena as to his obligation to provide all types of documents including digital and electronic records and there was “nothing oppressive about it either, depending on the ambit of the request”.
Dr Quach has missed the point of the primary judge’s reasons that the subpoenas issued at Dr Quach’s request do not confine the ambit of the request. The subpoenas were oppressive because they were unlimited in time and were not restricted to dealings related to the sale of the respondents’ business and land to Dr Quach.
The appellant cannot show that this is an exceptional case for appellate intervention. In fact, the appellant cannot show any error in the exercise of the primary judge’s discretion to set aside the subpoenas.
The orders which should be made are:
1.Appeal dismissed.
2.The appellant must pay the respondents’ costs of the appeal.
FLANAGAN JA: I agree.
HENRY J: I agree.
MULLINS P: The orders are those which I have pronounced. Thank you. We will adjourn.
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