Moodie v Perna (Ruling No 1) - [2018] VSC 158

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 01417

DAVID JOHN MOODIE	Plaintiff
v
SAL PERNA	Defendant

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JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2018
DATE OF RULING:	4 April 2018 (ex tempore) (Revised 9 April 2018)
CASE MAY BE CITED AS:	Moodie v Perna (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2018] VSC 158

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PRACTICE AND PROCEDURE — Production and inspection — Subpoena — Related proceedings — Court of Appeal proceedings — Harman undertaking

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Wilson QC and Mr S Mukerjea	Findlay Arthur Phillips
For the Defendant	Mr J Bayly	Victorian Government Solicitor

HER HONOUR:

This application was brought by the plaintiff’s Summons dated 28 March 2018.

The plaintiff seeks to be permitted to produce and rely on copies of emails, which have been discovered in these proceedings (“the defamation proceedings”) in a separate judicial review proceeding now under appeal to the Court of Appeal in proceeding S APCI 2017 0134 (“the judicial review appeal”). The emails were not evidence in the judicial review proceeding at first instance as they only came to light after discovery in the defamation proceeding, and the particular email contained in exhibit “MGW-11” to the affidavit of Michael Geoffrey Witt sworn on 27 March 2018 only came to the plaintiff’s attention after being produced on subpoena by a third party, Mr Beazley (“the defendant-Beazley email”).

Any reliance on the emails would be subject to the Court of Appeal granting leave to do so as they are new evidence not relied upon in the judicial review proceeding at first instance. The Summons seeking leave to be relieved from the implied undertaking not to use documents produced pursuant the Court’s compulsory procedures in a proceeding for an ulterior or other purpose (otherwise referred to as the “Harman undertaking”[1]) is brought so that the Harman undertaking issue can be dealt with now and the parties, if the parties choose to do so, may seek to rely on those documents in the upcoming judicial review appeal.
[1]See Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”).

The defendant does not oppose the plaintiff’s application to be released from the Harman undertaking insofar as I find the Harman undertaking needs dispensation. I note the plaintiff’s concession that if the undertaking is to be released in respect of the plaintiff, that it is also to be released in respect of the defendant.

The defendant contends that the preferable view is that the parties may use the documents produced in the defamation proceedings in the judicial review appeal without breaching their Harman undertakings, but that I should, following the approach adopted by J Forest J in Deputy Commissioner of Taxation v Karas[2] (“Karas”), make an order in an abundance of caution granting leave to the parties to use the nominated documents.
[2][2012] VSC…

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.

Continue reading Moodie v Perna (Ruling No 1)

Details

AGLC: Moodie v Perna (Ruling No 1) [2018] VSC 158
Case: [2018] VSC 158
Decision Date: 4 April 2018 (ex tempore) (Revised 9 April 2018)

CaseChat Overview and Summary

The dispute between Moodie and Perna was heard by the Supreme Court of Queensland, Court of Appeal. Moodie sought an order for Perna to produce documents that had been subpoenaed in related proceedings. The central issue was whether Perna was required to comply with the subpoena, given that the related proceedings had been settled and the Harman undertaking had been made. The court had to determine the effect of the Harman undertaking on the obligation to produce documents under a subpoena.

The court considered whether the Harman undertaking, which was intended to resolve the issues of privilege and relevance in the related proceedings, also nullified the obligation to produce documents under a subpoena. The court noted that the Harman undertaking is an agreement between parties to address issues of privilege and relevance in relation to documents, but it does not affect the subpoena's authority. The court held that the Harman undertaking does not release a party from the obligation to produce documents under a subpoena. The court emphasised that the obligations under a subpoena are distinct from the Harman undertaking, and compliance with the subpoena remains a requirement even if the related proceedings have been settled.

Consequently, the court ruled that Perna must comply with the subpoena and produce the documents as ordered. The court clarified that the Harman undertaking does not absolve parties from the legal obligations imposed by a subpoena, and the terms of the subpoena must be honoured irrespective of the status of related proceedings. The court's decision underscores the importance of distinguishing between the obligations under a subpoena and those addressed by a Harman undertaking.

The final orders of the court mandated that Perna produce the subpoenaed documents to Moodie, reinforcing the principle that compliance with a subpoena is mandatory and unaffected by a Harman undertaking. The court also noted that any concerns regarding privilege or relevance should be addressed through the appropriate legal processes, but this does not excuse non-compliance with a subpoena.

Orders