Quach v Vu

[2009] NSWSC 131

CITATION:	Quach v Vu & ors [2009] NSWSC 131
HEARING DATE(S):	10 February 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	10 February 2009
DECISION:	Subpoena set aside.
CATCHWORDS:	PROCEDURE – subpoena – enforcement – procedure on non-compliance – examination of witness.
CATEGORY:	Procedural and other rulings
CASES CITED:	Hexiva Pty Ltd v Lederer [2006) NSWSC 561 Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306
TEXTS CITED:	Seminars on Evidence (1970), Moffitt J
PARTIES:	Jenny Quach aka Thi Thu Lan Quach (plaintiff) Francis Hung Vu (first defendant) Francis Vu Pty Ltd (second defendant) Ayoub Dental Biocare Pty Ltd (third defendant)
FILE NUMBER(S):	SC 5574/07
COUNSEL:	Mr S M Golledge (plaintiff) Mr D M Flaherty (first & second defendants)
SOLICITORS:	Sally Nash & Co (plaintiff) Mullick & Associates (first & second defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday 10 February 2009

5574/07 Jenny Quach aka Thi Thu Lan Quach v Francis Hung Vu & ors

JUDGMENT (ex tempore)

1 HIS HONOUR: By Notice of Motion filed on 15 December 2008 the plaintiff Jenny Quach seeks orders relevantly that a subpoena issued on 4 December 2008 for production addressed to her on behalf of the first defendant be set aside, and that the first defendant comply with a subpoena issued on 13 August 2008 to him and be examined as to his non-compliance with that subpoena.

2 The subpoena issued by the first defendant, which the plaintiff seeks to have set aside, purports to require production of "copies of income taxation returns of the Quach Superannuation Fund for the financial years ended 30 June 2003 to 30 June 2007 inclusive". The objection is fundamentally one of relevance.

3 These proceedings concern the interests of the plaintiff, Ms Quach, in a property at Padstow apparently held by her and the first defendant as trustees of a unit trust; her interest in a superannuation fund, of which the first defendant and his father are the trustees; and a claim by her for a debt said to be due to her from the first defendant. In her claims for relief, she seeks that her interest in the superannuation fund be rolled over into a fund of her choosing, and it is not in dispute, although not apparent from the pleading, that she has nominated her superannuation fund for that purpose.

4 Save for that, her superannuation fund has no apparent connection to these proceedings. The attempt that has been made to show that there is some confusion as to how she has applied moneys involving, in some way, her superannuation fund completely fails. In my opinion, no tenable connection between the affairs of the Quach Superannuation Fund to a matter in issue in these proceedings has been established. The subpoena issued on 4 September 2008 is an abuse of process and I order that it be set aside.

5 The subpoena issued by the plaintiff on 1 August 2008 is an extensive one, claiming production of documents in about 35 categories. The first defendant has produced some documents in response to it. No application has been made to set it aside, nor any submission made that it should not be enforced on grounds of irrelevance or oppression. A letter from the plaintiff’s solicitor to the defendant’s solicitor of 24 October 2008 listed those documents which had been produced and made observations as to certain documents that did not appear to have been produced. According to the evidence before me, there has been no response to that letter nor any further production, though it was asserted from the bar table that some of the documents in question were annexed or exhibited to affidavits; even if that be so, which was not established, that does not amount to production pursuant to a subpoena. There is, therefore, some basis for supposing that the first defendant may not fully understand the obligation imposed by the subpoena.

6 In Hexiva Pty Ltd v Lederer [2006) NSWSC 561 I endeavoured to outline the procedures applicable where non-compliance for insufficient compliance with a subpoena was alleged.

7 Insofar as the notice of motion seeks an order that the first defendant comply with the subpoena, that is utterly pointless; the subpoena is an order of the Court; either it has been complied with or it has not, and there is no utility in making an order that the first defendant comply with a subpoena which already binds him.

8 The question, therefore, is whether an order should be made that the first defendant be examined in respect of the subpoena. In Hexiva, I referred to the observations of Moffitt J in his Honour’s extrajudicial writing in Seminars on Evidence (1970), and to the judgment of Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306. In particular, Moffitt J wrote that there seemed no reason why the court should not have a discretion to ask, of a person required to produce documents on subpoena, questions to ascertain the sufficiency of compliance, either informally or on oath. His Honour elaborated:

In exercising such a discretion, the court would not infringe the privilege of a person not to incriminate himself, having regard to the fact that deliberate non compliance with a subpoena is a contempt of court with penal consequences ... Any such discretion could not extend as far as conducting a discovery process ... The precise limits of questions of a person subpoenaed to produce documents are debatable, but it seems that a judge could ask and possibly permit to be asked, questions informally or on oath to ensure the party understood the terms of the subpoena and the documents referred to and his obligation thereunder, including his obligation regarding documents in his possession or power and relating to search ... It would seem, however, that questions could not extend to establishing proof that the person was in contempt of court, nor could they be of the search and inquiry type such as to the person’s knowledge as to the location of documents not in his present possession or control, or as to the nature of other documents in his possession not within the scope of the subpoena, or as to his system of books or the like, so that this material could be used to search for other evidence or to enable a different subpoena to be framed.

9 In Arnotts, Beaumont J concluded that, an issue having arisen as to whether or not documents of the type called for by the subpoena in question existed, the appropriate method to be adopted or the determination of that adjectival issue was a matter for judicial discretion. His Honour concluded that the appropriate course in that case was that the witness who had been subpoenaed to produce documents should be sworn, not in the substantive proceedings but in the ancillary application for production of documents pursuant to the subpoena; that that witness should then be examined by counsel for the party calling on the subpoena (implicitly in chief, by non-leading questions, albeit that the witness was the proper officer of the opposing party in the litigation); that counsel for the party with whom the witness was aligned might then also examine the witness; and that directions to that effect were without prejudice to any claim for privilege against self-incrimination which might be made in the course of the examination and also without prejudice to any claim for confidentiality, and on the basis that none of the evidence so given was to be evidence in the principal proceedings or in proceedings in which it might be alleged that there had been a failure to comply with the subpoena. This approach sought to preserve a fair balance between permitting Arnotts, who had issued the subpoena, and to pursue their inquiries as to the existence of the documents sought, without depriving the other party of its rights to claim privilege in a proper case. His Honour observed that Arnotts may not be able to pursue their inquiries exhaustively but, on the other hand, the respondent to the subpoena would have to make out a proper foundation for any claim for privilege.

10 For the reasons I have already given, a sufficient basis has been established for it to be said that the plaintiff has reasonable cause for wishing to test the sufficiency of the first defendant’s compliance with the subpoena for production. However, in deciding whether pursuit of this course is ultimately worthwhile, the plaintiff needs to give close regard to the limits which will be imposed on the type of examination that takes place in this setting: in particular, that it is not a cross-examination, and it is not (as the application assumes) an examination as to “non-compliance with the subpoena”. It is likely to be limited in the manner in which Moffitt J and Beaumont J have indicated in the article and case to which I referred. In the interests of justice, the plaintiff should have the opportunity which it seeks of examining the first defendant’s understanding of his obligation in respect of the subpoena. But that opportunity should be at the plaintiff’s risk as to costs as they are, in effect, seeking to call on a subpoena in respect of which it would be their responsibility to provide conduct money and/or bear the costs reasonably incurred. As to the limits of the examination, ultimately that will be a matter for ruling on such objections as may be taken at the time but I will be guided by the limit proposed by Moffitt J to the article I just referred. For example, while the plaintiff might be permitted to explore whether the first defendant understood his obligation to extend to producing documents that were annexed to affidavits or to extend to carrying out searches and so on, I doubt it would be permissible for the plaintiff to explore whether particular documents were or were not in existence and were in the possession of the first defendant since that would go towards an allegation of contempt.

11 I make the following orders:

(1) that the subpoena issued on 1 September 2008 to the plaintiff at the request of the first defendant be set aside.

(2) that first defendant attend before the Court at 9.30am on 20 February 2009 before me for the purpose of being examined in respect of the subpoena for production issued on 13 August 2008 and addressed to him. This order is made without prejudice to any claim for privilege against self-incrimination which may be made by the first defendant.

(3) that none of the evidence given on such examination be accepted as evidence in the principal proceedings or in any proceeding for contravention or failure to comply with the subpoena.

(4) that in the first instance the plaintiff pay the first defendant’s costs of attendance and of the examination.

(5) that the first defendant pay the plaintiff’s costs of the motion.

12 I make declarations in terms of paragraph 1 of the cross-claim filed 22 September 2008. I make a declaration in terms of paragraph 2 of the cross-claim. I order that each of the cross-claimant and the cross-defendant do all things and execute all documents necessary to effect the transfer by each of them to the trustees of the Vu Super Fund 75 ordinary units each in the Vu Unit Trust.

13 By consent I order that paragraphs 4, 5 and 6 of the cross-claim be dismissed.

14 Liberty to apply by arrangement with my Associate in the event of any difficulty arising with the timeframe for the examination.

**********