R v HSBC Bank Australia Limited
[2005] VSC 159
•19 April 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 5497 of 2005
| THE QUEEN | Applicant |
| v | |
| HSBC BANK AUSTRALIA LTD | Respondent |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 April 2005 | |
DATE OF JUDGMENT: | 19 April 2005 | |
CASE MAY BE CITED AS: | The Queen v HSBC Bank Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 159 | |
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Contempt – Alleged non-compliance with subpoena requiring bank to produce documents - Bank in process of complying – Bank attempted to communicate with applicant and Prothonotary’s Office for further time to comply – Record of that communication not on court file when subpoena returned before judge in Practice Court – No appearance on return of subpoena – Motion alleging knowing failure to produce documents – Bona fide attempt to comply – Oppressive requests in subpoena set aside – No order as to costs.
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APPEARANCES: | Counsel | Solicitors |
| The Applicant Mr P. Gao (In Person) | ||
| For the Respondent | Mr N. Klooger | |
HIS HONOUR:
This is an application by originating motion filed on 7 April 2005 for a declaration that the respondent, HSBC Bank Australia Ltd, was in contempt of the Court in knowingly not producing documents required to be produced by a subpoena for production of documents served upon the bank on or about 7 March 2005, and for orders that the bank produce the documents required by the subpoena and pay the costs of the application.
The proceeding is brought in the context of a proceeding, No. 5934 of 2001, brought by the applicant, Mr Gao, to which the bank is not a party. Mr Gao filed the subpoena in that proceeding on 7 March. The subpoena required the bank to produce a range of documents described in a schedule. The subpoena was expressed to be returnable before the judge in the Practice Court at 210 William Street, Melbourne on Monday 4 April 2005; alternatively, instead of attending in court production could be made by hand or post to the Prothonotary.
On 4 April Mr Gao appeared before the judge in the Practice Court, but there was no appearance by or on behalf of the bank. According to the affidavit in support of the present application, sworn by Mr Gao on 7 April 2005, during the hearing the judge advised that the bank had not answered the subpoena. He further deposed that an employee in the office of the Prothonotary had advised that there had been no production from the bank in response to the subpoena.
Mr Gao moved quickly, filing the present motion for contempt on the following Thursday 7 April at 12.30 p.m. The motion was returnable today and I have today heard Mr Gao in support of it and Mr Klooger, counsel for the bank, in opposition. The bank has relied on an affidavit sworn by a solicitor in its employ, Katharina Darbyshir, sworn in Sydney today, a facsimile copy of which, together with the exhibits thereto, has been provided to me. Counsel has undertaken that the original of that affidavit and the exhibits will be filed, and I have proceeded on the basis of that undertaking. Ms Darbyshir, who is employed by the bank in Sydney, has management responsibility for subpoenas served on the bank other than when the bank is a party to a proceeding in court. The present subpoena has been managed from the office of the bank in Sydney.
The position that is disclosed by the affidavit is somewhat different from that which is revealed by the short history which I have just related, and it is necessary to turn to it.
Ms Darbyshir’s affidavit was provided to Mr Gao in court this morning when the case was first called. I stood the case down for other business, thus providing time for Mr Gao to read the affidavit. When, a little later, the hearing commenced, Mr Gao did not seek an adjournment in which to prepare an answering affidavit or further consider the matter. Accordingly, the hearing proceeded. Neither deponent, Mr Gao or Ms Darbyshir, was cross-examined; indeed, neither party sought to cross-examine. As to Mr Gao’s affidavit, I accept as correct the evidence referred to earlier as to the advice of the judge and the employee in the Prothonotary’s office. As to Ms Darbyshir’s affidavit, in the course of argument Mr Gao addressed a submission as to the correctness of part of the affidavit, a submission which I reject as I refer to below. Further, in my view, there is nothing in the affidavit of Ms Darbyshir to suggest an inherent improbability or other reason such as to cause me to doubt the correctness and reliability of it.
As I have said, the subpoena was served on the bank on or about 7 March, and that is deposed to by Ms Darbyshir. She then deposed that on or about 18 March 2005 the bank sent a letter of that date to Mr Gao which referred to the subpoena and stated that the conduct money of $5 tendered to the bank was insufficient to comply with the subpoena. Mr Gao was invited to contact the writer of the letter.
Then, on or about 29 March, Mr Gao sent a letter of that date by e-mail to the bank, responding to the bank’s letter and warning that the bank must produce documents required by the subpoena and if they did not do so by the date in the subpoena the bank would knowingly be in contempt of the Court. As to conduct money, the Court could order more to be paid, but production was required by the stated date.
It is then stated by Ms Darbyshir that on or about 1 April 2005 the bank e-mailed to Mr Gao a letter of that date. The e-mail attached a letter which, after referring to the subpoena, stated that the schedule of documents in the subpoena had been reviewed and then commented upon the schedule, proceeding through the order of the paragraphs in the schedule. As to paragraphs 1, 2 and 3, it was stated that the bank had no documents within its possession, custody or control satisfying this request. As to paragraph 4, it was stated that the bank was currently attending to retrieving the documents outlined in this request from archive. As to paragraph 5, it was stated that the bank was in the process of writing to the customer of the account, notifying the customer of the subpoena and obtaining the customer's consent in accordance with the bank's duty of confidentiality. It was stated that if the customer denied production, the bank would inform Mr Gao of that decision and recommend that the customer be afforded a reasonable opportunity to protest production of the documents. As to paragraphs 6, 7, 9 and 10, it was stated that the wording appeared oppressive and imposed an unfair burden, for reasons stated, which were concerned with the width of the request, the bank stating that the request must specify with reasonable particularity the documents being sought, the disproportionate expense and effort involved, and that it forced the bank to form a judgment as to whether documents were relevant to issues in the proceeding. It was stated that the paragraph appeared a fishing expedition, and Mr Gao was invited to withdraw the request or narrow the scope of it. It was stated that if he insisted the documents be produced pursuant to the clause, the bank will commence legal proceedings seeking to set this clause of the subpoena aside, for the reasons stated. The bank reserved its right to tender the letter to the appropriate court should the need arise on the question of costs. Finally, as to paragraphs 8 and 11, it was stated that the bank was in possession of the documents requested.
The letter concluded with the following comments, under the heading "Court Attendance”. Noting that the subpoena was returnable on Monday 4 April, the bank would appreciate if Mr Gao could attend court on that day, mention the appearance of the bank and inform the Court that it required an extension of time to comply with the request in paragraphs 4, 5, 8 and 11 of the schedule. If he was agreeable to the request, would Mr Gao please adjourn the return of the subpoena date to 16 May 2005 and notify the bank of the orders made by the Court. If, however, Mr Gao was unable to attend court, or did not wish to consent to the adjournment, would he please contact Ms Wong of the bank by 10 a.m. on Monday 4 April.
Then, according to Ms Darbyshir, also on 1 April 2005 the bank sent a letter by facsimile to the Registrar of the Supreme Court of Victoria. The letter is on the letterhead of the bank in Sydney and addressed to the Registrar, Supreme Court of Victoria. It commences by referring to the subpoena for production filed in the proceeding and served on their office on 7 March, and noting that it is returnable at 10.30 a.m. on Monday 4 April 2005. The letter advises that unfortunately the bank was not in a position to produce all the documents requested in the schedule to the subpoena by 4 April, and that the bank had written to the applicant putting him on notice that the bank was unable to produce the documents requested, for reasons which were specified in the letter, namely, some documents are archived and retrieval is being attended to, some clauses of the subpoena need to be narrowed to produce reasonable particularity, and they were in the process of notifying their customer, not a party to the proceeding, affected by the terms of the subpoena, who may wish to protest production. The letter concluded with a request that the Court adjourn the return of the subpoena to Monday 16 May 2005.
Mr Gao submitted that I should not accept that this letter was sent. I accept that it was sent, and that it was sent on 1 April, and not yesterday or even today as Mr Gao submitted, both of which latter dates appear as facsimile dates on the letter. I am confirmed in that conclusion because the exhibit includes the production of the facsimile cover sheet, which shows that the letter was received by the facsimile telephone number of the Prothonotary of this Court on 1 April, at thirteen minutes past six in the afternoon. It is clear that the facsimile marking of yesterday and today’s date on the copy letter now produced occurred on the letter being further transmitted by facsimile in connection with the present proceeding.
As it turns out, neither the facsimile nor any record of it has made its way to the court file. It is in those circumstances that, when the file was before the judge on 4 April, he advised Mr Gao that the bank had not answered the subpoena. That, of course, would have been as far as the judge knew by perusing the file.
But what of Mr Gao's knowledge? In the course of his submissions this morning he said that he was not aware of the 1 April 2005 e-mail until after the appearance in court on 4 April 2005. He not having given evidence upon the matter, I am not in a position to determine when Mr Gao became aware of the e-mail and, in particular, whether he became aware of it before appearing before the judge on 4 April.
On 4 April 2005 the bank wrote to a previous customer of the bank enclosing the subpoena and noting that it required production of information concerning details of her account and advising her that if she wished to protest production she could apply to the Victorian Supreme Court. She was asked to advise within 14 days if she consented to or opposed production.
The next step was that on 7 April the present motion was filed. I do not know whether, by that time, the e-mail of 1 April 2005 had come to Mr Gao's notice, although it might be considered probable that by then he would have checked his e-mails. Nor do I know whether, if he had become aware of the e-mail, he informed the issuing clerk in the Prothonotary's office of that fact. However, the probability is that he did not do so. There is a note on the file made by the Deputy Prothonotary, and dated 7 April, which indicates to me that the file had been closely looked at before the motion was accepted for filing, and there is no reference to the bank having made any response to the subpoena. In any event, the motion for contempt was filed and served, returnable this day.
Then, according to Ms Darbyshir, on or about 14 April 2005 the bank sent a letter by facsimile to the Registrar of this Court and my Associate (I then being the Practice Court judge), pertaining to this matter. The facsimile transmission report shows that these documents were in fact sent on 15 April 2005. The letter refers to the subpoena which was returnable at court on 4 April, to the bank having sent a facsimile on 1 April 2005 to the Registrar of the Court notifying of the inability to produce the requested documents (a copy of which facsimile was enclosed), to the e-mail sent to Mr Gao on 1 April, and it was stated that it appeared that neither document had been brought to the attention of the judge or Registrar presiding over the subpoena list on 4 April 2005, and that, consequently, the bank had been charged with contempt.
The next step, according to Ms Darbyshir, is that on or about 15 April 2005 the bank sent an e-mail of that date to Mr Gao seeking a response to the e-mail sent to him on or about 1 April 2005 as a matter of urgency. Mr Gao has not responded to that e-mail.
It is then deposed that on or about 15 April 2005, the bank sent by facsimile to the Prothonotary a letter, together with a copy of the subpoena and a bundle of copy documents, by way of production pursuant to the subpoena. I have been informed that that communication was received yesterday, and that is confirmed by the facsimile date of sending on the letter received from the bank.
The affidavit of Ms Darbyshir deposes that the documents produced by the bank under cover of the letter of 15 April are not all of the documents referred to in the subpoena served on the defendant by Mr Gao. The number of documents referred to in paragraphs 6 and 7 of the schedule to the subpoena is oppressive, according to Ms Darbyshir. She noted that Mr Gao had not replied to the e-mail letter dated 1 April 2005 and stated that, if he replied to the letter and specified with reasonable particularity the documents that are being sought, the bank would be able to produce documents in answer to paragraphs 6 and 7 of the subpoena.
In the course of the argument this morning, I drew Mr Gao’s attention to the width of paragraphs 6 and 7. The width of paragraphs 6 and 7 is apparent from the terms of the requests. In both cases the request is to produce documents falling within a category of documents, of which there would doubtless be many, but with no particularity as to the bank’s customer or other person in respect of whom the document is sought. Each is an indiscriminate request for a mass of documents, relevant or irrelevant. As I understood Mr Gao, his position is that he is not going to state (and thereby limit) that which he actually wants, that it is up to the bank to make production under the subpoena according to its terms. In other words, Mr Gao does not propose to provide the particularity requested by the bank and which was sought as long ago as 1 April. That particularity would limit the scope of production to a document relating to a particular person or matter relevant to an issue in the proceeding in which the subpoena has been served. It is plain that without such particularity the requests in paragraphs 6 and 7 are too wide and oppressive.
In those circumstances and with a view to avoiding further applications, I am of the view that the part of the motion which seeks orders that the bank make production should, at least in this respect, be dealt with by the setting aside of paragraphs 6 and 7 of the subpoena on the simple ground that in requiring a mass of irrelevant material they are far too wide and oppressive.
But the primary question is whether the proper conclusion in the circumstances is that the bank has, as contended in the motion, knowingly not produced documents required to be produced by the subpoena. In the circumstances in which this matter has arisen and to which I have referred, it is abundantly plain, in my view, that the bank was bona fide attending to compliance with the subpoena. Of course it might be that the bank could have responded with greater speed. It may also be that, as a counsel of perfection, it should have had an attendance before the judge on 4 April and not relied on all going well, as requested in its communications to Mr Gao and the Court. It may be too that a factor in the bank not having arranged an attendance on its behalf, as a matter of courtesy to the Court apart from anything else, was an understanding that the matter of the subpoena may be attended to in an administrative or other way as may occur in the jurisdiction with which those handling the matter in Sydney were more familiar. Practice can and does vary in the different jurisdictions in Australia. At the same time, a communication having been made to, and received by, the Prothonotary of this Court, the bank might expect it to have been put before the judge. It might also be expected that Mr Gao would become aware of and advise the judge of the e-mail of 1 April 2005.
In that context I note that Mr Gao has never responded to the e-mail of 1 April 2005. A party who requests a non-party to produce documents should show courtesy and consideration to requests made reasonably by such a party. It is unacceptable to ignore a request reasonably made, as the request of 1 April 2005 was, in my view, and to simply insist on production according to the tenor of the subpoena. Of course, as I have said, I am not able to find when Mr Gao became aware of the 1 April e-mail. He stated that he was not aware of it when he was before the judge and in the circumstances I proceed on that basis. At the same time I am not aware of any reason why Mr Gao would not have become aware of it following 4 April 2005 and by 7 April 2005, but I am not able to make a finding as to the actual time of awareness.
In these circumstances the issue with which I am concerned is not as to Mr Gao’s knowledge, or lack thereof, of the bank’s attempts at communication with him, and what he said to the judge as to that, but, rather, whether in light of the bank’s attempts to communicate with Mr Gao and the Court, it can be said that the bank was in contempt of court in not producing documents pursuant to the subpoena. In my view, the contention that the bank was in contempt of court must fail when regard is had to the steps taken by the bank in response to the subpoena, in particular the bank’s communications to the Court and Mr Gao. It could hardly be supposed, and there is no reason to suppose, regarding the matter reasonably, that the bank should have apprehended that those communications would be totally ineffective in the sense of not coming to the attention of Mr Gao by the time he appeared at court, and to the attention of the judge, on 4 April. Surely it was not unreasonable to expect that one or other of the recipients would bring the communication to the attention of the judge. If that had happened, it is likely that the judge would have adjourned the return of the subpoena to a later date, which most probably would have been subsequent to 7 April. But to whatever date the subpoena may have been stood over, it is realistically not possible to conceive that the present motion for contempt would have been filed on 7 April. Finally, the continuing events since 4 April reflect, to my mind, not a party knowingly resisting production, but a party bona fide making reasonable endeavours to comply with a subpoena.
For these reasons, upon counsel for the bank undertaking that the original affidavit of Katharina Darbyshir of 19 April 2005 and the exhibits thereto will be filed forthwith, I will order that:
1. The proceeding be dismissed.
2.Paragraphs 6 and 7 of the subpoena addressed to the respondent dated 7 March 2005 be set aside.
(Discussion ensued as to costs.)
HIS HONOUR: I will make no order as to costs.
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