Rawson v Total Logistics Trust as trustee of Total Logistic Solutions (Aust) Pty Ltd (Ruling)
[2024] VCC 6
•24 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-22-02464
| BRETT RAWSON | Plaintiff |
| v | |
| TOTAL LOGISTICS TRUST as trustee of TOTAL LOGISTIC SOLUTIONS (AUST) PTY LTD | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF OBJECTION HEARING: | 20 December 2023 | |
DATE OF RULING: | 24 January 2024 | |
CASE MAY BE CITED AS: | Rawson v Total Logistics Trust as trustee of Total Logistic Solutions (Aust) Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 6 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Objection by addressee to subpoena issued to them under O 42A of the County Court Civil Procedure Rules 2018
Legislation Cited: County Court Civil Procedure Rules 2018, O 42A; Civil Procedure Act 2010
Cases Cited:Woolworths Ltd v Svajcer [2013] VSCA 270; Commissioner of The Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 0003; Messade v Baires Contracting Pty Ltd [2011] VSC 56; Burchell v Hill [2010] VSC 96
Ruling: Objection allowed. Order that subpoena is set aside. No order as to costs as between the plaintiff and defendant associated with the issue of the subpoena and the hearing of the objection. Plaintiff to pay any costs or expenses incurred by the addressee in responding to the subpoena and attendance at the objection hearing.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Willshire | Henry Carus & Associates |
| For the Defendant | Mr D Whiting (solicitor) | Landers & Rogers |
| The Addressee | The addressee appeared in person | - |
HIS HONOUR:
Introduction
1This ruling is in respect of an addressee objection to an O42A subpoena issued by the plaintiff on 13 September 2023 addressed to Dr John Culvenor.
2The way the objection hearing came before me on 20 December 2023, was circuitous; however, it is not necessary to go through all the history of the interaction between the solicitors for the parties, the Court and the addressee, to provide my reasons for the ruling.
3The Schedule of Documents in the subpoena sought:
“The documents and things you must produce are as follows:
All records in relation to these proceedings, including but not limited to:
-all letters of instructions received;
-copies of all documents sent with such letters;
-all email and/or text (SMS) exchanges with the defendant or any of its agents or legal representatives, including Lander & Rogers;
- all notes of conversations had with Lander & Rogers;
-all photographs, and/diagrams taken of the accident premises at 27 Alick Rd Tottenham VIC 3012;
-all handwritten, computer and digital notes; and
-any draft reports provided prior to the report now served.
-all subsequent reports provided after the report dated 15 July 2023.”[1]
[1]Subpoena for Production to Registrar dated 13 September 2023, pages 2-3
4The grounds of objection by the addressee, Dr Culvenor, are:
“… The request is broad brush. The relevance of the material not apparent. The request encompasses material that the issuer already has and or could be routinely shared between the practitioners. The request even encompasses material that the issuer created such as the statement of claim. If any materials are relevant many could be conveniently and routinely shared between the practitioners. To the extent that I might exclusively have materials that are relevant there was an invitation to discuss provision of material by consent (please see emails attached). The issuer declined to participate in such a conversation. Overall the request has the character of a proforma initiative. Notwithstanding the objection please see enclosed my site notes.”[2]
[2]Grounds document attached to email from Dr John Culvenor dated 22 December 2023
5The Amended Statement of Claim dated 30 August 2022, pleads that, on 24 March 2017, the plaintiff, while in the course of his employment with the defendant, was walking through the mechanics’ area of the defendant’s depot, located at Lot 3, 27 Alick Road, Tottenham. The plaintiff slipped on a piece of cardboard on the ground and tripped before struggling to regain his balance, which caused him to place his body weight on his right foot and ankle, while in an inverted position.
6The Particulars of Negligence include:
“(a)…
(b)Leaving the cardboard on the ground;
(c) …
(d)Failing to provide any or any adequate lighting in the mechanic’s area of its Tottenham depot;
(e)Failing to provide an adequate, clear and safe walkway for the driver’s seat at its Tottenham depot.”
7On 21 July 2023, the defendant served an Order 44 statement, giving notice that it intended to adduce evidence of an expert witness, being Dr John Culvenor. The substance of Dr Culvenor’s expert evidence was in accordance with a report dated 15 July 2023. I understand this is the only report provided by Dr Culvenor.
8Orders were made on 28 October 2022 listing these proceedings for trial before a judge and jury on 19 February 2024. Any Order 42A subpoena was to be issued by 4 August 2023. This subpoena was therefore issued without leave of the Court, but no objection was taken by the defendant. Given the proximity of the trial date, the holiday period, and the matter being before me with all relevant parties in attendance, I decided the most cost effective, timely and efficient way to deal with the matter was to proceed with the hearing.
9The expert report of Dr Culvenor was served by the time required by the Orders of 28 October 2022.
10I received submissions from the parties and the addressee. The plaintiff filed an affidavit in support at 8.42am on the morning of the objection hearing which, inclusive of exhibits, totalled 177 pages.
11The defendant also lodged an objection on 14 September 2023. Based upon material sent to the Court, I made an Order on 3 November 2023, noting that the defendant’s objection had been withdrawn, and granting leave to the parties to inspect and copy the material produced by Dr Culvenor. That Order should not have been made, as the objection from Dr Culvenor had not been heard and determined. Orders arising from this Ruling will include an order setting aside order 2 of my Orders of 3 November 2023.
Principles
12Order 42A of the County Court Civil Procedure Rules 2018 (“the Rules”) allows a party who has a solicitor in the proceeding to issue and serve, on a person not a party, a subpoena to produce any document for evidence before an interlocutory application or trial to the Registrar.
13Rule 42A.07 and r42A.08 provide that an objection to the subpoena or production of a document may be made by either the addressee or other person, or a party to the proceedings. Upon receipt of an objection, r42A.09 requires the Registrar to refer the subpoena to a judicial officer for hearing and determination of the objection.
14Importantly, the Rules provide that production is to the Registrar and not to a party.
15Further, the authorities make it clear the subpoena is not to replace the discovery process, and the documents sought in the schedule must be specified with reasonable particularity.
16The Court of Appeal, in Woolworths Ltd v Svajcer,[3] referred to the principles set out by J Forrest J in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria & Ors[4] and restated by his Honour in Messade v Baires Contracting Pty Ltd,[5] relating to whether a party is entitled to access documents which have been subpoenaed. I will not restate those principles, as they are well established and known to the parties.
[3][2013] VSCA 270
[4][2011] VSC 0003
[5][2011] VSC 56 (“Messade”)
17In Burchell v Hill,[6] Mukhtar AsJ, in considering what was meant by “for evidence” under the Rule, provided a very useful summary of matters for consideration.
[6][2010] VSC 96
18Commencing at paragraph 15, his Honour said:
“First, the expression ‘for evidence’ might be conjectural but the idea, I think, is to convey an intention that an interlocutory subpoena under r 42A should not be used as a substitute for non-party discovery. It is looking to obtain documents after the completion of the ordinary pleading and discovery process for use, or potential use, at trial. Whether the subpoena does, or does not, will depend on the terms of the subpoena. For example, a non-party subpoena to a bank to produce an original of a specified mortgage or cheque has the specificity to demonstrate it is not in the nature of discovery. Yet a subpoena to the same bank for production of any mortgages or cheques between A and B in a certain period, although not specific as to a particular document, could not in my view be necessarily said to be in the nature of discovery. In the end, it will come to an examination, some times an impression by the Judge, of the breath of amplitude of the document description and nature, and whether the recipient is required to make a judgment whether a particular document satisfies the description.
Secondly, I think expression ‘for evidence’ means no more than the document produced may be potentially required for evidence, either in-chief or by cross-examination. In some cases, like Kennedy Taylor v Grocon, it will be apparent or conceded that it is for some anterior purpose such as to improve a pleading. Even then, there could be a question whether a document to help compose a pleading could also be potentially capable for use for evidence depending on what is in issue after the close of pleadings.
Thirdly, what dominates is the test for relevance, that is, whether there is a legitimate forensic purpose in seeking the document. In practice, I would think that once a legitimate forensic purpose could be shown then it is reasonable to suppose that the documents may well be used in evidence.
Fourthly, even before rules such as Os 42 and 42A, courts allowed the use of the interlocutory subpoena to avoid the inconvenience and disruption caused in dealing with subpoenas returnable at trial. Indeed, it might be far less inconvenient for a non-party to produce a document before the hearing. The use of the interlocutory subpoena was seen as an incident of the court’s inherent jurisdiction over its own processes: see for example Hughes v Western Australian Cricket Assn and Re Federal Commissioner of Taxation, Ex parte Swiss Aluminium Australia Ltd. According to those two cases, the test was whether there was a legitimate forensic purpose in seeking documents before trial, and if it would be in the interests of justice to compel production. The court might set aside the subpoena until the outcome of discovery. But the essential test was whether the documents were identified with sufficient particularity.
Fifthly, much might depend on the timing. At an early stage, a court might be more inclined to direct a party to r 32.07 because at that stage attention is usually focussed on case formulation or pre-trial process. However, closer to trial, a court might be more supportive of the subpoena as long as it was not too wide.”[7]
(Footnotes omitted.)
[7](Ibid) at paragraphs [15]-[19]
19The authorities make it clear that the issuing party needs to identify “expressly and precisely the legitimate forensic purpose” and that relevance alone is not sufficient to establish a legitimate forensic purpose.
20The authorities further establish that a fishing expedition is not a legitimate forensic purpose, described by J Forrest J in Messade[8] as:
“This is casting of a line with the hope that something may be caught in a very large pond. … .”[9]
[8]Supra
[9]Messade (supra) at paragraph [10]
Consideration
21Exhibited to the plaintiff’s solicitor’s affidavit, is correspondence passing between the parties and addressee. From that correspondence, I note:
(a)On 14 September 2023, the plaintiff’s solicitor wrote to the defendant’s solicitor, requesting discovery in relation to the expert report of Dr Culvenor and said they would be issuing a subpoena to Dr Culvenor to produce all his file;
(b)On 14 September 2023, the defendant’s solicitor wrote to the plaintiff’s solicitor, giving notice that the defendant objected to the subpoena to Dr Culvenor on the grounds it was an abuse of process and fishing expedition. That correspondence noted a request for discovery was made on the same day the subpoena was issued. The defendant had not had an opportunity to respond to that request and, to avoid an objection hearing, they proposed to provide the requested documents on the basis the subpoena was withdrawn;
(c)On 19 September 2023, the plaintiff’s solicitor wrote to the defendant’s solicitor, noting the concern expressed that a request for discovery was made at the same time as the subpoena was issued. They stated this was done in order to ensure the documents held by the expert were provided in full and as quickly as possible. The correspondence said:
“It has been our experience that even the best efforts by a defendant to provide all relevant documents, compliance with a subpoena by an expert usually produces additional items, especially nowadays that much is saved in a digital fashion.”
(d)Emails were sent by the plaintiff’s solicitor to Dr Culvenor on 22 September 2023 and 10 October 2023, seeking compliance with the subpoena. (The production date was 4 October 2023); however, Dr Culvenor responded by email on 22 September 2023, informing the plaintiff’s solicitor he had called that morning and left a message. Dr Culvenor advised he was working remotely in Western Australia, and proposed an approach to responding to the subpoena;
(e)The plaintiff’s solicitor sent a follow-up email on 10 October 2023 to the defendant’s solicitor for discovery of the documents sought;
(f)On 11 October 2023, in a letter to the defendant’s solicitor, the plaintiff’s solicitor said:
“As you may appreciate, the plaintiff is entitled to letters of instructions and the expert’s file as it forms part of the opinion reached in the report. The subpoena ensures such is adequately addressed and in our experience has been standard practice by plaintiffs and defendants.”
(g)On 27 October 2023, the defendant’s solicitor provided a link to letters and correspondence to Dr Culvenor. A request to withdraw the subpoena was again made;
(h)On 30 October 2023, the plaintiff’s solicitor requested the objection be withdrawn by the defendant so that the plaintiff could inspect the material produced by Dr Culvenor;
(i)On 31 October 2023, the plaintiff’s solicitor wrote requesting further discovery relating to Dr Culvenor’s report in relation to a second visit organised by Dr Culvenor to the premises;
(j)On 31 October 2023, the defendant’s solicitor provided discovery of telephone attendances with Dr Culvenor regarding the second visit;
(k)On 2 November 2023, the plaintiff’s solicitor again requested further discovery relevant to Dr Culvenor’s report and requested again that the defendant withdraw its objection to allow the plaintiff to examine the documentation;
(l)On 3 November 2023, the defendant’s solicitor sent an email to the Court and to the plaintiff’s solicitor confirming they would withdraw the objection. They sought orders by consent for the release of documents to the parties and vacation of the objections hearing which had been listed for 8 November 2023.
22The correspondence makes it very clear the plaintiff’s solicitor issued the subpoena at the same time as making a request for discovery of material that was sought through the subpoena. The reason they gave in doing this was a belief that the issuing of the subpoena would result in fuller discovery, and in a more expeditious manner than through discovery. The correspondence suggests this practice is not only a common practice by them, but by other practitioners.
23Correctly, the defendant’s solicitor identified at an early stage their concern on this practice which they referred to as an abuse of process in issuing a subpoena at the same time as a request for discovery.
24The issue of the subpoena appears on the evidence before me to have been a deliberate step taken by the plaintiff solicitor. I also consider it had the intention to try and circumvent the normal discovery process. I am not satisfied this is the correct practice or a consistent practice by other practitioners.
25It is of interest to note that one of the grounds raised by Dr Culvenor in his objection was that the material sought would be routinely shared between practitioners. In other words, through discovery.
26As was said by Mukhtar AsJ in Burchell v Hill:[10]
“… the expression ‘for evidence’ might be conjectural but the idea, I think, is to convey an intention that an interlocutory subpoena under rule 42A should not be used as a substitute for non-party discovery. … .”[11]
[10]Supra
[11](Supra) at paragraph [15]
27The defendant, in seeking to rely on Dr Culvenor’s report, has obligations to discover material relevant to that report, and a request was made by the plaintiff’s solicitor for that material. The defendant did not oppose the request; however, even if they had, then the step which should be taken by the plaintiff was to seek a direction hearing in accordance with Part 15 of the Common Law Division Practice Note PNCLD 1-2023. In the unusual circumstances that there was material sought from an expert which was not addressed by way of discovery between the parties, then an application may be made pursuant to r32.07 of the Rules.
28The timing of the issue of the subpoena also confirmed the practice adopted was intended to circumvent the discovery process, in that the defendant was given no opportunity to respond to the request for discovery before the issue of the subpoena.
29I am also not satisfied any legitimate purpose for the subpoena could have been established. I refer to the plaintiff’s solicitor’s correspondence of 19 September 2023 to the defendant’s solicitor, where it was said “compliance with a subpoena by an expert usually produces additional items”. This clearly appears to be a fishing expedition, in that a subpoena is issued to see what might be there.
30The objection by the addressee, Dr Culvenor, is allowed and I will make an Order setting aside the subpoena issued on 13 September 2023.
31As this proceeding was listed for trial on 19 February 2024 and because of the intervention of the Court vacation, I requested submissions from the parties and the addressee on costs.
32There were three possible outcomes which were I would either set aside the subpoena, refuse the objection or make an order which was a compromise position.
33The plaintiff submitted that if I refused the objection then, I should make an order on an indemnity basis for costs against the addressee, Dr Culvenor. If I allowed the objection, costs should be in the proceeding, and for a compromise position, costs should be reserved.
34The addressee, Dr Culvenor, opposed any order of costs against him.
35The defendant submitted that Dr Culvenor was not a party to the proceedings and the subpoena issued brought him before the Court. If I was to make any order setting aside the subpoena, then the plaintiff should pay the costs. Any alternative order should be costs in the proceedings as between the parties.
36The Rules provide for an addressee to object to a subpoena being issued or to production of material. Further, I am satisfied the authorities do not suggest that the tests I apply in hearing an objection should be different as between an addressee and a party.
37I have ruled that the subpoena should be set aside which means that the addressee should not have any order directed against him.
38I also consider it would be contrary, both to the Rules and to the Civil Procedure Act 2010, for a Court to make a costs order, on an indemnity basis, against an addressee, on an objection taken except in very exceptional circumstances.
39Dr Culvenor is, however, entitled to seek recovery of his costs or expenses incurred in responding to the subpoena, particularly as the subpoena is to set aside, and evidence suggests he attempted to resolve this issue before it coming on for hearing.
40With respect to any order of costs relevant to the subpoena and the hearing as between the parties, given the history of this matter, it is appropriate that there be no order as to costs as between the parties.
41I shall make the following Orders:
(1) Order 2 of my Orders of 3 November 2023 is set aside.
(2) The subpoena addressed to Dr John Culvenor, issued on 13 September 2023, is set aside.
(3) No order as to costs as between the plaintiff and defendant associated with the issue of the subpoena and the hearing of the objection.
(4) The plaintiff is to pay any costs or expenses incurred by Dr John Culvenor, in responding to the subpoena and attendance at the objection hearing.
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