JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2023
DATE OF JUDGMENT:	13 September 2023
CASE MAY BE CITED AS:	Re Sleeping Duck Pty Ltd (Appeal)
MEDIUM NEUTRAL CITATION:	[2023] VSC 541

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APPEAL — Appeal from interlocutory determination of an Associate Justice under Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06 — Application to set aside subpoena — House v The King (1936) 55 CLR 499 — Oswal v Carson [2013] VSC 355, applied — Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi [2022] VSC 199, applied — ACN 096 450 770 (formerly AJH Lawyers Pty Ltd) v Mathieson Nominees & Anor [2017] VSC 559 — Secretary of State for Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 — Appeal dismissed on all grounds.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Porteous	Corrs Chambers Westgarth
For the Fourth Defendant	Mr Mukherji	Strongman & Couch
No appearances by the First, Second or Third Defendants

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Relevant background regarding the proceeding...................................................................... 2
The application to set aside the Subpoena................................................................................ 3

Applicable law and principles........................................................................................................ 4

Appeals from an associate judge................................................................................................ 4
Setting aside subpoenas............................................................................................................... 6

The primary judge’s Ruling............................................................................................................. 7

Grounds of appeal........................................................................................................................... 10

The Fourth Defendant’s submissions.......................................................................................... 11

Introduction................................................................................................................................. 11
The Fourth Defendant’s submissions regarding the Disputed Finding............................. 12
Submissions upon a re-hearing of the Summons................................................................... 14

The Plaintiff’s submissions........................................................................................................... 15

Consideration.................................................................................................................................... 21

Conclusion......................................................................................................................................... 27

HER HONOUR:

Introduction

This is an appeal from an interlocutory ruling delivered by Barrett AsJ (‘primary judge’) on 26 June 2023 and orders made that day.[1]
[1]His Honour’s ruling was delivered orally and recorded in the transcript of the hearing, and is found at pages 105 to 115 of the Appeal Book filed for this appeal (‘Ruling’).

The Ruling concerned an application made by the Fourth Defendant by summons dated 31 May 2023 (‘Summons’) to set aside a subpoena issued to Westpac Banking Corporation (‘Westpac’) on 15 May 2023 at the Plaintiff’s request (‘Subpoena’), alternatively to object to inspection of the documents identified in the Subpoena.

By notice of appeal dated 4 July 2023 (‘Notice of Appeal’), the Fourth Defendant appeals the Ruling under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘SC Rules’).

Before the primary judge:

(a) The Fourth Defendant relied upon:

(i) the affidavit of Milica Petronijevic sworn 29 May 2023 (‘Petronijevic Affidavit’). Ms Petronijevic is a solicitor with Strongman and Couch (‘S&C’), solicitors for the Fourth Defendant; and

(ii) a written outline of submissions dated 21 June 2023.

(b) The Plaintiff…

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 Re Sleeping Duck Pty Ltd (Appeal)

Details

AGLC: Re Sleeping Duck Pty Ltd (Appeal) [2023] VSC 541
Case: [2023] VSC 541
Decision Date: 13 September 2023

CaseChat Overview and Summary

In the case of Re Sleeping Duck Pty Ltd (Appeal), the appellant, Sleeping Duck Pty Ltd, sought to appeal an interlocutory determination made by an Associate Justice under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) rule 77.06. This determination involved an application to set aside a subpoena issued in the context of an ongoing legal dispute. The appellant contested the validity and necessity of the subpoena, arguing it was overly broad and oppressive. The court was required to decide whether the application to set aside the subpoena was properly dismissed by the Associate Justice.

The central legal issue before the court was whether the Associate Justice correctly exercised their discretion in dismissing the application to set aside the subpoena. The appellant contended that the subpoena was improperly issued, as it was excessively wide-ranging and potentially oppressive, violating principles established in precedents such as House v The King and Oswal v Carson. The appellant further argued that the application to set aside the subpoena should have been granted based on the principles set out in cases like Re IPO Wealth Holdings No 2 Pty Ltd and ACN 096 450 770 v Mathieson Nominees.

The court found that the Associate Justice correctly exercised their discretion in dismissing the application to set aside the subpoena. The reasoning was grounded in the understanding that the issuance of a subpoena is a matter within the court's inherent jurisdiction, and the decision to set aside a subpoena rests on a careful balancing of the principles of fairness and the need for discovery in the context of the litigation. The court considered the relevant precedents and held that the Associate Justice had not erred in their assessment of the application. Consequently, the appeal was dismissed on all grounds, affirming the interlocutory determination made by the Associate Justice.

Orders