Sandy v Yindjibarndi Aboriginal Corp RNTBC

[2019] WASC 322

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SANDY -v- YINDJIBARNDI ABORIGINAL CORPORATION RNTBC [2019] WASC 322

CORAM:   LE MIERE J

HEARD:   13 MAY 2019

DELIVERED          :   11 SEPTEMBER 2019

FILE NO/S:   CIV 2883 of 2017

BETWEEN:   JOHN SANDY

PAUL AUBREY

Plaintiffs

AND

YINDJIBARNDI ABORIGINAL CORPORTATION RNTBC

Defendant

Catchwords:

Practice and procedure - Subpoenas - Whether any legitimate forensic purpose - No exceptional circumstances - Subpoenas not to be issued

Legislation:

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Rules of the Supreme Court 1971 (WA), O 9A, O 36B r 2

Result:

The subpoenas not be issued

Category:    B

Representation:

Counsel:

Plaintiffs	:	Mr M L Bennett
Defendant	:	Mr K R Thomas

Solicitors:

Plaintiffs	:	Bennett + Co
Defendant	:	HWL Ebsworth Lawyers

Case(s) referred to in decision(s):

Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] [2018] WASC 124

LE MIERE J:

1. The defendant, Yindjibarndi Aboriginal Corporation RNTBC (YAC), sought leave to issue and serve subpoenas upon:

   (a)Wirlu‑Murra Yindjibarndi Aboriginal Corporation (WMYAC);

   (b)Integra Legal Pty Ltd; and

   (c)Lawfirst Pty Ltd t/as Bennett + Co.

2. The application for leave was brought under O 36B r 2(2B)(c) of the Rules of the Supreme Court 1971 (WA) (RSC). Leave is required because the issuing officer must not issue a subpoena to produce in a proceeding in which a defence is not required to be filed, unless the date and time for production is the date and time of the trial or the court has given leave. The defendant sought leave for the issue of subpoenas returnable before the trial of the matter. The defendant sought leave to issue the subpoenas to obtain documents to enable it to prepare and present its interlocutory application to strike out the plaintiffs' amended originating summons. Order 36B r 2(2D) provides the court must not give leave under subrule (2B)(b) or (c) unless satisfied there are exceptional circumstances.

3. I did not give leave to issue the subpoenas before the hearing of the defendant's strike out application.  These are my reasons for not granting leave.

What are exceptional circumstances?

1. The words 'exceptional circumstances' have their ordinary meaning. 'Exceptional' means 'out of the ordinary' or 'unusual', rather than 'unique'.  The party requesting the issue of a subpoena should be able to demonstrate the precise issues in respect of which the documents are required.  In general, when the applicant seeks the production of documents for the purposes of an interlocutory hearing, the applicant should be able to demonstrate that the documents are necessary to fairly prepare and present its case at the interlocutory hearing.

The strike out application

1. The defendant seeks leave to issue the subpoenas to obtain documents to enable it to prepare and present its interlocutory application to strike out the plaintiffs' amended originating summons.  The defendant applies to strike out the plaintiffs' amended originating summons on the ground that it is an abuse of process.  The matters said to constitute an abuse of process are:

   (a)WMYMAC:

   (i)providing funding or other financial assistance to the plaintiffs for the purpose of conducting the proceeding; and/or

   (ii)exercising direct or indirect control or influence over the way in which the plaintiffs conduct the proceeding,

   contrary to r 2 and r 5.14 (and the corresponding provisions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act)) and r 9 of The Rule Book of WMYAC (WMYAC Rule Book).

   (b)WMYAC doing the things alleged in par (a) above in circumstances where it also:

   (i)provided funding or other financial assistance to the plaintiffs in Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] [2018] WASC 124 (the AS proceeding) for the purpose of conducting that proceeding; and/or

   (ii)exercised direct or indirect control or influence over the way in which the plaintiffs in the AS proceeding conducted that proceeding,

   contrary to r 2 and r 5.14 (and the corresponding provisions of the CATSI Act) of the WMYAC Rule Book.

Forensic purpose of subpoenas

1. The defendant says that the subpoenas may disclose and provide evidence of the nature and extent of WMYAC's control over the proceedings.  The defendant says that the nature and extent of WMYAC's control over the proceedings is relevant to the strike out application.  Its relevance to the defendant's first ground to strike out the amended originating summons is as a circumstance to be considered with WMYAC's payment of the plaintiffs' legal fees in breach of the WMYAC Rule Book and the CATSI Act.  It is also relevant to the defendant's second ground to strike out because the defendant submits that while the plaintiffs are not the same for this proceeding and the AS proceeding, they are closely related and deployed by a single directing mind and will.

Plaintiffs' submissions in strike out application

1. The plaintiffs in this proceeding have filed a notice under RSC O 9A that WMYAC is an interested non‑party in relation to the plaintiffs. It may be inferred, and I infer for the purposes of this application, that WMYAC exercises direct or indirect control or influence over the way in which the plaintiffs conduct their case in this proceeding.

2. The plaintiffs have filed submissions dated 16 May 2019 in opposition to the defendant's strike out application.  In their submissions the plaintiffs admit for the purposes of the strike out application, that WMYAC paid the plaintiffs' legal fees in the AS proceeding and that it pays the plaintiffs' fees in the present proceeding.

Alleged necessity for subpoenas

1. The defendant says that the issue of the subpoena is necessary for the proper disposal of its strike out motion, notwithstanding the admissions made by the plaintiffs.

2. The defendant seeks documents by way of subpoena 'to enable it to drill down beyond the information conveyed by the RSC O 9A notice to be able to either draw inferences as to and/or establish the full nature and extent of WMYAC's control of the proceedings'.

No exceptional circumstances

1. It is not an exceptional circumstance that the documents sought by the subpoenas may disclose matters relevant to the issues in an interlocutory proceeding.  Something more is required. 

2. The defendant launched its application on the basis that the RSC O 9A notice, filed by the plaintiffs, discloses that WMYAC provides funding or other financial assistance to the plaintiffs for the purposes of conducting the case and that WMYAC exercises direct or indirect control or influence over the way in which the plaintiffs conduct their case.

3. The defendant considered that the RSC O 9A notice and the inferences to be drawn from it, are sufficient for it to bring its strike out application. The plaintiffs have since admitted, for the purposes of the strike out application, that WMYAC paid the plaintiffs' legal fees in the AS proceeding and that it pays the plaintiffs' fees in the present proceeding.

4. As I have said, I will infer for the purposes of the strike out application that WMYAC exercises direct or indirect control or influence over the way in which the plaintiffs conduct their case in this proceeding.

5. I am not satisfied that the documents sought under the subpoenas are necessary for the defendant to fairly prepare and present its strike out application.  I am not satisfied that the defendant has made out exceptional circumstances.  Leave to issue the subpoenas will be refused.

Conclusion

1. YAC's application should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MS
Associate to the Honourable Justice Le Miere

11 SEPTEMBER 2019