Secure Funding Pty Ltd v AB [No 2] - [2023] WASC 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SECURE FUNDING PTY LTD -v- AB [No 2] [2023] WASC 306
CORAM:   STRK J
HEARD:   31 JULY 2023
DELIVERED          :   31 JULY 2023
PUBLISHED           :   11 AUGUST 2023
FILE NO/S:   CIV [REDACTED]
BETWEEN:   SECURE FUNDING PTY LTD
Plaintiff
AND
AB
Defendant

Catchwords:

Practice and procedure - Subpoena to produce documents - Whether subpoena should be varied after production of documents - Whether inspection of documents should be permitted - Confidentiality - Exercise of discretion - Adjournment - Whether determination of application ought await determination of guardian ad litem application - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 20A‑F
Rules of the Supreme Court 1971 (WA), O 25 r 8A

Result:

Application adjourned part heard

Category: B

Representation:

Counsel:

Plaintiff	:	G D Cobby SC
Defendant	:	In Person
Non-party applicant	:	G C Semmens

Solicitors:

Plaintiff	:	Norton Rose Fulbright Australia
Defendant	:	In Person
Non-party applicant	:	G C Semmens

Cases referred to in decision:

Apache Northwest Pty Ltd v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350
Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Director-General Department of Community Services v D [2006] NSWSC 827; (2006) 66 NSWLR 582
Jensen v Nationwide News Pty Ltd [No 6] [2018] WASC 415
National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372
Stanley v Layne Christensen Co [2004] WASCA 50

STRK J:

(This judgment was delivered extemporaneously on 31 July 2023 and has been edited from transcript to correct infelicity of language and to include complete references in the form of footnotes. I consider that it may be of assistance to the defendant going forward to have these written reasons with complete references included. Given the reference in these reasons to the plaintiff's pending application seeking the appointment of the Public Trustee as the defendant's guardian ad litem, the identity of the defendant has been anonymised.)

Introduction

At the request of the plaintiff and by order made by Kenneth Martin J on 2 December 2022, the court on 6 December 2022 issued to Christopher G Semmens a subpoena to produce documents which was returnable on 11 January 2023.
In summary, Mr Semmens today seeks relief in relation to the subpoena and is not represented in that endeavour. While he has produced documents in response to the subpoena, he seeks that the terms of the subpoena be varied so as to exclude the vast majority of the documents now produced (described in these reasons as clinical records), says that the clinical records ought not be inspected, and claims privilege with respect to some documents.
The plaintiff presses for Mr Semmens' application to be dismissed and for inspection of all of the documents produced by Mr Semmens, save for a sub-set over which privilege is claimed. The plaintiff does not press for inspection of that sub-set.
As…

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.

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Details

Case: [2023] WASC 306
Decision Date

CaseChat Overview and Summary

Secure Funding Pty Ltd v AB [No 2] was a case heard in the Supreme Court of Western Australia in Chambers, where the plaintiff sought to recover money from the defendant and obtain an order for possession of a property mortgaged in its favour. The defendant had filed a counterclaim. The court had issued a subpoena to produce documents to Christopher G Semmens, a clinical psychologist who had prepared a report on the defendant's condition. Mr Semmens had produced documents in response to the subpoena but objected to the terms of the subpoena being varied and opposed inspection of the documents on the basis of confidentiality and privilege. The plaintiff sought inspection of all documents produced by Mr Semmens, except for those over which privilege was claimed.

The court considered the legal issues, including the protection provisions of the Evidence Act 1906 (WA), the court's discretion whether or not to grant access to documents produced on subpoena, and the balance between confidentiality and the public interest in the administration of justice. The court also took into account the pending guardian ad litem application, filed by the plaintiff, which sought to declare the defendant incapable of managing her affairs and appoint the Public Trustee as the defendant's guardian ad litem.

The court found that the subpoena served a legitimate forensic purpose and was not oppressive or an abuse of process. However, the court decided that the defendant's interests should be adequately protected before determining whether the plaintiff ought to inspect the clinical records. The court also noted that there was no cogent basis for there to be any proper objection for inspection of certain documents, and those documents would be released for inspection. The court ordered that the hearing of the subpoena application would be adjourned following the guardian ad litem application, with costs reserved.

Orders