Sweeney v Howard
[2007] NSWSC 262
•16 March 2007
CITATION: Sweeney v Howard [2007] NSWSC 262 HEARING DATE(S): 16 March 2007
JUDGMENT DATE :
16 March 2007JURISDICTION: Equity Division JUDGMENT OF: Windeyer J at 1 DECISION: Order setting aside substituted service of subpoena on overseas witness. CATCHWORDS: PRACTICE – Service outside the State – Application to set aside order for substituted service of subpoena on Australian citizen residing in foreign country –Uniform Civil Procedure Rules Pt 11, r 5 permits extraterritorial service of subpoenas – Whether substituted service of subpoena on witness in foreign country permitted – Discretionary considerations – Lack of power to immediately enforce subpoena CASES CITED: Arhill Pty Limited v General Terminal Company Pty Limited (1990) 23 NSWLR 545
Laurie v Caroll (1958) 98 CLR 310
Re Skase (1991) 104 ALR 229
Southwell v Maladina (2002) 194 ALR 51PARTIES: David James Sweeney (First Plaintiff)
Rhonda June Collison (Second Plaintiff)
Cynthia June Sweeney (Third Plaintiff)
Gregory Sweeney (Fourth Plaintiff)
Sean Martin Howard (First Defendant)
Kaygen Pty Limited (Second Defendant)
Sintan Pty Limited (Third Defendant)
Waters Lane Pty Limited (Fourth Defendant)FILE NUMBER(S): SC 3018 of 2006 COUNSEL: Mr J Simpkins SC with him Ms S Mirzabegian (Plaintiffs)
Mr F Kunc with him Mr C Bova (Defendants)
Ms T Leibman (subpoenaed party)SOLICITORS: David Begg & Associates (Plaintiffs)
Gadens (Defendants)
Mallesons Stephen Jaques (subpoenaed party)
IN The Supreme Court
of New South Wales
equity DIVISION
expedition list
Windeyer J
Friday, 16 March 2007
3018/06 - David James Sweeney & 3 Ors v SEAN Martin Howard & 3 Ors
JUDGMENT
1 HIS HONOUR: The court is dealing with a notice of motion under which Ms Carla Koffel, currently residing in the United Kingdom, seeks orders setting aside an order made by Gzell J on 6 March 2007, the effect of which was that a subpoena addressed to Ms Koffel be served on her by way of substituted service by delivery to Messrs Mallesons Solicitors.
2 The application to set aside the order and perhaps, thereafter, the subpoena - although that will not matter if it has not been served - is made on various grounds. Before dealing with them, I should highlight that, for reasons which are not quite clear, but may well be involved with other litigation in which her father is a defendant, Ms Koffel does not wish to come to Sydney to give the evidence, although she is an Australian citizen and a solicitor of this Court.
3 Ms Koffel has, according to hearsay evidence admitted into evidence this morning, been in the United Kingdom since some date in 2005. She is employed there by a large French financial company and, I think partly for security reasons - which I accept are genuine - she has not even given the name of that company.
4 There is other evidence that it would be difficult for her to come to Australia.
5 I have to say that I find that other evidence less than compelling and I think that if she did not desire not to come, she would find a way of coming, and I think it unlikely that her employer would be greatly inconvenienced.
6 However, on the view to which I have come, that does not matter. Rule 11.5 provides that service outside Australia of a document other than originating process is valid only if it is effected pursuant to the leave of the Court or if service is subsequently confirmed by the Court.
7 Mr Kunc, counsel for the applicant for the subpoena, argues that there is no problem with this because the subpoena was issued under r33.2 so that if the court makes an order confirming service, albeit that it has been served pursuant to an order for substituted service - that is sufficient. In my view that is not correct.
8 I do not think that the matter can be so pulled up by the shoelaces. I consider r11.5 is clear in its terms, and that for service to be valid, if the person whose attendance is required is overseas, then there must be leave of the Supreme Court or confirmation of service where leave was not obtained. That is not, I think, confirmation of substituted service.
9 It may be that if leave is given to serve a subpoena on someone outside the jurisdiction, then substituted service may be valid. I have not had sufficient time to consider this fully, and I am of the tentative view that this will only apply in cases of submission to the jurisdiction. That, however, is not a matter which I need to go into further.
10 Gzell J was never asked for leave to serve the subpoena overseas. What he was asked to do was to make an order for substituted service. He gave leave to Ms Koffel to apply to have that order set aside, or discharged, and that is the basis upon which we are here today.
11 I consider that r11.5 does give authority for a subpoena to be served outside Australia and, in the circumstances of the present case, there is nothing in the comity of nations which would require the court to resist this. According to information made public by the Attorney-General, the government of the United Kingdom does not consider service in the United Kingdom of a subpoena issued out of a foreign court to be an interference with the governance of that country, or an interference in its sovereign affairs. Nevertheless, the position has at least ordinarily been accepted that there is no jurisdiction to serve this type of process overseas. It is true that in cases where the court has assumed extended jurisdiction under Pt 11 of the Rules originating process can, as a matter of course, be served overseas. However, in such a case, if there is no appearance, leave to proceed is necessary before the matter can be taken further.
12 I consider the question of subpoenas to be separate from that, because an originating process is served on a party who then has the opportunity of defending the action, or not defending it and, where the plaintiff wishes to proceed and there has been no appearance, leave to proceed is necessary. In the case of somebody not connected with litigation, it is my view that if it is a matter of discretion, then different considerations arise.
13 It has been put that Ms Koffel is a solicitor of this Court and that she ought to assist the Court, and also that as she is an Australian citizen it would be proper for the Court to make an order because, although it cannot be enforced against her immediately, if she failed to comply with it, she would be liable to punishment for contempt if and when she returned to Australia. While that is, at least, the theoretical position, I do not think it is satisfactory for the Court to issue some process intended to be compulsory unless there is some means of enforcement of it in the immediate future. As a matter of discretion, I would not do so in this case.
14 I should also say that apart from bankruptcy cases, counsel has not been able to refer me to any occasion on which a subpoena has been issued in the circumstances here. As I understand it, the position has always been that if you have a recalcitrant witness in a foreign country, to get the evidence of that witness, it is necessary to take it on commission, or on some equivalent basis. Whilst that is not the determining factor, it is at least something to be taken into account.
15 It is also of relevance when considering the exercise of discretion and the discussion of the question in Arhill Pty Limited v General Terminal Company Pty Limited, (1990) 23 NSWLR 545 that there may be different conditions applicable to a subpoena to produce documents than apply to a subpoena to give evidence. Compliance with the former is far less onerous than compliance with the latter, but the enforcement problem still exists.
16 I was referred to a decision of Re Skase (1991) 104 ALR 229 of the Federal Court of Australia, where an order was made allowing the issue of a subpoena, or service of a subpoena outside the jurisdiction, in connection with a bankruptcy examination.
17 There are separate provisions in the relevant bankruptcy legislation, but in case it is of relevance, I point out that in Southwell v Maladina (2002) 194 ALR 51, Dowsett J refused to follow the decision in Re Skase saying that, in doing so, he was applying the decision in Laurie v Caroll (1958) 98 CLR 310.
18 However, in coming to the conclusion I have, I have based it on the matter being in the discretion of the Court. I make the orders sought in paragraphs 2 and 3 of the notice of motion.
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