Trkulja v Ivanovic
[2011] VSC 445
•22 August 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 00921 of 2010
| MILORAD TRKULJA | Plaintiff |
| v | |
| DUSAN IVANOVIC | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2011 | |
DATE OF JUDGMENT: | 22 August 2011 | |
CASE MAY BE CITED AS: | Trkulja v Ivanovic | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 445 | |
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PRACTICE AND PROCEDURE – Appeal from directions concerning subpoenas – No evidence demonstrating substantive orders inappropriate – Procedural orders giving effect to procedural regime previously established – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms V Blidman | DLA Piper |
HIS HONOUR:
In this matter, the plaintiff appeals against the orders of Associate Justice Mukhtar made on 29 July 2011. He has today filed and served written submissions which seek orders that go beyond the ambit of the notice of appeal before me.
Those written submissions implicitly indicate that previous orders made in the proceeding are relevant to the orders made by Associate Justice Mukhtar. It is convenient to refer to those orders.
On 4 March 2011, Associate Justice Daly made orders relating to objections to a subpoena dated 22 February 2011. The Court recorded under 'Other Matters':
1.The subpoena dated 3 December 2010 is an abuse of process of the court because
(a)the documents sought are identical to the documents sought by the Plaintiff in County Court proceedings brought by him against Mr Markovic, in which proceeding a subpoena in substantially similar terms has been set aside; and
(b)there is insufficient evidence before the court to establish that the documents sought will be relevant to an issue in this proceeding.
(c)The subpoena issued on 2 December 2010 seeking documents from Mr Markovic is in similar terms.
2.Mr Trkulja has informed the Court that he has terminated his retainer with the solicitors on the record in this proceeding.
The Court ordered that:
1.The Chief Commissioner of Police's objection to the subpoena issued on 3 December 2010 is upheld, and the subpoena is set aside.
2.The subpoena issued on 21 February 2011 and directed at Mr Spelolia Markovic is set aside, insofar as it seeks the production of documents.
3.No further subpoenas are to be issued by the Plaintiff without the leave of the Court.
Other orders were made with respect to the trial of the proceeding and costs which are irrelevant for present purposes.
I pause to emphasise that under 'Other Matters', her Honour specifically recorded her opinion that there was insufficient evidence before the Court to establish that the documents sought pursuant to the subpoena would be relevant to an issue in the proceeding and I further emphasise that her Honour specifically ordered that no further subpoenas were to be issued by the plaintiff without the leave of the court.
The plaintiff appealed her Honour's order and on 29 April 2011, Beach J made the following orders:
1.The DVD currently in the possession of the Court which is the subject of the subpoena to the Chief Commissioner of Police, is not to be inspected by any party save with the leave of a Judge made after application on notice to the Chief Commissioner of Police and Mr Srbolyup Markovic and Ms Milena Markovic.
2.The appeal from the orders made by Associate Justice Daly on 4 March 2011 is otherwise dismissed.
In addition, his Honour made orders with respect to costs.
In consequence of his Honour's orders, Associate Justice Daly's orders remained on foot and in particular the order that no further subpoenas are to be issued by the plaintiff without leave of the court.
The matter then came back to Associate Justice Mukhtar on 29 July 2011. Associate Justice Mukhtar had before him a summons filed on behalf of the plaintiff and directed to the defendant which baldly stated:
You are summoned to attend before the court on the hearing of the Plaintiff who seeks to obtain court orders to issue subpoenas in this proceeding.
The affidavit in support recorded that the proceeding was set for final hearing on 5 September 2011 and that the plaintiff sought court orders to issue subpoenas to the following persons to produce and give evidence in the proceeding; (a) Drago Ivanovic; (b) Srbolyup Markovic; (c) the Victoria Police Officer Peter Tasiopoulos; (d) the Victoria Police produce Brief X03569142 with DVD evidence.
Having considered the matter, Associate Justice Mukhtar stated under 'Other Matters':
1.On 4 March 2011, the Court (Associate Justice Daly) ordered that no subpoenas be issued by the plaintiff without leave of the court. That order, on its terms, means no interlocutory subpoenas (or Rule 42A subpoenas) and no subpoenas for trial. It appears that order was made to overcome a repetition of subpoenas filed by the plaintiff that the court struck out as an abuse or for irrelevance. That order stands.
2.The Plaintiff's application (filed 12 July 2011) for leave is not supported by any affidavit. Leave can only be granted if the court is satisfied that the evidence sought to be addressed is relevant or serves some legitimate forensic purpose. Neither is self evident.
His Honour then ordered that the plaintiff file and serve any affidavit in support of his application for leave to file a subpoena by 8 August 2011. He further ordered that such affidavit also be served on Drago Ivanovic, Srbolyup Markovic, Sergeant Peter Tasiopoulos of the Victoria Police and the Chief Commissioner of Police.
The plaintiff has now appealed this last order. He submits that Associate Justice Mukhtar erred, firstly because he permitted Srbolyup Markovic to appear before him as a party of interest and, secondly, because he required the persons against whom the plaintiff wishes to issue subpoenas to be given notice of the basis of any application for leave to issue such subpoenas.
In my view, both points are misconceived.
The appeal to me is an appeal by way of rehearing. Mr Markovic is not before me today. The question of whether he should or should not have been heard before Associate Justice Mukhtar is irrelevant to the question I must decide.
The substantive question is whether it is proper to require notice to be given to affected parties of the substantive basis on which leave to file further subpoenas should be granted as ordered by Associate Justice Mukhtar.
Given the history of the matter, and in particular the terms of the orders of Associate Justice Daly and of Beach J to which I have referred, it seems to me that that order was entirely appropriate.
The matter comes before me in the absence of any affidavit material stating a proper substantive basis on which the issue of the proposed subpoenas should be permitted.
The submissions of the plaintiff assert a series of matters but they neither demonstrate that Associate Justice Mukhtar's order was inappropriate nor justify relief beyond that which he granted.
Accordingly, the appeal will be dismissed.
I propose to order that the plaintiff pay the defendant's costs of the appeal on a solicitor and client basis. In my view, the award on that basis is justified because the appeal was misconceived. Firstly, as Ms Blidman has submitted, Associate Justice Mukhtar's orders do not prevent an application being made for subpoenas. They simply set out a proper procedural basis for such an application to be made.
Secondly, I accept that the underlying bases on which the appeal were brought raised matters which have already been resolved by the orders of Associate Justice Daly and upon a previous appeal to Beach J.
Accordingly, I will order the plaintiff pay the costs of the appeal on a solicitor and client basis.
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