Zabusky v Virgtel Limited - [2022] QCA 134

SUPREME COURT OF QUEENSLAND

CITATION:

Zabusky & Ors v Virgtel Limited [2022] QCA 134

PARTIES:

HARVEY ZABUSKY
(first appellant)
EREZ ZABUSKY
(second appellant)
D A WERBER LIMITED (RC 261285)
(third appellant)
v
VIRGTEL LIMITED (IBC 311178)
(respondent)

FILE NO/S:

Appeal No 4975 of 2022
SC No 8849 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Application to Set Aside Subpoena

ORIGINATING COURT:

Supreme Court at Brisbane – [2022] QSC 46 (Bowskill CJ)

DELIVERED ON:

1 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2022

JUDGES:

Mullins P

ORDER:

The subpoena for production issued on 4 July 2022 and served on James Conomos Lawyers is set aside.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the primary judge had to decide whether the respondent was entitled to the benefit of costs orders made in the proceeding in favour of the respondent or whether the third party payer had the entitlement to the benefit of the costs orders – where the respondent was found to hold the costs orders on trust for the third party payer – where the appellants appealed against that finding – where the costs agreement signed by the third party payer was in evidence before the primary judge – where the appellants had the registrar issue a subpoena for the purpose of the appeal to the solicitors for the respondent to obtain electronic documents to assess the authenticity of the costs agreement – where the authenticity of the costs agreement was not in issue before the primary judge and was not the subject of a ground of appeal – whether the subpoena issued at the request of the appellants should be set aside

Uniform Civil Procedure Rules 1999 (Qld), s 766

Collier v State of New South Wales [2014] NSWCA 442, cited
Zabusky & Ors v Virgtel Limited [2021] QSC 17, related

COUNSEL:

C A Johnstone for the applicant non-party James Conomos Lawyers Pty Ltd
C C Wilson for the appellants

SOLICITORS:

HopgoodGanim Lawyers for the applicant non-party James Conomos Lawyers Pty Ltd
Kenmore Mediation & Law Centre for the appellants

MULLINS P: In these reasons I will refer to the parties by their designations in the appeal. At the request of the appellants, the registrar on 4 July 2022 issued a subpoena for production of documents to James Conomos Lawyers (JCL) who are solicitors for the respondent in the appeal. The subpoena was returnable before me on 29 July 2022 at which time I heard JCL’s application to set aside the subpoena. I extended the time for complying with the subpoena until 2.15 pm on 1 August 2022 and the application to set aside the subpoena was adjourned to the same date and time. These are my reasons for setting aside the subpoena.
The appeal is against the decision of the Chief Justice given on 7 April 2022: Zabusky & Ors v Virgtel Limited [2022] QSC 46. Crow J had ordered that proceeding BS…

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: [2022] QCA 134
Decision Date: 1 August 2022

CaseChat Overview and Summary

In the matter of Zabusky v Virgtel Limited, the Court of Appeal was called upon to determine whether the respondent was entitled to the benefit of costs orders made in the proceeding in their favour, or whether a third party payer held that entitlement. The respondent was found to hold the costs orders on trust for the third party payer, a finding the appellants contested on appeal. The appellants sought to challenge the authenticity of a costs agreement signed by the third party payer, which was in evidence before the primary judge, by issuing a subpoena to the respondent's solicitors for electronic documents. However, the authenticity of the costs agreement was not in dispute before the primary judge and was not the subject of any ground of appeal.

The court considered whether the subpoena issued at the request of the appellants should be set aside, given that the authenticity of the costs agreement was not contested and not the subject of the appeal. The court held that the subpoena should be set aside, as the appellants had not demonstrated a proper basis for its issuance. The appeal was centred on the entitlement to the costs orders, not the authenticity of the costs agreement, and thus the subpoena was deemed unnecessary and inappropriate in the context of the appeal.

The court emphasised that the issuance of subpoenas in the context of an appeal should be carefully considered and only done where there is a proper basis for it. The court underscored that the subpoena was not relevant to the issues before it, and thus it should be set aside. This decision highlights the importance of ensuring that the processes of appeal are used for their intended purpose and not for pursuing collateral matters that are not relevant to the appeal itself.

ORDERS:
The subpoena for production issued on 4 July 2022 and served on James Conomos Lawyers is set aside.

Orders

Orders of the court

The subpoena for production issued on 4 July 2022 and served on James Conomos Lawyers is set aside.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Zabusky & Ors v Virgtel Limited [2022] QCA 134
PARTIES:	HARVEY ZABUSKY (first appellant) EREZ ZABUSKY (second appellant) D A WERBER LIMITED (RC 261285) (third appellant) v VIRGTEL LIMITED (IBC 311178) (respondent)
FILE NO/S:	Appeal No 4975 of 2022 SC No 8849 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Application to Set Aside Subpoena
ORIGINATING COURT:	Supreme Court at Brisbane – [2022] QSC 46 (Bowskill CJ)
DELIVERED ON:	1 August 2022
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2022
JUDGES:	Mullins P
ORDER:	The subpoena for production issued on 4 July 2022 and served on James Conomos Lawyers is set aside.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the primary judge had to decide whether the respondent was entitled to the benefit of costs orders made in the proceeding in favour of the respondent or whether the third party payer had the entitlement to the benefit of the costs orders – where the respondent was found to hold the costs orders on trust for the third party payer – where the appellants appealed against that finding – where the costs agreement signed by the third party payer was in evidence before the primary judge – where the appellants had the registrar issue a subpoena for the purpose of the appeal to the solicitors for the respondent to obtain electronic documents to assess the authenticity of the costs agreement – where the authenticity of the costs agreement was not in issue before the primary judge and was not the subject of a ground of appeal – whether the subpoena issued at the request of the appellants should be set aside Uniform Civil Procedure Rules 1999 (Qld), s 766 Collier v State of New South Wales [2014] NSWCA 442, cited Zabusky & Ors v Virgtel Limited [2021] QSC 17, related
COUNSEL:	C A Johnstone for the applicant non-party James Conomos Lawyers Pty Ltd C C Wilson for the appellants
SOLICITORS:	HopgoodGanim Lawyers for the applicant non-party James Conomos Lawyers Pty Ltd Kenmore Mediation & Law Centre for the appellants