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Heritage Bank Ltd v Gleeson (No 3)[2020] QDC 217

Heritage Bank Ltd v Gleeson (No 3)[2020] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:

Heritage Bank Limited v Gleeson & Anor (No 3) [2020] QDC 217

PARTIES:

HERITAGE BANK LIMITED
ACN 32 087 652 024
(plaintiff/applicant)

v

JAROD LUKE GLEESON (AKA JAROD LUKE)
(first defendant/first respondent)

SHEREE AMY TAYLOR
(second defendant/second respondent)

FILE NO:

3066/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Porter QC DCJ

ORDER:

  1. The subpoena to Peter Lock, Chief Executive Officer of Heritage Bank Limited dated 22 July 2020 be set aside.
  2. The subpoena to Dentons Australia Limited, C/O Gary Koning dated 22 July 2020 be set aside.
  3. The subpoena to William Robert Veivers dated 22 July 2020 be set aside.
  4. The subpoena to Wise McGrath, C/O proper officer dated 22 July be set aside.
  5. Costs be reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICE TO PRODUCE AT HEARING – SETTING ASIDE OR OTHER RELIEF – where the defendants had defaulted on mortgage repayments – where substituted service orders were made against both defendants – where default judgment was entered against the defendants in respect of the default – where the defendants sought to set aside the default judgment by challenging the validity of the substituted service order – where the defendants issued subpoenas to the plaintiff and non – parties – where subpoenas are issued in interlocutory proceedings – where the defendants have previously issued subpoenas – where leave had been refused to inspect documents produced under the previous subpoenas – whether the further subpoenas issued were be an abuse of process – whether there had been a material change in circumstances since the previous hearing – where the subpoenas seek evidence relevant to re-litigate matters already dealt with in previous judgment refusing to set aside the default judgment – whether the subpoenas are an abuse of process – whether the subpoenas should be set aside

Legislation

Civil Proceedings Act 2011 (Qld)

Uniform Civil Procedure Rules 1999 (Qld) rr. 414(2); 414(6); 416; 420; 667(2)(b); 668

Cases

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc. (1981) 148 CLR 170

Adelaide Steamship Co v Spalvins 24 ACSR 536

Castillon v P&O Ports Ltd [2008] 2 Qd R 219

D A Christie Pty Ltd v Baker [1996] 2 VR 582

Hudson v Branir Pty Ltd [2005] NTCA 5

Hunter v Chief Constable of West Midlands Police [1982] AC 529

Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 Qd R 261

Nominal Defendant v Manning (2000) 50 NSWLR 139

SG v State of Queensland [2004] QCA 461

Rogers v R (1994) 181 CLR 251

Rippon v Chilcotin [2001] NSWCA 142

Secondary Sources

Elegals Litigators Toolkit (Jackson and Pastellas)

Handley Spenser Bower & Handley Res Judicata (4th edn) at 9.12.

COUNSEL:

Applicants self-represented

G Koning (sol) for the respondent

SOLICITORS:

Applicants self-represented

Dentons Australia for the respondent

Introduction

  1. [1]
    The plaintiff (the Bank) applies to set aside subpoenas directed to it, its solicitors and process servers. This application is a further step in the attempts of the defendants to set aside a default judgment for possession under a registered mortgage of a residential property owned by the male defendant (who prefers to use the name Luke Jarrod) and for money due under the loan secured by the mortgage against both defendants.
  2. [2]
    The background of the matter up to 25 June 2019 is set out in my judgment Heritage Bank Limited v Gleeson [2019] QDC 119 at [1] to [19] (my first judgment). In that judgment, Ms Taylor applied to set aside an order for substituted service and the default judgment against her. She did so on three grounds. I dismissed her application. That order has never been appealed. For present purposes, the only relevant ground raised on that occasion was that the evidence of one of the process servers (Mr Vievers) was false or misleading.
  3. [3]
    For the reasons given on that occasion, I dismissed the Ms Taylor’s application. My reasons for doing so in relation to the false or misleading allegation are relevant to the disposition of this application. The submission of Ms Taylor and my reasons were as follows:

[5] Mr Veivers tried to serve Ms Taylor at the address of the house on 4 September at 4.25pm and on 7 September at 7.45am. Both attempts at service were ineffective. At the time of his second attempt at service he took a photograph of certain notices in the vicinity of the front door. Those notices fairly aggressively asserted that the property was private property. There was to be no trespass. There was no consent to anyone coming on the land. The notices had a flavour of threat in them, in the sense of asserting aggressively rights, powers, privileges and immunities and so on.

[6] Ms Taylor, by her affidavit, suggests that this photograph must be mistaken because it shows a switch which she says was not there at the time this photograph was purportedly taken on 7 September. Her evidence, as it was explained to me in her affidavit, was that the light switch was removed, perhaps, up to a year before this photograph was supposed to have been taken. However, her other evidence about whether there was one notice or two notices leaves it open to conclude that there were two notices at the time the photograph was taken.

[7] It seems extraordinarily improbable that the photograph was concocted. The photograph itself shows notices which her evidence does not exclude might have been there and are certainly consistent with Mr Gleeson’s apparent approach to dealing with potential trespassers, evident from other documents before me. It seems to me the more probable inference is that she is mistaken about the timing of events relating to this photograph. This is not least because, at the time she says the switch was removed, nobody (at least no process server) would have had any cause to be taking photographs of the front window. I am persuaded the photograph is authentic.

  1. [4]
    On 11 March 2020, the defendants filed a further application to set aside the substituted service order (the 11 March application). It was supported by an affidavit of Ms Taylor (CD 49) which sets out the basis for the application. There is also an affidavit of Jarod Luke (CD 50) which sets out further matters. The applicants contended that the order ought to be set aside pursuant to rr. 667(2)(b) and 668 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) on the basis that the order was obtained by fraud.
  2. [5]
    The applicants initially sought to have the application decided without an oral hearing pursuant to Rule 489 UCPR. I refused to make the orders because the application had not been served: see Heritage Bank Limited v Gleeson (No 2) [2020] QDC 36. I also commented that the application needed to address the default judgments. That has subsequently been addressed by an amendment to the application I permitted at a hearing on 29 July 2020.
  3. [6]
    The nature of the issues raised in the material relied upon on the 11 March application needs to be briefly canvassed.
  4. [7]
    Ms Taylor relies on statements made by Mr Veivers while being secretly recorded from October 2019 to December 2019, over a year after he swore he attended at the property to try to serve the defendants.
  5. [8]
    The gravamen of her affidavit is to this effect.
  6. [9]
    First, on 31 October 2019:
    1. (a)
      Mr Veivers was surprised as to her being sued to judgment by the Bank;
    2. (b)
      Mr Vievers did not recall serving her;
    3. (c)
      Mr Veivers went to the property on only once;
    4. (d)
      Mr Veivers did not recall that Ms Taylor existed.
  7. [10]
    Second, on 13 December 2019, Mr Veivers said:
    1. (a)
      He was confused about the absence of her name on any paperwork;
    2. (b)
      He did not recall Ms Taylor (though he said, revealingly, that if the name was on the paperwork, she would have been served too);
    3. (c)
      He did not understand, if she was a half owner of the property, why her name was not on the “documents”;
    4. (d)
      He suggested she not waste money pursuing the matter with solicitors.
  8. [11]
    Third, she gave evidence that the photographs relied upon by Mr Veivers were inaccurate, inter alia, because of the timing of removal of the doorbell.
  9. [12]
    Fourth, on 26 November 2019, she engaged Mr Veivers in a conversation about these photographs. She persuaded him to agree to provide her with copies of the photographs by saying she did not know what was on them (despite her evidence referred to in [6] of my first judgment above). Mr Veivers agreed to provide them. Then, some days later, he said that he no longer had them because of a computer failure.
  10. [13]
    Fifth, she seemed to allege that Mr Veivers was in error in his description of the “warrant” (presumably the enforcement warrant for possession) because he said her name was not on it, but she exhibited a copy that did have her name on it.[1]
  11. [14]
    Mr Luke’s affidavit also challenges Mr Veivers’ evidence. He swears that he received a copy of Mr Veivers’ affidavits on 1 May 2019. He appears to refer to the affidavits relating to him and Ms Taylor relied upon on the substituted service application. He lists seven factual matters stated in those affidavits:
    1. (a)
      That Mr Vievers went to the property on 4 September 2018;
    2. (b)
      That the property is quite modern;
    3. (c)
      That there did not appear to be anyone home;
    4. (d)
      There were signs advertising “no trespasser” (seemingly referring to the photographs noted by Ms Taylor);
    5. (e)
      That he attended again on 7 September 2018;
    6. (f)
      Neighbours were unable to assist; and
    7. (g)
      No mail was sighted.
  12. [15]
    Mr Luke’s affidavit contains evidence adduced to establish that those facts are incorrect.
  13. [16]
    Relevantly he:
    1. (a)
      Recalls working on reconditioning a fence from 3 September 2018 for two weeks all day and did not recall Mr Veivers approaching him;
    2. (b)
      He relied on CCTV footage not showing Mr Veivers visiting (though that footage is apparently wiped every 16 days);
    3. (c)
      He relied on evidence said to show that the photographs are not accurate by reference to the doorbell, a plant and a denial that the signs were displayed;
    4. (d)
      He leads evidence that neighbours did not recall speaking to Mr Vievers when asked at some later stage;
    5. (e)
      He relies on some comments by Mr Vievers on the day of his eviction as admissions of perjury;
    6. (f)
      He refers to various steps he took in dealings with the Bank from February 2018 to May 2018;
    7. (g)
      He gives other evidence of returning post from the Bank.
  14. [17]
    The outline of argument filed in support of the application (CD 52) demonstrates that the gravamen of the application was that Mr Vievers’ evidence was perjured and the substituted service order obtained by fraud based on the matters sworn to in the affidavits. It also contends that the Bank failed in its duty of full and frank disclosure on the substituted service application. Those submissions focus on the return of mail sent to the property and the documents sent which Mr Luke seems to contend notified his change of name.
  15. [18]
    The matter came before Barlow DCJ on 9 April 2020 for directions (CD 55). His Honour was presumably informed that the defendants wished to issue subpoenas. He directed that any subpoenas be made returnable on 23 April 2020. His Honour then made orders for filing of material by the Bank by 21 May 2020 and that the hearing of the 11 March application be listed for one day in the civil list after 28 May.
  16. [19]
    Importantly his Honour also directed that the application be mentioned on 23 April 2020 “limited to the production of subpoenas and any applications for access to subpoenaed documents”.
  17. [20]
    On 15 April 2020, the applicants filed Requests for Subpoenas to produce documents directed to the Bank, the Bank’s solicitors Dentons, Mr Veivers and Sharmans Investigations (the April Subpoenas). Those subpoenas are attached to the requests.
    1. (a)
      The subpoena directed to the Bank sought production of a document allegedly returned by Mr Luke to the Bank on 4 May 2018 and called impermissibly for the filing of an affidavit dealing with certain matters;
    2. (b)
      The subpoena directed to Dentons sought production of emails sent to Ms Bidoli at Dentons which contained the photographs in Mr Veivers’ affidavit complained about by Ms Taylor in the application before me last year (the Photographs) and instructions to Mr Veivers from Dentons;
    3. (c)
      The subpoena directed to Mr Veivers required production of the photographs attached to Mr Veivers’ affidavits and seemingly related communications and all documents in relation to the property and another address, 151 Jones Road;
    4. (d)
      The subpoena to Sharmans sought documents relating to the photographs and documents from Mr Vievers, Mr Phillips and a Mr Silec relating to the Property.
  18. [21]
    The subpoenas also sought to compel copies to be provided to my associate and to Judge Barlow’s associate.
  19. [22]
    The matter came on before Koppenol DCJ on 23 April as directed by Judge Barlow. The events on that day were the subject of a contested hearing before me on 29 July 2020. The point in dispute was whether a variation to first the sealed order issued in relation to that hearing was validly made.
  20. [23]
    The first draft of the orders made on 23 April provided by Dentons for settling was sent on 28 April. It provided:
  1. The Application filed 11 March 2020 be dismissed;
  2. The subpoenas issued as against the plaintiff and Dentons Australia Limited be set aside;
  3. The first and second defendants pay the plaintiff’s costs of and incidental to this application on a standard basis.
  1. [24]
    The sealed order initially issued by the registry in response was in the following terms:
  1. Applicant/Defendant’s application for subpoenas and access to subpoenaed documents dismissed.
  2. Direct registrar to return the subpoenaed documents to the parties they were obtained from;
  3. Applicant to pay the Respondent’s costs of and incidental to this application on the standard basis to be agreed between the parties and failing agreement to be assessed.
  1. [25]
    Denton’s later contacted the associate to his Honour directly by telephone on 5 May 2020 without notice to the defendants and seemingly suggested that his Honour had also ordered that the underlying application be dismissed. It appears that the hand written order sheet was amended to add that order (the Amended Order). Thereafter, an amended sealed order was issued on or about 12 May 2020 including dismissal of the 11 March application.
  2. [26]
    The only evidence put before the Court as to what happened on that day was contained in the affidavit of Ms Taylor (CD63). It is brief. It is evident however that his Honour was informed that the application was for access to subpoenaed material. His Honour, after argument, dismissed the “applications for the subpoenas” and refused access to any documents produced. The first part of the order is a little hard to understand on the limited material before me as to what passed on that day. What is clear is that his Honour was not persuaded that access should be given to any subpoenaed material. No reasons were given. On the material before me, it appears his Honour took that view because the 11 March application was a further application to set aside the default judgment and therefore misconceived.
  3. [27]
    (Some days later the sealed order was amended to add and order dismissing the 11 March application: (the Amended Order). On 29 July 2020 I set aside the further order dismissing the 11 March application. Reasons for that are being prepared but in short, that order was not made by his Honour at the time and the addition of such an order to the Court order sheet some 18 days after the hearing was in error.)
  4. [28]
    After I had listed the question of the validity of the Amended Order for hearing, the defendants filed further requests for subpoenas directed to the same parties as the April subpoenas, with the exception that Sharmans were replaced by Wise McGrath, seemingly on the basis of Mr Veivers recollection that he had sent material to them, including copies of the Photographs. These requests were issued on 22 July 2020 (the July Subpoenas).
  5. [29]
    The July subpoenas were in similar terms to the April subpoenas except:
    1. (a)
      The subpoena directed to the Bank added paragraph 2 which sought originals of registered instruments of mortgage;
    2. (b)
      The subpoena directed to Dentons added paragraph 3 which sought further emails which forwarded the Photographs;
    3. (c)
      The subpoena directed to Mr Veivers was identical;
    4. (d)
      The subpoena to Wise McGrath was different in form but in my view directed at obtaining the same documents as sought in the Sharman’s subpoena, though put in more general terms.
  6. [30]
    On 29 July 2020, the Bank applied to set aside all the July subpoenas. I directed that the parties file submissions on that issue and that I would determine it on the papers.

The Bank’s submissions

  1. [31]
    The Bank submits that the July subpoenas should be set aside for the following reasons.
  2. [32]
    First, the Bank submits that the scope of the July subpoenas substantially overlaps with that of the April subpoenas. The Bank submits that as the April subpoenas were set aside by Koppenol DCJ, it is an abuse of process to issue further subpoenas in similar form.
  3. [33]
    Second, the Bank submits (in effect) that to the extent that the subpoenas seek evidence about the authenticity of the Photographs, they seek to re-agitate an issue which was determined in my previous judgment. This they contend is also an abuse of process.
  4. [34]
    Third, the Bank submits that to the extent the subpoenas seek evidence to otherwise challenge the validity of the substituted service order, they are an abuse of process because that issue was determined in my previous judgment.
  5. [35]
    Fourth, the Bank submits that to the extent that the subpoenas seek evidence about instructions to or from the process servers, it is a fishing expedition. There is no basis properly laid for a belief that there is any relevant evidence in such correspondence which will assist setting aside the subpoenas.
  6. [36]
    Fifth, to the extent the subpoenas are in support of the contention that Mr Vievers has committed perjury, self-incrimination privilege arises.
  7. [37]
    Sixth, the Bank submits that the use of subpoenas is improper because they are being deployed impermissibly for pre-hearing disclosure which is properly the subject of disclosure and non-party disclosure processes under the UCPR. The Bank relies on Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 Qd R 261.
  8. [38]
    The Bank then addressed each subpoena by reference to those matters in it written submissions.

The defendants’ submissions

  1. [39]
    The defendants’ contentions can be summarised as follows.
  2. [40]
    First, the defendants point out that Koppenol DCJ did not have before him any application to set aside the April subpoenas and never made an order setting them aside. Further, they submit that his Honour’s reasons for refusing access focussed on the 11 March application being misconceived because it did not seek to set aside the default judgment. As that has been now addressed, the July subpoenas are not misconceived for that reason.
  3. [41]
    Second, the subpoenaed information is relevant to the just and expeditious resolution of the proceedings. Specifically, the defendants point to:
    1. (a)
      The voluminous evidence already before the Court of material non-disclosure; and
    2. (b)
      The original security documents have not been disclosed by the Bank.
  4. [42]
    Third, as to the argument that the subpoenas should not be used in favour of the disclosure process, they submitted:
    1. (a)
      The subpoenas were issued pursuant to the directive of Judge Barlow and no objection was made at the time by the Bank;
    2. (b)
      Leighton Contractors Pty Ltd v Western Metals Resources Limited does not apply in this case because the defendants are not seeking pre-trial disclosure.
  5. [43]
    Fourth, there is a legitimate forensic purpose and the subpoenas are not fishing because the subpoenas seek specific documents and there is a compelling case of both forgery and fraud made out on the material filed by the defendants.
  6. [44]
    Fifth, as to self-incrimination privilege of Mr Veivers, the defendants submit that that privilege does not apply to the duty to respond to a subpoena, and that Mr Veivers must claim the privilege, it cannot be claimed on his behalf.
  7. [45]
    The defendants then address the scope of each subpoena by reference to those considerations.

Relevant principles

  1. [46]
    There are a number of points to make before considering individual subpoenas.

Abuse of process and repeating interlocutory steps

  1. [47]
    Interlocutory applications by their very nature are not final judgments. They do not give rise to judgment estoppels, merger of causes of action in judgment, nor to issue estoppels. Accordingly, in theory, the same interlocutory application could be brought on several occasions in the one proceeding. However it is self-evident that the efficient conduct of civil litigation requires some brake on that conduct. The starting point for identifying how the Courts control interlocutory steps in civil proceedings is the High Court decision in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc. (1981) 148 CLR 170. That case concerned an appeal to the High Court from a judgment of a trial judge involving a matter of practice and procedure which was overturned by the Full Court. In a passage with relevance to a number of aspects of this matter, the majority[2] held as follows:

There is no reason to doubt that the disputed decision of Smithers J concerned a matter of practice and procedure. The essence of such a matter is described in terms which are sufficient for present purposes in (1981) 35 ALR 625 at 629; Salmond on Jurisprudence (10th ed) p 476: “Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.”

…

Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v Electronic Industries Ltd [1978] VR 431 at 440 ; on the other hand, De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143 at 146 . For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 : “… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal”: see also Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193; Dougherty v Chandler (1946) 46 SR (NSW) 370 at 374 . It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.

We mention these matters in order to clarify and confine the matters that are in issue between the parties. Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust:… Of course, the changed circumstances must be established by evidence: Cutler v Wandsworth Stadium Ltd, supra.

[underlining added]

  1. [48]
    The first underlined observation contains a principle equally applicable where a party brings a second interlocutory application for the same relief or seeks to repeat an interlocutory step which has already been impugned by a judgment of the Court. Repetitive interlocutory applications are, like appeals from interlocutory decisions, apt to frustrate the administration of justice by delaying final resolution and heaping up costs. It would also apply where subpoenas are issued which are set aside or otherwise impugned by Court order and then fresh subpoenas on substantially the same grounds are brought. It must be kept in mind that interlocutory processes are solely for the purpose of ensuring the fair disposition of the underlying dispute. They are not an end in themselves.
  2. [49]
    The Bank contends that there is a rule that a second interlocutory application will be an abuse of process unless it is based on fresh evidence. However, the second underlined observation does not purport to express that matter as the necessary pre-conditions to a further application: note the use of inter alia.
  3. [50]
    While I do not think Adam P Brown Male Fashions necessarily supports that Bank’s proposition, it does gain support from the majority decision in D A Christie Pty Ltd v Baker [1996] 2 VR 582. That case is analysed in detail by Foster A-JA in Nominal Defendant v Manning (2000) 50 NSWLR 139 at [101] to [118].
  4. [51]
    As his Honour explains, only Hayne JA based his decision in the case on the correctness of the Bank’s proposition, though Brooking JA agreed in that reasoning (his Honour resolving the case on the basis of issue estoppel). Charles JA dissented.
  5. [52]
    In Nominal Defendant v Manning, Mason P agreed in the approach of Hayne JA. In that case, the relevant application was made under s 52(4) of the Motor Accidents Act 1988 (NSW), which precluded commencement of proceedings outside prescribed time limits “except with the leave of the court in which the proceedings are to be taken”. After the dismissal of his first application for leave to commence an action out of time, the respondent had made a second, successful application supported by evidence which could have been placed before the court in the earlier proceedings. The Nominal Defendant’s appeal was not argued on the basis of issue estoppel, but the question received some passing reference.
  6. [53]
    Mason P observed:

[10] A long line of authority attests to the practice of courts hearing interlocutory applications on matters of substance declining to allow a second contested run at the target where the only change of circumstances is an applicant coming forward with new evidence. (See Brimaud v Honeysett Instant Print Pty Ltd, Supreme Court of NSW, McLelland J, 19 September 1988, noted in Ritchie's Supreme Court Procedure [13,047] and Wentworth v Rogers, Supreme Court of NSW, Sperling J, 28 April 1995, noted in (1996) 70 ALJ 613 for statements of the practice and extensive references to earlier authorities.) Extracts from these judgments are set out by Foster AJA. See also Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313.

[11] In Brimaud, McLelland J stated the following principle:

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application ....

Sperling J expressed the point in the following terms in Wentworth:

I hold that, as a general rule, an interlocutory order made after a hearing at which each side has the opportunity to put its case should not be set aside, varied or discharged, except to accommodate a change of circumstances or where evidence has become available which was not available at the earlier time. By the same token, where an application for interlocutory relief has failed, a further application for the same relief should, as a general rule, not be entertained, subject to the same qualifications, at least after a hearing on the merits, particularly where the application is designed to finalise the principle proceedings, such as an application for summary judgment or for a permanent stay.

[12] I do not see any point of material difference in these two formulations of what I shall henceforth call "the rule of practice".

[13] As Heydon JA demonstrates, the rule of practice has been applied to a range of interlocutory orders of a substantive nature, including the appointment of a provisional liquidator, the grant or refusal of an interlocutory injunction and orders staying proceedings on various grounds, including security for costs.

[14] The rule of practice is not a rule of evidence barring the admissibility of certain types of evidence in an interlocutory application. The court hearing the second interlocutory application will receive evidence if otherwise admissible but, as soon as it has satisfied itself that the second application falls foul of the general rule, there will be an abuse of process calling for an appropriate remedy.

  1. [54]
    However, as Keane JA observed in Castillon v P&O Ports Ltd [2008] 2 Qd R 219 at [68], Heydon JA and Foster AJA did not go so far. Heydon JA held at [72]:

[72] Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602-603 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid.

[underlining added]

  1. [55]
    Foster A-JA also rejected Mason P’s general rule. His Honour rather followed the approach of Charles JA. Foster A-JA held:

[122] With respect, I have found the reasoning of Charles JA more persuasive than that of the majority. His Honour reached the following conclusions, with which I respectfully agree and which I adopt for present purposes (at 611):

"For these reasons I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent."

[123] In the present case, although the failure of the respondent's legal advisers to produce the evidence explaining delay in the first application must necessarily be severely criticised, I, for my part, do not regard the making of the second application, with the inclusion of that material, as constituting, relevantly, an abuse of the Court's process. The exercise by the primary judge of a discretion to admit and consider this evidence was not flawed. It was not necessary, for its admission, that it be established that it was, despite due diligence, unavailable for the first hearing. The fact that the appellant was subjected to a second application and hearing because of default in relation to the first hearing was, of course, a matter to be taken into account in the exercise of his Honour's discretion. The weight to be attributed to that fact was a matter for his Honour. It is, in my view, sufficiently apparent from the passage already cited, that it was taken into account in circumstances where his Honour attributed little significance to it. He considered that the appellant's interests could be protected by an appropriate cost order. In my opinion no miscarriage of discretion has been shown in his Honour adopting this course.

  1. [56]
    There is then a difference of approach between the rule articulated by the majority in D A Christie, and the majority in Manning. The conflict of authority was noted by Keane JA in Castillion, but was ultimately unnecessary to resolve on the facts of that case.[3] The issue also arose in SG v State of Queensland [2004] QCA 461, but the ground of appeal which raised that matter was abandoned. The matter does not appear to have been considered in the trial division of the Supreme Court or in this Court.
  2. [57]
    The position Queensland therefore remains unresolved.
  3. [58]
    The difference between the ‘abuse of process’ approach and the ‘discretionary factor’ approach is probably less than might be imagined in practice. Both approaches share a common underlying principle: that being the prevention of unnecessary and repetitive consideration of interlocutory matters to the detriment of finality, consistency and efficiency in procedural processes for resolution of civil proceedings.
  4. [59]
    In my respectful view, however, the majority approach in Nominal Defendant v Manning seems more correct.
  5. [60]
    First, an interlocutory application is not one that gives rise to final relief. The ‘abuse of process’ approach seems to go close, however, to elevating such applications to that status: limiting reconsideration to where fresh evidence is available means review of such applications is open only in circumstances which could permit reconsideration on appeal.
  6. [61]
    Second, many if not most interlocutory orders are discretionary. It seems to me that it is incorrect in principle to confine that discretion in advance such that it can only be exercised a second time if the strict requirements of the ‘abuse of process’ approach. While it might well be the case that ordinarily, the discretion will be exercised against a party bringing a second application unless fresh evidence or some other material change in circumstances is identified, there might be circumstances where that appears a wrong approach to take.
  7. [62]
    Third, the inflexibility of the abuse of process approach might tell against a party which seeks to rely on it where there is new evidence, but the circumstances of its obtaining and leading are such as to nonetheless suggest that a further application should not be permitted.
  8. [63]
    Finally, to conclude that it is not automatically the case that a second application without a material change in circumstances (which is what the subject of fresh evidence will usually be) is an abuse of process does not mean that other matters might make further applications an abuse of process for other reasons. The expression ‘abuse of process’ is used when a litigant engages in improper procedure and misuses the processes of the court: Hunter v Chief Constable of West Midlands Police [1982] AC 529. Abuse of process is a flexible doctrine. In Rogers v R (1994) 181 CLR 251 at 286, McHugh J stated that although the categories of abuse of process are not closed, there are three established categories, namely where: ‘(1) the court’s procedures are invoked for an illegitimate purpose, (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute’. There have been other formulations and other more specific categories identified in other cases.
  1. [64]
    Halsbury’s Laws of Australia[4] proposes this categorisation (footnotes omitted):

Although not purporting to be exhaustive, the following have been suggested as categories of abuse of process:

  1. (1)
    proceedings involving a deception of the court, which are fictitious or constitute a mere sham;
  1. (2)
    proceedings where the court’s process is being unfairly or dishonestly used in that they have an ulterior or improper purpose or are being employed in an improper way;
  1. (3)
    proceedings which are manifestly groundless, without foundation or serve no useful purpose; and
  1. (4)
    multiple or successive proceedings which cause, or are likely to cause improper vexation or oppression.
  1. [65]
    The last item includes re-litigating issues already dealt with in a manner which, while not attracting cause of action or issue estoppels, nonetheless comprises improper vexation or oppression. The abuse of process which might arise from bringing a further interlocutory application for similar relief falls into this category. Other examples include the doctrine of Anshun estoppel[5] and the situation where a non-privy, by its conduct and relationship to a party to proceedings, is nonetheless taken to be effectively bound by a judgment estoppel.[6] Depending on the circumstances, a second interlocutory application might be an abuse of process even if it includes new evidence.
  2. [66]
    It should also be borne in mind that abuse of process is not limited in its application to multiple interlocutory applications. It might also apply to repeated issue of subpoenas.

Use of subpoenas in interlocutory applications

  1. [67]
    There is at first blush an oddity about the use of subpoenas in interlocutory applications. In practice, they are not commonly used. In my opinion, that is a salutary practice. Paraphrasing the highlighted remarks above from Adam P Brown, if a tight rein were not kept upon the use of procedural devices (such as subpoenas) in interlocutory applications, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed (if not interminably), and costs heaped up (if not indefinitely).
  2. [68]
    However, there is no limit on the use of subpoenas in interlocutory proceedings evident in the UCPR nor the Civil Proceedings Act 2011 (CPA), Part 7 of which regulates the use of subpoenas. The relevant provision defining the circumstances in which a subpoena may be issued is Rule 414(2) UCPR which provides:

The court may, on its own initiative or at the request of a party to a proceeding, issue a subpoena requiring the person specified in the subpoena to –

  1. (a)
    attend to give evidence as required by the subpoena;
  1. (b)
    produce a document or thing as directed by the subpoena; or
  1. (c)
    do both of the things mentioned in subparagraphs (a) and (b).
  1. [69]
    Neither this rule specifically, nor the rules governing subpoenas generally, confine the power to issue a subpoena to the obtaining evidence for use in the trial of a proceeding. The lack of any express provision limiting use of subpoenas to obtaining evidence for the trial of a proceeding does not mean, of course, that such a limitation might not be inferred. However, a statutory provision in very similar (though not quite identical terms) was construed as authorising the issue of a subpoena in an interlocutory matter in Adelaide Steamship Co v Spalvins 24 ACSR 536 at 543-544 (note in particular definition of proceeding in that case and in the Dictionary in the CPA which apply to the UCPR under Rule 4 are relevantly similar).[7]
  2. [70]
    The point might not be beyond argument, however it was not argued in this application and I consider by far the better view is that the power exists. However, in assessing whether a subpoena should be set aside on one or more of the grounds recognised at law, it might be relevant that it is issued in the context of an interlocutory application.

Ground to set aside subpoenas

  1. [71]
    Rule 416 confirms the court’s undoubted power to set aside a subpoena. The generally accepted grounds for doing so are[8]:
    1. (a)
      Want of relevance;
    2. (b)
      That compliance with the subpoena is unduly oppressive;
    3. (c)
      That the subpoena seeks to obtain disclosure of all relevant documents rather than seeking specific evidence for use at the hearing;
    4. (d)
      (And similarly) That the subpoena is issued for the proper purpose of obtaining specific evidence for use at trial rather than in the hope of finding evidence which might assist at trial (so called fishing);
    5. (e)
      That the subpoena seeks documents which are privileged; and
    6. (f)
      That the subpoena is in some other way an abuse of process of the Court.
  2. [72]
    This is a sufficient statement of the grounds for present purposes.

General Observations

Orders made in relation to the April subpoenas

  1. [73]
    The defendants are correct that Judge Koppenol did not set aside the April subpoenas. No order to that effect was ever recorded in a sealed order, nor (on the evidence before me), was it ever stated in Court. There is no evidence that the Bank even sought that order. Instead, the order made was that the defendants’ “application for subpoenas” be dismissed. I do not understand why that order was made, nor the context in which it was made. There is no evidence that it was sought by the Bank. The only evidence before me as to what occurred before his Honour is the limited evidence in Ms Taylor’s affidavit (CD 63 paragraphs 6 to 12).
  2. [74]
    Rule 414(6) UCPR confers a discretion on the Registrar to issue a subpoena. There does not appear to be any evidence that the April subpoenas were issued but I can see no reason why they would not have been. An order that the a request for subpoena be dismissed might be made nunc pro tunc, but I do not see why that would occur unless the Registrar erred in issuing the subpoenas. No discussion of any such error at the hearing is before me. The order is broadly consistent with his Honour forming the view that the subpoenas should not be given effect to. Beyond that, I put no weight on that order.
  3. [75]
    More relevantly, however, his Honour refused leave to inspect any documents produced in response to the April subpoenas. There are oddities about that order as well on the limited evidence before me as to what passed on 23 April. In particular, it does not appear that there was evidence that any documents were produced, though some evidence suggests some documents might have been produced by the Bank.
  4. [76]
    However, these conclusions do not mean that his Honour’s orders are irrelevant to the application to set aside the subpoenas as an abuse of process. What is clear is that the effect of the orders made by Koppenol DCJ was that the defendants were not permitted to inspect any documents which might be produced in response to any of the subpoenas. Further, it appears that his Honour made those orders because he considered the underlying application was misconceived.
  5. [77]
    Where the Court has refused leave to inspect documents produced under a subpoena because of a view that the underlying interlocutory proceeding is misconceived, it seems to me that it is strongly arguable that any further subpoenas issued will be an abuse of process unless it can be shown that there is good reason for going behind the previous decision of the Court, bearing in mind the desirability of finality in litigation, particularly where ‘interlocutory’ steps in interlocutory applications are concerned (applying the majority view in Nominal Defendant v Manning).
  6. [78]
    Here, the defendants argue that there is a material change in the circumstances before his Honour. They submit that his Honour considered that the underlying application was misconceived because it failed to seek to set aside the default judgment (a point identified in my reasons in Heritage Bank (No. 2) above). They have now addressed that shortcoming by amending the application with my leave to include an application to set aside the default judgment. So, they argue, it is not an abuse of process to reissue the subpoenas on similar grounds.
  7. [79]
    There is some difficulty with this as a circumstance which justifies the objects of the subpoenas being troubled by them on a second occasion:
    1. (a)
      It is not clear to me exactly why his Honour considered the application misconceived, despite Ms Taylor’s submission;
    2. (b)
      Even if the problem was as she says, there is good public policy grounds for only letting a party have one try at issuing proper subpoenas. Otherwise a party just keeps changing the basis of the application and issuing further subpoenas until eventually they get it right or find a judge who takes a different view from a previous judge; and
    3. (c)
      That is all the more so, where the subpoenas go to an interlocutory application (although that matter is somewhat less compelling where the interlocutory application is to set aside a judgment obtained other than on the merits).
  8. [80]
    Despite the shortcomings of the process before his Honour on 23 April, it is tolerably clear that his Honour refused to give effect to the April subpoenas and that order has not been appealed. While I do not consider it is an absolute bar to the issuing of further subpoenas, it is a consideration which tends to support the conclusion that the July subpoenas are an abuse of process.
  9. [81]
    I say that conscious that the July subpoenas are in slightly different form to the April subpoenas and that the Sharmans subpoena is now directed to another process serving firm. To my mind, to the extent the July subpoenas overlap with the April subpoenas, the argument for abuse of process is stronger.
  10. [82]
    I also say that conscious that Mr Taylor swore that she did not understand the process to be followed before his Honour and the material that should have been put before him. While that is likely true, it remains the case that the other party is entitled to the benefit of its rights at law even when the opponent is a self-represented party.[9]

The relevance of my first judgment: the photographs

  1. [83]
    The Bank does not solely rely on the 23 April orders as grounding its contention that the July subpoenas are an abuse of process. It also relies on my first judgment. As explained, in that case I refused to set aside the substituted service order and the default judgment.
  2. [84]
    As already noted, the Bank submits (in effect) that to the extent that the July subpoenas seek evidence about the authenticity of the Photographs, they seek to re-agitate an issue which was determined in my previous judgment. There is merit in that submission. I refer to paragraph [3] above. As explained there, the authenticity of the two photographs exhibited to Mr Veivers’ affidavits was canvassed before me last time. That issue has been determined after full argument and with a full opportunity to put forward relevant evidence already. To attempt to re-litigate that issue is of itself apt to comprise an abuse of process. Why, one might ask, should that be permitted to be reconsidered a second time?
  3. [85]
    One reason which could be advanced by the defendants is that they have identified further evidence which might inform that issue. However, the evidence in their affidavits on this point does not persuade me that the Court and the Bank should be required to deal with that issue again (at least for the purposes of assessing whether the subpoenas are being sought in support of an abuse of process to the extent they seek documents relating to that issue).
  4. [86]
    The specific evidence on the issue from Ms Taylor is summarised at paragraphs [11] and [12] above. The matter in paragraph [11] is not fresh evidence, it is something which at best occurred to Ms Taylor after the last hearing. The matter in paragraph [12], though a new event, is in my view of insufficient probative weight to persuade me that subpoenas should be permitted to assist in re-litigation of this issue. A casual offer to provide photographs about a year after they were taken which later cannot be made good is not a compelling basis to infer fraud, especially given my findings on the last occasion.
  5. [87]
    The specific evidence from Mr Luke on that issue is of a similar nature to that of Ms Taylor, involving references to the timing of the presentation of the door. Given that it raises the same kind of point as that raised by Ms Taylor, I do not think that the fact that Mr Luke was not an applicant on the first application makes this point any more compelling.
  6. [88]
    I think there is a strong argument that it is an abuse of process to seek to re-litigate the photograph issue. That also supports the view that the subpoenas, to the extent they seek to obtain evidence on that issue, are an abuse of process.

The relevance of my first judgment: the whole application

  1. [89]
    The Bank also contends that the current application to set aside the default judgment is an abuse of process because it seeks to re-litigate the issue determined in my first judgment.
  2. [90]
    The second proposition is certainly partially correct: by the 11 March application, Ms Taylor seeks, a second time, to set aside the default judgment. She also seeks to do so on the same ground as before: that Mr Veivers evidence is false and therefore the substituted service order should be set aside.
  3. [91]
    Although this is not recognised in the Bank’s submissions, Mr Luke is in a different position. He did not apply to set aside the default judgment on the last occasion. It is relevant, however, that his affidavit confirms he was aware of Mr Vievers affidavits before the hearing of Ms Taylor's application. No explanation is given as to why he stood by and did not participate in that hearing. Given their common approach to this second attempt to set aside the default judgment, the overlap in their evidence, the overlap in the issues raised on the previous occasion, and the lack of explanation as to why Mr Luke did not participate in that hearing, it could reasonably be argued that Mr Luke’s application was an abuse of process, because he seeks to litigate the same issue resolved in my first judgment, having stood aside while it was litigated the first time.[10]
  4. [92]
    Be that as it may, it must also be kept in mind that there is no judgment estoppel arising from an interlocutory judgment, and further, that in my view re-litigating an interlocutory matter will not necessarily be an abuse of process absent fresh evidence is available. Further, while a default judgment is interlocutory,[11] it needs to be kept in mind that it has the effect of resulting in a judgment other than on the merits.
  5. [93]
    Here of course, there is fresh evidence available. In that regard, it is necessary to consider Ms Taylor’s evidence and Mr Luke’s evidence.
  6. [94]
    I can deal shortly with Ms Taylor’s evidence. She relies primarily on statements made by Mr Vievers which she submits after my first judgment which demonstrate that he perjured himself in his affidavits. Considering the material as stated in Mr Taylor’s affidavit, that is an improbable inference. The matters she raised listed in paragraphs [9], [10] and [13] provide a very weak inference of any malfeasance by Mr Veivers. It is hardly surprising Mr Veivers did not have a recollection of her involvement in the matter, given how long ago he had been there to serve her, that he had done that at the same time as he attended looking for Mr Luke and the fact she was not the registered owner. While Ms Taylor’s evidence is therefore fresh evidence in this respect, it is very weak evidence of the perjury she alleges.
  7. [95]
    The only fresh evidence of substance (as in new evidence that could not have been obtained before the last hearing) is the alleged admissions by Mr Veivers that he had committed perjury referred to in paragraphs 30 and 31 of Mr Luke’s affidavit at CD 50. It is evident to me from that exchange as presented by Mr Luke, that it is highly likely Mr Veivers was speaking sarcastically. Mr Luke’s evidence demonstrates that Mr Veivers had a low opinion of Mr Luke. It is a very weak foundation for an allegation of perjury.
  8. [96]
    All the other evidence could have been obtained before the last hearing.
  9. [97]
    In conclusion, therefore, the evidence now relied upon by both Ms Taylor and Mr Luke which could not have been put before the Court on the last occasion with reasonable diligence, it is prima facie weak evidence of perjury by Mr Veivers. This must be leavened with recognition that the first application was not brought by Mr Luke, though this application raises similar issues to those already disposed of.

Analysis of the July Subpoenas

General considerations

  1. [98]
    I will address the specific considerations arising in relation to each subpoena below. There are some considerations which affect all of the July subpoenas which favour setting them aside.
  2. [99]
    The first is that the July subpoenas are issued in support of a second attempt to set aside a default judgment in circumstances where the issues apparently the concern of the subpoenas go to the secondary issue of the validity of the order for substituted service. To permit the use of subpoenas directed to third parties to the litigation in relation to an interlocutory application to set aside a default judgment in those circumstances seems to me to be an improper use of the power to issue a subpoena. A subpoena is a Court order. It exposes a party to the risk of orders for contempt. It compels a party to incur cost and inconvenience to comply. It should be issued with those considerations in mind. A person should not be vexed by it unless there is good reason bearing in mind not only the specific considerations applying to subpoenas but also bearing in mind the obligations in r. 5 of the UCPR. Ultimately, nearly all the issues covered by the subpoenas will be of secondary relevance in setting aside the default judgment because whether the defendants were served or were properly served under the substituted service order, they appear to have had the claim and statement of claim for some time (not least because it is exhibited to Ms Bidoli’s affidavit relied upon by the defendants in their submissions on the 11 March application at CD 52).
  3. [100]
    And the relevance of the issues apparently covered by the subpoenas is even more modest because they relate, for the most part, to the evidence of Mr Veivers. His evidence frankly was of limited objective significance to the obtaining of the substituted service order, bearing in mind that most of the evidence came from Mr Phillips. It is very likely that the order would and could properly have been made on Mr Phillips evidence alone, as he is the person who made most of the attempts at service.
  4. [101]
    The second is that, while it is open to a party to issue a subpoena in an interlocutory application, in this case the defendants rely on their own direct evidence to demonstrate the alleged perjury. There is little which suggests the material sought by the subpoenas is necessary reasonably to advance that case. As I have said, care must be taken in my view in the use of subpoenas in interlocutory proceedings to ensure they do not become unduly delayed, complex or expensive. In my view, that has been the effect of the issue of these subpoenas.
  5. [102]
    Both of these matters support the conclusion that the subpoenas should be set aside. Specific considerations in relation to each subpoena provide support for that conclusion.

The Bank’s subpoena

  1. [103]
    This subpoena is set aside for the following additional reasons:
    1. (a)
      Paragraph 1 is in the same terms as sought in the April subpoena to the Bank, seeks to compel the production of evidence by affidavit which is not within the scope of the authority of a subpoena issued under the Rules and is in nonsensical terms;
    2. (b)
      Paragraph 2 is new, but seeks originals of copies of documents attached. However, the copies it seeks are of registered instruments. They can be obtained from the real property register maintained by the Registrar of Titles. The Bank’s title arises from registration of instruments. In addition, duplicate originals held by the Bank (if any) do not appear to be relevant to any genuine issue in the application.

The subpoena to Dentons

  1. [104]
    This subpoena is set aside for the following further reasons.
    1. (a)
      First, paragraphs 1 and 2 are in substantially the same terms as paragraphs of the April subpoenas. As I have observed, this is a factor suggesting that the subpoena is an abuse of process, though does not by itself compel that conclusion.
    2. (b)
      Second, paragraphs 1(c) and 2(c) seeks to compel production of documents other than in accordance with the Rules (see Rule 420).
    3. (c)
      Third, paragraphs 1 and 2 seek, in effect, all email correspondence between Dentons and the unidentified ‘process server’ in the period 14 to 21 September 2018. The subpoena on its face is uncertain. Paragraph 2 has a similar ambiguity: it refers to the agent. Of course there were at least two agents involved: Mr Veivers and Mr Phillips, so the matter is not merely one of form.
    4. (d)
      Fourth, I cannot see what legitimate forensic purpose is served by obtaining those communications. There does not seem to be any suggestion that Dentons did not instruct the process servers, nor that those persons did not provide the affidavits relied upon.
    5. (e)
      Fifth, paragraph 3, while new, seeks again to investigate the authenticity of the photograph, a matter which tends to support the conclusion that the subpoena in that respect is an abuse of process. It also seeks to compel production of documents other than in accordance with the Rules (see Rule 420).
    6. (f)
      Sixth, I do not understand the forensic purpose for obtaining her Honour’s reasons, if indeed any were provided. There is no evidence that any such reasons were provided. Certainly at no stage in this litigation so far has anyone suggested they exist.
  2. [105]
    All these matters, taken together, persuade me that the Dentons subpoena is an abuse of process and should be set aside.

The subpoena to Mr Veivers

  1. [106]
    This subpoena should be set aside for the following reasons.
    1. (a)
      First, the whole of the subpoena is in substantially the same terms as paragraphs of the April subpoenas;
    2. (b)
      Second, paragraphs 1 and 2 seek to obtain evidence to re-litigate the issue of the authenticity of the photographs – a They also seek to compel production of documents other than in accordance with the Rules; and
    3. (c)
      Third, in my view, paragraphs 3 and 4 are in the nature of an attempt to obtain disclosure and indeed of fishing for useful evidence. They seek anything and everything which Mr Veivers might have in relation to the two addresses. Further, as I have explained above, to the extent they are directed to demonstrating perjury in the two affidavits based on the evidence in both Ms Taylor’s and Mr Luke’s affidavit, they seek evidence in respect of a case which on current material is improbable.
  2. [107]
    Finally, while I recognise that it is a matter for Mr Veivers to claim self-incrimination privilege, that does not mean I cannot take into account the likelihood of that privilege arising when considering whether a subpoena is an abuse of process. Here (although I find the evidence prima facie not persuasive), the defendants make no secret of the fact that their purpose in obtaining the documents is to prove perjury in Mr Veivers’ affidavits. That is simply not a proper use of a subpoena. It is one thing to seek documents which incidentally might be covered by privilege. It is quite another to seek documents for the express purpose of proving a matter which (if true) would give rise to privilege.

The subpoena to Wise McGrath

  1. [108]
    This subpoena contains new matters as compared to the Sharman subpoena. However it has the vice of plainly amounting to a fishing expedition. The defendants seek everything (i.e. all files) that Wise McGrath has with a view presumably demonstrating the perjury alleged or perhaps some other ground of attack on the substituted service order as yet unidentified. It also seeks to impugn the photographs yet again.
  2. [109]
    This subpoena should be set aside.

Conclusion

  1. [110]
    Each of the July subpoenas are set aside. I reserve the question of costs.

Footnotes

[1] See Exhibit V to CD 49

[2] Gibbs CJ, Aickin, Wilson and Brennan JJ

[3] See [6], [68] and [70]

[4] On-line service [325-7155]

[5] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

[6] See, e.g. Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 at [515]. Recently cited and affirmed in Thomas v Balanced Securities Ltd [2012] 2 Qd R 482.

[7] Note that in Spalvins, the relevant rule expressly stated a subpoena could be issued in any proceeding, whereas in the UCPR that is an inference. See also Hudson v Branir Pty Ltd [2005] NTCA 5 at [37]

[8] See generally annotations to Rule 416 in Elegals Litigators Toolkit (Jackson and Pastellas) on-line service. https://www-elegals-com-au.ezproxy.sclqld.org.au/

[9] Rajski v Scitec Corporation Pty Ltd (Unreported NSWCA No 146 of 1986)

[10] Rippon v Chilcotin [2001] NSWCA 142, at [32] to [33]; Handley Spenser Bower & Handley Res Judicata (4th edn) at 9.12.

[11] Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246

Close

Editorial Notes

  • Published Case Name:

    Heritage Bank Ltd v Jarod Luke Gleeson (aka Jarod Luke) and Sheree Amy Taylor (No 3)

  • Shortened Case Name:

    Heritage Bank Ltd v Gleeson (No 3)

  • MNC:

    [2020] QDC 217

  • Court:

    QDC

  • Judge(s):

    Porter DCJ

  • Date:

    04 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (1981) 148 C.L.R 170
2 citations
Jump To
Cite 1 - (1981) 148 C.L.R 170
Cite 2 - (1981) 148 C.L.R 170
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 35 ALR 625
1 citation
Jump To
Cite 1 - (1981) 35 ALR 625
Adelaide Steamship Co v Spalvins (1997) 24 ACSR 536
1 citation
Jump To
Cite 1 - (1997) 24 ACSR 536
Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313
1 citation
Jump To
Cite 1 - [1999] NSWCA 313
Carr v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246
1 citation
Jump To
Cite 1 - (1981) 147 CLR 246
Castillon v P&O Ports Ltd[2008] 2 Qd R 219; [2007] QCA 364
2 citations
Jump To
Cite 1 - [2008] 2 Qd R 219
Cite 2 - [2008] 2 Qd R 219
D. A. Christie Pty Ltd v Baker (1996) 2 VR 582
3 citations
Jump To
Cite 1 - (1996) 2 VR 582
Cite 2 - (1996) 2 VR 582
Cite 3 - (1996) 2 VR 582
Dougherty v Chandler (1946) 46 S.R. N.S.W 370
1 citation
Jump To
Cite 1 - (1946) 46 S.R. N.S.W 370
Gleeson v J Wippell & Co [1977] 1 WLR 510
1 citation
Jump To
Cite 1 - [1977] 1 WLR 510
Heritage Bank Limited v Gleeson (No 2) [2020] QDC 36
1 citation
Jump To
Cite 1 - [2020] QDC 36
Heritage Bank Ltd v Gleeson [2019] QDC 119
1 citation
Jump To
Cite 1 - [2019] QDC 119
Holdings Ltd. v Trade Practices Commission (1979) 28 ALR 191
1 citation
Jump To
Cite 1 - (1979) 28 ALR 191
Hudson v Branir Pty Ltd [2005] NTCA 5
2 citations
Jump To
Cite 1 - [2005] NTCA 5
Cite 2 - [2005] NTCA 5
Hunter v Chief Constable of the West Midlands Police (1982) AC 529
2 citations
Jump To
Cite 1 - (1982) AC 529
Cite 2 - (1982) AC 529
Leighton Contractors Pty Ltd v Western Metals Resources Limited[2001] 1 Qd R 261; [2000] QSC 27
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 261
Cite 2 - [2001] 1 Qd R 261
Mestre v A.D. Hunter Pty Ltd (1952) 77 W.N. N.S.W. 143
1 citation
Jump To
Cite 1 - (1952) 77 W.N. N.S.W. 143
Niemann v Electronic Industries Ltd (1978) VR 431
1 citation
Jump To
Cite 1 - (1978) VR 431
Nominal Defendant v Manning (2000) 50 NSWLR 139
2 citations
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Cite 1 - (2000) 50 NSWLR 139
Cite 2 - (2000) 50 NSWLR 139
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
1 citation
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Cite 1 - (1981) 147 CLR 589
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142
2 citations
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Cite 1 - [2001] NSWCA 142
Cite 2 - [2001] NSWCA 142
Rogers v The Queen (1994) 181 CLR 251
2 citations
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Cite 1 - (1994) 181 CLR 251
Cite 2 - (1994) 181 CLR 251
SG v State of Queensland [2004] QCA 461
2 citations
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Cite 1 - [2004] QCA 461
Cite 2 - [2004] QCA 461
Thomas v Balanced Securities Limited[2012] 2 Qd R 482; [2011] QCA 258
1 citation
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Cite 1 - [2012] 2 Qd R 482
Wentworth v Rogers (1996) 70 ALJ 613
1 citation
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Cite 1 - (1996) 70 ALJ 613
Will of Gilbert (1946) 46 SR NSW 318
1 citation
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Cite 1 - (1946) 46 SR NSW 318

Cases Citing

Case NameFull CitationFrequency
Cohen v Fealy [2020] QDC 2711 citation
Heritage Bank Limited v Gleeson (No. 5) [2020] QDC 2704 citations
Hickey v Commissioner of Police(2023) 3 QDCR 191; [2023] QDC 1813 citations
TMG v Commissioner of Police [2021] QDC 2862 citations
1

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