FEDERAL COURT OF AUSTRALIA

Horizontal Falls Adventure Tours Pty Ltd (ACN 108 455 410) v Thomas [2009] FCA 639

PRACTICE AND PROCEDURE – Order 27 rule 4 of the Federal Court Rules – notice of motion to set aside subpoena to appear as witness – important witness experiencing anxiety and heart palpitations since subpoenaed – whether subpoena oppressive or vexatious – witness to appear by video link for short cross examination

Held: notice of motion to set aside subpoena dismissed

Federal Court Rules O 27 r 4

Hamilton v Oades (1989) 85 ALR 1 cited

HORIZONTAL FALLS ADVENTURE TOURS PTY LTD (ACN 108 455 410) v TROY ROBERT THOMAS and RHYS HENRY THOMAS

QUD 115 of 2009

COLLIER J

11 JUNE 2009

BRISBANE

THE COURT ORDERS THAT:

The notice of motion of Kaye Chaloner filed 10 June 2009 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          Ms Kaye Chaloner, a witness who has been subpoenaed by the respondents in these proceedings, yesterday filed a notice of motion moving for the following orders:

·          the subpoena dated 2 June 2009 addressed to Kaye Chaloner be set aside.

·          this notice of motion be determined in the absence of Kaye Chaloner.

2                          In support of the notice of motion Ms Chaloner filed an affidavit (sworn 10 June 2009) in which she deposed in summary:

·          She had been served with a subpoena by the respondent Rhys Henry Thomas on 4 June 2009.

·          Following service of the subpoena she suffered an anxiety attack on the evening of 4 June 2009 and experienced severe depression. She had only experienced these attacks since the commencement of these proceedings and because of the pressure exerted on her by the parties to these proceedings.

·          On 5 June 2009 she wrote a letter to the respondents’ solicitors referring to her medical and psychological condition and requested that she be excused from attending the hearing.

·          On 5 June 2009 the respondent Troy Robert Thomas attended her home address and, inter alia, assured her that he would not enforce the subpoena.

·          On 10 June 2009 she attended Broome Medical Centre due to her deteriorating condition, including more anxiety attacks and heart palpitations.

·          After returning from the medical tests she found a letter from the respondents’ lawyers advising her that she would still be required to give evidence and it was now arranged to be given by video link.

3                          A copy of a medical certificate in which a medical practitioner certified that she would be unfit to testify on 10 and 11 June 2009 inclusive, and a copy of her letter to the respondents’ solicitors, are attached to her affidavit.

4                          This morning the respondents faxed the Court signed affidavits of the respondent Mr Troy Thomas and his solicitor Mr Mossman, and an unsigned affidavit of Mr Rhys Thomas. Mr Troy Thomas has deposed, inter alia, that although he did visit Ms Chaloner on 5 June 2009 as a friend, he never said that he would not enforce the subpoena or that she was not required to give evidence. Mr Mossman deposed, inter alia, that at no time did he threaten, induce or coerce Ms Chaloner into making an affidavit - rather Ms Chaloner was agreeable to giving the affidavit.

5                          Mr Rhys Thomas has subsequently executed his affidavit and it was filed in Court this morning. Mr Thomas has also deposed that he did not pressure, induce or coerce Ms Chaloner into making the affidavit.

6                          Ms Chaloner lives in Broome, Western Australia. The subpoena required Ms Chaloner to attend the Federal Court in Brisbane today. However earlier this week after consulting with me, Deputy District Registrar Belcher informed the parties that I would give leave for Ms Chaloner to give evidence by video link from Broome, rather than being required to travel to Brisbane.

7                          Order 27 r 4 of the Federal Court Rules empowers the Court to set aside a subpoena in whole or in part on the application of any party or person having a sufficient interest. Ms Chaloner is clearly such a person. Grounds upon which subpoenas are traditionally set aside include the excessive width of documents sought or whether the subpoena on its face is oppressive. Relevantly, Deane and Gaudron JJ in Hamilton v Oades (1989) 85 ALR 1 at 11 said:

The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice… In this context injustice is not simply a question of the purpose for which the relevant proceedings were instituted but includes a consideration of the consequences for the person invoking the power. The terms oppressive and vexatious are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in an appropriate context, the meaning that the proceedings are seriously and unfairly burdensome, prejudicial or damaging and productive of serious and unjustified trouble and harassment.

8                          In the circumstances before me I am not prepared to set aside the subpoena served on Ms Chaloner. I take this view for the following reasons:

·          Ms Chaloner’s evidence is clearly important in the context of this case. She is a key witness to certain events. Her notice of motion has been opposed by the respondents and, to the limited extent relevant, by the applicants. The weight the Court can attribute to her evidence-in-chief will clearly be substantially reduced if her evidence cannot be tested by cross-examination. Prima facie, it is undesirable for the administration of justice in these proceedings that Ms Chaloner be excused from appearing as a witness unless appropriate grounds for setting aside the subpoena are established.

·          It is not claimed by Ms Chaloner, nor is there evidence before me, that the subpoena is oppressive or vexatious. Ms Chaloner has already sworn an affidavit in these proceedings. The subpoena simply requires Ms Chaloner to appear as a witness. It does not require her to produce documents of any kind.

·          Mr Russell for the applicants has indicated in Court this morning that he would be seeking to cross-examine Ms Chaloner for between fifteen and thirty minutes. In my view this is not unduly burdensome for Ms Chaloner.

·          The evidence provided by Ms Chaloner in support of her notice of motion to set aside the subpoena is not adequate. The certifying medical practitioner simply states that Ms Chaloner is unable to testify on the 10 and 11 June 2009 inclusive. Given the importance of Ms Chaloner’s evidence, this is unsatisfactory.

·          Even if I were to set aside the subpoena referable to those dates, an obvious option is to order Ms Chaloner to appear next week to give evidence. Not only would such an order have cost implications for all parties, but I seriously doubt whether it would benefit Ms Chaloner, who would then have to prepare herself to give evidence next week.

·          Ms Chaloner has claimed that she has suffered heart palpitations and a psychological condition arising from this case. I appreciate the potential gravity of these claims although she provides no evidence in support. However Ms Chaloner has appeared by telephone this morning in support of her notice of motion. From my observations she has managed more than satisfactorily to speak to her notice of motion, answer my questions, and answer a number of questions I allowed Mr Russell to put to her. In my view, again from my observations this morning, Ms Chaloner would be capable of experiencing cross-examination for a relatively short time with no ill-effect.

·          I have already given Ms Chaloner leave to appear as a witness by video from Broome today, rather than travelling to Brisbane as the subpoena requires. Ms Chaloner does not have to endure the stress of that return journey. In my view appearing by video as a witness in her home town is not a burdensome task.

·          I consider that a major reason motivating Ms Chaloner’s notice of motion this morning is that Ms Chaloner, who has previously worked for and knows well all parties to this litigation, feels caught between these parties. As Ms Chaloner said this morning, she believes that this is a case which is none of her business and in which she has no interest. While I understand Ms Chaloner’s reluctance to appear as a witness in litigation between these parties, in my view this does not justify an order setting aside the subpoena.

9                          The appropriate order is that the notice of motion be dismissed.

Associate:

Dated:         22 June 2009