FEDERAL COURT OF AUSTRALIA

Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s application for an order that the Applicant provide written answers to the interrogatories in the form of Exhibit LB1 to the affidavit of Mr Leon Bertrand made on 15 February 2019 is refused.

2.    Subject to the approval by a Registrar of the content of the proposed subpoenas, the Respondent is granted leave to issue subpoenas to Senators Stirling Griff and Derryn Hinch to attend to give evidence at the trial.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

1    The principal issue presently before the Court is whether the applicant should be ordered, pursuant to r 21.01 of the Federal Court Rules 2011 (Cth) (the FCR), to provide written answers to interrogatories. The respondent also seeks leave to issue two subpoenas.

2    In the underlying proceedings, the applicant seeks damages (including aggravated damages) from the respondent in respect of alleged defamatory statements made by him commencing on 28 June 2018 and continuing until 2 July 2018, with some republications. The circumstances of the action are substantially, but not wholly, set out in my judgment on the respondent’s application seeking the striking out of the applicant’s Amended Statement of Claim (ASC) and for the permanent stay or dismissal of the proceedings: Hanson-Young v Leyonhjelm [2018] FCA 1688 (the Strike Out Judgment).

3    It is not necessary presently to repeat those circumstances in detail. It is sufficient to record that the applicant alleges that she was defamed by statements made or published by the respondent on four occasions. The applicant alleges that the respondent’s statements made on the second, third and fourth occasions conveyed the following defamatory meanings:

(i)    the Applicant is a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them;

(ii)    the Applicant had, during the course of a Parliamentary debate, made the absurd claim that all men are rapists;

(iii)    the Applicant is a misandrist, in that she publicly claimed that all men are rapists.

4    In relation to the media statement published by the respondent on 28 June 2018, the applicant alleges that only the first and second of these meanings were conveyed.

5    By his filed Defence, the respondent admits in substance that he published or spoke the words of which the applicant complains but denies, or does not admit, that they conveyed the defamatory meanings she alleges. He pleads numerous defences including justification, qualified privilege, honest opinion, fair comment on a matter of public interest and constitutionally protected free speech.

6    In addition, as indicated in the Strike Out Judgment, the respondent pleads that the matters of which the applicant complains cannot be the subject of adjudication by this Court by reason of s 16(3) of the Parliamentary Privileges Act 1987 (Cth). This is so, he contends, because these matters comprise a repetition of statements made by the applicant and him in the course of debates in the Australian Senate, or responses to, or comments on, such statements.

7    The respondent also alleges that any harm to the applicant’s reputation caused by his words is overwhelmed by the reaction of the public to words spoken by the applicant herself on 2 July 2018.

8    Further again, the respondent alleges that the political views and opinions of the applicant and of her party are such that his words could not have caused any damage to the applicant’s reputation. He goes further and alleges that the public statements made by the applicant in response to, or occasioned by his statements have served to enhance the applicant’s reputation.

9    It will be necessary to return to some of these defences in more detail when addressing the interrogatories proposed by the respondent.

Interrogatories

10    Rule 21.01(1) of the FCR provides that a party may apply to the Court for an order that another party provide written answers to interrogatories. Rule 21.01(2) requires that an application under subr (1) be accompanied by an affidavit annexing the proposed interrogatories. The respondent has complied with that requirement.

11    The making of an order that a party provide written answers to interrogatories involves an exercise of a discretion. Rule 21.01 does not contain any express fetter on that discretion.

12    However, the very fact that a party must answer interrogatories only when required by Court order to do so, when contrasted with the position which once pertained in which parties could administer interrogatories as of right, suggests that the making of the order should not be regarded as the norm. This point was made by McKerracher J in Austal Ships Pty Ltd v Incat Australia Pty Ltd [2010] FCA 795; (2010) 272 ALR 177 at [7]:

The administering and answering of interrogatories is a form of discovery. Just as this Court has now substantially limited the scope for wide ranging discovery, the circumstances [in] which leave to administer interrogatories will be granted is increasingly rare.

13    Many of the principles guiding the exercise of the Court’s discretion to order a party to answer interrogatories were reviewed by Mansfield J in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2012] FCA 290 and more recently still by Gleeson J in Lynch v Cash Converters Personal Finance Pty Ltd (No 4) [2018] FCA 988. It is not necessary to record presently all the matters to which their Honours referred.

14    In general, the Court will order a party to provide written answers to interrogatories only when it is necessary for the fair disposition of the proceeding or to save costs. The ultimate aim of the process of discovery of information by interrogatories is to shorten the trial and save costs: Alliance Craton at [25]. Interrogatories enable a party to litigation to obtain discovery of material facts in order to support or establish proof of his or her own case, to find out the case (but not the evidence) the party has to meet, or to destroy or damage the case brought by his or her opponent: ibid. In Alliance Craton at [36], Mansfield J noted that, if the energy, effort, time and cost required to address the interrogatories is not reasonably proportionate to the end sought to be achieved, then the interrogatories should not be allowed.

15    One of the reasons why the Court seldom orders a party to answer interrogatories is that the process is often an expensive and unnecessary means of securing the proper disclosure of information: Alliance Craton at [27]. However, the relative infrequency with which orders are made for the answering of interrogatories does not mean that such orders will not be appropriate in a given case. Ultimately, an evaluation has to be made having regard to the particular circumstances of each case.

The applicant’s application

16    By an Interlocutory Application of 4 March 2019, the applicant sought an order that the respondent answer six interrogatories. However, the applicant did not pursue that application at the hearing as counsel indicated that she is satisfied with the information provided by the respondent informally on 8 and 11 March 2019. The applicant wishes, however, to be heard on the issue of costs on her application, and that issue has been reserved.

The respondent’s application

17    The respondent wishes to have the applicant answer nine interrogatories. As some of the interrogatories have multiple parts, there are 72 separate questions in total.

The first proposed interrogatory

18    The respondent wishes the applicant to answer the following question:

As at 28 June 2018, had the Applicant voluntarily had sexual intercourse with more than one male persons (sic)?

19    I proceed on the basis that the subject matter of the proposed interrogatory may be relevant to the applicant’s pleading that one of the meanings conveyed by each of the four matters of which she complains is that she is “a hypocrite in that she claimed that all men are rapists but nevertheless had sexual relations with them”.

20    Nevertheless, the interrogatory cannot be regarded as either reasonable or necessary. First, the applicant has made an express admission on the subject in her affidavit made on 14 February 2019:

[6]    I have had sexual relationships with men.

21    Secondly, if it is relevant and necessary that the applicant confirm that she had had sexual relationships with men as at 28 June 2018 and that she did so voluntarily (these being the further matters about which the interrogatory enquires), that could be achieved by some short questions in the applicant’s cross-examination.

22    Accordingly, the proposed interrogatory is not necessary for the fair disposition of the proceedings and I will not order the applicant to answer it.

The second proposed interrogatory

23    The proposed second interrogatory is as follows:

As at 28 June 2018, did the Applicant regard herself as:

(a)    A member of the Australian Greens?

(b)    A Greens Senator?

24    Again, this is an unnecessary interrogatory. The applicant has deposed to her membership of the Australian Greens political party in her affidavit of 7 November 2018 containing her proposed evidence in chief. She has also deposed to being a Senator. Further, in his own affidavit made on 11 December 2018, the respondent deposed to the applicant’s membership of the Australian Greens, to her election as a Senator, and noted the applicant’s admission of the same two facts. In these circumstances, the applicant’s answering of the proposed interrogatory will serve no purpose.

The third proposed interrogatory

25    The proposed third interrogatory, which comprises multiple parts, enquires whether, as at 28 June 2018, the applicant considered certain statements regarding the voting record of the elected members of the Australian Greens in the House of Representatives or the Australian Senate in the 42nd, 43rd, 44th and 45th Parliaments to be true or substantially true. The respondent wishes the applicant to state separately, in relation to the Greens Parliamentarians in each of these Parliaments, whether as at 28 June 2018 she considered it to be true, or substantially true, that the voting record of the Greens Parliamentarians was:

(i)    “more left-wing” than that of any other political party represented in the Parliament;

(ii)    “more radical” than that of any other political party represented in the Parliament; and

(iii)    “more reforming” than that of any other political party represented in the Parliament.

26    Counsel for the respondent submitted that this proposed interrogatory (along with Interrogatories 4-7) are relevant to the respondent’s defence of justification (that is, whether the applicant had said in the course of a debate in the Senate that “all men are rapists”), to the defence of qualified privilege (because it goes to the reasonableness of the respondent’s belief that she had said such words and his subsequent statements that she had done so) and to the matters pleaded in [35]-[37] of the filed Defence concerning the quantum of damages claimed by the applicant.

27    The third proposed interrogatory cannot reasonably be regarded as necessary for the respondent’s defences of justification and qualified privilege. Neither of the pleas of those defences makes any reference to the matters which are the subject of this proposed interrogatory. It is not readily apparent that the availability of the defences may be informed by the applicant’s answers to the matters about which they enquire. The same conclusion applies with respect to the 4th-7th interrogatories.

28    In relation to the applicant’s claim for damages, in [35] of his filed Defence, the respondent pleads that he and the applicant are each practising politicians having been elected to the Senate as endorsed candidates of the Liberal Democrats and the Australian Greens respectively. In [36], the respondent pleads:

The Applicant and the Respondent, and their respective political parties, are, and are widely known and understood by the Australian public to be, at polar extremes of the political spectrum in Australian politics, in that:

(a)    the Applicant is, and is widely known and understood by the Australian public to be, amongst the most radical, reforming, or socialistic, and therefore amongst the furthest to the left of centre, of members of the Australian Parliament;

(b)    the Applicant’s party is, and is widely known and understood by the Australian public to be, amongst the most radical, reforming, and socialistic, and therefore amongst the furthest to the left of centre, of political parties represented in the Australian Parliament;

(c)    the Respondent is, and is widely known and understood by the Australian public to be, amongst the most libertarian, conservative, and anti-socialistic, and therefore amongst the furthest to the right of centre, of members of the Australian Parliament; and

(d)    the Respondent’s party is, and is widely known and understood by the Australian public to be, amongst the most libertarian, conservative, and anti-socialistic, and therefore amongst the furthest to the right of centre, of political parties represented in the Australian Parliament.

29    Then, in [37], the respondent pleads that it “logically and necessarily follows” from the matters set out in [35] and [36] that none of the four matters of which the applicant complains in the ASC could have caused any injury to the applicant’s character or reputation. The full plea is as follows:

[37]    From the matters set forth in paragraphs 35 and 36 of this pleading, it logically and necessarily follows that:

(a)    nothing said by the Respondent, including the matters sued upon, could alter the opinions of a person who was otherwise disposed either:

(i)    to hold the Applicant in favourable esteem; or

(ii)    to take a neutral view with respect to the Applicant;

(b)    the only persons who might attach any credence or weight to statements made by the Respondent, including the matters sued upon, are persons who were otherwise disposed neither:

(i)    to hold the Applicant in favourable esteem; nor

(ii)    to take a neutral view with respect to the Applicant; and

(c)    in the premises, the matters sued upon could not cause, did not cause, and will not cause:

(i)    any injury to the Applicant’s character or reputation; or

(ii)    the Applicant to suffer any loss or damage.

30    The nature of the present interlocutory application and the brevity of counsel’s submissions means that this judgment should not be the occasion for the Court to express any view concerning either the logic or the merit of the assertions made in [37]. These may be significant issues at the trial.

31    I proceed on the basis that the 42nd to 45th Parliaments to which the interrogatory refers are those which have occurred since 2007 when the applicant was first elected to the Australian Senate.

32    A number of matters indicate that it would not be appropriate to order the applicant to answer the proposed third interrogatory.

33    First, each part of the proposed third interrogatory seeks the applicant’s opinion about the identified matters. It is not readily apparent that the applicant’s own opinion about those matters has any relevance to the matters pleaded in [35]-[37] of the Defence. Counsel for the respondent sought to avoid this difficulty by submitting that the respondent is not seeking to elicit expert opinion from the applicant. He submitted instead that it is the applicant’s state of mind which is material, but did not explain how that may be so. It is not readily apparent that the applicant’s state of mind with respect to the identified matters may be relevant to any of the matters raised by the respondent in answer to the applicant’s claim for damages.

34    Secondly, there is an inherent imprecision in the concepts of “more left-wing than”, “more radical than” and “more reforming than”. Quite apart from the difficulties for the applicant in answering questions with that imprecision, the utility in the proceedings of her answers (whether affirmative or negative) is unclear.

35    Thirdly, although there is no evidence before the Court of the number of “Greens Parliamentarians” who have been members of the respective Parliaments, it seems reasonable for the Court to proceed on the basis that there have been several. The proposed interrogatory would require the applicant to answer the questions with respect to each of those Parliamentarians. It is not reasonable to require the applicant to do so. Such a task would be oppressive, especially given that the utility of the answers is not clear.

36    Fourthly, even if the applicant did have some belief about the matters which are the subject of the proposed third interrogatory, it is not readily apparent why her belief on one particular day, 28 June 2018, is of relevance in the proceedings.

37    For these reasons, I will not order the applicant to provide an answer to the proposed third interrogatory.

Fourth to seventh proposed interrogatories

38    These proposed interrogatories can conveniently be considered together.

39    The proposed fourth interrogatory is in the following terms:

[4]    As at 28 June 2018, did the Australian Greens advocate:

(a)    that the interests of women as a group should be preferred over the interests of an individual, where such interests are in conflict?

(b)    that the interests of Aborigines as a group should be preferred to the interests of an individual, where such interests are in conflict?

(c)    that the interests of homosexuals as a group should be preferred to the interests of an individual, where such interests are in conflict?

  (d)    against free markets?

  (e)    against limited government?

  (f)    for bigger government?

  (g)    for higher taxes?

  (h)    for significant new welfare programmes?

  (i)    for significant new government expenditure?

  (j)    against freedom of speech?

(k)    that free speech should be curtailed to the extent that it harms the interests of Aborigines?

(l)    against the repeal of s.18C of the Racial Discrimination Act 1975 (Cth)?

(m)    against any amendment restricting the operation of s.18C of the Racial Discrimination Act 1975 (Cth)?

40    The proposed fifth interrogatory enquires whether the applicant considered, as at 28 June 2018, that it was true, or substantially true, that the voting record of Greens Parliamentarians with respect to each of the matters listed in the proposed fourth interrogatory had been generally consistent with the position advocated by the Australian Greens concerning that matter.

41    The proposed sixth interrogatory enquires whether the applicant had, as at 28 June 2018, made public statements to the effect of each of the matters listed in the proposed fourth interrogatory.

42    The proposed seventh interrogatory enquires whether the applicant considered, as at 28 June 2018, that it was true, or substantially true, that her own voting record as a member of the Australian Senate had generally been consistent with her own public statements concerning each of the first 12 matters listed in the proposed fourth interrogatory.

43    I consider that there are a number of reasons why the applicant should not be required to answer any of these interrogatories. The first is the very general terms in which they are couched with the effect that their content is uncertain. In order to answer the questions, the applicant would have to determine their meaning. This would require her to make a number of significant subjective value judgments. Those value judgments may, or may not be, the same as those which the respondent intends. They are matters about which reasonable minds, or those with different political viewpoints, may differ. The questions in subparas 4(d)-(j) are exemplars of these difficulties, but the problems with the questions are not confined to those subparagraphs. A litigant should not be required to answer questions involving such uncertainty of meaning.

44    Secondly, that same characteristic of the proposed questions suggests that the answers to them may be of limited utility. That is because the particular understanding which the applicant had applied in answering the questions would not be clear. This may then lead to time having to be taken at trial while these matters are clarified. Instead of narrowing the matters which need be the subject of evidence, the interrogatories may well have the opposite effect.

45    Thirdly, the proposed fourth interrogatory would involve some oppression. An answer to each sub-question in the fourth proposed interrogatory would seem to require the applicant to consider every public speech and every piece of advocacy made by a member of the Australian Greens with the actual or apparent authority of that Party to determine whether or not it could be characterised in terms of one of its sub-paragraphs. The period in respect of which the applicant would have to carry out that exercise is unclear.

46    Fourthly, the proposed sixth interrogatory would involve oppression of a similar kind. It would require the applicant to identify and review her own public statements made before and after her election to the Australian Senate to determine whether they had the character enquired after in any of the sub-questions. The applicant should not be put to that trouble, especially given the lack of apparent utility of the answers (whether affirmative or negative). By way of just one example, it is not clear what the relevance or utility would be of the applicant’s answer, whether affirmative or negative, to the question of whether she has made public statements “against limited government”.

47    Fifthly, the proposed fifth and seventh interrogatories enquire as to the applicant’s opinions. It is not presently apparent that the subjective opinions of the applicant about those matters have any relevance to an issue in the proceedings. By way of example only, it is not readily apparent that the applicant’s own view about whether her voting record as a member of the Australian Senate has been consistent with her public statements in favour of “significant new welfare programmes” (assuming that she has made such statements) may bear at all on a matter to be decided upon in the proceedings. I repeat what I said earlier with respect to the opinions sought in the third proposed interrogatory.

48    Sixthly, it is not the case that the provision by the applicant of answers to these questions is the only means by which the respondent can prove the matters in question (assuming for present purposes that they are relevant). Under the regime for the provision of evidence put in place at the case management hearings on 20 September 2018 and 18 October 2018, the respondent was required to file and serve by 30 November 2018 (later extended to 12 December 2018), the affidavits containing the evidence in chief of the witnesses from whom he will lead evidence in the trial. The only affidavit filed by the respondent is his own, made on 11 December 2018. In that affidavit, the respondent has deposed, amongst other things, to his knowledge of matters concerning the Australian Greens. Accordingly, the respondent has had the opportunity of adducing his own evidence on the identified subject matters.

49    For these reasons, I do not consider it appropriate to make an order that the applicant provide written answers to proposed interrogatories four to seven.

The eighth proposed interrogatory

50    The eighth proposed interrogatory is in the following terms:

Provide the usual details of each public statement made by the Applicant on or since 28 June 2018:

  (a)    concerning the alleged defamatory matter;

  (b)    in which the Applicant used the expression “slut-shaming”;

(c)    in which the Applicant sought to identify herself as a champion of women’s rights in respect of workplace bullying;

(d)    in which the Applicant sought to identify herself as a champion of women’s rights in respect of other forms of disrespect.

51    The term “the usual details” used in this proposed interrogatory is defined in the preamble to the proposed interrogatories as follows:

The usual details, with reference to a public statement, means:

 a.    the date when the public statement was made;

 b.    the forum in which the public statement was made;

c.    the identity of any interviewer or publisher to whom the public statement was made; and

d.    the terms, or substance and effect, of the public statement.

52    In relation to this proposed interrogatory, counsel for the respondent submitted:

[7]    Proposed interrogatory 8 is relevant to limiting quantum. The Respondent alleges that, after the making of the publications complained of, the Applicant herself made media comments that successfully mitigated any damage to her reputation. Further or alternatively, such statements limited any damage suffered by way of republication via the “the grapevine effect”, either by limiting such republication (as distinct from republication of the Applicant’s own statements) or by adjusting the Applicant’s reputation prior to such republication.

53    As is apparent, the first part of this submission is that the applicant had “successfully mitigated any damage to her reputation”. The second part of the submission is that statements by the applicant had limited the damage suffered by the applicant via the grapevine effect. Accordingly, this proposed interrogatory is to be understood as directed to the applicant’s damages claim.

54    The question of whether the filed Defence contains any plea of mitigation does not need to be considered presently.

55    Part C in the Defence, comprising [15]-[18], alleges a statement made by the applicant on 2 July 2018. In [15], the respondent pleads that the applicant had said of him in the course of a public interview on or about 2 July 2018 that “he’s slut-shaming me”. He then pleads that these words of the applicant were intended to be, and were, widely reported in the press and electronic media. The respondent particularises 16 different forms of media in which the words are said to have been published. Then, in [17] and [18], the respondent pleads that these words of the applicant had “substantially drowned out” the four matters of which she complains with the consequence that any injury to the applicant’s character or reputation did not arise from those matters but instead from the applicant’s own words.

56    In [38]-[42] of the Defence, the respondent pleads that the applicant has, since the publication of the matters of which she complains, made “repeated public statements”:

[38]    … promoting herself (herein called “the Applicant’s self-promotion”) as a champion of the rights of women, and especially of women who are victims of:

(a)    “slut-shaming”;

(b)    workplace bullying; and

(c)    other forms of disrespect.

(Emphasis in the original)

57    The respondent then pleads in [39]-[41] that the statements comprising “the Applicant’s self-promotion” were made on occasions which included a television news programme on 2 July 2018, a television interview on 22 July 2018, statements made in three magazines, in a book authored by the applicant, and in “numerous media appearances by the Applicant to publicise her … book”, at [41(e)].

58    The respondent pleads the consequence of these matters as follows:

[42]    The Applicant’s self-promotion was undertaken because (as is the case) the Respondent’s dissemination of the matters sued upon, and the Applicant’s response thereto, can only serve to:

  (a)    enhance the Applicant’s public profile; and

(b)    reinforce or enhance the Applicant’s standing, reputation and esteem amongst her political supporters.

[43]    In the premises of paragraphs 35 to 42 of this pleading, if (which is not admitted) the matters sued upon were published to anyone, the circumstances of such publication:

(a)    make it highly unlikely that the Applicant will suffer any harm; and

(b)    are much more likely to redound to the Applicant’s benefit, especially in her capacity as a practising politician seeking re-election to the Australian Senate at the next election.

59    The merit or otherwise of these pleadings as an answer to the applicant’s claim to damages need not be addressed presently.

60    An immediate difficulty with the eighth proposed interrogatory is that it is not altogether clear whether the subparagraphs are to be understood as operating cumulatively or as enquiring about separate and distinct statements made by the applicant. That uncertainty counts against the applicant being required to answer the interrogatory.

61    Another difficulty is that the respondent seeks, in effect, to have the applicant particularise his own allegation made in [41(e)] of the Defence. This is not appropriate. If it is to be particularised, it is the respondent who should be providing the particulars.

62    A further problem is that the eighth proposed interrogatory appears to involve some oppression in that it would require the applicant to identify each public statement made by her and to form a view as to whether it satisfied the description in the interrogatory. That oppression would be all the greater if the sub-questions in the interrogatory are construed disjunctively

63    I consider that these matters indicate that the proposed eighth interrogatory will not satisfy the purpose of interrogatories.

64    For these reasons I decline to order the applicant to answer the proposed eighth interrogatory.

The ninth proposed interrogatory

65    The ninth proposed interrogatory is in the following terms:

For each occasion prior to 28 June 2018 on which the Applicant or her office received an out-of-the-ordinary amount of hostile mail or telephone calls:

  (a)    what was the date, or approximate date, of that occasion?

(b)    what, in the Applicant's perception, were the circumstance which led to her or her office receiving an out-of-the-ordinary amount of hostile mail or telephone calls?

(Emphasis added)

66    Plainly, this would be an oppressive interrogatory. The applicant would first have to form her own view of the meaning of the expression “out-of-the-ordinary amount”. Having made that determination, she would then have to review the available telephone, mail and email records to determine when she had received telephone calls or mail answering that description, and then identify what she perceived (whether at the time or currently is not made clear) to be the circumstance leading to her receiving that volume of calls or mail.

67    Further, the interrogatory enquires after matters which appear to be of no apparent relevance in the proceedings. It appears to be “fishing”, using that term in the sense discussed by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN(NSW) 250 at 254.

68    I decline to order the applicant to answer this proposed interrogatory.

Conclusion on respondent’s application concerning interrogatories

69    For these reasons, I decline to order the applicant to answer any of the interrogatories proposed by the respondent in his Interlocutory Application of 15 February 2019 and the accompanying affidavit.

The proposed subpoenas to Senators Griff and Hinch

70    By his Amended Interlocutory Application, the respondent seeks leave pursuant to r 24.01 of the FCR to issue subpoenas to Senators Griff and Hinch to attend to give evidence at the trial of the matter. Each has declined to cooperate with the respondent’s solicitors in the preparation of a witness affidavit.

71    The respondent’s solicitor has deposed to being instructed by the respondent that both Senators were in the Senate Chamber on 28 June 2018 when the applicant “said something during a Senate debate”. What the applicant then said is the subject of dispute between the parties. It appears that it will be necessary for the Court to make findings about what the applicant did say.

72    Rule 24.01 provides (relevantly):

24.01    Leave to issue subpoena

 (1)    A subpoena may be issued only with the leave of the Court.

(2)    A party may apply to the Court for leave to issue a subpoena without notice to any other party.

…

73    Generally, applications for leave to issue a subpoena are considered by a Judge in Chambers, and without hearing from either party. The present application is unusual because it has been made by interlocutory application.

74    No doubt because of the Court’s usual practice, there are few reported decisions concerning the exercise of the discretion to grant leave for the issue of a subpoena. In my opinion, regard should be had to the purpose of the requirement for a grant of leave. On one view, the requirement for leave could indicate that the Court should be positively satisfied that there is a real possibility that the proposed witness will be able to give evidence of assistance to the party subpoenaing him or her and that the issue of a subpoena is necessary to secure his or her attendance at trial. Another view is that leave is required in order that the Court may exercise some supervision over the issue of documents in its name which have coercive effect. Instead of seeking to be satisfied that there is a real possibility that the person may be able to give material evidence, the Court is concerned instead with whether its coercive powers are sought to be invoked unnecessarily or in a way which would be vexatious, oppressive or for an improper purpose. On that view, leave would usually be granted if the Court considers, having regard to the circumstances of the case, that the request for leave is reasonable and there is no negative factor of the kinds just mentioned.

75    The difference between these two positions may not be significant, as it is to be expected that if a “real possibility” test was to be applied, it would be done so flexibly. No doubt, it could also take account of factors of the negative kind I have mentioned. On either approach, the threshold for the grant of leave is not high. The Court’s practice with respect to the grant of subpoenas suggests that the second of the two approaches I have mentioned may be more appropriate. It would be unfortunate if applications for leave to issue subpoenas become a more formal process and the subject of interlocutory disputation.

76    There is no reason for the Court to consider that the proposed subpoenas to Senators Griff and Hinch should be refused for any reason of the kind mentioned earlier.

77    By reason that the respondent sought leave to issue the subpoenas by an amendment to his Interlocutory Application concerning the interrogatories, the applicant had the opportunity to be heard on that issue. The applicant opposed the grant of leave, pointing to what she described as the respondent’s unexplained delay in seeking the leave.

78    I accept that there has been delay in, the sense that the respondent had made his request for leave well after the expiry of the time at which the affidavits were to be filed, and that he has not sought to explain that delay.

79    Counsel submitted that the applicant would be prejudiced by the grant for leave now because the applicant had made forensic decisions as to the number of Senators from whom she would lead evidence on the basis that the respondent would not be adducing evidence from any person other than himself. I am willing to accept that the applicant may have suffered some prejudice in that respect, but do not think that it is irremediable. Some means by which the prejudice may be avoided were canvassed in the submissions.

80    Although the respondent’s request for leave to use subpoenas to Senators Griff and Hinch is late and unexplained, I am not satisfied that the interests of justice require that those matters should lead to the refusal of the leave sought by the respondent.

81    Accordingly, subject to one matter, there will be a grant of leave to the respondent to issue subpoenas to Senators Griff and Hinch. The respondent has not provided the form of the proposed subpoenas. The grant of leave will therefore be made subject to the approval by a Registrar of the content of the subpoenas which the respondent proposes to issue.

Conclusion

82    In summary, for the reasons given above, the respondent’s application for an order that the applicant provide written answers to the interrogatories in the form of Exhibit LB1 to the affidavit of Mr Bertrand made on 15 February 2019 is refused.

83    The respondent’s application for leave to issue subpoenas to Senators Griff and Hinch is granted, subject to the approval by a Registrar of the content of the subpoenas which the respondent proposes to issue.

84    I will hear from the parties with respect to the costs, including the costs of the applicant’s application, and with respect to any consequential matters.

Associate:

Dated:    21 March 2019