Federal Court of Australia

Pigozzo v Mineral Resources Ltd (No 2) [2023] FCA 1489

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s request for leave to issue a subpoena to Mr Stephen Leslie Wyatt dated 17 November 2023 be dismissed.

2.    The applicant’s request for leave to issue a subpoena to Hampton Transport Pty Ltd dated 17 November 2023, as amended orally on 27 November 2023, and the request for leave to issue a subpoena to Mr Christopher James Batten dated 17 November 2023, be stood over until after the hearing and determination of the various interlocutory applications listed for hearing on 6 February 2024.

3.    The costs of hearing the applicant’s requests to issue subpoenas on 27 November 2023 be reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction and background

1    These reasons concern three requests the applicant made on 17 November 2023 for leave to issue subpoenas returnable on 24 or 27 November 2023. The first request concerns a subpoena to be issued to Mr Stephen Leslie Wyatt to attend Court to give oral evidence. The second request concerns a subpoena to be issued to Hampton Transport Services Pty Ltd to produce documents to the Court. The third request concerns a subpoena to be issued to Mr Christopher James Batten also to produce documents to the Court. For the reasons which follow each of the requests is refused.

2    On 29 September 2022 the Court made orders by which certain paragraphs of the applicant’s statement of claim were struck out: Pigozzo v Mineral Resources Ltd [2022] FCA 1166. On 2 November 2022 the Court made orders by which the applicant was granted leave to file and serve an amended statement of claim consistent with the reasons delivered at the time the strike-out orders were made. On 29 November 2022 orders were made that had the effect of staying the proceedings pending determination of an application the applicant had made for leave to appeal from the strike-out orders. After the application for leave to appeal was dismissed, by orders made on 27 April 2023 and varied on 21 June 2023, the time for the applicant to file and serve an amended statement of claim was extended to 23 June 2023. On 23 June 2023 the applicant lodged an amended statement of claim that was accepted for filing on 26 June 2023.

3    On 18 August 2023 orders were made listing an interlocutory application the first and second respondents had made for summary judgment, alternatively a permanent stay of the proceedings, insofar as claims were alleged against the third respondent for hearing on 27 November 2023. An interlocutory application the first, second and fifth respondents had made for certain suppression and non-publication orders was listed for hearing at the same time. Orders were also made to facilitate the applicant filing and serving an application for leave to further amend his statement of claim and for the respondents to file and serve any other applications with regard to the amended statement of claim and for any other interlocutory applications to also be listed for hearing on 27 November 2023.

4    On 7 November 2023 the Court made orders adjourning the hearing of various interlocutory applications to a date to be fixed. The orders omitted to also adjourn the application for summary judgment, however, as it was intended to hear all interlocutory applications relating to objections to the applicant’s statement of claim in these proceedings and defence in WAD 103 of 2022 at the same time, subsequently, on 17 November 2023, the Court vacated the hearing listed on 27 November 2023 and re-listed all interlocutory applications that had been listed on 27 November 2023 for hearing on 6 February 2024. A case management order giving effect to the adjournment of the hearing of the summary judgment application to 6 February 2024 was made on 27 November 2023.

5    On 17 November 2023 the applicant lodged with the Court requests for the issue of the subpoenas each of which was proposed to be returnable on 24 or 27 November 2023. Each request for the issue of the subpoenas were accompanied by a letter from the applicant which proposed that each request be suppressed as they referred to matters in the minute of proposed further amended statement of claim filed 16 October 2023 that are the subject of the interim non-publication orders made in the orders of the Court of 7 November 2023. It appears that when the requests for the issue of the subpoenas were lodged, the applicant was under the misapprehension that the hearing of the summary judgment application would proceed separately from the other interlocutory applications. On 19 November 2023 the first and second respondents indicated that they wished to be heard on the question of whether the subpoena to Mr Wyatt should be issued. Having regard to the respondents’ request to be heard, the nature of the proposed subpoena and the request for suppression of the requests for the subpoenas, the Court listed the request for hearing on 27 November 2023. On 26 November 2023, the first, second and fifth respondents indicated by correspondence to the Court that they had not been served with the draft Hampton Transport and Batten subpoenas and that they intended to also be heard on the requests to issue those subpoenas as well.

6    On 18 August 2023, as varied on 20 September 2023 and 7 November 2023, the Court made case management orders pursuant to which the first and second respondents and the applicant were to file and serve affidavits in support and in opposition to the summary judgment application. A number of affidavits were filed and served in accordance with those orders. However, the Court has not made any order to the effect that any witness may give oral evidence on that interlocutory hearing. An order of that nature would be highly unusual.

7    The practice of the Court is for almost all interlocutory applications, including applications for summary judgment, to be determined on affidavit evidence. There are very good reasons for that practice as it facilitates the just resolution of interlocutory disputes as quickly, inexpensively, and efficiently as possible consistently with the overarching purpose of the civil practice and procedure provisions referred to in s 37M of the Federal Court of Australia Act 1976 (Cth). There are, of course, circumstances in which it may be appropriate for the just resolution of a dispute and in the interests of the administration of justice to depart from the usual practice of the Court. However, in my view, there would need to be very good reason to do so having regard to s 37M of the Federal Court Act and the manifest advantages in efficiency of determining interlocutory applications on affidavit evidence.

8    Rule 24.01 of the Federal Court Rules 2011 (Cth) provides that a subpoena may only be issued with leave of the Court. Subpoenas may be issued to a person to attend to give evidence and (or) produce any document or thing. A subpoena must specify the date, time and place for attendance or production and that must be the date of trial or any other date as permitted by the Court: see, rr 24.11 – 24.13 of the Rules. Otherwise, the principles applicable to the grant of leave to issue subpoenas are well-established and need not be repeated or restated. I respectfully adopt and apply these principles as Greenwood J summarised them in McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]. Further, the Court plainly has power to issue a subpoena to attend and give evidence and (or) produce a document or thing at and for the purposes of an interlocutory hearing or, in any event, on a date before the date of trial.

Mr Wyatt

9    The applicant submits that the Court should grant leave, in effect, for the applicant to adduce oral evidence on the summary judgment application and for leave to issue a subpoena to Mr Wyatt. The grounds for the application are that Mr Wyatt will give evidence relevant to the applicant’s defence of the summary judgment application and he is unwilling to sign an affidavit deposing that evidence.

10    I accept that, in an appropriate case, the inability to obtain an affidavit from a witness may provide sufficient grounds for ordering that evidence may be adduced orally on an interlocutory application. However, I am not satisfied that it is necessary in the interests of justice for the Court to make such an order in the case of Mr Wyatt.

11    First, it is apparent from an affidavit of Mr Michael Daniel Harmer affirmed 16 November 2023 that the applicant’s solicitors have taken a proof of evidence from Mr Wyatt and prepared a draft affidavit of his evidence. Mr Harmer will depose the nature of the evidence that he expects Mr Wyatt would give if called to give evidence at the trial in the proceedings. Therefore, the substance of the evidence that it is expected the applicant will adduce from Mr Wyatt at trial is available to the applicant for the purposes of the summary judgment application without the need to have direct evidence from Mr Wyatt.

12    Second, I am not satisfied that the expected evidence of Mr Wyatt is relevant for the purposes of the summary judgment application. Further, even if relevant to some degree, it is not sufficiently relevant to warrant granting the applicant leave to adduce oral evidence on the summary judgment application.

13    The first and second respondents’ written submissions on the summary judgment application relevantly contend that claims against the third respondent are an abuse of process because they are founded on alleged confidential communications that are the subject of legal professional privilege and the pleaded facts do not disclose that the communications fall within an exception to privilege. The first and second respondents have filed and served an affidavit which they submit contains evidence that the pleaded communications were confidential and privileged and the relevant client (Crushing Services International Pty Ltd) maintains that privilege. These submissions are primarily based on the facts pleaded in the amended statement of claim not the proposed further amended statement of claim. In any case, the submission turns on a point of pleading – the asserted failure to plead facts that disclose a reasonably arguable case that the communications fall within an exception to privilege – not questions of fact.

14    As to the questions of fact – the fact of the alleged communications and the contents of them – the applicant has filed an affidavit affirmed 15 November 2023 in which he will depose to the facts upon which the relevant allegations in the amended statement of claim and (or) proposed further amended statement of claim are based. That is direct evidence of the applicant. The facts to which the applicant will depose either will or will not be sufficient to establish that there is a reasonable prospect of successfully prosecuting the pleaded claims against the third respondent: see, s 31A(2) of the Federal Court Act. That includes facts sufficient to establish a reasonable prospect of demonstrating, to the extent the pleaded facts rely on communications that are prima facie confidential and subject to legal professional privilege, that one or more of the exceptions to legal professional privilege exists.

15    In general, it is not appropriate for the Court to attempt to resolve conflicts of affidavit evidence on an interlocutory application: Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 734; Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1; (1968) 118 CLR 618 at 622. Typically, on an interlocutory application, the question of whether there is ‘a serious question to be tried’ or a claim or defence has ‘reasonable prospects of success’, is answered on the basis that the statements of fact contained in the affidavit(s) on the application are accepted as true: e.g., Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd [1999] FCA 256; (1999) 45 IPR 144 at [91]-[94], [99], [101]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 at [43]-[45]. However, 'this does not mean that [the Court] is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be': e.g., Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 at 341.

16    The evidence it is expected that Mr Wyatt would give is not evidence of the facts alleged in the amended statement of claim and (or) proposed further amended statement of claim, but evidence of conduct the applicant will contend is admissible under s 97 of the Evidence Act 1995 (Cth) to prove that a person has a tendency to act in a particular way that is consistent with the facts alleged in the statement of claim. The purpose of such evidence, if admissible, would appear to be to support the credibility of the applicant’s direct evidence. The tendency evidence is of marginal, if any, relevance on an application for summary judgment given that, subject to the Eng Mee Yong qualification, the statement of facts contained in the applicant’s affidavit are to be accepted as true for the purposes of that application.

Hampton Transport

17    Although the request for leave to issue a subpoena to Hampton Transport requests that subpoena to be returnable on 24 or 27 November 2023, in the course of oral submissions, it became apparent that the proposed subpoena was not intended to be issued for the purposes of the hearing of the summary judgment application, but, for the proceedings in general. In effect it is a request for leave to issue a subpoena for early return.

18    After the Court raised with the applicant the potentially oppressive width of the subpoena and that it appears to be in the nature of non-party discovery, the applicant narrowed the request to the issue of a subpoena for: ‘All documents filed and/or served by [Crushing Services International Pty Ltd] by way of discovery in [Supreme Court of Western Australia proceeding numbered CIV 1671 of 2016], including affidavits of discovery and any primary documents produced on discovery.’

19    I accept that documents in that category are relevant to the facts pleaded in the amended statement of claim and, if leave were granted, would be relevant to the facts pleaded in the further amended statement of claim. That is, there is a legitimate forensic purpose for issuing the subpoena to Hampton Transport. Further, although the category of documents is relatively broad, the documents in the category are identified with reasonable particularity so as not to be obviously oppressive.

20    The remaining question is whether a subpoena should be issued before the pleadings are closed and, in this case, before any statement of claim is settled. At the hearing on 27 November 2023, counsel for the applicant was not able to confirm, in light of the application for leave to further amend the statement of claim, if the amended statement of claim was, in effect, abandoned. In the absence of that confirmation, there is a likelihood of the respondents making another interlocutory application; namely to strike-out the amended statement of claim. Put shortly, I am reluctant to put any non-party to the time and expense of complying with a subpoena to produce documents to the Court when the extent to which the allegations upon which that subpoena is founded will survive one or more of abandonment, strike-out or leave to amend is unknown.

21    In these circumstances, I will stand over the applicant’s request to issue a subpoena to Hampton Transport returnable before trial until after determination of the various interlocutory applications to be heard on 6 February 2024.

Mr Batten

22    It also became apparent that the request to issue a subpoena to Mr Batten was largely a request to issue a subpoena for early return. However, the applicant also submits that, like the request to issue the subpoena to Mr Wyatt, the documents the subject of the proposed subpoena to Mr Batten would also produce tendency evidence consistent with the allegations in the amended statement of claim or proposed further amended statement of claim.

23    For the reasons given in relation to Mr Wyatt, I am not persuaded that the proposed subpoena to Mr Batten has any or sufficient relevance to the interlocutory application for summary judgment to warrant the issue of a subpoena returnable at that hearing. As to the early return of the subpoena more generally, the scope of the documents the subject of the draft subpoena is extensive. I am not prepared to grant leave to issue a subpoena compelling production of documents in the categories of document described in the draft subpoena, at this stage of the proceedings.

24    In substance, the draft subpoena appears to be for non-party discovery which is more appropriately the subject of an application under r 20.23 of the Rules. For amongst other reasons, a subpoena should not be used as a substitute for non-party discovery because the issue of a subpoena would deprive the non-party of the ability to apply to the court under r 20.25 for an order for security for the costs of the non-party complying and (or) for payment of the non-party’s costs of making discovery and giving inspection as well as the cost of complying with an order made under r 20.23. Further, the draft subpoena does not identify the documents for production with reasonable particularity. Many categories are so wide as to be evidently oppressive.

25    Leaving to one side concerns regarding the nature and scope of the draft subpoena, I am not persuaded that the proposed subpoena serves any legitimate forensic purpose at this stage of the proceedings. The documents the subject of the proposed subpoena relate to allegations proposed to be made in paras [308] – [360] of the proposed further amended statement of claim. These allegations are new and were not the subject of the statement of claim that was struck-out in part or the amended statement of claim. These allegations are not, in any relevant sense, in issue or raised in the proceedings at this time.

26    In the circumstances, I consider it premature to issue a subpoena concerning allegations that have not yet been formally made in the proceedings. As with the request concerning Hampton Transport, I will stand over the request until after the application for leave to further amend the statement of claim has been determined. The applicant may renew his request for leave to issue a subpoena to Mr Batten at that time and, in light of these reasons, give consideration to amending the categories of document described in the draft subpoena or to abandoning the request and making an application for non-party discovery.

Associate:

Dated:    28 November 2023

SCHEDULE OF PARTIES