Arhill Pty Ltd v General Terminal Co Pty Ltd

Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545

Neil v Nott [1994] HCA 23; (1994) 121 ALR 148

Re F [2001] FamCA 348; (2001) 27 Fam LR 517

Stanley v Layne Christensen Co [2004] WASCA 50

Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391

Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741

Ward v Interag Pty Ltd [1985] 2 Qd R 552

Wilson v Metaxas [1989] WAR 285

1 REASONS OF THE COURT: This appeal was listed to consider two applications. First, the appellant's application for leave to appeal and secondly, the appellant's application filed on 7 May 2010 seeking to stay the primary court action pending the outcome of this appeal.

2 The decision appealed against is described in the appeal notice as a refusal of an 'application for foreign subpoena'. Before dealing with the application for leave to appeal, it is necessary to explain something of the background.

3 In the proceedings under review, the appellant issued a writ against the respondent seeking damages for defamation in relation to words said to have been published on a website. On 31 March 2010, Le Miere J sat to deal with a number of interlocutory applications brought by the appellant.

4 One of the documents before his Honour was a document filed by the appellant entitled 'No 77 Summons (General Form)' filed on 18 January 2010 in which the appellant sought orders in pars 1 and 2 which read:

1. The defendant be require[d] to identify who the following identities are which partook in the cyber-bullying / defamation of the plaintiff on the 'Live Journal' website of the defendant, 'youramazin':

1. 'sacalaz' 2. 'shiridenovo' 3. 'so_deranged' 4. 'bakachibigaki' 5. 'angel_of_yhwh' 6. 'ikissedagirl0' 7. The identity who systematically over several years signed anonymous posts on 'youramazin' as '-R', with whom the defendant displayed particular familiarity.
2. The following people be added as defendants to the damages claim of the plaintiff for defamation:

1. William Hornsby 2. Chris Edwards 3. Sophia Palmer 4. Blake Evans 5. Carey Ciuro 6. Skye Harris 7. Rachel O'Connor 8. Kae Choo

5 The appellant's purpose in seeking these orders was explained at this hearing. The appellant said that he wished to sue persons other than the respondent for defaming him.

6 The application in pars 1 and 2 were dismissed. The decision to dismiss those paragraphs is not the subject of the notice of appeal but because the appellant said that he wanted to appeal against 'everything the judge said on that day', what happened at the hearing on 31 March 2010 is set out in some detail. The following portion of transcript is self-explanatory:

LE MIERE J: That takes us on to the last of the four items which is the plaintiff's summons of 18 January 2010. That seeks in paragraph 1 an order that the defendant be required to identify who the following identities are which partook in the cyberbullying defamation on LiveJournal web site. So, in short, it is seeking an order that the defendant identify who the following identities are on the LiveJournal web site 'You're Amazing'.

What exactly can you tell me, Mr Ives, under what rule or the court or what principle or what power of the court are you asking to be exercised to do that? I say that because, as I have been through with you before, the court can order discovery which means that certain documents be produced. At some stage the court can order that interrogatories be answered, but that would not seem to be appropriate at this stage before a defence has even been filed. You might seek discovery under order 26A of potential praties or non-parties and so on. I just do not know what this application is.

IVES, MR: Okay. An application under order 26A discovery to add parties.

LE MIERE J: Order 26A deals with - - -

IVES, MR: I'm just retorting what you have just said to me. I don't actually have the rules in front of me.

LE MIERE J: Yes.

IVES, MR: I apologise.

LE MIERE J: I was just reciting that as some of the rules that exist in this court for the identification of people and parties. I was not intending by that to suggest that that is the appropriate order for you to seek. As I said to you earlier, I have on previous occasions given you various advice about these matters, but I am not today going to try and explore or offer suggestions about how you might go about trying to achieve what you want to achieve. It is now for you to identify what power I have under which order of the court or which common law principle to make the order that you seek (ts 95 - 96).

7 The appellant then sought to rely upon parts of the practice direction referring to the general objectives of the CMC List which include the objective of bringing cases to the point where they can be resolved by mediation or tried in the quickest most cost-effective way. His Honour said:

That is not a source of power. That is set out what the objective of the court is, the things the court seeks to achieve, but the court may not simply do anything it likes to try and achieve those objectives. The court has certain powers. In exercising those powers it will seek to do so so as to achieve those objectives, but it is not the case that the court can do anything it likes so as to try and achieve those objectives. So you still have to identify the power to make a particular order.

IVES, MR: I understand that. In that case, would it be permissible to have the hearing of this summons adjourned until the next hearing, please, your Honour?

LE MIERE J: No, I do not think so, Mr Ives, because this matter has now been before me on a couple of occasions and, with respect, we are going through the same steps we have been through previously.

IVES, MR: I understand that.

LE MIERE J: All right. I am not satisfied that you have made out a case for orders in paragraph 1. We will now move on to paragraph 2 of the summons which says, 'The following people be added as defendants to the damages claim of the plaintiff for defamation,' and you have a number of people there listed. Let me deal with the first one, Aysha Olia. On what basis should that person be joined as a defendant?

IVES, MR: Your Honour, I haven't provided any address or service details for any of these people so I'm quite happy that you just strike out the summons and I will just leave it at that with this summons.

LE MIERE J: All right.

IVES, MR: I don't want to waste any more of the court's time.

LE MIERE J: All right. So the plaintiff's summons filed 18 January 2010 is dismissed. All right. I think that completes the matters we were going to deal with today (ts 97 - 98).

8 As mentioned above, the appellant's appeal notice does not refer to the dismissal of the application in pars 1 and 2 of the summons but the appellant complained about it in oral submissions. However, there was nothing in the appellant's submissions revealing that this decision was in error or arguably in error. If the appellant had amended his appeal notice to appeal against this decision, leave to appeal would have been refused.

9 His Honour also dealt with the return of a subpoena which the transcript reveals was served on the respondent. It is not necessary to identify the documents which were described in the subpoena because the respondent responded to the subpoena with the answer 'I do not have any of those documents to produce to the court because I don't have any of them in my possession, custody or power'. As a result, that is not a matter which requires further consideration on this appeal.

10 It is now necessary to turn to the decision the subject of the appeal notice which is the dismissal of the appellant's application for leave to serve a subpoena on an incorporated body in Russia.

11 At the hearing of this appeal, the appellant was asked whether he placed before Le Miere J the subpoena that he wanted leave to issue showing what documents he wanted produced from Russia. He gave this court the impression that he had drafted a subpoena but had not provided it to Le Miere J. He did say that he emailed some 'drafted documents' to Le Miere J's associate. No such document was exhibited to his three affidavits. However, the General Division file reveals that the appellant had emailed Le Miere J's associate at 8.31 pm on the evening before the hearing on 31 March 2010 a document entitled 'Plaintiff's application to serve a subpoena within the Russian Federation'. It reads in part:

This is an application to serve a judicial process on a country that is a party to the Hague Convention, in accordance with Order 11B Rule (4), subrule (2).

It was accompanied by another document entitled 'Summary of the document to be served' and then a form of subpoena directed to 'Sup Fabrik Inc' at an address in Russia. The form of subpoena proposed that Sub Fabrik Inc be ordered to produce documents which were then listed. The form of subpoena stated that these documents were required:

[T]o identify the users/account holders who have operated or maintained LiveJournal accounts who commented in the following URL posts of the defendant Ms Joyce Lim's LiveJournal account website.

12 It was clear from the appellant's submission to this court that he wanted to subpoena documents in order to gain information so that he could sue additional defendants and add them as co-defendants to the proceedings.

13 In his oral submissions to Le Miere J on 31 March 2010, the appellant informed his Honour that he wanted leave to have a 'judicial discovery order' served in the Russian Federation. Le Miere J asked the appellant where he got the phrase 'judicial discovery order' from. In his response, the appellant referred to O 11B of the Rules of the Supreme Court. The draft documents emailed to Le Miere J's associate also refer to O 11B. His Honour pointed out that that rule had not come into force. His Honour said:

LE MIERE J: I want to avoid embarking upon giving you legal advice, but in an attempt to be of assistance let me say this: if you wish to bring an action in defamation against a person who is not present in Australia, you may seek to bring the proceedings in Western Australia and seek leave to serve the defendant outside of Australia under order 10 of the Rules of the Supreme Court which you have already referred to if you can bring the matter within that order, but that is all to do with bringing proceedings against the person once you have identified that person.

Order 10 and the commencement of proceedings by way of writ are a different thing from issuing subpoenas or orders for discovery. Unless you can tell me something more, I am not persuaded that I have power or it is appropriate to make any order in relation to paragraph 1 of your summons and, as I said to you earlier, I think the time has passed for me to attempt to think of some way that you might achieve the objective you seek to achieve and to try and give you advice about how you might go about that.

May I add this further point though? At the risk of embarking upon giving legal advice that I have said I would not I make this comment: generally a subpoena must be issued for a proper forensic purpose and a proper forensic purpose means a purpose in the current action, not for the purpose of finding out if you have another different action against somebody else.

Generally that is not the proper use of a subpoena. So even if you overcome all of the hurdles that we have been talking about, you are going to have to come back. You in the end have to persuade me that it is a proper use of a subpoena and for the moment I am not persuaded that it is the proper use of a subpoena if your objective is to find out the identity of some other persons because you believe you have or may have a cause of action against them and you wish or might want to commence a new action against those people. That is not the proper use of a subpoena.

14 Le Miere J then dismissed the application for leave to issue the subpoena.

15 The appellant's appeal notice identifies that order of dismissal as the decision appealed against. The appellant appeals and has filed an appellant's case which contains 49 grounds of appeal and 4 additional grounds under the heading 'In Summary'. The four grounds in the summary read:

1. The test as to if the subpoena was for just cause was very well made and undeniably established,, and barely questioned.
2. Federal jurisdiction should have been invoked to

1. Uphold the rights of the appellant; 2. Defendants unidentified dwelling outside of the State;

1. A concurrent legal issue under State and Federal law;

Therefore all arguments for a foreign discovery order/subpoena made by the appellant using Commonwealth law should have been applied.

1. Under state jurisdiction the subpoena should have been granted due to:

1. The appellant's reliance on Order10.1 was invalidated, due to the judge classing a subpoena as a document other than a writ or a summons, when a subpoena is a writ; 2. Order 10.7 permits the issue of foreign service on non judicial documents;

1. A subpoena intended on being issued internationally required judicial authorization which was unjustly and unfairly refused.
2. The learned judge acted unfairly and unjustly, was misleading and denied the appellant's rights to a hearing:
   1. against 'unidentified proposed defendants';
      1. Due to refusing to order discovery from Joyce Lim, and;
      2. Refusing to order discovery from Sup Fabrik.
   2. To establish under state law the validity of a foreign subpoena.

A foreign subpoena was permissible under state law anyway.

16 Paragraph 1 contains an assertion not requiring comment. As to par 2, the case the appellant is bringing is a defamation action. That does not involve invoking federal jurisdiction.

17 As to par 3, the appellant draws attention to O 10 r 7 which reads:

The Court may allow service outside the jurisdiction of any originating process other than a writ, or of any summons, order, or notice in any proceedings duly instituted, whether by writ of summons or otherwise, and the provisions of Rules 3, 4, 5 and 6 of this Order shall apply, mutatis mutandis, to such service.

18 It is true that a subpoena is an order: see O 36B. However, there are authorities which make it clear that even if there is authority to grant leave to serve a subpoena out of the jurisdiction, the court will be very slow to exercise its discretion: see Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545; Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391. The decision in Ward v Interag Pty Ltd [1985] 2 Qd R 552 prompts the question as to whether there is any jurisdiction to grant leave at all. As the subject has not been debated, it is best not to express any opinion on the subject. Instead, this court's decision proceeds by assuming (but not deciding) that the court does have jurisdiction. Le Miere J correctly pointed out that issuing a subpoena for the purpose of identifying persons the appellant wished to sue was not a proper forensic purpose. A legitimate forensic purpose must exist in relation to documents sought by way of subpoena. The documents sought have to be documents which are relevant or which give rise to a line of inquiry relevant to the issues before the trier of fact or which are for the purpose of meeting the opposing case by way of cross-examination. The documents must be necessary to fairly dispose of the proceedings on foot: see Stanley v Layne Christensen Co [2004] WASCA 50 [9]. It is not a legitimate use of the subpoena procedure to attempt to bypass rules concerning application for discovery from a non-party by seeking to obtain what would be in effect discovery against a non-party: Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741. It is possible to obtain discovery to identify a potential party under O26A but there are particular procedural requirements which have to be satisfied under that order. The appellant's application was not an application for discovery under O 26A. As a result, par 3 will not sustain the appeal.

19 Paragraph 4 of the summary is unmeritorious. Le Miere J did not act unfairly or unjustly or misleadingly.

20 The decision which is the subject of this appeal is an interlocutory order. No appeal lies against an interlocutory order unless leave to appeal is granted: see s 60(1)(f) of the Supreme Court Act 1935 (WA). Leave will usually only be granted where the decision below was wrong or was attended with sufficient doubt to justify granting leave and where substantial injustice would be done by leaving the decision unreversed: Wilson v Metaxas [1989] WAR 285. The appellant's grounds of appeal do not reveal that the decision appealed against was wrong or attended with doubt.

21 One of the grounds complains that Le Miere J was 'misleading because if the appellant should have been applying for a discovery order under 26A as suggested by the learned judge, the learned judge left out instructing the appellant to seek an order under the appropriate section relating to applying for Foreign Service of a judicial document, which was a vital yet neglected direction to neglect'. It is necessary to point out how misconceived this ground is. The appellant appears to think that the assistance that is sometimes given by judges to in person litigants converts into an obligation to provide legal advice or 'instruction' to the appellant. There is no such obligation on a court. Further observations about unrepresented litigants appear below.

22 There are other irrelevant grounds. Thus, one ground asserts that:

The learned judge erred in law by ignoring the financial position of Joyce Lim as a singular entity unable to financially compensate the appellant for damages.

Other grounds contain both irrelevant and scandalous assertions, for example the assertion in ground 29 that:

The learned judge erred in law by placing the burden of testing the truthfulness of Joyce Lim on the appellant, and ignored the fact previous lies had been told in court by Joyce Lim.

23 This irrelevant and scandalous ground cannot form any basis for alleging error in the judge's decision to dismiss the application for leave to serve a subpoena in Russia. It should also be noted that the three affidavits sworn by the appellant relating to the appellant's application for a stay contain a great deal of irrelevant material. The face sheets on the affidavits foreshadow the irrelevance of much of the contents. Two of the affidavits state that the 'purpose' is:

To support the application in an appeal filed 7/5/10, setting out a timeline leading up to the appeal, evidence of harassment of the appellant by the respondent, and lengthy conferrals.

On the face sheet of the third affidavit, the 'purpose' is described as:

To support the application in an appeal filed 7/5/10, evidence to prove the respondent is able to provide discovery according to documents.

24 As none of the grounds of appeal reveal that the decision which is the subject of appeal was wrong or was attended with any doubt which would justify granting leave to appeal, the application for leave to appeal should be refused in relation to each ground of appeal. In addition, the appellant's objective is to obtain documents from third parties for the purposes of commencing proceedings against other parties. There are other avenues for doing that and the dismissal of this appeal will not foreclose those other avenues if there is a proper basis for them. As a result, there will be no substantial injustice to the appellant if the appeal is dismissed. For all those reasons the appeal should be dismissed.

25 As a result the application for a stay should also be dismissed.

26 The appellant is unrepresented. In attempting to identify other persons the appellant contends have defamed him in order to sue them, the appellant is moving in a complicated area of the law, particularly as he contends that there is a company in Russia who has either defamed him or knows who has defamed him.

27 Often the consequence of litigants representing themselves, is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy: Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150. It has been so in this case.

28 The duty of a court is to ensure that, as far as possible, procedural fairness is afforded to all parties whether represented or appearing in person to ensure a fair trial. Some courts have developed guidelines relating to unrepresented litigants: see for example Re F [2001] FamCA 348; (2001) 27 Fam LR 517. While a judge should assist a self represented litigant by providing basic information about procedures relevant to the litigation, the judge should not advise on the law or advise on the course of action to be taken.

29 A reading of the transcript reveals that Le Miere J was conscious of the need to provide basic information about procedure without straying into the forbidden area of providing advice about the steps that the appellant should take.

The appellant's further application after this court reserved its decision

30 This court heard submissions on 23 June 2010 and reserved its decision. The appellant subsequently filed an application dated 25 June 2010 for:

• The judiciary to give the appellant the opportunity to answer and give reasons why he should be entitled to the orders sought, once the judiciary have decided any areas of deficiency in the appeal or the application in an appeal filed 7/5/10.
• A hearing at which the judiciary have read the evidence and supporting documents previously.
• An additional secondary hearing for the purposes of:
  1. The presentation of argument in support of the application in an appeal filed 7/5/10, which did not occur on 23/6/10.
  2. The judiciary to specify the issues which are to be determined.
  3. The judiciary to state the key factors which they have taken into consideration previous to the handing down of judgement.
  4. Giving the appellant the opportunity to argue any grounds for refusal of the orders sought in the appeal.
• Previous to the giving of judgement, an opportunity to refute any adverse findings against the appellant in his submissions, and to clarify any evidence
• An opportunity to answer all questions which may arise following the judiciary have read the evidence submitted by the appellant, to remove any possibility of the appellants orders sought being misunderstood in their justification.
• Justice.

31 This was accompanied by an affidavit sworn by the appellant requesting a 'second hearing'. In it he asserts, incorrectly, that the court had not read the appellant's affidavits before the hearing of his application on 23 June 2010 . In the affidavit he asserts that he had 'no idea that the appeal itself and the application in an appeal were to be heard concurrently'. He says that he 'felt out of [his] depth and set up to fail on purpose'. The affidavit contains some allegations of a scandalous nature. He concludes his affidavit by saying he was 'absolutely confused', that he is 'furious about another apparent illegitimate assistance of Joyce Lim' and then concludes, disturbingly, with the sentence '[t]his has to stop or I will take the law into my own hands'.

32 The appellant's contention that he was denied a fair hearing is not borne out by the transcript of the hearing in this court. At the commencement of the hearing the appellant was informed by the court in the following terms:

Mr Ives, the matters we have listed today are the matters that are referred to in the acting Court of Appeal Registrar's notice. It is called 'Amended Registrar's Notice to Attend'. The purpose of the hearing is to consider the application for leave to appeal and you need leave to appeal because it is an interlocutory decision you are appealing against. Secondly, [the court will hear] the application filed on 7 May 2010 to stay the primary court action pending the outcome of the appeal.

33 Notwithstanding that the appellant was given a full opportunity to make his submissions at the hearing, the court ordered that the appellant could file written submissions to cover any points he had not made during his oral submissions. He was advised that these submissions had to be restricted to:

(a) showing why he contended that the primary judge's decision was wrong or attended with sufficient doubt to justify the grant of leave or why there would be any substantial injustice if leave was refused; and

(b) any further submissions relevant to the appellant's application for a stay.

The appellant sent a facsimile on 9 July 2010 stating that he would not be taking the advantage of submitting further written submissions as 'the ones I have submitted already are quite sufficient'. He sought a further oral hearing. That request is refused because the opportunity to make oral submissions was given to him on 23 June 2010.

34 The orders of the court will be that the application for a stay be dismissed and leave to appeal be dismissed. In consequence, the appeal is dismissed.