Solicitors:
Auyeung Hencent & Day Lawyers) (First and Second Plaintiffs/Applicants)
No appearance for the Respondent
File Number(s): 2022/329426 (026)
[2]
Nature of the application and applicable rules
By Notice of Motion filed 1 March 2024, the Plaintiffs, Sunnya Pty Ltd and Jatcorp Ltd seek, relevantly, an order under r 11.8AB of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") or in the inherent jurisdiction of the Court, granting them leave to serve a subpoena (in the form marked MFI 1, as revised from that annexed to the Motion) on Mega Aqua Ltd ("Mega Aqua") in New Zealand.
Rule 11.8AB of the UCPR, relevantly provides that:
"Any document other than an originating process may be served outside of Australia with the leave of the court, which may be given within the directions that the court thinks fit."
The form of Notice of Motion recognises that, as a matter of New Zealand law, it would be appropriate that the subpoena be accompanied by a copy of the order of this Court granting leave to serve the subpoena and a notice in a form which the Plaintiffs have brought to my attention. Mr Condon, who appears for the Plaintiffs, rightly recognises that no order of this Court is required in that respect.
The application is brought in the context of an ongoing application by the Plaintiffs for an order that Mr Wu be found guilty of contempt as charged in a statement of charge, and that he be punished with contempt as charged in that statement of charge. There is evidence, in previous applications before the Court, that Mr Wu has been served with documents relating to the contempt application and, by orders made on 31 July 2024, I granted leave for the Plaintiffs to proceed against Mr Wu in relation to the proceedings for contempt, Notwithstanding that he had not filed a notice of appearance.
The Plaintiffs rely on the affidavit dated 19 February 2024 of their solicitor, Mr Zhu, which refers to previous attempts to serve documents upon about Mr Wu and the Plaintiffs' wish to have Mega Aqua, a New Zealand limited company which is associated with Mr Wu, produce documents in respect of matters that were in issue in proceedings in this Court, and are plainly in issue in respect of the contempt application. Mr Zhu refers to advice provided by a New Zealand practitioner that, under s 163 of the Evidence Act 2006 (NZ), an Australian subpoena may be served on a witness in New Zealand provided that it is accompanied by a copy of an order granting leave by an Australian Court and a statement of the rights of the recipient of the subpoena. The relevant provisions, to which I have been taken, extend to a subpoena to produce documents. Mr Zhu also refers to the advice that he was provided, again consistent with the Evidence Act (NZ), that a witness served in New Zealand with an Australian subpoena must comply with the subpoena, and that relevant New Zealand laws do not restrict these provisions to subpoenas issued in Australian pursuant to the Trans-Tasman Proceedings Act 2010 (Cth). I will note further relevant provisions of the Evidence Act (NZ) below.
[3]
Submissions and applicable legal principles
Mr Condon, who appears for the Plaintiffs, refers to UCPR r 11.8AB to which I have referred above. He notes that the contempt application is not brought under the Trans-Tasman Proceedings Act 2010 (Cth), which does not deal with proceedings for contempt, and the Court has already dealt with the basis on which the application may properly be served in New Zealand in previous judgments. Mr Condon also refers to the case law in respect of r 11.8AB and has drawn attention to two further cases in the course of oral submissions. He recognises that there are concerns, at least in some circumstances, as to international comity in the context of a subpoena served overseas, where such a subpoena is intrusive into another State's territorial sovereignty. The are also particular concerns as to utility, if the Court could ultimately not impose a sanction for non-compliance with the subpoena, with the result that a party could practically refuse compliance with the subpoena at will. As I will note below, neither of those issues arises in respect of a subpoena issued to a New Zealand resident.
It is convenient here to address the additional case law to which Mr Condor refers, before turning to the scope of the New Zealand legislation. He draws attention to the observations of White J in Gloucester (Sub-Holdings 1) Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1419, particularly at [28]ff, where his Honour adopted a somewhat narrower approach than had previously been taken by Hallen AsJ in Caswell v Sony/ATV Music Publishing (Australia) Pty Ltd [2012] NSWSC 986. In Gloucester White J observed (at [29]) that the authorities:
"...establish that the court's power to grant leave to issue a subpoena to a person outside Australia is to be exercised in accordance with the principle of comity that respects the sovereignty of a foreign a country, unless it is shown that the foreign country does not object to the purported exercise of judicial power by this State against persons in the foreign State."
Mr Condon also draws attention to the decision of Wigney J in the Federal Court of Australia in Ceramic Fuel Ltd (in liq) v McGraw Hill Financial Inc (2016) 245 FCR 340; [2016] FCA 401, where his Honour noted (at [11]) that the question whether the Court has power to grant leave to issue a subpoena to a person outside Australia is controversial and, to an extent, remains unsettled. It may be that, strictly, there is no question as to the Court's power to issue such a subpoena, where that is derived from the relevant rule, but the controversy exists as to the question whether the discretion to exercise a subpoena should be issued, generally and in particular cases. His Honour noted that the authorities were difficult to reconcile and do not provide a definitive or consistent answer to the relevant questions, and to that extent does not appear to have adopted either the wider view taken by Hallen AsJ in Caswell or the narrower and more exacting view taken by White J in Gloucester.
His Honour recognised (at [48]) that the corresponding rules of the Federal Court of Australia would, read literally, appear to empower the Court to issue and serve a subpoena on a foreign addressee, but also acknowledged that those rules should be read so as not to be inconsistent with international comity, and his Honour observed (at [50]) that:
"The requirement to construe general rules in a way which is consistent with international law and the comity of nations is best accommodated by requiring the Court to have regard to those matters, and to exercise care and restraint, when being asked to issue and grant leave to serve a subpoena overseas. Whilst the Court is bound to have regard to international law and comity and exercise care and restraint, it nonetheless retains the power to issue and grant leave to serve a subpoena overseas in an appropriate case."
Here, having regard to the provisions of the Evidence Act (NZ), it seems to me it is not necessary to decide whether a wider, narrower or intermediate view should be adopted. It is plain that, even adopting the narrowest test articulated by White J in Gloucester, New Zealand does not object to the purported exercise of judicial power by this State against persons in New Zealand. That is plain because Pt 4 of the Evidence Act (NZ) dealing with proceedings in Australia and New Zealand, has specific provisions which deal with the service of Australian subpoenas in New Zealand. Section 163(1), to which Mr Condon referred in submissions, permits an Australian subpoena to be served on a witness in New Zealand, although s 163(2) requires it be accompanied by documents of the kind that the Plaintiff proposes to serve in this case.
The term "subpoena" is defined, in s 150, as including a process that requires a person to produce a document or thing, and the subpoena the Plaintiffs propose to issue here is of that character. It excludes a process that requires a person to produce a document in connection with discovery and inspection of documents, but the subpoena in issue here is not of that character. Section 164 imposes an obligation on a witness served with an Australian subpoena to comply with that subpoena, and there could not be a plainer indication that the New Zealand legislature does not object to the service of such a subpoena on a witness in New Zealand. There are certain exceptions to that obligation in s 164(2), but they will operate in accordance with their terms, and it is not apparent they would have any application here.
Section 165 in turn provides that the High Court of New Zealand may, on receiving from the Australian Court which issued the Australian subpoena a certificate stating that the witness has failed to comply with the subpoena, issue a warrant requiring a member of the police in New Zealand to arrest the witness and to bring him or her before the High Court and, on the appearance of that witness before the Court, to impose a fine not exceeding a substantial amount unless the Court is satisfied the failure to comply with the subpoena should be excused. That provision also recognises the legislature's consent to the service of such a subpoena and also addresses another relevant issue for the exercise of the Court's discretion. There is here no lack of utility in the issue of a subpoena, and no risk that it could be disregarded with immunity, because the New Zealand Courts have the authority, under the Evidence Act (NZ), to impose a significant penalty upon a person who disregards a subpoena issued by this Court, where that person is resident in New Zealand.
Section 166 in turn provides a process by which documents in response to a subpoena issued by this Court, and served in New Zealand, may be produced to a Registry of the High Court in New Zealand, and then transmitted by that Court to Australia, and that process will be drawn by the Plaintiffs to Mega Aqua's attention..
[4]
The scope of the subpoena
I have in turn been taken to the subpoena to produce, in its revised form in MFI 1, and Mr Condon, in submissions, identifies the matters in issue in the contempt application to which the subpoena is directed, with a view to assisting the Plaintiffs in the proper forensic process of proof of the elements of the contempt which they seek to establish. I am satisfied the subpoena is directed to matters that are relevant, and has a proper forensic purpose, in respect of the contempt application, and that it is not oppressive. In these circumstances, there is nothing in the terms of the subpoena itself which means that the Court should not grant the leave which is sought.
[5]
Determination and orders
For these reasons, and bearing in mind the approach which is taken in New Zealand law to a subpoena issued by an Australian Court, I am comfortably satisfied that the Court should make an order in the form sought by the Plaintiff's Notice of Motion. Accordingly, I make the following orders:
Order that the Plaintiffs have leave to serve on Mega Aqua Ltd in New Zealand a subpoena in the form of the draft subpoena marked "MFI 1" together with the annexures identified therein.
Costs reserved.
The matter be listed in the Corporations Motions List at 9.15am on 30 September 2024 for further directions.
[6]
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Decision last updated: 29 August 2024