The plaintiffs, who I will call the "Lenders", advanced an amount in excess of $24 million to the first defendant, who I will call the "Borrower". The Borrower is now in liquidation.
Part of the security obtained by the Lenders from the Borrower was a guarantee from the third defendant, F & L Violi Pty Ltd ("FLV") and what appeared to be mortgages over properties owned by FLV in Strathfield and Griffith.
Those mortgages were purportedly signed on behalf of FLV by its sole director and shareholder, the fourth defendant, Mr Frank Violi.
FLV and Mr Violi contend that the signature on the mortgages purporting to be that of Mr Violi is not, in truth, Mr Violi's signature.
FLV's registered office is at the offices of its accountant, Peter W Jess and Associates Pty Ltd trading as "PJA Accountants" in Essendon in Melbourne. The principal of PJA Accountants is Mr Peter Jess.
On 6 September 2022 the Lenders caused a subpoena to be served on PJA Accountants seeking production of copies of any document "addressed from the NSW Land Registry" with respect to 16 identified dealings, being caveats or mortgages registered on either the Strathfield or the Griffith property.
On or about the same day, the Lenders caused a subpoena to be issued to the NSW Land Registry Services seeking copies of the same documents.
By Notice of Motion filed on 12 December 2022, the Lenders seek an order under s 68 of the Civil Procedure Act 2005 (NSW) that Mr Jess "attend court to be examined in relation to his compliance" with the subpoena.
Mr Jess, on behalf of PJA Accountants, has made three responses to the subpoena served on PJA Accountants.
First, on 27 September 2022, Mr Jess wrote to the Court, referring to the subpoena, and stated:
"I, Peter William Jess, hereby confirm that I have no documents to be produced under the Subpoena."
On 10 October 2022, Land Registry Services produced to the Court, in response to the subpoena served on it, copies of eight "Notices of Caveat" that it had sent FLV, including four such notices that had been sent to FLV at the offices of PJA Accountants. Those four notices were in respect of:
1. dealing AP935728, sent on 28 February 2020;
2. dealing AP936820, sent on 3 March 2020;
3. dealing AR566111, sent on 29 October 2021; and
4. dealing AR566112, also sent on 29 October 2021.
On 26 October 2022, the solicitors for the Lenders sent the solicitors acting for FLV and Mr Violi, Polczynski Robinson, a copy of the subpoena issued on behalf of the Lenders to Land Registry Services.
Later that day, Polczynski Robinson logged in to the Court's Online Registry and downloaded the documents produced to the Court by Land Registry Services in response to the subpoenas served on it.
The solicitor dealing with the matter at Polczynski Robinson was Ms Karina Carter.
Ms Carter noted that four of the documents produced by Land Registry Services were the four Notices of Caveat that Land Registry Services delivered to FLV at the offices of PJA Accountants.
Ms Carter described what happened next in a letter that she wrote to the Lenders' solicitors on 7 February 2023:
"2.11 Following our review of the NSW-LRS Production we conducted a further review of FLV and Mr Violi's documents. After extensive searches (conducted over material extracted from Mr Violi's mobile phone and computers which our firm only obtained access to in October 2022) we identified an email from Mr Jess to FLV dated 4 November 2021, by which Mr Jess sent Mr Violi copies of two Notices of Caveats which PJA had received at its Essendon address.
2.12 We note that the two Notices of Caveat attached to the 4 November 2021 email enclosed copies of the following two dealings, AR566112 and AR566111 (and thus were in substance the same as two of the four documents which formed part of the NSW-LRS Production, but that these two documents were 'printed' on 30 October 2022 (and not 7 October 2022).
2.13 On 1 November 2022 we sent Mr Jess an email that:
2.13.1 informed him that we had identified the 4 November 2021 email and that it attached two Notices of Caveats which were sent to PJA's Essendon address;
2.13.2 provided him with copies of:
(a) an email we received from your firm on 27 October 2022 (which made enquiries regarding the completeness of Mr Violi and FVL's response to the NTPs dated 26 September 2022 and Mr Jess' response to the PJA Subpoena dated 27 September 2022);
(b) the 4 November 2021 email and the two Notices of Caveat which it enclosed (dated 7 October 2022);
(c) the two other documents which formed part of the NSW-LRS Production which were sent to the Essendon address (these being Notice of Caveats 'printed' on 7 October 2022 and enclosing copies of dealing AR566112 and dealing [AR]566111);
(d) the PJA Subpoena;
(e) Mr Jess' letter to the Court in response to the PJA Subpoena dated 27 September 2022; and
2.13.3 suggested that, in light of our discovery of the 4 November 2021 email and its enclosures, that PJA should undertake further searches of its records for any documents which may be responsive to the PJA Subpoena."
Polczynski Robinson were not, on 1 November 2022, acting for Mr Jess. There is no evidence that Polczynski Robinson informed the Lenders' solicitors, or Land Registry Services, of the steps described in Ms Carter's letter of 7 February 2023.
On 8 November 2022, a week after evidently receiving Polczynski Robinson's letter of 1 November 2022, Mr Jess made his second response to the subpoena. Mr Jess wrote to the Court:
"I, Peter William Jess, hereby confirm that I have the following documents to be produced under the Subpoena, as per the attached schedule.
In regard to my initial correspondence, I offer the following explanations:
1. (a) I have requested my PA, Sally Reeves, to review the physical records and electronic records to locate the correspondence of 30 October 2021 and 4 November 2021.
I also reviewed the physical records as I do not have a computer, laptop or any other electronic device, other than my mobile phone.
(b) I confirm that I could not locate the correspondence of 30 October 2021 nor 4 November 2021 in the physical files, but my PA was able to locate them electronically today.
(c) I requested my PA to do another search electronically and physically to ensure that there was no other relevant correspondence relating to the Subpoena.
(d) I confirm that none could be located, either physically or electronically.
2. (a) As outlined, I do not have a computer, laptop or any other electronic device, other than my mobile phone.
(b) I operate on a physical paper basis and I hand write all correspondence which my PA converts to emails.
(c) I do not operate any electronic devices and do not know how to perform any functions electronically on a computer or laptop.
(d) My physical files are my primary record and I have not been able to locate any of the correspondence of 30 October 2021 and 4 November 2021.
3. (a) I have once again reviewed my physical files for the correspondence of 28 February 2022 and 3 March 2022, as well as the electronic files.
(b) I confirm that neither I nor my PA could locate the correspondence in the physical files or electronically.
(c) The only explanation can be that they have been mislaid as the physical files of F & L Violi are extensive.
(d) There has been no deliberate attempt or inadvertent attempt not to locate the documents, but a simple case of not being able to locate them."
Mr Jess did not refer in this letter to the communication he had evidently received from Polczynski Robinson.
Mr Jess attached to his letter of 8 November 2022 a Schedule of Documents in the following form:
" SCHEDULE OF DOCUMENTS:
1. Correspondence to Frank Violi dated 4 November 2021
2. Land Registry Services Caveat AR566112 dated 30/10/2021
F & L Violi Pty Ltd
3. Land Registry Services Caveat AR566111 dated 30/10/2021
F & L Violi Pty Ltd
4. Land Registry Services Caveat AP935728 dated 07/10/2021
F & L Violi Pty Ltd
5. Subpoena"
The attached "correspondence to Frank Violi dated 4 November 2021" was a copy of an email from Mr Jess to Mr Violi of 4 November 2021 which stated:
"The attached letters were received at my office.
Please give me a call to discuss."
The copy of Mr Jess's email to Mr Violi appears to have been created by Ms Carter.
The "attached letters" were the Notices of Caveat sent to FLV at the offices of PJA Accountants dated 30 October 2021 in respect of dealings AR566111 and AR566112.
The documents numbered 2 and 3 in the Schedule of Documents were those two Notices of Caveat and appear to be the documents that were attached to Mr Jess's email to Mr Violi of 4 November 2021.
The document numbered 4 in the Schedule of Documents appears to be the copy of the Notice of Caveat in respect of dealing AP935728 in the form produced by Land Registry Services to the Court on 10 October 2022.
On 7 February 2023, Mr Jess made his third response to the subpoena when he sent a further letter to the Court in the following terms:
"I, Peter William Jess, advise as follows:
1. I am the principal and sole director and secretary of Peter W Jess & Associates Pty Ltd, trading as PJA Accountants [ABN 27 783 815 390].
2. I refer to my previous correspondence to the Court dated 6 September 2022 and 8 November 2022 in relation to the Subpoena.
3. On 8 November 2022 I uploaded to the NSW Online Registry a letter addressed to the Court dated 8 November 2022 regarding the Subpoena (My November Letter).
4. Together with My November Letter, I produced the following documents in further answer to the Subpoena:
a. a copy [of] an email from me to Frank Violi dated 4 November 2021;
b. copies of three Notices of Caveats, including:
i. dealings AR566112 and AR566111 that were attached to the email dated 4 November 2021; and
ii. dealing AP935728 dated 7 October 2022; and
c. a copy of the Subpoena.
5. In relation to My November Letter and the documents attached to it, I comment as follows:
a. The copy of the email from me to Frank Violi dated 4 November 2021 (the 4 Nov Email) attached to My November Letter was not a copy of the 4 Nov Email that had been located by my office.
b. In error, I attached to My November Letter a copy of the 4 Nov Email that had been provided to me by Frank Violi's solicitors.
c. Additionally, the copy of the Notice of Caveat regarding dealing AP935728 dated 7 October 2022 (the Caveat Notice) that was attached to My November Letter was not a copy of the Caveat Notice that had been located by my office.
d. In error, I attached to My November Letter a copy of the Caveat Notice that had been provided to me by Frank Violi's solicitors.
6. Despite extensive searches neither I, nor my staff, have been able to locate the Caveat Notice in my firm's records.
7. I apologise for any confusion caused by my production under My November Letter and now produce copies of:
a. the Subpoena; and
b. the 4 Nov Email which also attaches Notices of Caveats for dealings AR566112 and AR566111 (being a copy of the email obtained from my firm's records)." (Emphasis in original.)
There is no evidence before me as to what prompted Mr Jess to write that letter. In the letter, Mr Jess confirms that the copy of his 4 November 2021 email to Mr Violi was "not … located by my office" but "had been provided to me by Frank Violi's solicitors" and that the Notice of Caveat regarding dealing AP935728 was "not a copy of the Caveat Notice that had been located by my office" and that Mr Jess had not been able to locate that "Caveat Notice in my firm's records".
At the hearing of the Lenders' Notice of Motion, Ms Carter appeared for FLV and Mr Violi, and also for Mr Jess. Ms Carter did not seek to make any submissions on the motion.
Mr Jess has made three communications to the Court in the course of his response to the subpoena. There appears to be a tension between the statements made by Mr Jess in those three communications. I am persuaded that in those circumstances I should make an order to the effect sought by the Lenders.
There will be limits on the nature of the examination of Mr Jess:
1. he may be examined by counsel for the Lenders, as if giving evidence-in-chief and thus by use of non-leading questions; [1]
2. he may be re-examined by counsel appearing for Mr Jess; [2]
3. the examination will be without prejudice to any claim that Mr Jess may wish to make in respect of the privilege against self-incrimination and in respect of any relevant claim for confidentiality; [3]
4. the examination may be directed to Mr Jess's understanding of the terms of the subpoena; [4]
5. the examination will not extend to:
1. establishing whether or not Mr Jess may have been in contempt of court; [5]
2. inquiries of a "search and inquiry type such as to [Mr Jess's] knowledge as to the location of documents not in his present possession or control, or as to the nature of other documents in his possession not within the scope of the subpoena, or as to his systems of books or the like, so that this material could be used to search for other evidence or to enable a different subpoena to be framed;" [6]
1. the evidence on the examination will not be evidence in the proceedings; [7] and
2. the process will not be an examination as to "non-compliance with the subpoena". [8]
I order that:
1. Mr Peter Jess attend at the Court at 9.30am before me on a date to be arranged with my Associate for the purpose of being examined in respect of the subpoena for production issued on 6 September 2022 and addressed to PJA Accountants & Business Advisors;
2. this order is made without prejudice to any claim for privilege against self-incrimination which may be made by Mr Jess;
3. none of the evidence given on such examination be accepted as evidence in the principal proceedings or in any proceeding for contravention or failure to comply with the subpoena;
4. in the first instance the plaintiffs pay Mr Jess's costs of attendance and of the examination; and
5. the costs of the plaintiffs' Notice of Motion of 12 December 2022 be reserved.
[3]
Endnotes
Quach v Vu & Ors [2009] NSWSC 131 at [9] (Brereton J).
Ibid.
Ibid.
Ibid at [10].
Ibid at [8], citing Moffitt J extrajudicially in H Glass (ed), Seminars on Evidence (1970, Law Book 6).
Ibid.
Quach v Vu (supra) at [10].
Ibid.
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Decision last updated: 26 April 2023