Huang v Drumm

Relevant provisions

1. Rule 7.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) relevantly provides that a subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings. As Ms Huang was unrepresented when she requested the issue of a subpoena to Mr Kumar, the leave of the magistrate was required.
2. As the magistrate's decision to refuse to issue a subpoena to Mr Kumar was an interlocutory order, leave to appeal to this Court is required: s 40 of the Local Court Act 2007 (NSW).

Facts

1. The relief sought by the plaintiff in the Local Court Proceedings is, according to her second amended statement of claim filed 14 June 2016: judgment for $34,793.70 in respect of costs and disbursements paid by Ms Huang between July 2011 and September 2014 in respect of the Original Proceedings; and judgment for $42,400.00 in respect of document storage at her private residence in Brisbane between May 2011 and November 2014 (212 weeks at $200 per week).
2. The defendant, in his defence filed on 29 June 2016, denies that he entered into a contract with the plaintiff to repay the above amounts. He also denies that he is required to repay them by way of restitution to the plaintiff.
3. Numerous directions were made in the Local Court Proceedings. Of present relevance, on 30 May 2016, Atkinson LCM made the following orders and directions: a. Ms Huang have leave to file and serve a Second Amended Statement of Claim by 14 June 2016; b. Mr Drumm to file and serve any Defence to the Second Amended Statement of Claim by 28 June 2016; c. Ms Huang to file and serve any lay evidence in chief by 12 July 2016; d. Mr Drumm to serve any lay evidence in chief by 2 August 2016; e. if Ms Huang did not comply with (a) and (c), the proceedings would be dismissed with costs in favour of Mr Drumm; f. the matter be set down for a two-day hearing commencing on 21 September 2016.
4. The plaintiff served affidavit evidence in November 2015 and March 2016. In July 2016, in accordance with the above order, the plaintiff served further evidence in chief comprising an affidavit of Anita Oates sworn 23 March 2016; an affidavit of the plaintiff sworn 12 July 2016 (which exhibited her earlier affidavits sworn 23 November 2015, 24 November 2015 and 23 March 2016); and an affidavit of Neville James Gibson sworn 12 July 2016 (which exhibited Dr Gibson's earlier affidavit sworn 27 November 2015 and 24 March 2016).
5. On 8 September 2016, on the plaintiff's application, Richardson LCM vacated the hearing commencing on 21 September 2016; and fixed the matter for hearing on 8-9 December 2016. Based on the plaintiff's confirmation that she had served all evidence on which she intended to rely at final hearing, his Honour ordered that no further evidence was to be filed without express leave.
6. On 1 November 2016, Ms Leung of Accuro Lawyers filed a Notice of Appointment of Solicitor in respect of the plaintiff in the Local Court Proceedings. She prepared a three-volume Court Book which contained all pleadings, affidavits, and other documents relied on by the parties. These documents were admitted into evidence in the Local Court Proceedings as Exhibit 1.
7. The hearing commenced on 8 December 2016. It has so far occupied nine days (8-9 December 2016, 20-21 March 2017, 22-26 May 2017) and is set down to continue on 24-27 July 2017. On the first day, the plaintiff's case was opened, objections were dealt with and the plaintiff was cross-examined. Dr Gibson, who was called on behalf of the plaintiff, was cross-examined on the second day, 9 December 2016. At the conclusion of the second day Ms Leung withdrew. Since that time the plaintiff has represented herself.
8. On 17 March 2017, Ms Huang sent an email to the Local Court Registry which read in part as follows: "Having review evidence I wish to put forward, it may also be necessary to seek leave to subpoena to attend to give evidence two of the defendant's legal representatives, a Mr Maspero, solicitor, and a Mr Kumar, Barrister. Having discussed matters with both today, neither is immediately available due to other commitments."
9. The hearing resumed on 20 March 2017, the third day, and the cross-examination of Dr Gibson was completed. Despite the email set out above, the plaintiff did not make any application for leave to issue a subpoena to either Mr Maspero or Mr Kumar; nor did she obtain any affidavit from either of them. Dr Gibson was re-examined on the fourth day, 21 March 2017. As the matter had not yet completed, it was listed for a further five days beginning 22 May 2017. Dr Gibson was re-examined on 22, 23 and 24 May 2017.
10. On 23 May 2017, the sixth day, Ms Huang made an oral application for leave to cause a subpoena to be issued to Mr Kumar (see further below). The application was refused. On the seventh day, 24 May 2017, Mr Drumm's cross-examination commenced and continued on 25 May 2017 and 26 May 2017.

The application for leave to cause a subpoena to be issued to Mr Kumar

The parties' submissions in the Local Court

1. In her oral submissions in the Local Court Proceedings on 23 May 2017 the plaintiff explained why she sought leave for a subpoena to be issued to Mr Kumar in the following terms: "Because the other party, they continue trying to twist the truth, Mr Kumar was not instructed by Mr Drumm."
2. Mr Drumm's affidavit evidence on the point was contained in [45]-[48] of his affidavit sworn 26 February 2016, in which he deposed as follows: "[45] I recall that Mr Gibson retained Mr Jim Maspero, Mr Alex Tees, lawyers, and Mr Kumar, barrister, to act for me and Yanny in 2014 in relation to certain aspects of the Supreme Court Proceeding. [46] I did not provide any of the above legal representatives with any instructions in relation to the matter. [47] I did not receive any Costs Disclosure Notice or Costs Agreement from any of the above legal representatives, nor did I agree to meet their fees. [48] Given my discussions with Mr Gibson . . . I understood that Mr Gibson or someone else was meeting their fees. I deny that there was any agreement between Ms Huang and me that I would reimburse her for any legal fees she had paid at the conclusion of the litigation."
3. The plaintiff agreed with the proposition put to her by the magistrate that the question of whether Mr Drumm had instructed Mr Kumar had been in dispute at least since Mr Drumm's affidavit had been served. The magistrate asked her why she had not taken any steps to obtain evidence from Mr Kumar. She did not provide any explanation, but told the Court that she had spoken to Mr Kumar in March 2017.
4. The transcript of the Local Court Proceedings revealed that the defendant opposed the grant of leave on two bases: first, that the plaintiff had failed to provide a reasonable explanation as to why an affidavit had not been obtained from Mr Kumar in the two-month period between the email to the Registry in which the application was foreshadowed and the time of the application for leave; and secondly, the case management principles set out in ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) were said to militate against the grant of leave.
5. The magistrate drew the plaintiff's attention to these provisions by providing her with a copy of them. The following exchange then ensued: "HIS HONOUR: .... All that being known, why is it in the interests of justice for me at this late stage to issue a subpoena for you to have Mr Kumar to come to Court to give evidence when even at this late stage you don't have anything in writing from Mr Kumar as to what he may or may not say about the issues? PLAINTIFF: I prefer to have Mr Kumar to come to the Court. HIS HONOUR: I know you want him to come. You have to tell me why it's in the interests of justice that I require him to come; why I give you this permission to issue the subpoena? PLAINTIFF: Because to clarify who's telling the truth. Mr Kumar could tell the Court who was the one instructed him; just answer simple question, yes or no..."
6. When the magistrate asked the plaintiff to address why the Court should grant her application, the following exchange ensued: "PLAINTIFF: Because Mr Kumar is very important to explain those- - - [documents] HIS HONOUR: Mr Kumar is very important; he's been very important since I started to hear this matter. That's the problem, isn't it? Nobody seems to have thought he was that important that they should get a proof of evidence off him or an affidavit or that they should issue any process to bring him to Court until this morning. How parties choose to conduct their cases is something I take into account because one normally has to take responsibility for the decisions they make as a party in the proceedings, whether they do it through their lawyer or they do it as an unrepresented litigant, as you are and have been since we resumed in March with some period in the middle. Now I'm being asked to issue a subpoena for a person when I have nothing before me which informs me as to exactly what it is that Mr Kumar would say or could say or purports to be able to say in relation to the issues at hand. I'm not even assisted in your application, Ms Huang, by an affidavit in support of your application setting out what it is you even think or anticipate he's going to tell the Court if he comes to Court to give evidence. Is there anything further?"
7. The plaintiff referred to documents that had been shown to Dr Gibson in cross-examination. However, the evidence did not establish that Mr Kumar was a recipient of those documents. The plaintiff concluded her submissions in support of her application as follows: "Okay, I'm in your Honour's hands; if your Honour want."

The reasons for refusal of the application

1. At the conclusion of the hearing of the application the magistrate delivered an ex tempore judgment refusing leave to issue the subpoena. His Honour's reasons for refusing leave can be shortly summarised as follows: 1. The application was made on the sixth day of the hearing and the issue was known to the parties before the hearing commenced. It was not thought necessary by the plaintiff's previous legal representative (or indeed the defendant's legal representatives) to obtain a proof by way of affidavit from Mr Kumar or seek leave to issue a subpoena to have him attend to give evidence. 2. The cross-examination of Dr Gibson did not seem to have relevantly changed the nature of the dispute issues in the proceedings. The documents referred to, and produced, in cross-examination appeared to have been documents available to both the parties. 3. The plaintiff had not explained why she had done nothing in the two months since March 2017 to obtain a proof or seek leave to issue a subpoena. Nor did she establish that it was in the interests of justice that the Court issue the subpoena to Mr Kumar. 4. The Court was not satisfied that the dictates of justice would require the grant of leave at such a late stage in the proceedings.

Consideration

1. The difficulties for a party in obtaining leave to appeal, or in successfully challenging a decision of a magistrate to refuse to grant leave to issue a subpoena, are substantial. In a different context (security for costs) Meagher JA in Hession v Century 21 South Pacific Ltd (in liq) (1992) 28 NSWLR 120 at 122 described the difficulties of successfully challenging an interlocutory decision in the following terms: "An order made by a trial judge in these circumstances is usually immunefrom appeal and any attempt to appeal is hopeless. This is because the trialjudge is exercising a discretionary judgment, which will be set aside only inthe most extraordinary circumstances: House v The King (1936) 55 CLR 499.Not only that; he is exercising his discretion not on a matter whichdetermines substantive rights, but on a point of practice and procedure (onwhich subject the High Court pronounced in Adam P Brown Male FashionsPty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177). Moreover he isdoing so at an interlocutory level. Not only that; it is a decision from a busyjudge dealing with a heavy load of matters all requiring quick and extempore solution, who can therefore hardly be expected to deal with everycase on the subject or to give judgment couched in deathless prose."
2. Leave to appeal is appropriate where a matter of public importance is involved, substantial injustice could arise or a substantial error of principle has occurred; see the authorities referred to by Beazley P and Simpson JA in Gibson v Drumm [2016] NSWCA 206 at [19]. The settled law was summarised by the Court of Appeal (Macfarlan and Leeming JJA, Sackville AJA) in Toppro Pty Ltd v Yoo [2016] NSWCA 119 at [19]: "It is well settled that leave to appeal will ordinarily not be granted from a decision involving a matter of practice and procedure unless the application raises an issue of principle or the applicant can demonstrate that a significant injustice is likely to result if leave is not granted. The fundamental reason is that unless appellate courts exercise restraint in interfering with decisions of trial judges on matters of practice and procedure, the result will be excessive delays, expense and uncertainty in the conduct of litigation."
3. There are two relevant hurdles in the present case: first, the plaintiff must obtain leave to appeal; and secondly, she must establish that the exercise of the discretion to grant or refuse a subpoena has miscarried.
4. The plaintiff repeated in this Court the arguments she had made to the magistrate. She submitted that Mr Kumar was an important witness whose evidence was material to the question of Mr Drumm's credibility. She described him as "the keeper of the fact" and as "essential to the credibility of Mr Drumm". She referred to s 103 of the Evidence Act 1995 (NSW). I understood her to submit that, if Mr Kumar were called in her case, she could use his evidence to cross-examine Mr Drumm under s 103. The plaintiff relied on Liristis v Gadelrabb [2009] NSWSC 441 at [4] (Brereton J) in support of the proposition that a subpoena could be used to obtain material to challenge the credibility of a witness.
5. The plaintiff explained that, because she was self-represented, she was not aware that she had to file all her evidence in affidavit form in accordance with the directions of the Local Court and did not appreciate that she ought to have obtained an affidavit from Mr Kumar. She relied on the circumstance that, when she spoke with Mr Kumar in March 2017, he was apparently co-operative but when she called and asked him to come in May 2017 he had told her that he was busy (a not unexpected response from a working barrister). She said that this was why she needed to subpoena him. She submitted that Mr Kumar was obliged to come to Court to confirm the nature of his retainer because he was a barrister. She submitted that his evidence would play an essential part in her challenge to Mr Drumm's credibility.
6. I am satisfied, on the basis of the defendant's submissions and the applicable principles, that there is no question of principle such as would warrant the grant of leave. The magistrate's reasons reveal that his Honour considered all the matters he was obliged to consider under the Civil Procedure Act. The question whether leave to issue a subpoena ought be granted to a self-represented litigant, is pre-eminently one of discretion. As the judicial officer who was conducting the hearing, the magistrate was in a position to weigh the relevant considerations. His Honour briefly but sufficiently dealt with the delay, and the lack of explanation for it, as well as the earlier directions that had been made. The magistrate also adverted to the potential worth of such evidence. In addition, his Honour referred to the fact that the plaintiff had been represented earlier and that her representatives had not seen fit to obtain a proof of evidence from Mr Kumar. The magistrate also considered the length of the hearing and the matters referred to in the Civil Procedure Act. His Honour placed weight on the circumstances that the application was made on the day or the eve of the day on which the plaintiff was to close her case; the length of court time that the hearing had occupied; and the remaining hearing time required. I am not persuaded that the plaintiff has identified any error in the magistrate's approach, much less one which would warrant a grant of leave.
7. In these circumstances, it would not be appropriate for this Court to disturb the exercise of the magistrate's discretion, in respect of which no error has been shown.

Orders

1. For the foregoing reasons I make the following orders: 1. Refuse leave to the plaintiff to appeal against the decision of Barnett LCM dismissing the plaintiff's application for leave for a subpoena to be issued to Mr Kumar. 2. Order the plaintiff to pay the defendant's costs of the proceedings in this Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2017