LEE -v- CHANG [2025] WASCA 54 (14 April 2025)

All documents and records of information concerning or related to the prosecution of Abellio Pty Ltd, charge numbers 25316/2013 to 25319/2013 (including letters, emails, memoranda, reports, original prosecution notices), however stored and maintained, created or received at any time.

1. Accordingly, as the appellant accepts in his appellant's case, the appellant seeks production of documents in the custody of the Magistrates Court at Fremantle.
2. The appellant claims that the documents sought by subpoena would, if in particular terms, support his contention that the application for pre-action discovery was in respect of a personal injury or wrong and that the documents are relevant to the amendments he seeks to make to the originating summons. For the purpose of the application for leave to appeal we have not examined whether that claim has merit. Instead we have assumed, favourably to the appellant, that the documents he seeks by subpoena are relevant and probative to the outstanding applications in the primary proceedings. For the avoidance of doubt, our assumption does not take force as a finding.

1. The application for leave to issue the subpoena to produce was heard by the master on 19 February 2025. After the appellant announced his appearance the master said:

I won't need to hear from you. I've considered the application, and I'm in a position to deliver the reasons for my decision (ts 100).

1. The master then referred to the papers before the court and the history of the proceedings. The master observed that, given the nature of the proceedings, no defence was required to be filed. Thus an issuing officer must not issue a subpoena unless the time for production was the time of the trial or the court had given leave for the issue of the subpoena. The master then recited the relevant provisions of the Rules and the orthodox legal principles for leave to issue a subpoena (ts 100 ‑ 101).
2. Having done so, the master identified that there was a 'more fundamental issue' (ts 101). The master referred to O 36B r 2(2B)(a) RSC characterising it as providing that a subpoena to produce must not be issued if it would require the production of a document or thing in the custody of the court or another court (ts 101). The master continued:

Here, [the appellant] seeks leave to issue a subpoena to the registrar of the Fremantle Magistrates Court, another court, requiring production of documents and records of information as set out in the schedule of documents in the proposed subpoena. Order 36B, rule 2, subsection (2B), subsection (a) expressly precludes the issue of a subpoena to produce to another court. In the circumstances, [the appellant's] application for leave to issue the subpoena must be dismissed (ts 101).

1. Accordingly, the master refused the application on the basis that O 36B r 2(2B)(a) RSC precluded the issue of a subpoena to produce documents where that subpoena was directed to another court.

1. The appellant filed an appeal notice on 4 March 2025. In the appeal notice the appellant acknowledged, correctly, that leave to appeal was required as the order that he seeks to appeal from is interlocutory in nature: Supreme Court Act 1935 (WA) s 60(1)(f). Thereafter, on 18 March 2025, the appellant filed his appellant's case.
2. It appears from the appellant's case that the appellant seeks orders setting aside the dismissal of his application and in substitution thereof an order that the proposed subpoena to produce documents be issued.
3. There are three grounds of appeal:
   1. The Honourable Master erred in law by failing to provide the appellant with procedural fairness by dismissing his application summarily and thereby denying him the opportunity to make oral and written submissions in support of his application.
   2. The Honourable Master erred in law by failing to consider s 16 and s 21 of the Supreme Court Act and O 1 r 3A of the RSC when exercising her discretion to dismiss the application.
   3. The Honourable Master erred in law by failing to consider s 16 and s 21 of the Supreme Court Act and O 2 r 1, O 1 r 3A and O 36B r 2 of the RSC when exercising her discretion to dismiss the application.
4. Essentially, by grounds 2 and 3, the appellant contended that the provisions of the Act and the RSC as identified conferred power on the Supreme Court of Western Australia to issue a subpoena to produce to another court.
5. On 24 March 2025 the court issued a Registrar's Notice to Attend to consider, among other things, the application for leave to appeal.
6. The principles that apply in determining whether there should be leave to appeal are well-established. A recent recitation of the applicable principles appears in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[1] See also Clough Ltd v Forge Group Ltd (in liq) (receivers and managers appointed)[2] and Mineralogy Pty Ltd v CITIC Ltd.[3] We adopt those principles but will not repeat them in full. Leave may be granted whenever the interests of justice require it. Often the interests of justice require consideration of two matters. First, whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision was left unreversed, supposing the decision to be wrong.

1. The master's decision to dismiss the appellant's application for leave to issue a subpoena to produce documents was grounded in her conclusion that O 36B r 2(2B)(a) RSC precluded the issue of a subpoena to produce documents where that subpoena was directed to another court. It is convenient, at this point, to consider the nature and extent of the court's power to issue a subpoena to produce documents.
2. Mason J has stated that:

[I]t is central to our conception of the administration of justice that documents relevant and material to the issues arising in litigation should not be withheld from the parties and that each party enjoys as an incident of his right to a fair trial the right to present as part of his case all the relevant and material evidence which supports or tends to support that case.[4]

1. The court's power to issue a subpoena to produce documents is one means by which materials under the control of third parties, not involved in legal proceedings, may be made available to the parties in the action before the court to be adduced in evidence in the proceedings. In that way the power to issue a subpoena to produce documents serves the due administration of justice. It is in the public interest, and the interests of justice, that a party to proceedings be able to access all relevant and material evidence so that a dispute before the court is decided on its merits.
2. A subpoena is an order of the court to secure the attendance of the person named in the subpoena before the court to give evidence (a subpoena ad testificandum) or to produce a document or thing (a subpoena duces tecum).
3. While we have referred to a subpoena as an 'order' it is no longer common (if it ever was) for a judge or master of the Supreme Court of Western Australia to himself or herself issue a subpoena as an order of the court. Ordinarily a subpoena is issued administratively by an 'issuing officer', he or she being an officer empowered to issue a subpoena on behalf of the court: RSC O 36B r 1(1). A subpoena is issued when it is sealed with the seal of the court or otherwise authenticated by the issuing officer: RSC O 36B r 2 and r 3. Nevertheless, even if not issued by a judge or master, a subpoena takes effect as an order of the court. The rules contemplate that a subpoena takes effect as an order of the court: RSC O 36B r 2(1). So too the applicable forms - which are mandatory by virtue of O 36B r 3(1) RSC - provide that a subpoena takes effect as an order of the court. See Form 21, Form 21A and Form 21B.
4. Failure to comply with a subpoena without a lawful excuse, like disobedience with an order of the court, is a contempt of court and the addressee of the subpoena may be dealt with accordingly: RSC O 36B r 12(1).
5. In Carter v Mallesons Stephen Jaques[5] Malcolm CJ examined the history and the basis of the Supreme Court of Western Australia's authority to issue writs of subpoena ad testificandum and subpoena duces tecum in civil and criminal proceedings. Franklyn J agreed with Malcolm CJ's reasons and Rowland J relevantly agreed with this aspect of the Chief Justice's reasons.
6. Malcolm CJ observed that the power to issue writs of subpoena was derived from the inherent jurisdiction of the Royal Courts of Justice, which was in turn derived from the Royal prerogative to summons persons to attend before them by the use of various forms of writ (167). The Chief Justice recounted the practice of the English courts up to 1861 (167 ‑ 169). This was relevant due to the general jurisdiction and powers invested in the court by s 16(1) and (3) of the Supreme Court Act. Having done so, Malcolm CJ was satisfied that the Supreme Court of Western Australia had inherited the inherent jurisdiction or power of the relevant courts in England to issue subpoenas - this including, in particular, the jurisdiction or power of the Court of Queen's Bench and the courts of oyer and terminer as they stood in 1861 (169).
7. It will be necessary to return to this when considering the appellant's argument in support of grounds 2 and 3. Before turning to the appellant's argument, and the question of leave to appeal, mention must be made of the material aspects of O 36B RSC addressing subpoenas.
8. Order 36B RSC provides for two kinds of subpoena. What used to be known as a subpoena ad testificandum - a subpoena requiring the addressee to attend to give evidence - is called a 'subpoena to attend to give evidence': RSC O 36B r 1(1). The former subpoena duces tecum - a subpoena requiring the addressee to produce a document or thing - is called a 'subpoena to produce': RSC O 36B r 1(1).
9. It is, however, possible for a single subpoena to order the addressee to attend to give evidence and to produce a document or thing. Order 36B r 2(1) RSC provides:

The Court may, in any proceeding, by subpoena order the addressee:

(a) to attend to give evidence as directed by the subpoena; or

(b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or

(c) to do both of those things.

1. Order 36B r 2(2), r 2(2A) and r 2(2B) RSC contain various restrictions precluding an issuing officer from issuing a subpoena to attend to give evidence or a subpoena to produce in identified circumstances. It is not necessary to reproduce the restrictions in subrules (2) and (2A). Order 36B r 2(2B) RSC provides:

An issuing officer must not issue a subpoena to produce:

(a) if it would require the production of a document or thing in the custody of the Court or another court; or

(b) in a proceeding in which a defence is required to be filed, unless:

(i) the defence has been filed; or

(ii) the Court has given leave for the subpoena to be issued; or

(iii) the subpoena is being issued under Order 73 rule 20(2); or

(c) in a proceeding in which a defence is not required to be filed, unless:

(i) the date and time for production is the date and time of a trial; or

(ii) the Court has given leave for the subpoena to be issued.

1. There are some situations in which a subpoena to produce may be issued without leave of the court. For example, in a proceeding where a defence must be filed, after the defence has been filed the issuing officer may issue a subpoena to produce without leave (O 36B r 2(2B)(b)(i) RSC). So too there is no need for leave in a proceeding where a defence is not required provided that the time for production is the time of trial (O 36B r 2(2B)(c)(i) RSC). Outside of those situations leave of the court is ordinarily required before the issuing officer may issue a subpoena to produce (see eg O 36B r 2(2B)(b)(ii) and r 2(2B)(c)(ii) RSC). But, in one circumstance, the issuing officer is prohibited absolutely from issuing a subpoena to produce. This is where the subpoena would require the production of a document or thing in the custody of the court (ie the Supreme Court of Western Australia) or another court (O 36B r 2(2B)(a) RSC).
2. Order 36B RSC has a separate rule that facilitates access to documents or things in the custody of the Supreme Court of Western Australia or another court. Order 36B r 13 RSC provides:

Documents and things in custody of court

(1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform a registrar in writing accordingly, identifying the document or thing.

(2) If the document or thing is in the custody of the Court, a registrar must produce the document or thing:

(a) in Court or to any person authorised to take evidence in the proceeding, as required by the party; or

(b) as the Court directs.

(3) If the document or thing is in the custody of another court, a registrar must, unless the Court has otherwise ordered:

(a) request the other court to send the document or thing to the registrar; and

(b) after receiving it, produce the document or thing:

(i) in Court or to any person authorised to take evidence in the proceeding as required by the party; or

(ii) as the Court directs.

1. The procedure in O 36B r 13 RSC should be understood in the context of the prohibition in O 36B r 2(2B)(a) RSC. A litigant will not be able to obtain the issue of a subpoena to produce via an issuing officer where it would require the production of a document or thing in the custody of the court or another court. In the former case it might be thought absurd or perverse that the court might issue a subpoena to itself (or one of its officers) to produce a document or thing already in the custody of the court. In the latter case the issue by the court of a subpoena to produce to another court (or the officer of another court) to produce a document or thing in the custody of the other court would offend the convention of comity that is generally applicable as between courts. For that reason O 36B r 13 RSC provides for an alternate procedure, by way of request, that facilitates access to documents or things in the custody of another court.

1. In contending that substantial injustice would result if the master's decision was left unreversed the appellant emphasised that the procedure under O 26A r 4 RSC is intended to provide a prospective claimant with sufficient information such that he or she may make an informed decision about whether to litigate. That much may be accepted. See Scanlan v 2 - 4 McCabe Pty Ltd.[6] However, it does not follow that - assuming the master's decision to be wrong - the appellant would suffer substantial injustice if the master's decision was left unreversed.
2. The master's decision concerned a matter of practice and procedure. At the most the appellant has been deprived of an available procedural mechanism that may (or may not) assist the appellant's application to reopen and amend; and, if permitted to reopen and amend, that may (or may not) assist the appellant in opposing the respondents' challenge to his standing to bring the application for pre-action discovery. No substantive right of the appellant has been infringed or determined. That alone would ordinarily mean that it was not in the interests of justice that there be leave to appeal.
3. In the present case, however, there is an even more compelling reason why the appellant will not suffer substantial injustice if the master's decision is left unreversed. There is nothing preventing the appellant - if he so wishes - from invoking the procedure under O 36B r 13 RSC to obtain access to any relevant documents in the custody of the Magistrates Court at Fremantle. The continued availability of the procedure under O 36B r 13 RSC is an insurmountable hurdle to the appellant's contention that he will suffer substantial injustice if the master's decision is left unreversed. There can be no such substantial injustice where there is an available procedural mechanism that the appellant may avail himself of to achieve the functional equivalence of the issue of the proposed subpoena.
4. For these reasons it was not in the interests of justice to grant leave to appeal.
5. Something should still be said about the merits of the appellant's challenge to the master's decision. In this respect error must be shown. It is then for this court to decide whether to set aside the order dismissing the application for leave to issue the subpoena to produce; and, if so, whether to remit the matter for determination at first instance or to re-exercise the discretion for itself. See Allesch v Maunz.[7] If error was shown in the present case the court would undoubtedly re‑exercise the discretion. Doing so would better achieve the goal and objects in O 1 r 4A and r 4B RSC. But if, on such exercise of discretion, the court would dismiss the application for leave to issue the subpoena to produce, the appeal itself would be dismissed notwithstanding that the appellant had succeeded in showing error on the part of the master.
6. Ground 1 may be put aside. In the circumstances of the present case the asserted lack of procedural fairness is only of moment if the appellant ought to have succeeded in his application for leave to issue the proposed subpoena to produce documents. Here, given what has been said in the preceding paragraph, there are two issues. First, as a matter of law, is it the case that - as the master found - O 36B r 2(2B)(a) RSC precludes the issue of a subpoena to produce documents where that subpoena was directed to another court? Or, despite O 36B r 2(2B)(a) RSC, is the court itself empowered to issue a subpoena to produce to another court? Second, if, contrary to the master's conclusion, the court is empowered to issue a subpoena to produce documents to another court, as a matter of discretion ought the court so order in the circumstances of the present case?
7. The second issue is determinative of the merits of the proposed appeal. Even if the court has power to issue a subpoena to produce to another court we would not do so where the non-coercive procedure under O 36B r 13 RSC is available. As a matter of comity this court ought to decline to issue a subpoena to produce in favour of requesting that the other court provide the documents or things to be produced. We are, for this reason, satisfied that the master's order dismissing the appellant's application for leave to issue a subpoena to produce was the correct outcome. This provides a further reason why it was not in the interests of justice that there be leave to appeal.
8. The issue that remains is whether as a matter of law the court has the power to issue a subpoena to produce to another court. What we will now say on this subject is obiter dicta given the conclusions we have already reached. It is, nevertheless, worthwhile to make the following observations.
9. We accept the appellant's submission that the question of the court's power to issue a subpoena to produce to another court is not determined by the preclusion in O 36B r 2(2B)(a) RSC.
10. The preclusion in that subrule is directed to the 'issuing officer' rather than the court. The scheme of O 36B r 2 RSC is to confine the circumstances in which an issuing officer may issue a subpoena. There is good reason why the authority of an officer empowered to issue a subpoena on behalf of the court should be strictly confined. An issuing officer acts on behalf of the court but is not himself or herself a member of the court. The issuing officer's authority to issue a subpoena is also, in various circumstances, subject to the court's control by the imposition of a requirement for leave. It may well be that what is precluded for an issuing officer may nevertheless be effected by the court itself.
11. The power relevantly conferred on the court is not found in O 36B r 2(2B)(a) RSC. So far as the power exists in the RSC it is conferred by O 36B r 2(1) RSC in terms that are unconfined. Order 36B r 2(1) RSC provides for a discretion that is to be exercised judicially having due regard to the subject matter, scope and purpose of the power.
12. There are very few recent Australian authorities bearing on whether a court may issue a subpoena to another court. The appellant did not refer us to any; our own research produced two conflicting cases. Presumably the reason for the lack of authority is that, ordinarily, a court will implement a request procedure equivalent to that available under O 36B r 13 RSC whenever a litigant seeks to access documents or things in the custody of another court.
13. The authorities we identified are both first instance decisions of the Supreme Court of New South Wales. The first is Hillston v Bar‑Mordecai.[8] There Bryson J observed that the Family Court of Australia was not subject to the Supreme Court of New South Wales' subpoena powers [4]. Hence, in the proceedings before Bryson J, a letter of request was issued pursuant to a practice in which from time to time the court produced papers to federal courts and federal courts produced papers to the court in acts of judicial comity [5]. The second case is Application of the Attorney-General under s 33 of the Evidence on Commission Act 1995.[9] In that case Campbell J did not doubt that, subject to any protection afforded documents held by the Family Court of Australia by federal legislation, it was 'well within' the power of the Supreme Court of New South Wales to issue a subpoena to the registrar of the Family Court of Australia. However, in the first instance, Campbell J considered that a request was a more appropriate means of proceedings for reasons of comity [5].
14. Ultimately, however, the issue cannot be decided by the differing views expressed by single judges in the Supreme Court of New South Wales. Rather, as the predecessor court to this court explained in Carter v Mallesons Stephen Jaques, the extent of the Supreme Court of Western Australia's power to issue subpoenas is found in the inherent jurisdiction or power of the relevant courts of England as at 1861 to issue subpoenas as has been invested in the Supreme Court of Western Australia under s 16(1) and (3) of the Supreme Court Act.
15. The appellant relied on s 16 of the Supreme Court Act but did not refer the court to any authorities considering the subpoena powers of the courts mentioned in s 16 as at the commencement of the Supreme Court Ordinance 1861 (WA). Our research identified only one case where there was consideration of whether a court mentioned in s 16 had the power to subpoena the records of another court. This is the 1839 decision of the Court of Queen's Bench in Bentall v Sydney.[10]
16. In Bentall v Sydney the defendant sought the production of the roll of attorneys in the Court of Chancery as evidence in a trial in the Court of King's Bench. The defendant obtained an order for production from the Master of the Rolls. The senior clerk of the Court of Chancery was then subpoenaed to produce the rolls. The rolls were produced and put in evidence. Subsequently the senior clerk sought to be reimbursed for the attendance at the rate which was usually charged for attending a court with the rolls together with disbursements. In the latter respect one of the junior clerks had been required to attend the Court of King's Bench on three separate days, taking a coach backwards and forwards because the rolls were contained in three folio volumes and were more than could be carried. The defendant resisted the claim on the basis that no compensation beyond that of an ordinary witness under subpoena could be claimed for the attendance - in particular that there could be no compensation for the plaintiff's loss of time in attending on the subpoena.
17. The defendant failed. Lord Denman CJ giving judgment for the court stated:

We think that the rolls of the Court of Chancery cannot be taken out of the Court to be given in evidence as a matter of course; and that neither the Master of the Rolls, nor the plaintiff as the senior clerk in the Petty Bag Office, would be compellable to produce them on subpoena alone; but that there must be an order of the Master of the Rolls for that purpose (10 AD & E at 167 - 168; 113 ER at 64).

1. Accordingly, so far as the rolls were produced according to the order of the Master of the Rolls rather than the subpoena issued by the Court of King's Bench, the senior clerk was entitled to charge a reasonable fee for the attendance and was not confined by the lesser amount that had to be paid to a person attending under subpoena.
2. Bentall v Sydney provides some authority, albeit not completely satisfactory authority, in support of the proposition that the Court of Queen's Bench lacked power as at 1861 to issue a subpoena to produce documents in the custody of another court. In saying that the authority is not completely satisfactory there are two reasons why care must be taken with relying on the decision. First, the decision does not provide in terms that the Court of King's Bench did not have power to issue a subpoena duces tecum to another court. However, it might be thought that this is implicit in stating that neither the Master of the Rolls nor the senior clerk was compellable by subpoena. If those officers of the Court of Chancery were not compellable by subpoena then the Court of King's Bench necessarily lacked the power to issue a subpoena duces tecum to those officers and thus lacked power to issue such a subpoena to another court. Second, no reasoning is given for the conclusion that neither the Master of the Rolls nor the senior clerk was compellable to produce the documents on subpoena issued by the Court of King's Bench.
3. It is not necessary to finally determine whether the court has the power to issue a subpoena to produce to another court. The appellant's application for leave to appeal had to be dismissed in any event. However, it appears doubtful that the court is empowered to issue a subpoena to produce to another court. Such a power is prima facie inconsistent with the observations of the Court of Queen's Bench in Bentall v Sydney and the Full Court of this court in Carter v Mallesons Stephen Jaques. There is also a logical difficulty with the court having such a power. There would appear to be no basis on which this court might hold another court in contempt were that other court to fail to comply with a subpoena to produce issued by this court. In the same way that a right without a remedy is no right at all, any supposed power to issue a subpoena to produce without the means to punish the addressee for contempt in the event of non-compliance is a power in name only.
4. In addition, the absence of an actual power to issue a subpoena to produce to another court would explain why, as a matter of comity, the court by its rules has provided for a mechanism whereby requests can be made of other courts for access to documents or things in the custody of such courts. It also explains the preclusion in O 36B r 2(2B)(a) RSC.

1. It was for these reasons that we ordered that the appellant's application for leave to appeal was dismissed. It followed that the appeal was to be dismissed. The respondents chose to take no part in the appeal. In those circumstances we ordered that there be no order as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].

[2] Clough Ltd v Forge Group Ltd (in liq) (receivers and managers appointed) [2022] WASCA 179 [18] ‑ [23].

[3] Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [56] - [63].

[4] Australia National Airlines Commission v The Commonwealth of Australia [1975] HCA 33; (1975) 132 CLR 582, 593.

[5] Carter v Mallesons Stephen Jaques (1993) 11 WAR 159.

[6] Scanlan v 2 - 4 McCabe Pty Ltd [2023] WASCA 135 [124] - [126].

[7] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [44].

[8] Hillston v Bar-Mordecai [2002] NSWSC 973.

[9] Application of the Attorney-General under s 33 of the Evidence on Commission Act 1995 [2021] NSWSC 151.

[10] Bentall v Sydney [1839] EngR 18; (1839) 10 AD & E 161; 113 ER 62.