Events following the issuing of the witness summonses and service

1. I say at the outset that, and I make no secret of the fact, that, when, on

4 May 2012, the Principal Registrar drew to my attention that the 57 summonses to witnesses had been issued, and indicated the persons named in them, I immediately considered that the matter required some investigation generally and as to whether there may have been some risk of an abuse of process occurring. That there was some possibility of this seemed patent, particularly when the nature of the application to which they related became apparent to me. 2. That this Tribunal can initiate its own enquiries and take certain steps in such a situation also seems to me to be clear. Section 98(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the Act') permits the Tribunal to inform itself on any matter as it sees fit. Section 98(3) gives the Tribunal the power to regulate its own procedure subject to the Act, the regulations and the rules. As shall be discussed in relation to jurisdiction, s 104 deals with witness summonses. The power to quash a summons may be exercised on VCAT's own initiative - see, for example, AS [2006] VCAT 2143. In relation to abuse of process generally, the concept is one designed to ensure that the processes of this Tribunal are used in good faith, that the interests of justice are protected and that the integrity of the Tribunal's processes are preserved. There are a number of decisions to this effect set out in Pizer's Annotated VCAT Act (3rd edition) by Jason Pizer at paragraph [3175]. 3. In summary, I discussed with the Principal Registrar the possibility of the Tribunal initiating its own application or otherwise conducting some form of investigation into whether the 57 subpoenas should be set aside. In the meantime, however, it became apparent that the LSC was pursuing such an application. Accordingly, there was no need to consider further whether, in the circumstances prevailing, VCAT could or should initiate its own inquiry. 4. I also determined that the whole issue of the subpoenas should be investigated and decided as a preliminary issue in advance of, and not on the morning of, the hearing of the principal application against Johnson. Given the number and nature of the summonses issued, it seemed to me that a great deal of confusion and possible anxiety could result from the service of the subpoenas. Accordingly, it was preferable that the issue be dealt with as soon as was reasonably possible, bearing in mind the allowance of time for service of the application to set aside the subpoenas. I might say that, in addition, it seemed to me desirable that the issue of the subpoenas be determined before the hearing day of the principal application as the witness summons issue had the potential to be lengthy and possibly had the potential to impede or confuse the main hearing. 5. Accordingly, ultimately it was determined that the application of the LSC to set aside the subpoenas would be dealt with by me on Thursday 17 May 2012. This allowed ample time for service of all relevant material by the LSC and of a Notice of Hearing by this Tribunal informing Johnson of the application to set aside and of the date, time and place of the hearing. Thus, the application with the LSC in relation to the subpoenas was fixed for hearing on 17 May 2012. 6. I turn now to the question of service. 7. Three affidavits in relation to service were placed before me by the LSC. An affidavit of Mr James Nelms, the Principal Registrar of this Tribunal, was put in evidence. In addition, Mr Nelms gave oral evidence. I would also point out that the application appeared in the daily list of this Tribunal and, at my direction, Johnson was called three times outside the hearing room. As stated, he did not appear. 8. The affidavits of service placed before me by the LSC were of Mr Vince Pepi, Mrs Margaret Ann Betts and Mr John Krikis. An affidavit of Ms Tina Stagliano was also relevant. It is to be noted that there has been a series of directions made in respect of Johnson's address and his address for service. He declined to give a street address at a directions hearing on 12 December 2011, but confirmed his address for service. He had received a notice in respect of that directions hearing. His address for service at that time was PO Box 6137, Point Cook VIC 3030. On 22 February 2012, Senior Member Smithers varied that order by adding additional addresses for service. These were, care of The Cheesecake Factory Pty Ltd, 236 Smith Street, Collingwood VIC 3066 and electronically, at james@jamesjohnson2020.com. I would point out that, on 20 February 2012, Johnson had contacted this Tribunal in writing stating that his address for service between the hours of 9.00am and 5.00pm, excluding weekends and public holidays, was at The Cheesecake Factory address. The electronic address referred to above is exactly that which appeared on his letterhead on the document advising of the address for service at The Cheesecake Factory. On 27 March 2012 Senior Member Levine ordered that the order just mentioned be varied so that, in lieu of personal service on Johnson, documents could be served at The Cheesecake Factory Pty Ltd at 236 Smith Street, Collingwood within certain hours which could be described as coinciding with business hours. 9. In addition, as recently as May of this year, public communications on his website by Johnson have described his address as being PO Box 6137, Point Cook, VIC 3030 and, for electronic communications, 21may12@jamesjohnson2020.com. Of course, and as shall be discussed, 21 May 2012 was the date for the hearing of the principal application against Johnson. These addresses have also recently appeared on his letterhead. 10. The affidavit of Mr Vince Pepi establishes that the documents relevant to this application were served at The Cheesecake Factory Pty Ltd, 236 Smith Street, Collingwood on 14 May 2012. Those documents included an affidavit of Ms Tina Stagliano, to which was annexed a considerable number of exhibits, including the subpoenas, electronic publications by Johnson, including the one referred to above revealing his mail and email addresses, and the previous orders of this Tribunal in relation to service. The affidavit of Ms Betts is, in essence, to similar effect. Each of the affidavits referred to exhibit the Application for Order to set aside the summonses as an abuse of process. Each makes it clear that the LSC would be seeking an order prohibiting Johnson from issuing any further summonses without leave. The affidavit of Ms Betts refers to the sending of the documents to Johnson by emailing the application and the exhibits to Johnson's most recent email address (being the one commencing 21may12 and shown on his letterhead of 6 May 2012). The affidavit of Mr Krikis, who is a well qualified IT consultant employed by the LSC, is to the effect that the email sent by Ms Betts on 11 May 2012 had been successfully transferred to the email address which was shown on Mr Johnson's letterhead only five days before the transmission by Ms Betts. 11. The affidavit of the Principal Registrar of this Tribunal, Mr James Nelms, as confirmed by his oral evidence, is to the effect that a Notice of Hearing setting out the date, time and venue of the application to set aside the summonses was served in various ways. The Notice of Hearing stated that the hearing of the application in question would be before this Tribunal at 55 King Street, Melbourne at 10.00am on 17 May 2012 (when I in fact heard it). The hearing notice and appended material (the subpoenas, correspondence from Johnson and previous orders of this Tribunal) were sent on 11 May 2012 by registered post to Johnson's address at PO Box 6137, Point Cook VIC 3030. The receipts in relation to the registered post lodgement are exhibited to the affidavit of Mr Nelms. The affidavit of Mr Nelms further establishes that the hearing notice and annexures were served electronically on 11 May 2012 and 14 May 2012. This electronic transmission was both to Johnson's earlier email address - james@jamesjohnson2020.com - and to his very recent address of 21may12@jamesjohnson2020.com. In addition, exhibited to the affidavit of Mr Nelms is an affidavit of attempted service by an employee of Network Process Service at The Cheesecake Factory. This attempted service was on 14 May 2012 during normal business hours. A female employee at The Cheesecake Factory stated that she did not know Johnson although she said that she had heard his name. The proprietor of the establishment was not present. 12. In his oral evidence, Mr Nelms referred to the fact that there had been a further attempt by Network Process Service to serve the Notice of Hearing at The Cheesecake Factory address on 16 May 2012 but, as at the time of his giving evidence, no report as to what had occurred had been received. It would seem that an affidavit in this regard was faxed to Mr Nelms on the day of the hearing, 17 May 2012, and the original of the affidavit was subsequently received here on 23 May 2012. The substance of that affidavit was that on 16 May 2012 service was effected by leaving the Notice of Hearing on a bench at The Cheesecake Factory, it being so left at the request of a man there present who denied that he was Johnson and who stated that he did not know when Johnson would be at the address. Of course, as is evident, this affidavit was not in the possession of Mr Nelms or before the Tribunal at the time of the hearing. 13. I would also add the following. There was before the Tribunal a supplementary affidavit of Ms Tina Stagliano, sworn 14 May 2012. Ms Stagliano has also sworn an affidavit of 10 May 2012 in relation to these matters. The particular significance of the supplementary affidavit is that on 14 May 2012 Ms Stagliano viewed a blog referred to in a letter sent to the LSC on 7 May 2012. The letter of 7 May 2012 is on Johnson's letterhead and includes a photograph of him. It gives his address as the post office box at Point Cook to which reference has been made and his electronic address as being the 21may12 email address to which reference has been made. There is also reference to the blog. On 14 May 2012, being the Monday immediately prior to the hearing of this application on 17 May 2012, Ms Stagliano viewed the blog, a copy of which is exhibited to her supplementary affidavit. The blog, which shall be discussed, is clearly an attempt by Johnson to gain support and to have people attend at the hearing on 21 May 2012. Enquiries are directed to the 21may12 email address which has been set out. Of course, it was to the this address which the hearing notice and annexures were sent by the registry of this Tribunal on 11 May 2012 and 14 May 2012 as attested to by Mr Nelms. The Point Cook address to which the registered mail was sent is that which was shown on the letter of Johnson of 7 May 2012. 14. Section 140 of the Act relates to service. Section 140(1)(a)(ii) permits service of a notice or other document 'by sending it by post, facsimile or other electronic transmission to the person at his or her usual or last known residential or business address'. That was done. Section 140(1)(d)(ii) permits service in any case 'in a manner directed by the Tribunal'. In the present case, both the Principal Registrar and myself gave directions as to service so that it was carried out as described above. 15. When all of the above is taken into account, including the previous orders of this Tribunal, I am satisfied that service has been effected. Every attempt has been made to serve relevant documents electronically, both at Johnson's previous email address and at his current email address. Every attempt has been made to effect service by way of registered post to the address on Johnson's letterhead, this being an address to which documents have previously been sent and apparently received. Further, there have been attempts at service at The Cheesecake Factory address, being an address for substituted service. In short, I was, and am, of the view that service of both the Notice of Hearing, identifying the date, place and time of same, and of relevant documents has been effected. 16. Given the number and nature of the subpoenas issued, and also bearing in mind that the charge against him was listed for hearing on Monday 21 May 2012, I had no hesitation, following proof of service and his failure to attend, in proceeding with the application of the LSC in the absence of Johnson.

1. I turn now to the issue of whether this Tribunal possesses jurisdiction to deal with an application of this nature. This was discussed during the hearing of the application, and appropriate submissions were made.
2. Section 104 of the Act deals with the issue of witness summons. There is nothing in s 104 which deals expressly with the power of the Tribunal to set aside a subpoena. However, that VCAT has an implied power to quash a summons issued under s 104 has been determined in decisions dating back to its inception and also by its predecessor, the Administrative Appeals Tribunal in relation to an earlier similar provision.
3. Reference is made to cases such as Hulls v Victorian Casino and Gaming Authority (Unreported, VCAT, Judge Fagan VP, 15 July 1997) and Hulls v Department of Treasury and Finance (Unreported, VCAT, Judge Wood VP, 27 October 1998). In the earlier mentioned case, his Honour stated that there was no doubt but that the power given by the provision to issue a summons also contained an implied power to quash a summons where it constituted an abuse of the process of the Tribunal. As was stated in the case of AS, to which reference has been made, Deputy President Billings stated at [31] as follows:

In my view section 104 of the VCAT Act impliedly gives the Tribunal power to set aside a summons not only on the application of the person who received the summons, or on the application of a party, but also on its own initiative.

I agree with the above observations. In general, I would also refer to decisions such as Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 4 NSWLR 98. I would also refer to the discussion contained in Pizer at paragraph [3887] and the cases referred to therein.

1. In addition. it would seem to me, as a matter of basic principle, that if a court or tribunal has the power to issue a document such as a summons, it also has the jurisdiction to set aside or quash such document if circumstances, such as an abuse of process, warrant that being done. This is consistent with what is contained in s 41A of the Interpretation of Legislation Act 1984 (Vic), which states as follows:

If an Act or subordinate instrument confers power to make, issue or grant an instrument (not being a subordinate instrument) the power shall, unless the contrary intention appears, be construed as including a power, exercisable in the same manner and subject to the same conditions or limitations (if any), to repeal, revoke, rescind, amend, alter or vary an instrument made in the exercise of that power.

1. In summary, I was, and am, satisfied that the Tribunal has jurisdiction to hear an application to set aside a summons to witness.

1. The essential submission of Mr Over on behalf of the LSC, which submission was adopted by both Ms Foley and Mr Forsaith, was that all subpoenas should be set aside on the basis that they constitute an abuse of process. He further argued that, on the basis of what was said by Judge Wood VP in Hulls, in an application such as this, and particularly where there is no apparent relationship between the persons being subpoenaed and the subject matter of the principal application, it is, in essence, up to the party who has issued such subpoenas to demonstrate that material which the persons subpoenaed may introduce is relevant. Johnson has not attended so as to establish the relevance of material that could be introduced by persons such as, for example, the Prime Minister or the Premier. In those circumstances, all summonses should be set aside and, given their number, nature and apparent irrelevance, Johnson should be restrained from being able to issue any further subpoenas without leave of the Tribunal.

1. I have already set out the orders which I made.
2. I made those orders for the following reasons which are not listed in order of importance or significance:
   • (1) I can see no possible connection between the persons to whom the witness summonses were directed and the charge faced by Johnson, which basically concern alleged professional misconduct relating to the manner in which he conducted his own family law case. There were only two subpoenas addressed to recipients whose occupations or positions in the community could not be readily identified. These were Ms Annette Dawood and Ms Mary Lonergan. I accept that their identity was not known to the LSC, but there was no known connection between people of that name and the charge faced by Johnson. Of course, he did not appear, and there is nothing in the voluminous material and correspondence emanating from him which suggests any connection between those two persons and the charge which he faces. I can see no relevant link between the remaining 55 persons concerning whom subpoenas were issued and the matters involved in the principal application.
   • (2) Exhibited to the supplementary affidavit of Ms Tina Stagliano of

14 May 2012 is an extract from a blog by 'James Johnson CHR', in which he describes himself as the Independent Federal Candidate for Lalor, a constitutional human rights advocate, and a solicitor and barrister of the High Court of Australia. The blog is headed 'Lawyerocracy on Trial, 21 May 2012'. It is clear from the content of this that Johnson is referring to the hearing of the application brought by the LSC in relation to his alleged professional misconduct. There are derogatory remarks concerning Mr Michael McGarvie, the LSC. There are also, for example, the following statements:

This unprecedented and history making trial starts at 10.00am on Monday 21 May 12 and will be held 55 King Street, Melbourne, Victoria, Australia.

This hearing, sub-named Michael McGarvie - Legal Services Commissioner v Harold James Johnson will be the biggest Australian whistleblowing, corruption exposing, media event of 2012.

48 yo Melbourne-born journalist, whistleblower, political activist & human rights lawyer @JamesJohnsonCHR will lead a Victorian Government Tribunal (and an A-List Role Call of some of the very good, many of the very bad, and lots of the very ugly of Australia's ruling legal elite) through a thorough investigation into the absence of professional standards in the Australian legal profession. The investigations will include the broad intersection of the legal profession with the upper benches of all three branches of State and Federal government in Australia (benches that these days look like little more than an exclusive lawyers club).

A 'whose who' of many of Australia's most powerful lawyers, including current and past State and Federal parliamentarians, ministers, judges, bureaucrats and barristers have been summoned to attend for questioning by the Tribunal ...

This is an open invitation to the media and to the public to attend the hearings. Come and look, listen, laugh and learn as leading Australian lawyers, lawmakers, governmen and governwomen (the Australian lawyerocracy elite) are put on trial and compelled to answer questions that they have been avoiding, for generations.

There is much more of the same. What is clear is that Johnson believed he could turn the hearing of the misconduct charge against him into some sort of media event at which numbers of people, many of them prominent, would be questioned about matters having absolutely no relationship to the professional misconduct charge faced by Johnson. Indeed, in other parts of the blog, he has referred to there being between 100 and 200 witnesses and to the 'trial' lasting some three months. The abuse of process involved in the issuing of subpoenas for this reason is patent. I might add that many more extracts from material published by Johnson or forwarded by him to various persons and to this Tribunal could be set out, but the above seems to me to be adequate in order to demonstrate the abuse of process carried out and contemplated.

(3) I would refer to what was said by Judge Wood VP in Hulls and, with respect, would agree with and adopt this approach. As his Honour said at [4]:

... the Tribunal requires satisfaction that its process is not being invoked for any purpose other than adducing relevant evidence before the Tribunal.

In that case, the summonses to witnesses under consideration were to the then Premier of Victoria, the Treasurer and the Minister for Gaming. There was considerable legal argument concerning whether the subpoenas should be set aside and I might say that, given that at the time Mr Hulls was the Shadow Minister for Gaming and was pursuing a Freedom of Information application in respect of the licence bidding process for the Crown Casino, a greater prima facie link might be able to be detected between the proposed recipients of the subpoenas and the principal application before the Tribunal than can be seen between the subpoenas in the present case and the charge of professional misconduct against Johnson. However, Wood J had no hesitation in finding that the material proposed to be adduced was irrelevant and stated as follows:

I have already concluded that the material proposed to be adduced is irrelevant and acknowledging that the Tribunal has the power to regulate its own procedures (section 98(3) of the VCAT Act) it would be inconsistent with the requirements of section 98(1)(c) and (d) of the VCAT Act for the Tribunal to seek to inform itself by the receipt of irrelevant material and, besides, to do so would prolong the hearing.

(4) Mr Over referred me to the decision of the Court of Appeal of New South Wales in National Employer's Mutual General Association v Waind [1978] 1 NSWLR 372, 382 ('Waind'), where it is said by Moffitt P as follows:

... it would be an improper use of the subpoena if were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose, or in collusive proceedings to give them publicity. A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of a stranger occasioned by the operation of the subpoena.

In my opinion, what has occurred in the present case is an improper use of subpoenas which have been issued in respect of persons who have no conceivable relation to the proceedings in question, and would also appear to have more than a passing connection with the issue of publicity.

(5) I agree with the submissions of Mr Over generally, and particularly in relation to the proposition that, in circumstances such as the present, it is incumbent upon the person or party who has issued the subpoenas to establish the relevance of what can be said by the proposed witnesses. That has not occurred.

(6) In relation to possible relevance, again I agree with the submissions of Mr Over that, at the hearing of the principal application, this Tribunal will be confined to hearing and determining the conduct which is the subject of the application and the charge. Other material, and particularly that of the kind stated by Johnson and referred to above, is irrelevant.

(7) Further, I agree with Mr Over in his submission that what Johnson seems to have had in mind is a type of show trial, and I have referred to this earlier. I also agree that such a trial would apparently be an investigation into the conduct of others unrelated to the principal application and that none of the witnesses seems to have been summonsed for the purpose of relevant evidence in that application.

(8) There are four summonses directed to persons who do not live in the State of Victoria. Those four summonses, which are directed to the Honourable Michael Kirby, former Judge of the High Court of Australia, Mr Steve Mark, Legal Services Commissioner of New South Wales, The Honourable Robert McClelland, Federal Member for Barton and the Honourable Malcolm Turnbull, Federal Member for Wentworth, seem to me to have been invalidly issued. I would refer to s 57 of the Service and Execution of Process Act 1992 (Cth). In his oral evidence, Mr Nelms confirmed that no leave of the Tribunal had been obtained in relation to the service of such subpoenas outside the State. Whilst this was not part of the case on behalf of the LSC, as stated I am of the view that this Tribunal has an implied power to quash a witness summons on its own initiative. Apart from being consistent with what is contained in s 41A of the Interpretation of Legislation Act 1984 (Vic), I would also refer to the observations of Moffitt P in Waind concerning the attitude of a court towards the invasion of the private rights of strangers which might result from the issuing of such subpoenas. Even leaving to one side the question of abuse of process, it seems to me that the four interstate subpoenas cannot legally be served in the absence of leave.

(9) Given the above circumstances, it also seems to me to be reasonable that there be restrictions placed upon Johnson in relation to any attempt to issue further summonses to witnesses. As indicated, he has foreshadowed up to 200 witnesses being required to give evidence. Given the number and nature of the subpoenas already issued, it seems to me to be entirely reasonable to impose the conditions sought by the LSC. As discussed earlier, essentially this Tribunal has the power to regulate its own procedure. Making orders which prevent further possible abuses of process and the prolonging of proceedings appeared to me to be orders which should be made, and that remains my view.

1. I have already referred to the orders which have been made in this matter. As requested, I have now provided the written reasons which support them.