Plaintiff v Defendant

2 Supreme Court (General Civil Procedure) Rules 2015 (Rules), r 42.02(1)(b), provides that the Court 'may, in any proceeding, by subpoena order the addressee ... to produce the subpoena or a copy of it and any document or thing as directed by the subpoena...'. Rule 42.02(2)(a)(i) provides that the Prothonotary 'shall not issue a subpoena ... if the Court has made an order ... having the effect of requiring that the proposed subpoena ... not be issued...'.

3 On 13 November 2023, the Court received correspondence dated 6 November 2023 from Mr McKechnie attaching, '[f]or filing', subpoenas addressed to David Herzog Adam Ruschinek, and James Patrick Bolger, along with another document.[1]

4 The proposed subpoenas are each entitled 'subpoena both to attend to give evidence and to produce'. The proposed subpoenas each include a schedule of documents that the addressee is required to produce. The schedules in all three proposed subpoenas contain the following two categories of documents:

(1) All documents created by yourself, whether they bear your signature or not, that are made in relation to the provision of kosher foods to people held in custody in any facility in Victoria between 6 June 2020 to 6 November 2023.

(2) All documents bearing your signature, whether they be created by yourself or not, that are made in relation to the provision of kosher foods to people held in custody in any facility in Victoria between 6 June 2020 to 6 November 2023.

5 The schedule of the proposed subpoena addressed to James Patrick Bolger contains an additional, third category as follows:

(3) All receipts for the purchase of all foods, including ingredients, used to provide kosher meals to people held in custody at Hopkins Correctional Centre between the dates three months before to 6 months after 6 June 2021.

6 At a directions hearing on 27 November 2023, the defendant foreshadowed its objection to the issuing of Mr McKechnie's proposed subpoenas insofar as the proposed subpoenas would require the production of documents according to their schedules.

7 The Court dispensed with the need for a summons and made directions programming submissions on this issue. The Court suggested that the dispute about whether the subpoenas for production of documents should be issued could be determined on the papers and the parties consented to this course. The Court relevantly directed that Mr McKechnie file and serve any affidavit material and submissions on which he relies in support of his proposed subpoenas for the production of documents by 29 January 2024, and that the defendant file and serve any affidavit material and submissions on which it relies in support of its objection to the subpoenas for the production of documents by 9 February 2024.

8 The court did not receive any affidavit material submissions from Mr McKechnie by 29 January 2024.

9 On 20 February 2024, the defendant filed submissions 'concerning subpoenas to produce'.

10 The defendant drew attention to aspects of r 42.02 of the Rules summarised in paragraph 2 above and other provisions of O 42. Relying on _Woolworths Lt[2] v Svajcer,_2 the defendant pointed out, correctly, that:

(a) it is necessary for the party seeking to have the Court issue the subpoena to identify, expressly and precisely, the legitimate forensic purpose for which access to the relevant documents is sought;

(b) the party must satisfy the Court that it is on the cards that the documents will materially assist its case;

(c) a fishing expedition will not be permitted - seeking documents to see whether they may be of assistance to the party's case is insufficient.

11 The defendant submitted that the three proposed subpoenas are inconsistent with these principles and should be refused. The defendant submitted that the categories of documents in the schedules to the proposed subpoenas were all extremely broad, travelled beyond the scope of Mr McKechnie's claim in the proceeding in various ways, and that Mr McKechnie had not established a legitimate forensic purpose for seeking them. The defendant invited me to infer that the proposed subpoenas are a 'fishing expedition'.

12 To the extent that there was some overlap with a previous application for particular discovery which Mr McKechnie made and I refused,[3] the defendant submitted that Mr McKechnie 'should not be allowed to use the Court's subpoena processes as a substitute for discovery'.

13 The defendant also raised some points as to the form of the subpoenas, including the point that r 42.03(5) of the rules requires a date, time and place for attendance, a matter which had been overtaken by the vacating of the original trial fixture.

14 The defendant's submissions at [23] concluded:

The defendant will not object, at this time, to the plaintiff seeking to have fresh subpoenas issued under O 42 for the witnesses to give evidence at trial once a trial date is set and if the VGSO is removed as the office for service of the Herzog and Ruschinek Subpoenas.

15 Read in the context of the defendant's submissions as a whole, this concession clearly related to a redrafted version of each of the three subpoenas limited to being subpoenas to give evidence and not extending to production of documents.

16 At a further hearing on 24 April 2024, I raised the proposed subpoenas with Mr McKechnie, observed that the Court had not received submissions from him and sought clarification whether he wished to have them issued by the registry. He replied in the affirmative and a discussion ensued during which I explained that I would expect to receive submissions from him in support of the subpoenas, relating to such issues as 'whether the documents sought will advance a forensic purpose or legitimate forensic purpose. Whether they're too broad, whether they're vague and questions of that kind.'[4]

17 On or about 22 May 2024, Mr McKechnie provided a document entitled 'Plaintiff's Submissions in support of the Plaintiff's 3 subpoenas dated 6 November 2023', which was filed on 27 May 2024. These submissions address the formal defect noted in the defendant's submissions relating to the need to insert a 'date, time and place' for attendance pursuant to r 42.03(5) of the Rules. As Mr McKechnie correctly points out, this information could only be provided once a trial is fixed. Aside from addressing this point, and reciting certain contextual and procedural matters, the key point made in the submissions is as follows:

Fresh subpoenas

8 With reference to the defendants submissions of 20 February 2024 at paragraph 23, the plaintiff seeks to have fresh subpoenas issued under O 42 to be requested by the plaintiff after a trial date is fixed so that the subpoenas may inter alia comply with the requirement under rule 42.03(5).

Fixing of Trial Date

9 Relevant to the fixing of a trial date; the outcome of the appeal against the discovery decision, or whether the appeal outcome can be considered at all, due to it being that a fixed date for trial may set to a date before the appeal is heard, will raise important points relevant to the construction of any fresh subpoenas.

18 The import of these paragraphs is not clear to me. Mr McKechnie is referring to fresh subpoenas. It may be that Mr McKechnie is not only considering fresh subpoenas but is also withdrawing his reliance on the three proposed subpoenas in their current form. However, in case he is not withdrawing his reliance on them, it is necessary for me to reach a decision on them.

19 Mr McKechnie's submissions do not identify the forensic purpose behind his attempt to obtain production of the documents described in the schedules to the three proposed subpoenas.

20 I am not satisfied that there is any legitimate forensic purpose for production of these documents.

21 Mr McKechnie's amended statement of claim includes the following paragraphs in a passage appearing under the heading, 'Assertions':

6. The plaintiff asserts that since 6 June 2021 he has been subjected to being provided foods, approximately 90% of all food provided to the plaintiff, which he is unable to consume due to the observance of his religious belief.

7. The plaintiff asserts that all of the food, falsely presented as conforming to kashrut law, provided to the plaintiff by the defendant and its servants and agents, since 6 June 2021 to the present, have been a result of direct and intentional and positive acts on the part of the defendant and its servants and agents.

22 My understanding is that food that conforms to kashrut law is kosher, and food that does not conform to kashrut law is not kosher.

23 Other paragraphs in this passage of the amended statement of claim contain references to the assertion that the defendant provided foods to Mr McKechnie that did not conform to 'kashrut law', as an element or premise of related assertions about effects on Mr McKechnie.

24 There is nothing to suggest that it is on the cards that the documents sought in the proposed subpoenas would assist Mr McKechnie to prove a case consistent with the assertions in his amended statement of claim. It is insufficient to speculate that there might be something amongst the categories of documents sought in the proposed subpoenas that could support such a case. Further, the categories are oppressively broad.

25 In short, I am satisfied that the categories described in the schedules suffer from all the defects identified in the defendant's submissions, summarised in paragraph 11 above.

26 That is sufficient to lead me to direct the Prothonotary not to issue the proposed subpoenas, or indeed any future versions of those proposed subpoenas seeking production of the categories of documents described in paragraphs 4 and 5 above.

27 There is no need for me to determine whether the proposed subpoenas are also an abuse of process of the kind described in the defendant's submissions summarised in paragraph 12 above, to the extent of any overlap with discovery previously sought by Mr McKechnie and refused. Mr McKechnie has referred to appealing from my decision refusing discovery. No part of this current decision relies on my previous decision refusing discovery.

28 Pursuant to r 42.02(2)(a)(i) of the Rules, I will order that the proposed subpoenas, and any proposed subpoenas in substantially identical form, are not to be issued by the Prothonotary.

29 Because I am unsure of the meaning of Mr McKechnie's submissions and his references to fresh subpoenas, it is necessary for me to go further. I am satisfied in the interests of justice and in promotion of the overarching purpose in s 7 of the Civil Procedure Act 2010 that I should impose a leave requirement before any future subpoena is issued at the instigation of Mr McKechnie to the same addresses.

30 Pursuant to r 42.02(2)(a)(ii) of the Rules, I will order that any other proposed subpoena addressed to David Herzog, Adam Ruschinek or James Patrick Bulger not be issued by the Prothonotary without the leave of the Court.

31 I will hear the parties on the costs of and incidental to Mr McKechnie's proposed subpoenas and the process leading to my decision preventing them from being issued.

[1] The other document was a draft or proposed summons bearing the date 6 November 2023 and described in the correspondence as an 'Application for Leave to use in this proceeding the affidavit/s of David Hertzog made in relation to a separate proceeding where Haydn Whitfield was the plaintiff (approximately 2022)'. That application is not addressed in these reasons.

[2] [2013] VSCA 270, [16]. See also Webb v Wheatley [2015] VSC 153, [55] (Derham AsJ).

[3] Transcript 2 November 2023 of hearing of the plaintiff's summons dated 12 October 2023 and filed 30 October 2023, and order made on 3 November 2024.