Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors

• Civil Procedure Act 2005 (NSW) - s.13, s.68 LEGISLATION CITED : - Supreme Court Act 1970 (NSW) - s.19, s.40, s.118, s.121 - Uniform Civil Procedure Rules 2005 (NSW) - Pt 33, Pt 34

• Attorney General v Leveller Magazine Ltd [1979] AC 440 - Commissioner for Railways v Small (1938) 38 SR(NSW) 564 - Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 56 ALJR 588 - James v Cowan (1929) 42 CLR 305 - Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 - R v Daye (1908) 2 KB 333 CASES CITED : - R v Forbes, ex parte Bevan (1972) 127 CLR 1 - R v S (1988) 50 SASR 161 - Reid v Howard (No 2) (1995) 184 CLR 1 - Taylor v Taylor (1979) 143 CLR 1 - Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306 - Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207 - Glass "Seminars on Evidence" (1970) p.10 per Moffatt J - "The Inherent Jurisdiction of the Court" (1983) 57 ALJ 449, K. Mason QC

Pyoja Pty Ltd - Plaintiff PARTIES : Bronte Road Developments Pty Ltd - First Defendant Steven Christofidellis - Second Defendant Robert Savio & Associates - Third Defendant

COUNSEL : P. Hinde (Sol) - Plaintiff G. Curtin - Third Defendant

Jeffrey Hinde & Associates - Plaintiff SOLICITORS : Bolzan & Dimitri - First & Second Defendants Mallesons Stephen Jaques - Third Defendant

1 The Third Defendant has served on the Plaintiff a notice to produce documents and has served on a director of the Plaintiff a subpoena to produce documents. The Notice to Produce and the subpoena were made returnable before the Registrar on 15 June 2006. Counsel for the Third Defendant, Mr Curtin, indicated that he wished to examine the Plaintiff's director as to the sufficiency of the answer to the subpoena served on him. The Registrar had doubts as to whether a Registrar of the Court has jurisdiction to hear such an examination and referred the question to me as Duty Judge. 2 The matter came before me during a heavy duty judge list. The examination before the Registrar was fixed for 2.00pm that day and both parties wished it to be heard at that time. Mr Curtin appeared for the Third Defendant and Mr Hinde, solicitor, appeared for the Plaintiff and for the Plaintiff's director. Mr Hinde had no objection to the examination before the Registrar proceeding and did not wish to make any submission as to the jurisdiction of the Registrar to hear that examination. 3 At the conclusion of Mr Curtin's helpful submissions, I was satisfied that the Registrar had jurisdiction to hear the examination. Because of the urgency of the matter and the state of the list, I announced my conclusion accordingly and said that I would give reasons later. These are my reasons.

The relevant provisions of the legislation and Rules

4 The Supreme Court is given the power to compel the production of evidence by s.68 of the Civil Procedure Act 2005 (NSW) ("CPA"), which is as follows: " Attendance at court and production of documents and things to court Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following: (a) to attend court to be examined as a witness, (b) to produce any document or thing to the court." 5 Part 33 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") makes further detailed provision for the issue of subpoenas and ancillary matters. UCPR 33.2(1) provides: "(1) 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." 6 UCPR 33.3(6) provides that a subpoena may be made returnable for the date of the trial "or any other date as permitted by the court" . It is common practice in this Court for subpoenas to be issued and made returnable before the Registrar well before the date fixed for trial, so that documents required for preparation may be procured. 7 UCPR 33.6(4) provides: "(4) The addressee must comply with a subpoena to produce:

(a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the court or to the person authorised to take evidence in the proceeding as permitted by the court, or

(b) by delivering or sending the subpoena or a copy of it and the document or thing to the registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production." 8 UCPR 33.12(1), which embodies the common law in this regard, provides that failure to comply with a subpoena without lawful excuse is a contempt of Court and the person subpoenaed may be dealt with accordingly. 9 CPA s.13 provides: " Officers of the court may be authorised to exercise court's functions

(1) The senior judicial officer of any court may, by instrument in writing:

(a) direct that any function of the court under this Act or the uniform rules may be exercised by such registrars or other officers of the court, and in such circumstances and subject to such conditions, as are specified in the instrument, and

(2) This section does not limit any provision of the Act by which the court is constituted with respect to the exercise of the court's functions." 10 By an instrument in writing dated 31 August 2005, the Chief Justice of this Court directed that a Registrar of the Court, including an Acting or Deputy Registrar, "may exercise the functions of the Court" as stated in Column 1 of the Schedule attached to the instrument, subject to any restrictions mentioned in Column 3 of the Schedule. In Column 1 of the Schedule appears CPA s.68, without any restriction appearing in Column 3. Likewise, in Column 1 of the Schedule appears "Part 33", the whole of which is concerned with subpoenas, without any restriction appearing in Column 3. 11 Accordingly, it is clear that there has been delegated to the Registrar in accordance with CPA s.13 all of the "functions of the Court" in making orders under CPA s.68 and UCPR 33.2(1) for production of documents to the Court as well as all of the functions of the Court in accepting compliance with those orders by the production of documents in accordance with UCPR 33.6(4).

12 Mr Curtin submitted that conferral on the Registrar of the functions of the Court embodied in CPA s.68 and UCPR Pt 33 carried with it, by implication, conferral of such power as is necessary for the efficacious control and performance of those functions. Mr Curtin was careful, I think, to observe the distinction between the Court's inherent jurisdiction and what has been called its incidental jurisdiction, which is derived by implication from statutory provisions conferring particular jurisdiction: see e.g. R v Forbes, ex parte Bevan (1972) 127 CLR 1, per Menzies J; Taylor v Taylor (1979) 143 CLR 1, at 6. 13 The Supreme Court, as a superior court of record, has not only the jurisdiction expressly conferred upon it by the Supreme Court Act 1970 (NSW) ("SCA") and by other Statutes and Regulations; it has, in addition, inherent jurisdiction to regulate and control its proceedings in aid of the administration of justice: see generally K. Mason QC "The Inherent Jurisdiction of the Court" (1983) 57 ALJ 449. This jurisdiction is exercised by the Court itself, as embodied in those of its judicial officers who constitute the Court for various purposes. So, for example, a single Judge of this Court in either Division constitutes the Court itself so that a single Judge may exercise the Court's inherent jurisdiction: SCA s.40(1). But the word "Judge" in s.40(1) does not include "Associate Judge" - SCA s.19(1) - so that an Associate Judge is not a component part of the Court and constitutes "the Court" only for the purpose of exercising powers of the Court specifically conferred on him or her under the Supreme Court Act : Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 56 ALJR 588, at 590; SCA s.118(5). Likewise, a Registrar constitutes the Court itself only for the purpose of exercising the powers of the Court conferred upon him or her pursuant to CPA s.13: SCA s.121(5). 14 The powers conferred by CPA s.68 and UCPR 33.2 to issue subpoenas and the power conferred by UCPR 33.6(4) to accept satisfaction and discharge of a subpoena by production of the documents required are conferred on "the Court", i.e. the Supreme Court itself, by the terms of those provisions. A Registrar exercising the power of the Court under those provisions by virtue of a delegation under CPA s.13 constitutes the Court itself. Consequently, whatever a Judge of the Court may do in exercise of the powers given by CPA s.68 and UCPR 33, a Registrar may now do by reason of CPA s.13 and the instrument signed by the Chief Justice on 31 August 2005. Such ancillary powers as a Judge of the Court may exercise in regulating or controlling proceedings under those provisions, whether those ancillary powers are derived from the Supreme Court's inherent jurisdiction or from its incidental jurisdiction, may also be exercised by the Registrar because the Registrar is now put in the same position as the Judge for this purpose. 15 A party who has procured the issue by the Court of a valid subpoena to produce documents is entitled to be satisfied that the person served with the subpoena has properly answered it. The Court must also be satisfied that its order for production of documents, constituted by the subpoena, has been properly observed. Ascertaining whether or not a person has made proper answer to a subpoena to produce is part of the Court's function in administering its own process generally and, in particular, in administering UCPR 33.6(4). Such power as the law provides to ascertain whether proper answer has been made to a subpoena to produce is part of the Court's ancillary, or incidental, jurisdiction: see Glass "Seminars on Evidence" (1970) p.10 per Moffatt J, speaking extra judicially. It is also part of the Court's inherent jurisdiction. Accordingly, the Registrar has both the inherent and the incidental jurisdiction of a Judge of the Court for the purpose of ascertaining whether a subpoena to produce has been properly answered. 16 The means by which, and the extent to which, a litigant may test the sufficiency of an answer to a subpoena to produce documents are now fairly clear. The Court, which may be constituted by the Registrar, may in its discretion allow the person subpoenaed to be examined, on oath or unsworn, to the limited extent discussed by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR(NSW) 564, at 574, and by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306, at 312-315. 17 If it appears that a person subpoenaed to produce documents has, without lawful excuse, failed to make proper answer to the subpoena, a party to the proceedings may initiate proceedings for contempt of Court: UCPR 33.12(1); SCR Pt 56 r6. In addition, the Registrar, who constitutes the Court itself for the purpose of receiving compliance with a subpoena, may initiate contempt proceedings by direction to the Registrar in accordance with SCR Pt 55 r 11(1). But the Registrar who constitutes the Court for the purpose of receiving an answer to a subpoena to produce could not constitute the Court for the purpose of punishing any contempt of Court by failure to give proper answer, because the power to punish for contempt is conferred on "the Court" by SCR Pt 55 r13 and that power has not been delegated to a Registrar under SCA s.121(2) or CPA s.13. 18 It was for the foregoing reasons that I concluded that the Registrar in the present case had jurisdiction to hear the proposed examination of the plaintiff's director on the adequacy of his answer to the subpoena served on him.

19 It is not necessary for the purposes of this decision, but it may be helpful if I make some observations about the closely related subject of notices to produce. 20 Notices to produce, which may only be served by one party to proceedings on another party (UCPR 34.1) are commonly made returnable before a Registrar at the same time as subpoenas to produce documents served on third parties. 21 UCPR Pt 34 deals with notices to produce. UCPR 34.2 provides: " Production under notice to produce at trial

(1) Unless the court orders otherwise, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession.

(2) If there is a registrar of the court at the place for production, the other party may produce the document or thing to the registrar, either by hand or by post, in either case so that the registrar receives it at least 2 days before the date on which it is required to be produced.

(3) Except by leave of the court, a party may not search for, or inspect, any document or thing that has been produced by another party under this rule but not admitted into evidence." 22 By instrument in writing dated 31 August 2005, the Chief Justice has, pursuant to CPA s.13, directed that a Registrar may exercise "the functions of the Court" under Part 34, without restriction. 23 It will be noted that UCPR 34, unlike UCPR 33.2(2) in the case of subpoenas, contains no provision whereby the Court issues, or expressly authorises the issue, of a notice to produce. Under UCPR, it is a party himself or herself who issues the notice to produce and the obligation of the party served to comply with it is imposed by force of the Rules, not by force of an order of the Court, as is the case with a subpoena. The only references in UCPR 34 to "the Court" actively doing anything in relation to notices to produce is to the power of the Court to dispense with compliance with the notice (UCPR 34 (1)) and to grant leave for the inspection of documents produced (UCPR 34.2(3)). Accordingly, only those two functions of the Court relating to notices to produce are delegated to Registrars by virtue of CPA s.13(1). 24 If a party, without lawful excuse, fails to answer a notice to produce properly, that party does not breach an order of the Court; there is no equivalent in UCPR 34 of UCPR 33.12(1) making failure to answer a notice to produce without lawful excuse punishable as a contempt. 25 A party who has served a notice to produce returnable before the Registrar and who is dissatisfied with the adequacy of the answer made is not left without remedy. The dissatisfied party may serve on the other party a subpoena in the same terms as the notice to produce, thus setting in motion the machinery for investigation before the Registrar of the adequacy of an answer under UCPR 33. But the dissatisfied party need not volunteer for another ride on the merry-go-round. On the return of the notice to produce before the Registrar, the dissatisfied party may immediately seek an order under CPA s.68 for better production of documents without service of a subpoena: the Registrar, if satisfied that the answer has been inadequate, may then simply make an order under s.68 to the effect that the notice to produce be answered properly. 26 As I have noted, by virtue of CPA s.13(1) the Registrar has power to entertain an application under CPA s.68. For the purposes of ascertaining whether such an order should be made, the Registrar has the inherent and incidental jurisdiction of the Court itself, just as he or she has when exercising the Court's powers in relation to a subpoena. 27 Accordingly, on the return of a notice to produce, the serving party, if dissatisfied with the answer, may immediately make an application under CPA s.68 for an order requiring proper compliance with the notice and, in support of that application, may examine before the Registrar the party served as to the adequacy of the answer to the notice which that party has proffered or seeks to proffer.

28 A question arises as to whether the scope of an examination into the answers to a notice to produce is as inhibited as is the scope of examination into the answer to a subpoena to produce. The restrictions imposed on an examination as to compliance with a subpoena are designed to safeguard the privilege against self-incrimination, because unlawful failure to comply with a subpoena, being contempt of an order of the Court, carries penal consequences: see e.g. James v Cowan (1929) 42 CLR 305; R v Daye [1908] 2 KB 333; R v S (1988) 50 SASR 161; Trade Practices Commission v Arnott's Limited (No 2) (supra) at 312. 29 However, as I have explained, failure to comply with a notice to produce is not a failure to comply with an order of the Court; it is a breach of the Court's Rules. Nevertheless, in certain circumstances, unlawful failure to comply with a notice to produce could amount to a contempt of Court. 30 In its broadest sense, contempt of Court is the unjustified interference with the due administration of justice: see e.g. Attorney General v Leveller Magazine Ltd [1979] AC 440, at 459; Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245, at 257. Suppose a party to litigation receives a notice to produce, realises that it compels production of documents unfavourable to his case and destroys those documents; he then answers the notice to produce saying that there are no such documents in existence or that the documents are no longer in his possession or control. He may well be guilty of so serious an interference with the due administration of justice as to amount to a contempt of Court. To compel that party to confess under cross examination to such an action would be to compel him to incriminate himself and to expose himself to penal consequences. 31 Deliberate failure to produce documents called for by a notice to produce will not always be a contempt of Court: it will depend upon the extent to which the failure constitutes a serious interference with the due administration of justice. On the other hand, wilful disobedience of a subpoena to produce, being disobedience of an order of the Court, will of its very nature constitute a contempt, no matter how slight the consequences to the administration of justice. For this reason, unrestricted examination of a person subpoenaed to produce documents inherently carries a greater risk of self-incrimination than an examination of a person served with a notice to produce. 32 The law is highly protective of the privilege against self-incrimination: it cannot be taken away except by the clearest legislative statement, nor can it be whittled down by procedural regulation, however well intentioned: see e.g. Reid v Howard (No 2) (1995) 184 CLR 1, at 16; Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207. The privilege is seen as fundamental to administration of justice, because the heavy machinery of the law can be made to work oppressively or benignly, depending upon who is at the controls. While the Court would not necessarily impose at the commencement of an examination into the adequacy of an answer to a notice to produce the same restrictions which it does on the examination of adequacy of an answer to a subpoena to produce, nevertheless I do not think that it would let an examination as to a notice to produce continue without restraint once some reason to protect the examinee's privilege against self-incrimination became apparent.

33 For the sake of convenience, I may summarise my conclusions as follows:

• a Registrar may exercise all of the powers and functions of a Judge of the Court for the purpose of ascertaining whether there has been proper compliance with a subpoena to produce documents;

• so far as is necessary to perform that function, the Registrar possesses the inherent and incident jurisdiction of the Court itself;

• in the exercise of such inherent and incidental jurisdiction of the Court, the Registrar has power to hear the examination of a person subpoenaed to produce documents as to the adequacy of the answer proffered to that subpoena;

• a Registrar cannot exercise the power of the Court to punish for contempt of Court constituted by failure to comply with a subpoena to produce;

• a party served with a notice to produce is, unless excused by the Court, bound to produce the required documents not by order of the Court but by force of the Court's Rules;

• a party dissatisfied with production in answer to a notice to produce which is returnable before the Registrar may apply to the Registrar for an order under CPA s.68 that the notice to produce be answered properly;

• in aid of such an application to the Registrar under CPA s.68, a party may examine the producing party, on oath or unsworn, as to the adequacy of the answer to the notice to produce which has been proffered and the Registrar has inherent and incidental jurisdiction to hear that examination;

• unlawful failure to answer adequately a notice to produce, though not by its very nature a contempt of Court in the same way as is failure to comply with a subpoena to produce, may nevertheless be a contempt of Court if the failure constitutes an unwarranted and substantial interference with the due administration of justice;

• the scope of an examination into the adequacy of an answer to a notice to produce is not necessarily as limited as the scope of an examination into the adequacy of the answer to a subpoena to produce documents but, even so, the Court will be careful to protect the examinee's privilege against self-incrimination. - oOo -

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.