Reaper v Baycorp Collections PDL

REASONS FOR JUDGMENT 1 The applicant, Mr Reaper, seeks orders against the respondent, Mr Jim Stephenson, for contempt of court by reason of an alleged failure to produce certain documents required by a subpoena which Mr Reaper had issued in the proceeding, namely, that in Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13. The substance of Mr Reaper's complaint is that Mr Stephenson was the proper, or appropriate person or officer at Westpac, to which a subpoena was issued by Mr Reaper, and that Mr Stephenson failed to provide documents falling within items 6, 7(e) and 8(b) in the schedule of documents in the subpoena. 2 A subpoena is an order by the court and must be complied with when properly served upon a person. Non-compliance will render a person liable to be dealt with for contempt of court: Bank of New South Wales v Withers (1981) 52 FLR 207. A charge of contempt of court, however, carries serious consequences and must be proven beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525, 534. A finding of contempt for failing to comply with the Court's orders must be shown by Mr Reaper to be wilful or deliberate: see Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 111-3; Ali v Collection Point Pty Ltd (No 2) [2010] FCA 1125, [37], [44]-[47]; Metcash Trading Limited v Bunn (No 5) [2009] FCA 16, [9]. 3 It is sufficient to dispose of this matter to note that Mr Stephenson did not fail to comply with the subpoena wilfully or deliberately. Mr Reaper, indeed, relied upon correspondence he had with Mr Stephenson at the time for compliance which shows a genuine attempt by Mr Stephenson to discharge his duties to ensure that his employer, Westpac, complied with the subpoena according to its terms. The correspondence between the two in December 2013 was courteous and mutually helpful. Mr Stephenson also gave evidence, both on affidavit and orally, in defence of the proceeding against him in which he explained the process maintained by his employer, Westpac, and which was followed by him to comply with the subpoena according to its terms. The bank is a large organisation and its process did not result in the production of the documents about which Mr Reaper complains. The documents did exist but they were not produced. That was a serious omission and points to a potential deficiency in the bank's processes that requires redress. It is unsatisfactory for the bank's processes not to produce the documents which the process is intended to locate and produce in discharge of the bank's obligations. It is possible that such failures could have significant adverse impact upon litigants and the proper administration of justice. The failure and the possible defect, however, falls far short of contemptuous behaviour. Mr Stephenson himself followed the process made available by his employer for the purpose of complying with the subpoena which Mr Reaper had arranged to be issued and it is unnecessary to deal with the other more technical and procedural arguments upon which Mr Stephenson relied. 4 The application by Mr Reaper for contempt will, therefore, be dismissed. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.