SHIRE OF KATANNING -v- BRIDE [2016] WASC 118 (10 March 2016)

(a) for claims alleging unlawful conduct, including fraud, arising out of the conduct of various proceedings in the Supreme Court of Western Australia, the District Court of Western Australia and the Magistrates Court of Western Australia; and

(b) for any claims which assert that the defendants are not liable to pay local government rates in respect of land situated in the Katanning area, being lot 29 on diagram 62969, certificate of title vol 1682, folio 357 (lot 29).

4 Additionally, the plaintiff seeks orders prohibiting the commencement of any related proceedings.

5 There have been long running disputes between the plaintiff and the defendants in relation to the matters which are the subject of the application. The history of those matters was helpfully summarised in reasons for decision published by McKerracher J of the Federal Court of Australia in Bride v Shire of Katanning [2016] FCA 65 at [15] as follows:

My attention has also been drawn to a significant body of litigation in which Mr Bride has already pursued the question of the allegedly wrongful claim for rates by the Shire. Specifically:

(a) in 2002, the Shire commenced proceedings against Mr Bride in the Magistrates Court of Western Australia for outstanding rates and charges in respect of Lot 29 between 1985 and 2004. Mr Bride's defence included a claim that the Australian Bank was the mortgagee in possession of Lot 29 at the relevant time and was therefore liable for the rates. On application of the Shire, Mr Bride's defence was struck out on the basis that the mortgagee in possession point had been previously decided in:

(i) [2000] WASC 116;

(ii) [2000] WASC 310; and

(iii) [2003] WADC 92;

(b) Mr Bride appealed to District Court and was unsuccessful: Bride v Shire of Katanning [2007] WADC 116 per O'Brien DCJ;

(c) Mr Bride applied to the Supreme Court for an extension of time within which to appeal the District Court decision. Martin CJ granted leave to appeal: Bride v Shire of Katanning [2008] WASC 131;

(d) following the grant of leave, Mr Bride and the Shire signed consent orders, setting aside the orders of O'Brien DCJ and the decision of the Magistrate and remitting the matter back to the Magistrates Court for rehearing. These are the consent orders which Mr Bride refers to in his statement of claim;

(e) Mr Bride then filed a counterclaim in that remitted matter for $2.4 million, taking it out of the jurisdiction of the Magistrates Court. Proceedings were transferred to the Supreme Court of Western Australia and became CIV 2994/2009;

(f) CIV 2994/2009 sought the payment of rates from 1985 to 2004 (as before). The Shire later commenced proceedings in CIV 2853/2010 which extended the period for which rates were owed, claiming rates up to the date of judgment (significantly, after Mr Bride retook possession of Lot 29 in 2005). CIV 2853/2010 also included a claim pursuant to s 6.55 of the Local Government Act. These actions were dealt with together;

(g) an application by the Shire in CIV 2853/2010 for summary judgment and strikeout of the defence and counterclaim of Mr Bride was dismissed by Martin CJ, who held that there were contentious issues of fact and law that should be determined at trial: Shire of Katanning v Bride [2011] WASC 80;

(h) the substantive hearing of the Shire's applications in CIV 2994/2009 and CIV 2853/20l0 was heard by Allanson J. Mr Bride's $2.4 million counterclaim was reserved for determination after the substantive hearing. Allanson J held that the Australian Bank was never in 'actual possession' of Lot 29, as required by the Local Government Act. His Honour held that at all times Mr Bride was the registered proprietor, and, if the Bank were not in possession, he had the right of possession, and thus was the 'owner' under the Local Government Act: Shire of Katanning v Bride [No 2] [2011] WASC 248;

(i) Mr Bride appealed to the Court of Appeal, which found, for the first time, that the Bank was a mortgagee in possession of Lot 29, at least from 1989: Bride v Shire of Katanning [2013] WASCA 154 per Newnes JA, Murphy JA and Edelman J. Their Honours however concluded that, as Mr Bride had retaken possession of Lot 29, he was still liable for the outstanding rates (pursuant to s 6.55);

(j) Mr Bride applied for special leave to appeal to the High Court, and was unsuccessful;

(k) after the primary application had been decided, the counter-claim needed to be resolved. Mr Bride successfully applied for Allanson J to recuse himself: [2011] WASC 248;

(l) the crossclaim was later dismissed by Chaney J: Shire of Katanning v Bride (No 4) [2014] WASC 343; and

(m) an appeal to the Court of Appeal was dismissed as having no reasonable prospect of success: Bride v Shire of Katanning [2015] WASCA 77 per Newnes and Murphy JJA.

6 I should add, by way of emphasis, this point: in 2014 Chaney J dismissed the defendants' counterclaim against the plaintiff for reasons which are set out in his Honour's reasons for decision: Shire of Katanning v Bride [No 4] [2014] WASC 343. The substance of the counterclaim advanced by Mr Edward James Bride who was, in those proceedings, the sole defendant was that the Shire had wrongly pursued Mr Bride for local government rates in respect of lot 29 when it was alleged by Mr Bride that he was never indebted to the Shire in respect of those rates.

7 Mr Bride appealed from the decision of Chaney J to the Court of Appeal, and in joint reasons delivered by Newnes and Murphy JJA on 21 April 2015 the Court of Appeal dismissed Mr Bride's appeal: Bride v Shire of Katanning [2015] WASCA 77.

8 I now turn to touch briefly on the procedural history of this matter.

9 As is apparent from these reasons, the matter has been managed by me in my Commercial and Managed Cases List. Orders have been made for the filing and service of affidavits, and affidavits have been filed and served in compliance with orders made by me. On 5 January 2016 the defendants filed a defence and counterclaim in these proceedings. In the defence the defendants deny that they have acted, at any stage, in a manner which was vexatious and deny, in effect, that they are vexatious litigants. In the counterclaim the defendants advance the proposition that the Shire has unlawfully and maliciously pursued them and persecuted them in respect of the claim for rates in respect of lot 29.

10 The counterclaim raises substantially the same, if not identical, issues to those raised by the counterclaim dismissed by Chaney J in the decision to which I have referred and from which Mr Bride made an successful attempt to appeal. The counterclaim seeks general, special and exemplary damages.

11 It is against that background that the defendants' application for leave to issue subpoenas is made.

12 The defendants wish to adduce into evidence documents which they seek to obtain from the addressees of the subpoenas and to call those addressees as witnesses, in support of their defence of this application.

13 One of those is Mr Andrew Mark Holden, who is an officer of the plaintiff. There is evidence that Mr Bride approached Mr Holden to ask him whether he would provide Mr Bride with an affidavit upon which the defendants could rely in defence of the plaintiff's application.

14 Having sought legal advice from the Shire's solicitors, Mr Holden declined to provide an affidavit. It was submitted by Mr Bride that those facts reflect adversely on the Shire. Indeed, Mr Bride put the matter in terms which were much stronger than that and suggested that there was something improper in Mr Holden declining to provide an affidavit having received legal advice.

15 There is, in my view, nothing improper about Mr Holden's conduct.

16 The documents that it is sought be produced by the subpoena are documents which form part of the Shire's records and go back to dates in the 1980s. The documents sought span at least 32 years. A number of the documents are, on their face, the subject of legal professional privilege, for example, some of the documents that it is sought be produced by Mr Holden include copies of correspondence, file notes and records of interviews between the plaintiff and their solicitors.

17 The second person to whom the defendants seek leave to issue a subpoena is Mr Peter Wittkuhn. Mr Wittkuhn is a partner in the firm of solicitors McLeods and, insofar as the subpoena seeks documents, the documents sought are a large number of records which once again, on their face, are likely to be covered by legal professional privilege. Mr Wittkuhn, in his capacity as a partner of McLeods, was involved at various stages in the proceedings brought by the plaintiff against the defendants.

18 The third person against whom the defendants seek leave to issue a subpoena is Mr Geoffrey Owen. Leave is sought to issue a subpoena compelling Mr Owen to attend and to give evidence.

19 I understand that Mr Owen is also a legal practitioner who has had some involvement in the proceedings between the Shire and the defendants. It is reasonable to infer on that basis the matters about which he may be asked questions are likely to be the subject of legal professional privilege. The principles which govern the question of whether leave to issue a subpoena should issue may be stated relatively succinctly.

20 First, a subpoena will only issue if its issue is for a legitimate forensic purpose. Various tests are posited for whether a purpose constitutes a legitimate forensic purpose and they are set out in the judgment of the Court of Appeal in Stanley v Layne Christensen Company [2004] WASCA 50:

On the basis of this evidence the learned Master concluded that the first and second respondents had a legitimate forensic purpose for issuing the subpoena to CS to require her to produce copies of all affidavits in her possession filed in the Family Court proceedings. The necessity for there to be a 'legitimate forensic purpose' in such circumstances is well established by many authorities including Freid & Ors v National Australia Bank Ltd & Ors (2000) 175 ALR 195 per Weinberg J at [29] and [30] and Apache Northwest Pty Ltd & Ors v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350 at 374. In concluding that a legitimate forensic purpose had been established for the first and second respondents to issue a subpoena requiring the production of copies of the affidavits in the Family Court proceedings the learned Master identified the principles which regulated the decision which he was required to make as follows:

'There are, I think, four points of principle which emerge from the cases. They are:

(1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: see Apache Northwest Pty Ltd & Ors v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350 at 374; National Employers' Mutual General Insurance Association Ltd v Waind & Anor [1978] 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors [2000] NSWSC 138; (2000) 18 ACLC 609 at 613 - 614.

(2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforseen evidence-in-chief. Thus, whether a document is "necessary" to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence: see Apache Northwest (supra) at 376. Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings: see Brand v Digi-Tech [2001] NSWSC 425.

(3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken: see Khanna v Lovell White Durrant [1995] 1 WLR 121 at 123.

(4) There is no requirement that to avoid the stigma of fishing, a party must already by in possession of some evidence before issuing a subpoena. Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant: see Bailey & Ors v Beagle Management Pty Ltd & Ors [2001] FCA 60; (2001) 105 FCR 136 at 143 144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at [48]. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey (supra) at 143.'

We agree, with respect, that the learned Master correctly identified and addressed the principles upon which a determination of whether or not the subpoena issued to CS should be allowed to stand. Further, and again with respect, we consider that the learned Master was correct in his conclusion that in the light of the evidence before him in the affidavit of Mr Connolly there was justification for the issue of this subpoena insofar as it required the production to the court of copies in the possession of CS of affidavits which had been filed in the Family Court proceedings [9].

21 It is trite that a court has inherent jurisdiction to control its processes and those include the control of the issue of subpoenas.

22 The issues in this application are first, whether the defendants have instituted and conducted vexatious proceedings and secondly, whether the defendants are likely to institute or conduct vexatious proceedings in the future.

23 I now turn to my disposition of this application. An overarching concern that arises in relation to the application for leave to issue the three subpoenas is that the defendants are attempting to re-litigate matters which have been decided against them; that is, that they seek to re-litigate the claim the Shire has maliciously pursued them for local government rates in relation to lot 29, and that in the course of those efforts various Shire officers and agents of the Shire, in particular, the Shire's solicitors, have acted in a manner which was improper.

24 This is substantially the same allegation that formed the basis of the counterclaim that was dismissed by Chaney J, and the dismissal of which was upheld by the Court of Appeal.

25 In the course of argument in relation to the application, I put the proposition to Mr Bride that this was, in essence, what he and the other defendant sought to do in the defence of the plaintiff's application.

26 Mr Bride denied that this was so and his response was, in effect, that he wished to demonstrate it was the plaintiff that had been acting maliciously and he and the codefendants were simply defending their position.

27 By way of a broad response to that proposition, counsel for the plaintiff submitted that the history of the proceedings and, in particular, the history of the proceedings from the point of Chaney J's decision onwards, speaks for itself. Without wishing to do an injustice to the plaintiff's counsel's submissions, essentially, he submitted that it was unnecessary to go behind the record of the outcome of the proceedings and the reasons for judgment that have been published in order to properly dispose of this application.

28 I am satisfied that leave should not be given to the defendants to issue the subpoenas to which I have referred. I have reached that conclusion for these reasons: first of all, I am satisfied, notwithstanding Mr Bride's submissions to the contrary, that the essence of what the defendants seek to do is to use the documents sought by them in order to relitigate within the context of this application matters which have already been decided against them and, for that reason, I am satisfied that the application for leave to issue the subpoenas constitutes an abuse of the Court's processes.

29 Secondly, and independently of my first reason, I am satisfied that the documents which it is sought be produced to the court by the issue of these subpoenas are not relevant to the narrow issues in these proceedings. For those reasons, I am satisfied that no legitimate forensic purpose would be served by the issue of the subpoenas.

30 Thirdly, I am satisfied the large volume of materials and documents sought by the subpoenas addressed to Mr Holden and Mr Wittkuhn lead inexorably to the conclusion that the subpoenas are oppressive.

31 Fourthly it is apparent from the terms of the subpoenas address to Mr Holden and to Mr Wittkuhn that a large volume if not the entirety of the documents sought to be produced to the courts are documents which are the subject of legal professional privilege.

32 Indeed, in the course of Mr Bride's submissions and in the course of the various materials he has filed in support of the defendants' response to the substantive application, it is apparent that one issue Mr Bride wishes to explore at the hearing of the substantive application is the interaction between various officers of the Shire and the Shire's solicitors and the communications between them.

33 To the extent to which there may be room for reservations about whether some of the documents sought by the subpoenas are documents that may not be the subject of legal professional privilege, thereby eroding the force of the privilege objection, those reservations are dispelled by what I apprehend to be the nature of the case that Mr Bride wishes to advance (that is, that he wishes to use the communications between the Shire and the solicitors to establish the Shire pursued him and his wife maliciously).

34 For those reasons, I decline to give leave to Mr Bride or the defendants to issue the subpoenas.