WINTLE -v- THE YILGARN SHIRE COUNCIL [2015] WASC 445 (20 November 2015)

3 Prior to the hearing on 29 October 2015, Mr Wintle sought to lodge two early return subpoenas with the court. The first was addressed to the Shire. The second was addressed to the Department of Transport. In both cases the information sought by Mr Wintle is the names and addresses of certain people. In relation to the Department of Transport, there are 13 instances where what Mr Wintle wants is the full name and address of the owner of particular vehicles with registration numbers identified. In relation to the Shire, Mr Wintle wants to know the full name of the 11 people whom he has identified by particular incidents.

4 At the hearing on 29 October 2015, I directed that the issue of whether Mr Wintle may issue the early return subpoenas be referred for determination at a hearing on 6 November 2015. The reasons which follow are the reasons of that determination.

5 The power to allow a party to issue a subpoena returnable prior to trial is contained in RSC O 36B r 3(6), and is in the following terms: 'The date specified in a subpoena must be the date of trial or any other date permitted by the Court'.

6 As the Chief Justice observed in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd, there is no requirement that the leave of the court be obtained for the issue of a subpoena, returnable at a date other than trial.[1] The Chief Justice goes on to observe that the rules confer a general discretion upon a court as to the date upon which the subpoena is to be returned.

7 The context in which the application is to be determined is that the Shire's application for summary judgment is listed for hearing in January 2016. Mr Wintle has filed six affidavits in opposition to the application for the summary judgment, being those dated:

• 25 September 2015 (folio 2);
• 25 September 2015 (folio 3);
• 26 October 2015 (folio 10 - marked affidavit 5);
• 26 October 2015 (folio 11 - marked affidavit 4);
• 26 October 2015 (folio 12 - marked affidavit 3); and
• 29 October 2015 (folio 15 - marked affidavit 6).

He has also filed submissions dated 30 October 2015.

8 The power in RSC O 16 r 1(1), is that the court may enter judgment for a defendant if 'satisfied that the action is frivolous or vexatious, [or] that the defendant has a good defence on the merits'. There are two relevant aspects of the context of a summary judgment application that bear on the exercise of the discretion in RSC O 36B r 3.6. The first is that by O 16 r 1(1) an application by a defendant for summary judgment must be brought within 21 days after an appearance has been filed, or later time by leave of the court. In Johnson v Hallam I refer to the authorities to the effect that the policy rationale for the time limit is to ensure that summary judgment applications are brought at an early stage of proceedings before unnecessary expense has been incurred.[2] This context suggests to me that in determining whether or not it is appropriate to allow early return subpoenas before a summary judgment application, I need to consider the policy that summary judgment applications are, as a general rule, to be determined at an early stage in the proceedings, before unnecessary expense has been incurred.

9 The second item of context is the basis on which an application for summary judgment is to be determined. Again I have summarised the principles in Johnson v Hallam, as follows:[3]

An application for summary judgment is to be determined on the basis that the version of the facts put forward by the respondent to the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action. The court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused.

For present purposes this means that, with some caveats, the Shire's application for summary judgment is to be determined on the basis that the version of the facts put forward by Mr Wintle in his various affidavits would ultimately be accepted at the trial of the action.

10 The final source of influence on the discretion is RSC O 1 r 4B which sets out the objects of case flow management:

(1) Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -

(a) promoting the just determination of litigation; and

(b) disposing efficiently of the business of the Court; and

(c) maximising the efficient use of available judicial and administrative resources; and

(d) facilitating the timely disposal of business; and

(e) ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and

(f) that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.

(2) These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in subrule (1).

11 The application of these case flow management objects in the context of subpoena decisions was considered by his Honour Kenneth Martin J in Wookey v Quigley [No 5]:[4]

The current case flow management regime now applicable to civil actions was explained by the Chief Justice in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67. In addressing redaction issues arising around certain documents produced on discovery, the Chief Justice noted the introduction of O 1 r 4A and r 4B and the significance of those rules towards the resolution of discovery issues. Although I am dealing with inspection objection issues over documents produced on subpoena, similar considerations guide the task of trying to keep the breadth of documents turned over in preparation for a trial within manageable bounds. It should be remembered that there has been a recent liberalisation of the procedures under which a party in civil litigation may have a subpoena returnable and answered before trial. A former requirement for leave to be obtained for an early return before trial of a document subpoena has been removed: see O 36B r 3(6) and Consolidated Practice Direction [4.3.7] pars 4, 5 and 14 and Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276. So the principles applicable to case flow management have intensified since the Full Court decided Apache Northwest.

Nevertheless, what is now a relatively unconstrained right for a party to issue a document subpoena returnable before trial is potentially capable of producing forays into fields of documentary irrelevance. This carries with it considerations of expense for the litigation. There is in consequence now scope to compound an already existing problem with a seemingly uncontrollable cost and parameters of the pre-trial discovery processes that threatens to render the cost of civil litigation prohibitive for all but the wealthiest of litigants.

Accordingly, a firm curial oversight must be kept upon these compulsive pre-trial documentary processes, lest they become abused or unduly oppressive in their ramifications for parties to litigation.

12 I turn, then, to the subpoenas. The first subpoena is sought to be issued to the Shire. The Shire, as the defendant, is subject to the requirement to provide discovery in RSC O 26. Discovery is ordinarily ordered after the pleadings in the dispute have been closed. In this way the discovery takes its scope from the issues identified in the pleadings. In the present case there is a document which I will take to be a statement of claim in the writ. It is in very wide terms. No defence has been filed.

13 In terms of the summary judgment application, there are, in essence, three possible outcomes. The first is the application is dismissed. If the application is dismissed then there will inevitably be a series of interlocutory processes so that the Shire can define the case which it has to meet. In my view the definition of the case set out in the writ is in extremely wide terms, and I would expect that it will need a lot of work in order for the Shire to be able to know the case it has to meet at trial.

14 The second possible outcome is that Mr Wintle's claim will be dismissed. In that case any work that the Shire would have undertaken to have complied with the subpoenas will be wasted.

15 The third possible outcome is that the case may be limited to certain causes of action. This will require Mr Wintle re‑plead the case around whatever guidance is given in the outcome of the summary judgment application. Again, that will have the outcome of defining the scope, and perhaps limiting it.

16 As a very general proposition, I am of the view that the issue of a subpoena against a party to an action is an abuse of the processes of the court. The processes of the court set out in the RSC contain a very clear regime for the provision of discovery. The issue of an early return subpoena would cut across that process. Perhaps a more precise way of expressing my concern is to say that it is not a legitimate use of the subpoena process to bypass RSC O 26. In this respect, in Temwell Pty Ltd v DKGR Holdings Pty Ltd, Merkel J observed that it is not a legitimate use of the subpoena process to bypass O 26A, which refers to non‑party discovery and seeking discovery prior to the commencement of proceedings.[5]

17 For those reasons alone, I am not prepared to grant permission for there to be an early return subpoena.

18 In relation to the Shire, I propose to go one stage further. RSC O 36B r 2(2) provides that:

(a) if the Court has made an order ... having the effect of requiring that the proposed subpoena -

(i) ... ; or

(ii) not be issued without the leave of the Court and that leave has not been given.

19 It seems to me appropriate in this case to make an order that Mr Wintle may not issue a subpoena against the Shire without the leave of the court. In this way the court will be able to consider the most optimal manner in which to provide documentary disclosure and will do so in the context of the detailed regime set out in RSC O 26.

20 Also in relation to the Shire, consistent with the policy underlying summary judgment applications, it is not appropriate for there to be an issue of a subpoena in this case prior to the determination of the summary judgment application. Even if I were minded to allow the issue of the subpoena to the Shire, notwithstanding that it is the defendant, such a decision would not be an appropriate exercise of discretion in light of the principles of case management set out in RSC O 1 r 4B. In particular, it is inappropriate to place the Shire under the obligation to incur the costs of compliance prior to determination of the summary judgment application.

21 One of the other objects in RSC O 1 r 4B is to promote the just determination of the litigation. I do not consider that it is necessary for Mr Wintle to have the information he seeks from the Shire in order for there to be a just determination of the summary judgment application. From Mr Wintle's submissions, as I understand it, the names are required to assist him to prepare for trial. In the information that is before the court the incidents in question are set out, albeit with minimal details in relation to the identity of persons. That is sufficient for the determination of the summary judgment application based on the principles which I have earlier outlined.

22 In relation to the Department of Transport, the information sought, as I have said, is the names and addresses of owners of particular identified vehicles. For the same reasons that I outlined in relation to the Shire, I do not consider that the provision of that information is necessary for the just determination of the summary judgment application. As I have observed, the court will determine this application on the basis that the evidence identified by Mr Wintle (with some caveats), would ultimately be accepted at the trial of the action. It is against the policy of summary judgment applications for there to be, in effect, a mini trial of the action. If, on the basis of the affidavits put before the court, there are disputes of fact calling for further investigation, then as I have said the case will not be one in which it is appropriate to grant summary judgment.

23 Accordingly, the court declines to give permission to Mr Wintle to issue a subpoena to the Department of Transport.

24 So the formal orders I am going to make are these:

(1) The plaintiff may not request the court to issue any subpoena addressed to the defendant returnable prior to trial without the leave of the court.

(2) The plaintiff may not request the court to issue any other subpoena returnable prior to trial prior to 21 days after the determination of the defendant's summary judgment application.

(3) The plaintiff pay the defendant's costs of the day fixed in the sum of $734.00, payable in any event.

[1] Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (2007) WASC 276 [19] (Martin CJ).

[2] Johnson v Hallam [2015] WASC 149 [9] (Gething AM).

[3] Johnson v Hallam [15] (footnotes omitted).

[4] Wookey v Quigley [No 5] [2011] WASC 275 [35] ‑ [37] (Kenneth Martin J).

[5] Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741 [3] (Merkel J).