Zong v Lin

Refusal of adjournment application

1. At the commencement of the hearing, Mr Junn sought an adjournment for three reasons. First, he had understood that the matter was listed for directions, he was not anticipating a hearing on the first return of the motion and counsel briefed on the appeal was unavailable. Second, he had only received the respondents' affidavit evidence on 2 September 2021 and wished to reply to parts thereof, which were contested. Third, he had recently suffered a shoulder injury and was taking painkilling medication. The adjournment application was refused.
2. An applicant for interlocutory relief in connection with an appeal should anticipate being required to argue the motion on the first return date, particularly where the respondents have filed their evidence in opposition to the motion and are ready to argue the motion. The referrals list operates on the basis that motions are disposed of expeditiously and without delay. It is inconsistent with the statutory framework in the Civil Procedure Act 2005 (NSW), ss 56-60, to adjourn motions without sufficient reason.
3. In this case the unavailability of the applicants' counsel of choice was not a sufficient reason to adjourn the hearing of the motion. The application to set aside the subpoena was not complex; it could have been made by any competent junior counsel, or solicitor. If the applicants' solicitor was unable (due to any medical condition), or otherwise unwilling to appear on the hearing of the motion, the applicants' solicitor could and should have briefed alternative counsel.
4. Accepting that Mr Junn was suffering some discomfort from his shoulder injury, there was no medical evidence that he was incapable of representing his clients. When arguing for an adjournment, Mr Junn demonstrated a good understanding of the issues raised by the present application and its relationship to the issues likely to arise on the security for costs application. I was satisfied that the applicants' interests would not be prejudiced by being represented by Mr Junn on the motion. That view was later confirmed when Mr Junn argued the motion after the refusal of the adjournment. There was no prejudice to the applicants in not being represented by counsel.
5. The force of the argument that the applicants needed time to respond to Mr Hu's affidavit dissipated upon analysis of the applicants' foreshadowed reply evidence. First, to the extent that the applicants wished to respond to the matter referred to in paragraphs 15 and 16 of Mr Hu's affidavit, the respondents indicated that they would not read those paragraphs.
6. Second, to the extent that the applicants complained that the extracts of transcript of Mr Zong's evidence in cross-examination at trial (annexed to Mr Hu's affidavit) were incomplete and the applicants wished to rely upon the transcript of Mr Zong's evidence in re-examination, that could be addressed by the applicants tendering the parts of the transcript which they relied upon as providing a different picture. (Subsequently, on the hearing of the motion, although afforded the opportunity to tender the full transcript of Mr Zong's evidence at trial, the applicants did not pursue the tender of this material.)
7. Taking into account the statutory framework in the Civil Procedure Act, ss 56-60, especially the importance of the just, quick and cheap resolution of the real issues in the proceedings (s 56), and the importance of elimination of delay (s 59), I was satisfied that the interests of justice would not be served by an adjournment of the motion on a procedural question anterior to an application for security of costs.

Applicants' submissions

1. Turning to the substance of the application, the applicants submitted that the subpoena should be set aside for three reasons: relevance, breadth and improper purpose.
2. As to relevance, the applicants submitted that the financial position of a third party is irrelevant to the issue arising on the application for security for costs, namely, the financial position of the appellants. The applicants further submitted that the fact that Mr Zong caused the transfer of moneys into account 33664 in the past is, without more, irrelevant to the current financial position of the appellants.
3. As to the breadth of the subpoena, the applicants submitted that the period of two years and eight months is too broad and, if there is any relevance of the resources of Mr Zong, which are said to have been hidden, it is only the current financial position of Mr Zong that is relevant.
4. As to improper purpose, the applicants submitted that an inference of improper purpose should be drawn from the fact that the subpoena was issued only a few days after garnishee orders against the ANZ Bank, including account 33664, were returned with nil payment. According to the submission, the subpoena was issued for the ulterior purpose of seeking to aid the enforcement of the judgment below.

Relevant principles

1. The applicable principles are not in dispute. As Brereton JA observed in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [88], some general principles which inform the proper approach to when a subpoena should be set aside can be stated: The first is that the power of the Court to set aside a subpoena, in whole or in part, is but an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process. The second is that, the notion of "legitimate forensic purpose" being the converse of "abuse of process", a subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining apparently relevant evidence. (Citations omitted.)
2. Brereton JA continued at [89], noting that at least in civil proceedings, and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than the existence of a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case.
3. Bell P said at [80], to similar effect, that it will generally be sufficient, and prima facie evidence of a legitimate forensic purpose, if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case or bear upon cross-examination of witnesses expected to be called in the proceedings.

Decision

1. Whether the subpoena in the present case has been issued for a legitimate forensic purpose, directs attention to the apparent relevance of the documents sought to the issues likely to be raised on the application to which the subpoena relates. Here, that question is to be addressed by reference to the issues likely to be raised on the application for security for costs, not the appeal itself.
2. The evidence of Mr Hu establishes, at least for the purpose of adjectival relevance, that whilst account 33664 is not in either of the appellants' names, the documents sought by the subpoena have apparent relevance to whether this account is a source of funds available to the appellants to finance the conduct of the appeal, although not available to satisfy a costs order in the event that the appeal is unsuccessful. I am satisfied there is a legitimate forensic purpose for the issue of the subpoena.
3. As to the breadth of the subpoena, I accept the respondents' submission that the date range is not too wide given (a) the finding of the primary judge that Mr Zong caused the payment of $220,800 into account 33664 in January 2019, (b) the evidence of the payment of the first and second appellants' wages into this account commencing in March 2019, and (c) that transactions on the account covering the nominated date range have apparent relevance in establishing a pattern of usage of the account by the Zong interests by reference to payments into and out of the account.
4. Without expressing a concluded view in relation to the pending application for security for costs, I accept that it is reasonably arguable that the current financial position of the applicants may be informed by historical transactions on account 33664, insofar as the latter may reveal financial resources available to the applicants.
5. Finally, there is nothing in the materials before the Court which suggests that the subpoena has not been issued bona fide for the purpose of obtaining apparently relevant evidence. The fact that the subpoena was issued a few days after garnishee orders addressed to the ANZ Bank had been returned with nil payment does not, of itself, support the assertion of improper purpose.

Conclusion

1. The application to set aside the subpoena has failed. There is no reason why costs should not follow the event: UCPR, r 42.1.
2. Accordingly, the Court makes the following orders: 1. Dismiss the applicants' notice of motion dated 20 August 2021. 2. The applicants to pay the respondents' costs of the motion.

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. Decision last updated: 08 September 2021