Heritage Bank Limited v Gleeson & Anor (No 3) [2020] QDC 217 (4 September 2020)

CITATION:	Heritage Bank Limited v Gleeson & Anor (No 3) [2020] QDC 217
PARTIES:	HERITAGE BANK LIMITED ACN 32 087 652 024 (plaintiff/applicant) v JAROD LUKE GLEESON (AKA JAROD LUKE) (first defendant/first respondent) SHEREE AMY TAYLOR (second defendant/second respondent)
FILE NO:	3066/18
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 September 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Porter QC DCJ
ORDER:	The subpoena to Peter Lock, Chief Executive Officer of Heritage Bank Limited dated 22 July 2020 be set aside. The subpoena to Dentons Australia Limited, C/O Gary Koning dated 22 July 2020 be set aside. The subpoena to William Robert Veivers dated 22 July 2020 be set aside. The subpoena to Wise McGrath, C/O proper officer dated 22 July be set aside. Costs be reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICE TO PRODUCE AT HEARING – SETTING ASIDE OR OTHER RELIEF – where the defendants had defaulted on mortgage repayments – where substituted service orders were made against both defendants – where default judgment was entered against the defendants in respect of the default – where the defendants sought to set aside the default judgment by challenging the validity of the substituted service order – where the defendants issued subpoenas to the plaintiff and non- parties – where subpoenas are issued in interlocutory proceedings – where the defendants have previously issued subpoenas – where leave had been refused to inspect documents produced under the previous subpoenas – whether the further subpoenas issued were be an abuse of process – whether there had been a material change in circumstances since the previous hearing – where the subpoenas seek evidence relevant to re-litigate matters already dealt with in previous judgment refusing to set aside the default judgment – whether the subpoenas are an abuse of process – whether the subpoenas should be set aside *Legislation* Civil Proceedings Act 2011 (Qld) Uniform Civil Procedure Rules 1999 (Qld) rr. 414(2); 414(6); 416; 420; 667(2)(b); 668; *Cases* Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc. [1981] HCA 39; (1981) 148 CLR 170 Adelaide Steamship Co v Spalvins 24 ACSR 536 Castillon v P&O Ports Ltd [2007] QCA 364; [2008] 2 Qd R 219 D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582 Hudson v Branir Pty Ltd [2005] NTCA 5 Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529 Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 Qd R 261 Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 SG v State of Queensland [2004] QCA 461 Rogers v R [1994] HCA 42; (1994) 181 CLR 251 Rippon v Chilcotin [2001] NSWCA 142 *Secondary Sources* Elegals Litigators Toolkit (Jackson and Pastellas) Handley Spenser Bower & Handley Res Judicata (4^th edn) at 9.12.
COUNSEL:	Applicants self-represented G Koning (sol) for the respondent
SOLICITORS:	Applicants self-represented Dentons Australia for the respondent

[5] Mr Veivers tried to serve Ms Taylor at the address of the house on 4 September at 4.25pm and on 7 September at 7.45am. Both attempts at service were ineffective. At the time of his second attempt at service he took a photograph of certain notices in the vicinity of the front door. Those notices fairly aggressively asserted that the property was private property. There was to be no trespass. There was no consent to anyone coming on the land. The notices had a flavour of threat in them, in the sense of asserting aggressively rights, powers, privileges and immunities and so on.

[6] Ms Taylor, by her affidavit, suggests that this photograph must be mistaken because it shows a switch which she says was not there at the time this photograph was purportedly taken on 7 September. Her evidence, as it was explained to me in her affidavit, was that the light switch was removed, perhaps, up to a year before this photograph was supposed to have been taken. However, her other evidence about whether there was one notice or two notices leaves it open to conclude that there were two notices at the time the photograph was taken.

[7] It seems extraordinarily improbable that the photograph was concocted. The photograph itself shows notices which her evidence does not exclude might have been there and are certainly consistent with Mr Gleeson’s apparent approach to dealing with potential trespassers, evident from other documents before me. It seems to me the more probable inference is that she is mistaken about the timing of events relating to this photograph. This is not least because, at the time she says the switch was removed, nobody (at least no process server) would have had any cause to be taking photographs of the front window. I am persuaded the photograph is authentic.

(b) He did not recall Ms Taylor (though he said, revealingly, that if the name was on the paperwork, she would have been served too);

(d) There were signs advertising “no trespasser” (seemingly referring to the photographs noted by Ms Taylor);

(a) Recalls working on reconditioning a fence from 3 September 2018 for two weeks all day and did not recall Mr Veivers approaching him;

(b) He relied on CCTV footage not showing Mr Veivers visiting (though that footage is apparently wiped every 16 days);

(c) He relied on evidence said to show that the photographs are not accurate by reference to the doorbell, a plant and a denial that the signs were displayed;

(d) He leads evidence that neighbours did not recall speaking to Mr Vievers when asked at some later stage;

(e) He relies on some comments by Mr Vievers on the day of his eviction as admissions of perjury;

(f) He refers to various steps he took in dealings with the Bank from February 2018 to May 2018;

(a) The subpoena directed to the Bank sought production of a document allegedly returned by Mr Luke to the Bank on 4 May 2018 and called impermissibly for the filing of an affidavit dealing with certain matters;

(b) The subpoena directed to Dentons sought production of emails sent to Ms Bidoli at Dentons which contained the photographs in Mr Veivers’ affidavit complained about by Ms Taylor in the application before me last year (the Photographs) and instructions to Mr Veivers from Dentons;

(c) The subpoena directed to Mr Veivers required production of the photographs attached to Mr Veivers’ affidavits and seemingly related communications and all documents in relation to the property and another address, 151 Jones Road;

(d) The subpoena to Sharmans sought documents relating to the photographs and documents from Mr Vievers, Mr Phillips and a Mr Silec relating to the Property.

(a) The subpoena directed to the Bank added paragraph 2 which sought originals of registered instruments of mortgage;

(b) The subpoena directed to Dentons added paragraph 3 which sought further emails which forwarded the Photographs;

(d) The subpoena to Wise McGrath was different in form but in my view directed at obtaining the same documents as sought in the Sharman’s subpoena, though put in more general terms.

(a) The voluminous evidence already before the Court of material non-disclosure; and

(a) The subpoenas were issued pursuant to the directive of Judge Barlow and no objection was made at the time by the Bank;

(b) Leighton Contractors Pty Ltd v Western Metals Resources Limited does not apply in this case because the defendants are not seeking pre-trial disclosure.

There is no reason to doubt that the disputed decision of Smithers J concerned a matter of practice and procedure. The essence of such a matter is described in terms which are sufficient for present purposes in [1981] HCA 39; (1981) 35 ALR 625 at 629Salmond on Jurisprudence (10th ed) p 476: “Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.”

Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 at 440 ; on the other hand, De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143 at 146 . For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in Re Will of F B Gilbert (deceased) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323 : “... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal”: see also Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80; (1979) 28 ALR 191 at 193 ; Dougherty v Chandler [1946] NSWStRp 13; (1946) 46 SR (NSW) 370 at 374 . It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.

We mention these matters in order to clarify and confine the matters that are in issue between the parties. Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust:... Of course, the changed circumstances must be established by evidence: Cutler v Wandsworth Stadium Ltd, supra .

[10] A long line of authority attests to the practice of courts hearing interlocutory applications on matters of substance declining to allow a second contested run at the target where the only change of circumstances is an applicant coming forward with new evidence. (See Brimaud v Honeysett Instant Print Pty Ltd, Supreme Court of NSW, McLelland J, 19 September 1988, noted in Ritchie's Supreme Court Procedure [13,047] and Wentworth v Rogers, Supreme Court of NSW, Sperling J, 28 April 1995, noted in (1996) 70 ALJ 613 for statements of the practice and extensive references to earlier authorities.) Extracts from these judgments are set out by Foster AJA. See also Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313.

In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application ....

I hold that, as a general rule, an interlocutory order made after a hearing at which each side has the opportunity to put its case should not be set aside, varied or discharged, except to accommodate a change of circumstances or where evidence has become available which was not available at the earlier time. By the same token, where an application for interlocutory relief has failed, a further application for the same relief should, as a general rule, not be entertained, subject to the same qualifications, at least after a hearing on the merits, particularly where the application is designed to finalise the principle proceedings, such as an application for summary judgment or for a permanent stay.

[12] I do not see any point of material difference in these two formulations of what I shall henceforth call "the rule of practice".

[13] As Heydon JA demonstrates, the rule of practice has been applied to a range of interlocutory orders of a substantive nature, including the appointment of a provisional liquidator, the grant or refusal of an interlocutory injunction and orders staying proceedings on various grounds, including security for costs.

[14] The rule of practice is not a rule of evidence barring the admissibility of certain types of evidence in an interlocutory application. The court hearing the second interlocutory application will receive evidence if otherwise admissible but, as soon as it has satisfied itself that the second application falls foul of the general rule, there will be an abuse of process calling for an appropriate remedy.

[72] Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582 at 602-603 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid.

[122] With respect, I have found the reasoning of Charles JA more persuasive than that of the majority. His Honour reached the following conclusions, with which I respectfully agree and which I adopt for present purposes (at 611):

"For these reasons I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent."

[123] In the present case, although the failure of the respondent's legal advisers to produce the evidence explaining delay in the first application must necessarily be severely criticised, I, for my part, do not regard the making of the second application, with the inclusion of that material, as constituting, relevantly, an abuse of the Court's process. The exercise by the primary judge of a discretion to admit and consider this evidence was not flawed. It was not necessary, for its admission, that it be established that it was, despite due diligence, unavailable for the first hearing. The fact that the appellant was subjected to a second application and hearing because of default in relation to the first hearing was, of course, a matter to be taken into account in the exercise of his Honour's discretion. The weight to be attributed to that fact was a matter for his Honour. It is, in my view, sufficiently apparent from the passage already cited, that it was taken into account in circumstances where his Honour attributed little significance to it. He considered that the appellant's interests could be protected by an appropriate cost order. In my opinion no miscarriage of discretion has been shown in his Honour adopting this course.

Although not purporting to be exhaustive, the following have been suggested as categories of abuse of process:

(1) proceedings involving a deception of the court, which are fictitious or constitute a mere sham;

(2) proceedings where the court’s process is being unfairly or dishonestly used in that they have an ulterior or improper purpose or are being employed in an improper way;

(3) proceedings which are manifestly groundless, without foundation or serve no useful purpose; and

(4) multiple or successive proceedings which cause, or are likely to cause improper vexation or oppression.

The court may, on its own initiative or at the request of a party to a proceeding, issue a subpoena requiring the person specified in the subpoena to –

(c) That the subpoena seeks to obtain disclosure of all relevant documents rather than seeking specific evidence for use at the hearing;

(d) (And similarly) That the subpoena is issued for the proper purpose of obtaining specific evidence for use at trial rather than in the hope of finding evidence which might assist at trial (so called fishing);

(a) It is not clear to me exactly why his Honour considered the application misconceived, despite Ms Taylor’s submission;

(b) Even if the problem was as she says, there is good public policy grounds for only letting a party have one try at issuing proper subpoenas. Otherwise a party just keeps changing the basis of the application and issuing further subpoenas until eventually they get it right or find a judge who takes a different view from a previous judge; and

(c) That is all the more so, where the subpoenas go to an interlocutory application (although that matter is somewhat less compelling where the interlocutory application is to set aside a judgment obtained other than on the merits).

(a) Paragraph 1 is in the same terms as sought in the April subpoena to the Bank, seeks to compel the production of evidence by affidavit which is not within the scope of the authority of a subpoena issued under the Rules and is in nonsensical terms;

(b) Paragraph 2 is new, but seeks originals of copies of documents attached. However, the copies it seeks are of registered instruments. They can be obtained from the real property register maintained by the Registrar of Titles. The Bank’s title arises from registration of instruments. In addition, duplicate originals held by the Bank (if any) do not appear to be relevant to any genuine issue in the application.

(a) First, paragraphs 1 and 2 are in substantially the same terms as paragraphs of the April subpoenas. As I have observed, this is a factor suggesting that the subpoena is an abuse of process, though does not by itself compel that conclusion.

(b) Second, paragraphs 1(c) and 2(c) seeks to compel production of documents other than in accordance with the Rules (see Rule 420).

(c) Third, paragraphs 1 and 2 seek, in effect, all email correspondence between Dentons and the unidentified ‘process server’ in the period 14 to 21 September 2018. The subpoena on its face is uncertain. Paragraph 2 has a similar ambiguity: it refers to the agent. Of course there were at least two agents involved: Mr Veivers and Mr Phillips, so the matter is not merely one of form.

(d) Fourth, I cannot see what legitimate forensic purpose is served by obtaining those communications. There does not seem to be any suggestion that Dentons did not instruct the process servers, nor that those persons did not provide the affidavits relied upon.

(e) Fifth, paragraph 3, while new, seeks again to investigate the authenticity of the photograph, a matter which tends to support the conclusion that the subpoena in that respect is an abuse of process. It also seeks to compel production of documents other than in accordance with the Rules (see Rule 420).

(f) Sixth, I do not understand the forensic purpose for obtaining her Honour’s reasons, if indeed any were provided. There is no evidence that any such reasons were provided. Certainly at no stage in this litigation so far has anyone suggested they exist.

(a) First, the whole of the subpoena is in substantially the same terms as paragraphs of the April subpoenas;

(b) Second, paragraphs 1 and 2 seek to obtain evidence to re-litigate the issue of the authenticity of the photographs – a They also seek to compel production of documents other than in accordance with the Rules; and

(c) Third, in my view, paragraphs 3 and 4 are in the nature of an attempt to obtain disclosure and indeed of fishing for useful evidence. They seek anything and everything which Mr Veivers might have in relation to the two addresses. Further, as I have explained above, to the extent they are directed to demonstrating perjury in the two affidavits based on the evidence in both Ms Taylor’s and Mr Luke’s affidavit, they seek evidence in respect of a case which on current material is improbable.

^[7] Note that in Spalvins, the relevant rule expressly stated a subpoena could be issued in any proceeding, whereas in the UCPR that is an inference. See also Hudson v Branir Pty Ltd [2005] NTCA 5 at [37]

^[10] Rippon v Chilcotin [2001] NSWCA 142, at [32] to [33]; Handley Spenser Bower & Handley Res Judicata (4^th edn) at 9.12.

Queensland District Court Decisions

Heritage Bank Limited v Gleeson & Anor (No 3) [2020] QDC 217 (4 September 2020)