Federal Court of Australia Garvey v Australian National University [2024] FCA 140 File number(s): QUD 129 of 2023 Judgment of: MEAGHER J Date of judgment: 26 February 2024 Catchwords: PRACTICE AND PROCEDURE – Subpoenas – Whether leave to issue subpoena to give evidence returnable at an interlocutory hearing should be granted – Whether a legitimate forensic purpose is established – Leave to issue subpoena refused Legislation: Federal Court Rules 2011 (Cth) rr 24.01, 24.12, 31.02 Cases cited: Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Pigozzo v Mineral Resources (No 2) [2023] FCA 1489 McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 Rossi Pty Ltd v Ballymore Tower Pty Ltd [1984] 2 Qd R 167 Spencer v Commonwealth of Australia [2014] FCA 1234 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 23 Date of hearing: 13 February 2024 Counsel for the Applicant: The Applicant appeared in-person Counsel for the Respondent: K E Slack Solicitor for the Respondent: HWL Ebsworth Lawyers ORDERS QUD 129 of 2023 BETWEEN: BENJAMIN PATRICK GARVEY Applicant AND: AUSTRALIAN NATIONAL UNIVERSITY Respondent order made by: MEAGHER J DATE OF ORDER: 26 FEBRUARY 2024 THE COURT ORDERS THAT: 1. The applicant is to file the Request for Leave to Issue Subpoena subject to this application. 2. Leave to issue the subpoena is refused. 3. Costs are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MEAGHER J introduction 1 On 8 December 2023, the applicant, who is self-represented, sent a Request for Leave to Issue Subpoena and Subpoena via email, seeking that his former lawyer, Mr Downes, attend and give evidence at a hearing of this matter. Whilst these matters are usually dealt with ex parte in chambers: see r 24.01 of the Federal Court Rules 2011 (Cth), given the unusual basis for the subpoena sought by Mr Garvey, and the fact that he is not legally represented, I held an interlocutory hearing on 13 February 2024 to hear from the parties in that regard. 2 For the reasons that follow, leave is not granted to issue the subpoena. background 3 For the purposes of determining whether the subpoena has a legitimate forensic purpose, it is useful to briefly set out the background to this matter. 4 The substantive matter is an application for an extension of time pursuant to r 31.02 of the Rules to lodge an application for judicial review. The judicial review application relates to a decision made more than four years ago by the Deputy Vice-Chancellor of the respondent to decline to uphold the applicant's appeal against the decision to terminate his candidature in his PhD program. In his draft originating application, which is attached to his application for an extension of time, Mr Garvey claims that the Deputy Vice-Chancellor did not consider that the decision to terminate his candidature for the PhD program was wrong on the basis that it was (1) an infringement of "the implied constitutional limitation on interference with freedom of political communication – that is, my academic freedom – and (2) condone research misconduct of Dr Mark Harrison". In the Details of claim, the applicant states that he is aggrieved by the failure including because it violated his basic human right, as set out in the International Covenant on Civil and Political Rights, to seek and impart information. 5 In the interlocutory hearing, the applicant relied upon his affidavit dated 13 February 2024 which deposed as follows: 1. I am the Applicant. 2. I seek the leave of the court to subpoena lawyer Mr. Mitchell Downes to give evidence at the hearing set down for 27 March 2024. 3. The reason Mr. Downes in 2019 abruptly and mysteriously dropped me as a client – after he agreed to act on my behalf in judicial review proceedings against the Australian National University and I had paid his firm money – is relevant to the current proceeding. 4. His purported reason that he was "unable to identify any grounds of review that would support [my] making an application for judicial review" is not persuasive at all, as I had told Mr. Downes my academic freedom had been violated, that my scholarship was good, and that I had robust proof that the ANU's purported reasons for rejecting my scholarship were false as Dr. Mark Harrison had demonstrably committed research misconduct. This is the main reason I believe there was a wrongdoing. 5. The letter of advice from Mr. Downes to me was a verbose, longwinded statement of the law – as if his main concern was providing me with a letter of advice that was sufficiently lengthy, given that he already decided to do no legal work to assist me but would not be refunding me the monies I had already paid him. 6. I believe that there was wrongdoing by an agent of the Respondent that had the purpose of either pressuring, manipulating, tricking or otherwise inducing Mr. Downes to drop me as a client--wrongdoing that amounts to perversion of the course of justice. 7. I believe the wrongdoing achieved its purpose as Mr. Downes suspiciously and out-of-the-blue dropped me as a client. 8. I believe the action of Mr. Downes in dropping me as a client constitutes his participation in the Respondent's conspiracy to pervert the course of justice. 9. I believe Mr. Downes has been dishonest with me in multiple email replies he sent to me in the period 2020-2023, when I began to question him. 10. For example, in his email to me from email address mdownes@mahoneys.com.au dated 13 May 2020, he said to me: "For the avoidance of any doubt, we deny the allegations made against us in your email. We came under no improper influence. We have not contravened any ethical rule. In fact, we have discharged our duties, including our paramount duty to the administration of justice, by advising you against running an unmeritorious claim." (See annexure 1 attached to this affidavit) 11. I believe the lies Mr. Downes told me in his emails demonstrate his consciousness of his guilt. 12. I believe Mr. Downes is reluctant to admit to me that he was pressured, manipulated, tricked or otherwise induced to drop me as a client, as that would easily make him legally liable and damage his reputation as a lawyer. 13. If Mr. Downes as a subpoenaed witness admits he came under improper influence, directly or indirectly, from an agent of the Respondent, the court should be more willing to exercise its discretion to grant my application for the extension of time within which to apply for judicial review. 14. Annexure 2 in my sealed affidavit in support of the extension of time, submitted to the court on 11 September 2023, is an email to me from Mr. David Barakin, principal investigator of the Queensland Ombudsman. Mr Barakin's email to me was lengthy and nuanced, and its content is easily interpreted to have the meaning that there was merit in my complaint to the Legal Services Commission about the conduct of Mr. Downes. It was certainly not a summary dismissal of my complaint. 15. The Respondent claims that my application for the extension of time should not be granted as "the delay is significant [and no] satisfactory reason has been provided to explain the delay." But it is ridiculous if the Respondent can induce my lawyer to drop me as a client in 2019 – when I was applying for judicial review within time – and now claim that I am applying for judicial review out of time to preclude judicial review of the legality of its decision. 16. Mr. Downes is aware that I intend to subpoena him as on 9 August 2023 I emailed Mr. Downes at his email address of downes@qldbar.asn.au and told him so. 17. Mr. Downes replied the same day saying he was happy for me to call him as a witness but that he "require[d] a subpoena as I [may] need to it [sic] to manage my commitments, but I do not require any conduct money." (See annexure 2 attached to this affidavit) 18. It will be practical for Mr. Downes to comply with a subpoena, as his office is nearby. 19. Mr. Downes will have sufficient notice for him to comply with a subpoena. 20. If the Respondent objects to the issuing of a subpoena to Mr. Downes, I invite the court to consider making the following inference adverse the Respondent: the Respondent is aware that the evidence of Mr. Downes will not assist its case. (emphasis in original) (footnotes omitted) 6 The respondent indicated that it neither consented to nor opposed the subpoena application. However, the respondent, in assisting the Court, set out a brief background to the matter noting that it had only recently been transferred to my docket. The respondent also submitted first that the Court would have difficulty in being satisfied that the applicant had demonstrated that the subpoena had a legitimate forensic purpose in the proceedings. Secondly, the respondent submitted that the applicant seeks to lead evidence-in-chief without notice to the respondent or the Court as to the nature of the evidence during an interlocutory application for an extension of time. 7 In that respect, the respondent referred to the decision of Feutrill J in Pigozzo v Mineral Resources (No 2) [2023] FCA 1489 at [7]: The practice of the Court is for almost all interlocutory applications, including applications for summary judgment, to be determined on affidavit evidence. There are very good reasons for that practice as it facilitates the just resolution of interlocutory disputes as quickly, inexpensively, and efficiently as possible consistently with the overarching purpose of the civil practice and procedure provisions referred to in s 37M of the Federal Court of Australia Act 1976 (Cth). There are, of course, circumstances in which it may be appropriate for the just resolution of a dispute and in the interests of the administration of justice to depart from the usual practice of the Court. However, in my view, there would need to be very good reason to do so having regard to s 37M of the Federal Court Act and the manifest advantages in efficiency of determining interlocutory applications on affidavit evidence. 8 Thirdly, the respondent submitted that the applicant, while maintaining that he is seeking to lead evidence from Mr Downes, is in fact attempting to establish whether he has a case at all. The respondent submitted that the applicant's request for leave to issue the subpoena was a fishing expedition. In making this submission, the respondent referred to the applicant's own characterisation of his apprehension that Mr Downes had been subject to improper influence as speculation. In response to this, the applicant submitted that the respondent was engaging in semantics or playing word games and suggested that the better word (than speculation) was "inference". 9 Subsequent to the hearing, the applicant wrote to the Court complaining that the respondent made submissions opposing the request to grant leave to issue the subpoena after initially stating that it neither consents to nor opposes the application. 10 In respect of the respondent's submissions, it should be noted that a barrister's paramount duty is to the Court and the administration of justice. The respondent appropriately discharged that duty and assisted the Court by making the relevant submissions. In Rossi Pty Ltd v Ballymore Tower Pty Ltd [1984] 2 Qd R 167, three summons were issued by the plaintiffs against non-parties of the action and the respondents indicated they neither consented to nor opposed the application. As to the making of submissions by the respondents in relation to the application, Master Lee QC stated at 168 – 169: It should be mentioned that whilst the above stance of each of the solicitors for the respondents is common in applications of this type, it is always helpful to the Court, particularly in the very busy Chamber jurisdiction, to have submissions from the legal advisers for a respondent as to whether or not the applicant has, as a matter of law, made out a case for an order under this rule, subject to the exercise of the discretion conferred by the rule, and quite regardless of the stand that the respondent "neither consents to nor opposes the application". See e.g., Carr v. Queensland Newspapers Pty. Ltd. (supra) where counsel argued against the application but undertook to abide the order of the Court (supra, p. 174). statutory framework 11 Rule 24.01 of the Rules provides that a subpoena may only be issued with the granting of leave by the Court. 12 Further, r 24.12 of the Rules relevantly provides: (1) The Court may, in any proceeding, by subpoena, order the addressee: (a) to attend to give evidence as directed by the subpoena; or (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or (c) to do both of those things. legitimate forensic purpose 13 When issuing a subpoena, it is necessary to consider whether it is to be used for a legitimate forensic purpose. This will be informed by the relevance of the evidence sought to be produced: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575. 14 In McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233 at [35], Greenwood J helpfully set out the principles in relation to the granting of leave to issue subpoena: In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge: (a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: Adelaide Steamship Co v Spalvins (1997) 24 ACSR 536. (b) A request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery. It is not permissible to use to a writ of subpoena duces tecum as a substitute for discovery of documents against a party to the proceeding. The subpoena process should not have the effect of discovery against a person who, as a stranger to the proceeding, is not liable to make discovery: Adelaide Steamship Co v Spalvins; Commissioner for Railways v Small (1938) SR (NSW) 564; Diddams v Commonwealth Bank of Australia [1998] FCA 9497. The subpoena process cannot be used to initiate an inquiry as to relevance outside of the time and place identified by the rules for discovery. (c) Reference has already been made to the principles identified by Branson J in Diddams v Commonwealth Bank of Australia. (d) The documents for production must be identified with reasonable particularity: Commissioner for Railways v Small (1938) SR (NSW) 564 at 574–5 per Jordan CJ. The category of documents must not be so wide as to be oppressive. (e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant's existing case. It cannot be used for purposes of "fishing" or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing party's evidence (Griebart v Morris [1920] 1 KB 659 at 666). (f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave: [8] It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed. (g) The same notion was expressed in Small (at 575) and Dorajay Pty Ltd v Aristocratic Leisure Ltd [2005] FCA 588 at [34] in requiring the existence of a legitimate forensic purpose for the production of documents. (h) In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Second, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena? (i) Spender J in Cosco Holdings Pty Ltd v Cmr for Taxation (1997) 37 ATR 432; [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. (j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by s 55(1) of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding. (k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: Dorajay at [34]. (l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the court to read documents which could have been obtained at an earlier stage in the proceedings: Diddams v Commonwealth Bank of Australia [1998] FCA 9497. (m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be "seriously unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Hamilton v Oades (1989) 166 CLR 486 at 502 ; 85 ALR 1 at 11 ; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 ; 79 ALR 9 ; Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at [12]. (n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541. (o) In Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at [18]: [18] These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades (1989) 85 ALR 1 at 11] in the comments quoted by Beaumont J [in Trade Practices Commission v Arnotts Ltd], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive. 15 In Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622 at [28] to [30], Bromberg J elaborated on the requirement of apparent relevance: On an application for leave to issue a subpoena (or where a subpoena is sought to be set aside) the test for the existence of a legitimate forensic purpose is that of apparent relevance: Arnotts at 103. As Stone J said in Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17], the general principles propounded by Beaumont J in Arnotts have been often applied or cited with approval. Her Honour noted the qualification expressed by Spender J in Cosco Holdings Pty Ltd v Cmr for Taxation [1997] FCA 1504. The import of what Stone J concludes at [16]–[18] is that apparent relevance to an issue is demonstrated where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material "might permit a case to be made". The test of apparent relevance has also been applied in relation to documents sought under a notice to produce. In Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31, Perram J by reference to the approach taken by Sackville J in Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6], posed the test as whether the documents sought are "reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case": at [3]. Perram J continued at [4]: Reasonable likelihood is a different concept to reasonable possibility and, to my mind, connotes a degree of certainty as to the material's potential relevance that travels beyond the merely conjectural. It is to be distinguished from the tests applicable in discovery. Perram J also noted that there are differences between the standard of apparent relevance required between discovery, subpoenas and notices to produce. His Honour observed at [9] (and I respectfully agree) that: The discretionary differences between discovery, subpoenas and notices to produce constitute one of the reasons why the test of apparent relevance is tighter for subpoenas and notices to produce than the test of relevance for discovery. 16 As to the approach to be adopted, Mortimer J (as Her Honour then was) in Spencer v Commonwealth of Australia [2014] FCA 1234 stated at [13] and [14]: As a starting point, I accept with respect the position adopted by Bromberg J in Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622 at [28] that it is generally appropriate where there is a real question as to leave to issue a subpoena for the decision as to leave to adopt the approach which would be taken on an application to set aside a subpoena. In most circumstances, the lawful basis for a subpoena, whether as a proposed exercise of coercive power to give evidence, or as an actual exercise of coercive power to give evidence, should be approached in the same way. This was the approach taken by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233 at [35], in relation to leave to issue a subpoena as to documents. There may be some distinctions in relation to witnesses in terms of discretionary considerations but in principle the approach is the same. With respect, I consider the matters outlined by his Honour at [35] represent the key considerations. consideration 17 The applicant's affidavit dated 13 February 2024 annexed an email from Mr Downes in response to the applicant's allegation that he was dropped as a client. The email dated 13 May 2020 provided: We did not "suddenly drop [you] as a client". We were retained to advise you on a potential judicial review claim against ANU. Your email below is itself a response to our email to you attaching a letter wherein we provide that advice to you. The effect of the advice was (at [5]): We have been unable to identify any grounds of review that would support you making an application for judicial review. We would be willing to act for you in any meritorious claim. For the avoidance of doubt, we deny the allegations made against us in your email. We came under no improper influence. We have no contravened [sic] any ethical rule. In fact, we have discharged our duties, including our paramount duty to the administration of justice, by advising you against running an unmeritorious claim. (emphasis in original) 18 Despite the applicant's speculation, he has provided nothing to suggest that Mr Downes, who is an officer of the Court, would give oral evidence before the Court which is different from the information contained in the letter referred to in paragraph 17 above. Nor is the applicant assisted by reframing his argument to suggest that Mr Downes' evidence would give rise to an inference being able to be drawn. "Infer" means "to derive by reasoning; conclude or judge from premises or evidence" (Macquarie Dictionary). It is different from speculation which is defined in the Macquarie Dictionary as "the contemplation or consideration of some subject". However, as there is no reason to conclude that Mr Downes would respond differently from his emailed response to the applicant as to why he declined to act for him if asked the question again, the inference the applicant invites the Court to draw would not be available. Thus, consistent with the applicant's affidavit, the premise upon which he seeks leave to issue the subpoena is no more than speculation. 19 As to what is required to be established for a subpoena to be granted, Bromberg J stated the following in Comcare at [32] – [33]: Whether a document or anticipated evidence is reasonably likely to throw light on an issue or issues in the proceeding depends principally on two things. Firstly, an assessment as to whether the anticipated evidence can reasonably be expected to be available so as to be deployed and secondly the likelihood that if available, the anticipated evidence will rationally affect the determination of a fact in issue. As Greenwood J said in McIlwain at [36] it is "necessary to establish grounds for a belief that a document or class of documents relating to a matter in question in the proceedings exists" and that such documents or class are available in the sense that they are in the possession, custody or power of the respondent to the motion. The requirement that material be relevant in the sense that it "could rationally affect (directly or indirectly), the assessment of the probability of the existence or a fact in issue" is adverted to by Greenwood J at subpara (j) of [35]. As Weinberg J said in Fried v National Australia Bank Ltd (2000) 175 ALR 194 at [30]: It is not a legitimate use of a subpoena to have the specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value. 20 In this instance, the applicant has not demonstrated what legitimate forensic purpose the subpoena would serve. Based on the evidence before me, there is nothing to suggest that Mr Downes had acted under improper influence. In any event, Mr Downes provided the letter of advice to the applicant in May 2019. The application for an extension of time was commenced in April 2023. It is unclear how evidence given by Mr Downes regarding a decision taken in 2019 not to act for the applicant in pursuing an unmeritorious claim could be relevant so as to provide an explanation for such a lengthy delay. It is therefore unlikely that the anticipated evidence could 'rationally affect the determination of a fact in issue'. 21 Given that no legitimate forensic purpose for the subpoena can be evidenced, leave should not be granted to issue the subpoena. 22 Furthermore, in accordance with the passage set out above from Pigozzo, I am not satisfied that this is a circumstance where it is appropriate for the Court to depart from its usual practice on an interlocutory application. conclusion 23 I am not minded to grant leave for the subpoena to be issued. As the applicant has yet to file the Request for Leave to Issue Subpoena, I order that he file the Request for Leave to Issue Subpoena and that leave to issue the subpoena is refused. Costs are reserved. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher. Associate: Dated: 26 February 2024