Reported Decision : 6 DCLR (NSW) 122 New South Wales District Court CITATION: Photi v Target Australia Pty Ltd (No. 2) [2007] NSWDC 302 HEARING DATE(S): 25 June 2007 EX TEMPORE JUDGMENT DATE : 25 June 2007 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: 1. Application by defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW) refused. CATCHWORDS: Tort - procedure - application for warrant pursuant to s.194 Evidence Act 1995 (NSW) for witness who fails to attend in compliance with subpoena LEGISLATION CITED: Evidence Act 1995 (NSW), s.194 Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Harris/D-E Pty Limited v McClelland's Coffee and Tea Pty Limited (1999) 149 FLR 204 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 PARTIES: Plaintiff: Julia Photi Defendant: Target Australia Pty Ltd FILE NUMBER(S): 3364 of 2006 COUNSEL: Plaintiff: C Evatt / L Evans Defendant: M Barko SOLICITORS: Plaintiff: Stephen Spinak Solicitor Defendant: McCabe Terrill Judgment 1. At 2.30pm today, on the first day of hearing I received an application on behalf of the defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW). 2. Section 194(1) provides that: "(1) If a witness fails to appear when called in any civil or criminal proceedings and it is proved that he or she has been duly bound by recognisance or served with a summons or subpoena, the court may: (a) order the witness to show cause at those or later proceedings why execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or (b) if it is proved that the non-appearance is without just cause or reasonable excuse and that the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give the evidence." 3. The history in this matter is set out in two affidavits. I should indicate that the first affidavit of 26 February was read at my request. I do not say that in any way critical of counsel for the defendant, who has behaved in a perfectly proper way throughout this application but because it is appropriate that I should note that it is being read, because I have asked it to be read and because I am of the view that the information in there is relevant. It was my view, having a look at the affidavit of Mr Oag, sworn on 25 June 2007 (which just attaches the affidavit of service and refers to a telephone call to the plaintiff's place of employment on 22 June and a letter sent on 20 June) would signally fail to comply with the requirement of showing it was "without just cause or reasonable excuse". There is rather more in the affidavit of Mr Mander-Jones of 26 February 2007, but even that falls short. 4. I will now set out the matters upon which the evidence in question would be given by Mr Parker. 5. Mr Parker was a security guard at the Target store. It is alleged by the plaintiff in her statement of claim filed on 27 July 2006 that on 30 August 2005 his conduct gave rise to actions for wrongful arrest, false imprisonment, assault and defamation. 6. The plaintiff has given evidence and been cross-examined, as has her sister, who was present for part of the events in question. I am therefore in a good position to understand what the evidence of Mr Parker is intended to be since Mr Parker's version of events has been put to them. 7. Essentially what is involved is that Mr Parker stopped the plaintiff at some position on either before or just outside the Target store; the precise location is in dispute. Allegations were made about the theft of razor blades from the store's shelf and again the precise nature and substance of these is, again, the subject of dispute. Mr Mander-Jones says in his affidavit of 26 February 2007 in paragraph 6, and I must say I concur, that the evidence of Mr Parker is crucial to the defence of the defendant's claim, and that he is a material witness. 8. This matter first came before the court, and was set down for hearing as a s.7A jury trial before a judge sitting alone, on Monday 26 February 2007. On that day the trial could not proceed for a number of reasons, and an application was made by the defendant for an adjournment due to the unavailability of its principal witness for, according to my order "asserted medical reasons". I ordered the defendant to pay the plantiff's costs for the vacating of the hearing date on an indemnity basis, probably because the application was brought so late. 9. The affidavit that was before me on that day was the affidavit of Mr Mander-Jones. It set out that Mr Parker was located at a residential address and he asked the investigator, Mr Whitehead, if Mr Parker was willing to be interviewed in relation to the incident. Mr Whitehead said, "No, I think you will have to subpoena him". Then Mr Barko, who is the counsel in the matter, had a conversation about service of a subpoena and it would appear that for whatever reason Mr Parker was not subpoenaed for the 26 February hearing date. On 22 February Mr Mander-Jones telephoned Busby Fire Station and asked to speak to Mr Parker, who was working there as a fireman. He was informed that Mr Parker was not working that day. He then had a conversation with Mr Barko who said he had been contacted by Mr Shaun Titmarsh, the solicitor for Mr Parker's family. He stated that Mr Parker was unwell and under the care of a psychologist and that Mr Parker was seeing a psychologist on the day of the hearing, namely, 26 February 2007. 10. Mr Titmarsh said in a conversation with Mr Mander-Jones "Geoffrey Parker is very unwell and under the care of a psychologist". He is unable to attend the hearing as he is not well and he has a consultation with the psychologist on 26 February 2007. Mr Titmarsh said, in my view quite properly, that he did not have instructions to release the name of the psychologist and he would not give it. 11. The hearing was adjourned and then on 26 March 2007, about a month later, a process server served Mr Parker with a subpoena to give evidence and a copy of the affidavit of service is annexure B to the affidavit of Mr Oag of 25 June 2007. It would seem, as I understand it, that there was further communication between Mr Parker and the solicitors for the defendant either between 26 February 2007 and 26 March 2007 when the subpoena was served, and between 26 March and 20 June 2007. On 20 June Mr Oag deposes to having sent letters to all subpoenaed witnesses, and one of them was a letter sent by express post on 20 June notifying Mr Parker that he would be required to attend court on the first day of the hearing and also to attend a conference in Mr Barko's chambers on Monday 25 June 2007 at 9:00am. I gather that he did not show up; in fact I think it is quite obvious he did not show up. When the hearing commenced Mr Parker was called outside the court three times and he did not appear. 12. On 22 June, according to the affidavit of Mr Oag, he telephoned Mr Parker's place of employment, Busby Fire Station. He was informed that Mr Parker was not present. He then rang his mobile telephone number which rang out. He then arranged for a firm of investigation agents by following, further attempts to contact him by telephone having failed. He was informed on 25 June 2007 by his agent that they were unable to contact Mr Parker over the course of the weekend. I could not help noticing in the earlier affidavit that there was a statement made to the process servers by the neighbours to the process servers that the witness was "a fireman and was away for days on end" and that the neighbour was unable to advise when he would be returning. The process servers were able to speak to him on his mobile and Mr Parker told the process servers he was presently doing something, but unfortunately that word has been omitted from the letter, and said he might be doing a shift late on Friday night and that he would contact the agent to arrange a time for service. 13. What information do I have as to Mr Parker without just cause or reasonable excuse not coming to court? True it is that he has been served with a subpoena. Many witnesses are served with subpoenas and do not necessarily appreciate what I could call the fine print. If it was the case that everybody who was issued with a subpoena could then be arrested by the police pursuant to s.194 and brought before this court in circumstances where almost certainly if that warrant was issued tonight he or she would spend the night in gaol it would be regrettable. 14. I was not taken to any authority on the issue. Mr Barko submits, and I accept having regard to the comments by Stephen Odgers in Uniform Evidence Law (7th ed, 2006 at 800 footnote 29) concerning the question of whether satisfaction needs to be established beyond reasonable doubt or on the balance of probabilities, that it is preferable that it should be done on the balance of probabilities. I note, however, that this is a question which Hodgson CJ in Eq in Harris/D-E Pty Limited v McClelland's Coffee and Tea Pty Limited (1999) 149 FLR 204 at [34] "left aside" so it is an issue which is not entirely free from doubt. In any event the provisions of s.142 make it clear that I should have regard to what is often called the Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336). I should be slow to come to the conclusion that a person has not complied with the subpoena for the first time, in circumstances where there has been no prior communication for some months. There are other possibilities, such as he has forgotten it, or he has gone away or he has been involved in rescue activities following the recent very severe weather conditions in Sydney. I should not assume that his non appearance is without just cause or reasonable excuse. 15. The test in Briginshaw has occasionally fallen to be considered in civil proceedings in a defamation context. I note it was considered to be the appropriate test in Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 in relation to proof of truth of criminal matters in civil proceedings. I note also also that in McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 Mahoney JA suggested that it might be an appropriate test in relation to findings of malice. I apply the same test of caution here. 16. The circumstances in which this court would issue a subpoena to a witness for failing to attend proceedings would have to be extreme. It was put to me that everything that could be done had been done. However, in my view a number of things could have been done. First of all, a letter could, and perhaps should, have been written a lot earlier than 20 June and it should have pointed out the consequences of failure to comply, if only because sometimes people do not appreciate these things unless they are spelled out quite clearly. Secondly, a conversation could have been had with the commander of the Busby Fire Station. I note that a conversation was in fact had, but very late in the piece, in circumstances where the commander apparently said that Mr Parker was expected in for work on Friday, and it seems that he did not come. 17. All I know about Mr Parker is that he is a man who had quite serious health problems which prevented his attending this court on 26 February. It would appear that he has a family solicitor but it is uncertain whether Mr Titmarsh has in fact been able to communicate with him. Even if he had, it would be difficult to know what precisely has been said bearing in mind the mantle of legal professional privilege, though I note in this regard the recent High Court decision about the degree to which legal professional privilege can be used as a cloak in proceedings for contempt, and I express no concluded view as to whether or not this would be an excuse. 18. It seems to me that there are other explanations, and that the defendant cannot be said to have left no stone unturned to follow up on this witness. As I understand it, Mr Parker was requiring a subpoena on the previous occasion, which is to be expected from someone who is a fireman and who would need a subpoena to come to court. There is no actual statement from him to the effect that he will never give evidence or some other foreshadowing of a contumelious disregard for his obligations as a witness and the like. 19. Accordingly, I am of the view that the defendant has not made out a case for the issuing of a warrant, however, I note that it is now 3.15pm and we are about to adjourn since we have run out of witnesses and it may be that further evidence can be put before me tomorrow at 10:00am. However, that is a matter for the defendant. I should indicate that it would need to be compelling evidence before I would consider the issuing of a warrant for a member of the community who has no prior history of failure to comply and whose previous non-attendance was explained on the basis of ill-health. Orders 1. Application by defendant to issue a warrant pursuant to s.194 Evidence Act 1995 (NSW) refused. ****** 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.