Reported Decision : [1999] 149 FLR 204 New South Wales Supreme Court CITATION : HARRIS/D-E PTY. LTD. V. McCLELLAND'S COFFEE & TEA PTY. LTD. & ORS. [1999] NSWSC 36 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 2289/94 HEARING DATE(S) : Application heard on 3rd February 1999 during course of two week trial. JUDGMENT DATE : 5 February 1999 Harris/D-E Pty. Limited P McClelland's Coffee & Tea Pty. Ltd. 1D Ambassador Foods Pty. Ltd. 2D PARTIES : Phillip McClelland 3D Jim Banks 4D Eric Bellchambers 5D Steven Holder 6D JUDGMENT OF : Hodgson CJinEq; COUNSEL : Mr. A. Sullivan QC with Mr. A. Spencer P Mr. R. Conti QC with Mr. T. Hancock D SOLICITORS : Holding Redlich P Deacon Graham & James 1-6D CATCHWORDS : Evidence - Subpoenas, Practice - Issue of Warrant; Witness served in Queensland with a subpoena to give evidence fails to attend. He was paid $140, advised that he could collect his air ticket at the airport, and that he had been booked into a particular hotel for which the party issuing the subpoena would pay. Two letters were provided from a doctor to the effect that he had a medical reason not to attend. Party issuing the subpoena seeks a warrant to have the witness bought to Court. HELD (1) that Pt.37 r.3(1) of the Rules and s.32(1) of the Service & Execution of Process Act require money for expenses to be tendered, but that money need not be tendered for expenses in relation to which appropriate assurance is given that such expenses will not be incurred at all; (2) even if a warrant may be issued under Pt.42 r.7(1) of the Rules where the requirements of s.194(1) of the Evidence Act are not satisfied, in the circumstances of this case it was necessary to satisfy those requirements; and (3) the onus of proving that the non-appearance was without just cause or reasonable excuse had not been satisfied. Service & Execution of Process Act 1992 (Cwlth) ss.32 37 Evidence Act 1995 s.194 ACTS CITED : Supreme Court Rules Pt.37 r.3(1) r.9 Pt.42 r.7(1). Castrucci v. ACT Electricity Authority (1990) 94 ACTR 1 DECISION : See par.40 of judgment 12 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORAM: HODGSON,CJ IN EQ. Friday 5th February 1999 NO. 2289 OF 1994 HARRIS/D-E PTY. LIMITED V. McCLELLAND'S COFFEE & TEA PTY. LIMITED & ORS. JUDGMENT (On plaintiff's application for warrant) 1 HIS HONOUR: I am dealing with an application for the plaintiff to issue a warrant under Pt.42 r.7(1)(e) of the Rules and/or s.194(1)(b) of the Evidence Act, coupled with s.37(1) of the Service & Execution of Process Act, to bring one Ile Ignajotivski to Court to give evidence in these proceedings. 2 On 6th January 1999, at Newmarket in Queensland, Mr. Ignjatovski was served with a subpoena to attend to give evidence at this Court at the hearing commencing on 1st February 1999. He was given a cheque for $30.00 and also a letter dated 5th January 1999 from the plaintiff's solicitor which inter alia said the following:- The conduct money we have enclosed is to assist you in complying with the subpoena. We would be grateful if you could contact Elizabeth Jones of this office on (02) 9234 4445 to discuss your attendance. We will make bookings for your travel and accommodation. 3 The subpoena itself contained the following note:- You need not comply with this subpoena - unless reasonable expenses have been paid or tendered to you. 4 There was also served with the subpoena a notice under the Service & Execution of Process Act which stated the following:- You must obey the attached subpoena if - (a) at the time of service or at some reasonable time before 1st February 1999 you were offered or given either: (i) enough money to meet your reasonable expenses in obeying it including any travel and accommodation costs; or (ii) the combination of money, travel tickets and vouchers to meet those expenses. 5 Mr.. Ignjatovski then wrote to the plaintiff's solicitor a letter dated 15th January 1999 in the following terms:- Please be advised that no other information is available to that already supplied in the previous Subpoena 4-5 years ago. As discussed with you over the telephone my wife and I are concerned about my personal security therefore you are requested to insure (sic) that I am accommodated at a secure location with adequate protection should I attend and give evidence in Sydney. The request to attend court as a witness will undoubtedly cause my business hardship and loss in income, therefore, if possible I would be pleased if I could be excused by not attending. Should you insist and demand my presence in court I refer to the conduct money provided by your firm as quiet (sic) insufficient, and request an appropriate fee to cover expenses, $1200.00 per day. Personal estimated expenses to cover my departure from Brisbane which will be incurred up to my arrival time at the hotel in Sydney will be $150.00. In addition a cash advance will be required on arrival at the Sydney Hotel to cover transport, food and communications and sundries. 6 On 21st January 1999, the plaintiff's solicitor Mr. Werksman spoke by telephone to Mr. Ignjatovski. Mr. Ignjatovski claimed that he should be compensated for loss of business caused by attendance pursuant to the subpoena. Mr. Werksman then said, among other things: In any event our client will pay for your hotel accommodation and airfares to Sydney. We will also pay for your cab fares. You can let us have the vouchers for cab charges and we will reimburse you. 7 Mr. Ignjatovski responded: "I don't want to be reimbursed. I need to have the money." 8 Mr. Werksman then enquired as to the amount of taxi fares, and was subsequently put on hold on the telephone by Mr. Ignjatovski. He was unable to resume the conversation and, on further telephoning Mr. Ignjatovski, was unable to obtain any response. 9 A letter was then sent to Mr. Ignjatovski by facsimile on 22nd January 1999, in the following terms: We refer to the writer's telephone conversation with you this morning. We confirm that you have been served with a subpoena to attend the trial in the above matter in Sydney on 1 February 1999. Whilst you are obliged by law to be at the Court at 10.00am on Monday morning, 1 February, we confirm that in order to avoid disrupting your business as much as possible, our client would be prepared to arrange for you to travel to Sydney on Tuesday 2 February, to consult with Counsel at 4.30pm with a view to your appearance in Court on Wednesday 3 February. If you are amenable to this proposal, please let us know and we will arrange for airline tickets to be booked for Tuesday afternoon and for accommodation to be made available on Tuesday evening. We will also forward to you a cheque for $120.00 being our estimate of the costs which will be involved in travelling to the airport in Brisbane and to the city in Sydney and the return fares, at the rate of $30.00 per trip. We would like you to be at Mr. Alan Sullivan QC's Chambers, Level 11, Wentworth Chambers, 174 Phillip Street, at 4.30pm on Tuesday. Please let us know by return if the above proposal is acceptable to you. A further letter was sent on 27th January 1999, in the following terms: We refer to our letter of 27 January 1999, copy of which is enclosed for ease of reference. We enclose a cheque in the sum of $140.00 to cover the costs of your cab fares to and from the Brisbane airport and cab charges in Sydney to the Wentworth Hotel, and the return fare to Sydney airport. We confirm that you were also provided with $20.00 when served with the subpoena. On our calculations, the sum of $160.00 will be more than sufficient to cover the above cab charges. If you have any other out of pocket expenses which are necessarily involved in attendance at the Court, you will be reimbursed upon presentation of the relevant vouchers. 10 A further letter was sent by the plaintiff's solicitors to Mr. Ignjatovski on 28th January 1999, again by facsimile, in the following terms: We refer to our letter of 22 January 1999 to which we have had no response. We must accordingly assume that the proposal set out in our letter is unacceptable to you. In the circumstances and in order to enable you to comply with your obligation to comply with the Subpoena which as (sic) been served on you to attend at the Supreme Court Sydney at 10.00am on Monday 1 February 1999, we have made the following arrangements: 1. You are booked on Qantas flight QF551 from Brisbane to Sydney on Sunday 31 January 1999 departing Brisbane at 6.10pm. The ticket will be available for collection at the Qantas counter at the airport. The return flight has been provisionally booked for Wednesday 3 February 1999 on Qantas flight QF544 departing Sydney at 6.05pm. If your evidence can be heard earlier then the booking will be changed to allow you to return earlier. 2. We have booked accommodation for you at the Sydney Wentworth Hotel, 61 Phillip Street, Sydney for the nights of Sunday, Monday and Tuesday (31 January to 2 February inclusive). 3. We are forwarding to you by courier, a cheque for the sum of $140.00 to cover the costs of your cab fare to and from Brisbane airport and for cab charges to and from Sydney airport. Please note that you are legally obliged to appear in Court at 10.00am on 1 February 1999. If you are not present our instructions are to apply to the Court for an order that you be arrested and brought before the Court. 11 Mr. Ignjatovski then sent by facsimile a letter to Mr. Werksman which merely asserted: "Please find attached doctors certificate issued to Mr. Ile Ignjatovski." 12 Attached to that was a document on the letterhead of Walton Bridge Medical Centre, purportedly signed by Dr Stuart Johnston, who was listed as a doctor at that centre. The document was dated 29th January 1999 and it asserted: "Ile Ignjatovski has a medical condition which at present needs constant supervision. He has been advised to remain in Brisbane." 13 The plaintiff's solicitors then sent on 29th January 1999, by facsimile to Mr. Ignjatovski, a letter in the following terms: We refer to your letter of 29 January 1999 attaching a purported doctor's certificate. Please be advised that we do not consider the purported medical certificate to be sufficient to excuse you from complying with the Subpoena which has been served upon you. We will be calling on the Subpoena at 10.00am on Monday1 February 1999, or at such other time as may be mutually agreed between us. If you claim that for medical reasons you are unable to attend at Court then appropriate affidavit medical evidence from a qualified medical practitioner should be filed in Court and a copy sent to us. The Deponent of that affidavit will be required for cross-examination. In the absence of proper medical evidence justifying non-attendance at Court, we will ask the Court for an order for your arrest in order to secure your attendance. We hope that this will not be necessary. 14 The response to this was a facsimile of 1st February 1999, signed by Mr. Ignjatovski, which merely asserted the following: "Please find attached additional medical evidence from Dr Stuart Johnston issued to Mr. Ile Ignjatovski." 15 It attached a further document on the letterhead of Walton Bridge Medical Centre, again purportedly signed by Dr. Stuart Johnston. This document was in the following terms: Mr. Ile Ignjatovski has been sick since about 15th January 1999 with an undiagnosed illness. He is being investigated by blood testing and at present is receiving drug treatment. As his illness is unknown, there is a possibly of his being infectious and therefore has been advised on medical grounds to remain at home. 16 In deciding whether I should issue a warrant to procure the attendance at Court of this witness, it is necessary for me to consider four questions. 17 First, there is the question of whether, as required by Pt.37 r.3 of the rules and s.32 of the Service and Execution of Process Act, reasonable expenses of complying with the subpoena have been paid or tendered to the witness. Pt.37 r.3(1) of the Supreme Court Rules is in the following terms: 37.3(1) A subpoena shall not require the person named to attend or produce any document or thing on any day on which his attendance or production by him is required unless a sum sufficient to meet the reasonable expenses of the person named of complying with the subpoena in relation to that day is paid or tendered to him at the time of service of the subpoena or not later than a reasonable time before that day. 18 Section 32(1) of the Service and Execution of Process Act 1992 (Cwlth) is in the following terms: 32(1) Service of the subpoena is effective only if, at the time of service or at some other reasonable time before the person to whom the subpoena is addressed is required to comply with it, allowances and travelling expenses sufficient to meet the person's reasonable expenses of complying with the subpoena are paid or tendered to the person. 19 The second question which I must determine is whether it is necessary for the plaintiff to prove, in terms of s.194(1) of the Evidence Act, that the non-appearance of the witness is without just cause or reasonable excuse, and if it is, whether that matter has in fact been proved. Section 194(1) of the Evidence Act is in the following terms: 194(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 serve with a summons or subpoena, the court may: (a) order that the witness 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 proceedings, issue a warrant to bring the witness before the court to give the evidence. 20 Power to issue a warrant is also given in Pt.42. r7(1) of the Supreme Court Rules, which is in the following terms: 42.7(1) Where the Court by subpoena or otherwise, makes an order in any proceedings for the attendance of a person - (a) for the purpose of giving evidence; (b) for the production of any document or thing; (c) to answer a charge of contempt; or (d) for any other purpose, and the person defaults in attendance in accordance with the order, the Court may on application by a party or of its own motion - (e) issue, or make an order for the issue of, a warrant to the Sheriff or such other person as the Court may appoint for the arrest of the person in default and for the production of the person in default before the Court or before an examiner or other person for the purpose of the proceedings and for his detention in custody in the meantime; and (f) order the person in default to pay any costs occasioned by the default. 21 It has been submitted that, in order for the Court to act under that rule, it is not necessary that the requirement to which I have referred of s.194 be satisfied. 22 The third question is whether, if I am satisfied of the first two matters, I should exercise my discretion in favour of ordering the arrest of the witness in Queensland, and his being forcibly brought to appear before the Court here in Sydney. 23 The fourth question, which is really just a procedural one, concerns the precise form of the order which I make. Section 37(1) of the Service and Execution of Process Act provides: 37(1) If a person (other than a person under restraint) served with a subpoena under this Division fails to comply with the subpoena, a court or authority of the place of issue of the subpoena may issue such warrant as it might have issued had the subpoena been served in its place of issue. 24 A question arises as to whom the warrant in question should be issued, that is whether to some New South Wales official or to some Queensland official. There is also perhaps a question as to the precise form of the warrant. 25 Turning first to the question of expenses, in my opinion it is clear that what has to be provided for is the expense of travel and accommodation essentially, and not compensation for loss that might be caused to the witness by reason of absence from his employment or business. If loss of that kind is claimed, in my opinion that is a matter to be dealt with under Pt.37 r.9 of the Rules, which empowers the court to require payment in respect of loss caused to a witness attending Court. 26 It seems clear that what is required to be tendered, under Pt.37 r.3 and s.32 of the Service and Execution of Process Act, is money. Part 37 r 3 refers to, "a sum sufficient". Section 32(1) refers to "allowances and travelling expenses" being "paid or tendered". However, I think it is also correct to say that, if the witness is provided with appropriate assurance that certain expenses will not be incurred by him at all, then it is not necessary to tender those expenses. That view has some confirmation in the case of Castrucci v ACT Electricity Authority (1990) 94 ACTR 1. 27 However, it is insufficient merely to promise that expenses will be reimbursed. Accordingly, it seems to me that the actual tender of an air ticket would be an appropriate assurance that this expense of travel would not be incurred at all. The booking of a witness into a hotel, with an appropriate undertaking to pay being given, would in many circumstances be sufficient assurance to the witness that the expenses of accommodation would not be incurred. 28 In this case, on that test it is quite plain that there was not an adequate payment or tender of expenses, at least until the dispatch and receipt of the letter of 28th January 1999. It was only then that it was made clear that the witness could collect air tickets at a particular point, that he had been booked into a particular hotel, and that the expenses of that hotel would be met. There could be some question as to whether there was a sufficiently clear and reliable undertaking given that the hotel expenses would be paid, but on the whole I believe the combination of the telephone conversation and the terms of the letter did amount to a sufficient assurance that the hotel accommodation would be paid. In addition, the tender of $30.00 and subsequently $140.00 was in my opinion sufficient to cover any additional expenses. 29 That would leave the question whether the satisfaction of this requirement by 28th January 1999 was satisfaction which occurred a reasonable time before the witness was to attend Court by means of travel commencing on 31st January 1999. On the whole, having regard to the totality of the communications, I think it was satisfied a reasonable time before the witness was required to attend Court. 30 For those reasons, I believe the first basic requirement for the issue of a warrant was satisfied. I should add that, for reasons I will come to, I will not immediately be issuing a warrant. If the plaintiff can provide an answer to the reasons which lead me at present to refuse to issue a warrant, I should say that I may wish to look in greater depth at this first issue; but at present my opinion is clearly as I have stated it. 31 The next question concerns the requirement of s.194 of the Evidence Act that it be proved that the non-appearance be "without just cause or reasonable excuse". 32 It is possible that, as submitted for the plaintiff, the power given under Pt.42 r.7 is independent of s.194, and can be exercised even if that requirement of s.194 is not satisfied. I do not decide that question one way or the other, because in this particular case I would not be prepared to act under Pt.42, even if it were independent of s.194, if the requirements of s.194 were not satisfied. 33 It has been put on behalf of the plaintiff that the witness's evidence is important, and I am prepared to accept that. However, it is plainly not of central or crucial importance, and the plaintiff did not take the steps it should have taken if it wished to rely on the evidence. Those steps which should have been taken were to take all reasonable steps to obtain a statement from the witness, and if unable to obtain such statement to notify the defendants of the intention to seek to lead the evidence orally and of the best statement the plaintiff could give of what that evidence would be; and to do so within the time limited for witness statements, or at the very least within a time arranged at the pre-trial directions. The plaintiff did not do this. In those circumstances it seems to me that it cannot be said there would be substantial injustice to the plaintiff if at the end of the day the evidence is not obtained. It is for this reason , and also having regard to the substantial impact on the witness of his being forcibly brought from Queensland to this Court in Sydney, that I am not prepared to act in this case without proof of the requirement laid down by s.194. 34 Turning to that requirement, it is clear that the onus is squarely on the plaintiff to satisfy me that the witness has no just cause or reasonable excuse. As submitted by the plaintiff, the circumstances of the issue of the material from the doctor, plus the fact that there had been no previous suggestion from the witness of any illness, gives substantial grounds for suspicion; but I am still left with the situation where I have two letters, purporting to be from a member of the medical profession, asserting that there are medical reasons why the witness could not comply with the subpoena. I do not think that at present I can be satisfied, even on the balance of probabilities, either (1) that Dr. Johnston is not a reputable member of his profession who is aware of his responsibilities in giving such an opinion and has expressed an opinion honestly and conscientiously, or (2) that Dr Johnston is mistaken. 35 I leave aside at this stage the question of whether the satisfaction needs to be beyond reasonable doubt, on the basis of the High Court decision in Witham v Holloway (1995) 183 CLR 525. Even if it need only be on the balance of probabilities, I would take the view that that balance of probabilities must be based on adequate material, produced by the party bearing the onus of proof exercising reasonable diligence. 36 Beyond simply relying on the matters of suspicion to which I have referred, and the absence of medical evidence in what might be regarded as satisfactory form, the plaintiff has not undertaken any steps to assist me in relation to the two matters concerning Dr. Johnston to which I have referred. In my opinion it would be necessary for the plaintiff to undertake some investigation to enable an assessment to be made of the value of Dr. Johnston's opinion, at least by attempting to obtain the witness's consent to the matter being discussed with Dr. Johnston, perhaps over the telephone; or by means of what would be a far more satisfactory course, namely to arrange for a conference telephone link between Dr Johnston and the Court so that the two questions I have identified could be explored. Such a course would also make it possible to consider the question of when the witness might reasonably be expected to be able to attend, if in fact he is at present unable. 37 This judgment can be sent by facsimile to the witness, who could then be requested to give consent to Dr. Johnston's assisting the Court by answering questions about his opinions and about the witness's medical condition. If the witness does not give this consent, and I conclude that he is not co-operating reasonably with attempts to inform the Court about this matter, I believe I would then be ready to draw the inference that the medical certificates are no more than a ruse and that the witness has no just cause or reasonable excuse for not complying with the subpoena, in which case a basis for issuing the warrant to have him brought to Sydney would be made out. 38 This judgment may also be sent by facsimile to Dr. Johnston as well as to the witness, so as to make him fully aware, if he is not already aware, of the considerable responsibility he is undertaking in expressing his opinions. Assuming that he is a reputable member of his profession, attempting to act responsibly, conscientiously and honestly, he should be prepared (if his patient consents) to offer every reasonable cooperation in assisting the Court to reach the correct decision on this matter. If he shows himself as not prepared to do so, I may have to draw the inference that he is not acting responsibly, conscientiously and honestly; and I may in that event be prepared to infer that the witness has no just cause or reasonable excuse, and to issue a warrant that he be brought forcibly to the Court. 39 Another possible outcome of clarification of the position with Dr. Johnston is that it would appear that the witness is now, or will at an identifiable date in the near future, be able to attend Court. If that happens, I may be able to make orders with a view to securing such attendance without at this stage issuing a warrant. I may be prepared to appoint a time during the next week or two when his evidence could be taken. I believe his evidence is such that the case could otherwise be concluded, apart possibly from brief evidence in reply from the third defendant. 40 For those reasons, I will not at present further consider the question of discretion or the question of the form of the warrant. If at some later stage I am satisfied that a warrant should be issued, I will need to look into that last question. ********************** I certify this and the preceding eleven pages to be a true copy of the reasons for judgment of Justice D.H. Hodgson Date 8th February 1999 Associate Last Modified: 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.