Supreme Court New South Wales Medium Neutral Citation: Visscher v Maritime Union of Australia [2013] NSWSC 1523 Hearing dates: 17 October 2013 Decision date: 17 October 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: 1. Pursuant to Rule 32.2 of the Uniform Civil Procedure Rules 2005 (NSW), an order granting leave to the defendant to serve a subpoena to attend and give evidence upon the following person in New Zealand: Anthony Skilton of 11 Hobbs Road, Gulf Harbour, Whangaparoao 0930 New Zealand,such subpoena to be returnable on 28 October 2013. 2. An order that the subpoena to attend and to give evidence addressed to Anthony Skilton be served on or before 21 October 2013. 3. Pursuant to Rule 33.2 of the Uniform Civil Procedure Rules, an order granting leave to the defendant to serve a subpoena to attend and give evidence upon the following person in the State of Victoria: James Braithwaite of 3460 Deakin Avenue, Mildura, Victoria, such subpoena to be returnable on 28 October 2013. 4. Pursuant to s 30(1) of the Service and Execution of Process Act 1992 (Cth) the Court allows a period of not less than three working days between service and the day on which the person to whom the subpoena is addressed is required to comply. 5. Direct that service of each subpoena be effected by email. Catchwords: SUBPOENAS - no question of principle Legislation Cited: - Evidence and Procedure (New Zealand) Act 1994 (Cth) - Service and Execution of Process Act 1992 (Cth) Cases Cited: Visscher v Fairfax Digital Australia and New Zealand Pty Ltd [2013] NSWSC 1512 Category: Interlocutory applications Parties: Timothy Visscher (Plaintiff) Maritime Union of Australia (Defendant) Representation: Counsel: R.K. Weaver (Defendant) Solicitors: Roderick Storie Solicitors (Plaintiff) Slater & Gordon (Defendant) File Number(s): 2011/339947 Ex tempore Judgment On application to issue subpoenas 1By notice of motion filed 16 October 2013 the defendant in these proceedings, the Maritime Union of Australia ("MUA"), sought various orders in relation to the issue of two subpoenas, one to a person in New Zealand and the other to a person in Victoria. The application in respect of the person in New Zealand sought to invoke the Evidence and Procedure (New Zealand) Act 1994 (Cth) (the "Act"). 2The proceedings are listed for hearing on Monday, 21 October 2013. By way of brief summary, they involve a claim by the plaintiff that he was defamed in a statement made on a website said to be operated by the MUA. The plaintiff alleges that that statement was critical of him in his conduct as the officer in charge of a tugboat at sea and alleges he placed members of the MUA at risk. 3The proceedings were initially listed to be heard together with another claim brought by the plaintiff arising out of a similar statement said to have been made by Fairfax Digital Australia and New Zealand Pty Ltd ("Fairfax"). That claim has been settled. 4On 8 October 2013 McCallum J gave leave to Fairfax in those proceedings to issue a subpoena on Mr Skilton in New Zealand (Visscher v Fairfax Digital Australia and New Zealand Pty Ltd [2013] NSWSC 1512). Mr Skilton was a member of the crew of the tugboat in question. The various criteria in the Act governing the issue of a subpoena to a person in New Zealand are addressed in her Honour's judgment. 5MUA's application has now been brought in light of the fact that the proceedings involving Fairfax have been settled. It intended to adduce evidence from Mr Skilton in its case, but was no doubt seeking to rely on the fact that Fairfax would subpoena him to secure his attendance. In those circumstances, it seems to me that the service and attendance of Mr Skilton are justified. I adopt the analysis of the criteria in the Act, as well as the caveats expressed concerning Mr Skilton's evidence, stated by McCallum J. 6In respect of the subpoena to be issued to a person in Victoria, in the ordinary course if leave is issued by this Court no further order is required under the Service and Execution of Process Act 1992 (Cth) to serve a subpoena on that person interstate. However, in this case there is a need to grant a shorter period of service in accordance with s 30(1) of the Service and Execution of Process Act. 7The affidavit evidence reveals that Mr Braithwaite was also a member of the crew of the ship in question. The regime for service contemplates him being required to attend in the second week of the trial and that he should be served with a subpoena by no later than the end of Tuesday, 22 October 2013. Given the potential significance of his evidence, I consider an order abridging the period of time for service of the subpoena upon him is justified. 8Accordingly, the court makes the following orders: (1)Pursuant to rule 32.2 of the Uniform Civil Procedure Rules 2005, an order granting leave to the defendant to serve a subpoena to attend and give evidence on the following person in New Zealand, namely, Anthony Skilton of 11 Hobbs Road, Gulf Harbour, Whangaparaoa 0930 New Zealand, such subpoena to be returnable on 28 October 2013. (2)An order that a subpoena to attend and give evidence addressed to Anthony Skilton be served on or before 21 October 2013. (3)Pursuant to rule 32.2 of the Uniform Civil Procedure Rules 2005, an order granting leave to the defendant to serve a subpoena to attend and give evidence on the following person in the State of Victoria, namely, James Braithwaite of 3460 Deakin Avenue, Mildura, Victoria, such subpoena to be returnable on 28 October 2013. (4)Pursuant to s 30(1) of the Service and Execution of Process Act 1992 (Cth), the court allows a period of not less than three working days between service and the day on which the person to whom the subpoena is addressed is required to comply. (5)Order that service of each subpoena may be effected by email. ********** 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: 18 October 2013