Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v Bhagria; Ryan v O'Halloran; Ryan v Cain

[2021] ACTCA 24

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v Bhagria; Ryan v O’Halloran; Ryan v Cain

Citation:

[2021] ACTCA 24

Hearing Date:

18 August 2021

DecisionDate:

18 August 2021

Before:

Murrell CJ

Decision:

The subpoena issued on Radhika Reddy dated 13 May 2021 is set aside

Catchwords:

PRACTICE AND PROCEDURE – SUBPOENAS – Application to set aside subpoena – whether subpoena is oppressive

Parties:

Radhika Reddy ( Applicant)

Mark Ryan ( Respondent)

Representation:

Counsel

Peter Hohnen ( Applicant)

Self-represented ( Respondent)

Solicitors

Legal on London ( Applicant)

Self-represented ( Respondent)

File Numbers:

ACTCA 6, 7, 8, 9, 10 of 2021

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Loukas-Karlsson J

Date of Decision:          23 December 2020

Case Title:  Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor

Citation: [2020] ACTSC 353

MURRELL CJ:

1. The applicant, who is the principal of the legal firm Legal on London, seeks to set aside a subpoena issued by its former client, Mark Ryan (Mr Ryan) on the ground that it is “excessive and oppressive”.

1. Mr Ryan was the plaintiff in five proceedings that were heard together and decided on 23 December 2020.

1. During those proceedings, several solicitors were instructed by Mr Ryan.  Ultimately, Legal on London assumed carriage of the matter.  It is in possession of the files.

1. Mr Ryan has appealed the decision in all five matters.  In each case, the notice of appeal contends that the primary judge erred in rejecting the evidence of Mr Ryan and finding that his evidence was not credible.  Mr Ryan claims that his version of events should have been believed and is more likely than that of the relevant defendant.

1. To date, Mr Ryan has provided no respondent with a draft appeal index, although the matters have come before the Senior Deputy Registrar for the purpose of settling the appeal index.

1. On 13 May 2021, Mr Ryan issued a subpoena to produce documents to the principal of Capital Lawyers.  The subpoena requires production of a vast array of documents and seems to extend to every document that could conceivably relate to proceedings concerning Mr Ryan, including file notes, billing records, timesheets and communications with anyone connected with Mr Ryan’s claims. The subpoena is not confined to hard copy documents, but also extends to electronic records.

1. In support of the application, the principal of Legal on London provided affidavit evidence that the subject matter of the subpoena includes 36 boxes of documents.  She considered that “the costs involved to compile and copy these files would be astronomical”. 

1. During the hearing of the application, Mr Ryan articulated at least two purposes in seeking the documents:

(a)     To obtain documents that he provided to his former solicitors that were not “acted upon” in connection with the proceeding before the primary judge.

(b)     To obtain financial records that may relate to a dispute about his payment of invoices.

1. I think that I am correct in saying that all parties agreed that the latter category of document could not in any way relate to the issues on appeal.

1. The breadth of the subpoena is such that it is quite unreasonable to expect the applicant to comply with it.  It includes many documents that could have nothing to do with the appeal.  The applicant’s legal representatives note that Mr Ryan is in possession of the briefs that were provided to Mr Menzies QC, who acted for him in the proceedings before the primary judge, and he would have access to numerous documents by that means. 

1. Of course, that does not mean that Mr Ryan has access to all the documents that he considers to be relevant to the appeal. 

1. The subpoena should be set aside. 

1. Mr Ryan knows that he may issue a further subpoena that identifies with particularity the documents that he requires.

1. During the hearing of the application, it became clear that Mr Ryan sought to amend the grounds of appeal in each case to include an additional ground that the primary judge erred by failing to take into account documents that were provided to her Honour. 

1. I grant Mr Ryan leave to amend each notice of appeal within 14 days to insert this ground. 

1. There are also applications to strike out the current notices of appeal and obtain security for costs.  As Mr Ryan has been granted leave to amend the notices of appeal, I will fix these applications for mention before the Senior Deputy Registrar.

1. The applicant sought an order for costs.  Costs will be reserved, noting that ordinarily costs follow the event.

Orders

1. The orders of the Court are:

(1)The subpoena issued on Radhika Reddy dated 13 May 2021 is set aside.

(2)Mr Ryan is granted leave to file and serve any amended notice of appeal by 4:00PM on 1 September 2021.

(3)The applications to strike out the notice of appeal and obtain security for costs are fixed for mention before the Senior Deputy Registrar at 2:30PM on 9 September 2021.

(4)Costs of the application to set aside the subpoena are reserved. 

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell

Associate:

Date: