GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 3)

On 26 April 2023 I ordered, for the reasons I gave that day, that Mr Peter Jess attend court to be examined pursuant to s 68 of the Civil Procedure Act 2005 (NSW) in respect of a subpoena served on PJA Accountants & Business Advisors (“PJA”) on 6 September 2022. [1]

I ordered that, in the first instance, the plaintiffs pay Mr Jess’ costs of attendance and of the examination, and that the costs of the plaintiffs’ Notice of Motion of 12 December 2022 seeking the order for examination be reserved.

The examination took place before me on 26 June 2023.

Mr Somerville, who appeared for the plaintiffs with Mr Meyerowitz-Katz, examined Mr Jess. Mr Priestley SC appeared for Mr Jess.

I invited submissions as to what further orders for costs, if any, should be made.

For Mr Jess, Mr Priestley submitted that the plaintiffs should pay their costs of the motion or, at least, that each party should pay its own costs of the motion, leaving the order as to the costs of attendance and of the examination undisturbed.

For the plaintiffs, Mr Somerville and Mr Meyerowitz-Katz sought an order that Mr Jess pay the costs of the motion, albeit not the costs of his attendance at the examination, nor the examination itself; with the intent that the existing orders concerning the latter matters remain.

I am persuaded I should make the orders sought by the plaintiffs.

As I set out in my judgment of 26 April 2023, prior to the hearing of the plaintiffs’ motion on 21 April 2023, Mr Jess had purported to comply with the subpoena on three occasions:

On 7 February 2023, the same day as Mr Jess’ third response to the subpoena, Polczynski Robinson, the solicitors for the third and fourth defendants, and who were then also acting for Mr Jess, wrote to the plaintiffs’ solicitors:

On 10 March 2023, the Court made directions setting out a timetable for evidence and submissions. One of the directions was that PJA file and serve any evidence in opposition to the plaintiffs’ motion by 31 March 2023. No such evidence was served.

On 13 April 2023, Polczynski Robinson wrote to the plaintiffs’ solicitors, stating that Mr Jess was overseas, that they were awaiting instructions but expected that PJA would tender Polczynski Robinson’s letter of 7 February 2023 at the hearing of the motion.

I heard the motion on 21 April 2023. The author of Polczynski Robinson’s letters of 7 February 2023 and 13 April 2023 appeared for Mr Jess but stated that she had no instructions and accordingly made no submissions in respect of the motion.

On 1 June 2023, Mayweathers, who are now acting for Mr Jess and PJA, wrote to the Registrar:

The documents produced thus included communications between February and March 2020, notifying the third and fourth defendants of various dealings. It is the plaintiffs’ position that these documents are “precisely what the subpoena had originally sought to obtain”.

On 16 June 2023, Mayweathers wrote a further letter to the Registrar:

At the examination, Mr Jess explained that, although PJA had migrated to an electronic system in about 2019, he did not himself seek to access that electronic system because he does not use a computer but, rather, reviewed PJA’s paper files associated with the fourth defendant. Mr Jess said that when he could not find anything in the paper files, he asked his personal assistant to check if she could find anything electronically. Mr Jess’ explanation for the further production in June 2023 was that he asked his administration staff to do what he described as a “deep dive” to look for any documents that had been sent or received from the various email addresses that PJA used to communicate with the third and fourth defendants.

What Mr Jess described as a “deep dive” was, evidently, no more than a proper search of PJA’s records, as was required by the subpoena when it was first served in September 2022.

The events that unfolded persuade me that, contrary to the assertions made by the solicitors then acting for Mr Jess on 7 February 2023, there was reasonable cause to proceed with the examination of Mr Jess.

Had Mr Jess directed his staff to take a “deep dive” into PJA’s records at the time that the subpoena was first served, there would have been no need for the plaintiffs to file a Notice of Motion seeking to have Mr Jess examined, nor for the examination to have proceeded.

In those circumstances, I order Mr Jess to pay the plaintiffs’ costs of the plaintiffs’ Notice of Motion of 12 December 2022.

As I have said, the plaintiffs accept that such costs should not include Mr Jess’ costs of travelling from Melbourne to Sydney to attend the examination, nor the costs of the examination itself.