Kirsty Metcalf fails in bid to subpoena documents from Heather Wellington

The latest chapter in a defamation battle between a ratepayer and a councillor has unfolded in the Supreme Court.

Heather Wellington (left) and Kirsty Metcalf (right).

A ratepayer ordered to pay legal fees after making defamatory remarks about a Surf Coast councillor has attempted to access numerous documents in a bid to appeal the decision.

In 2017, Kirsty Metcalf and her husband submitted a planning application to Surf Coast Council for a helipad and helicopter carrier at their Freshwater Creek property.

Council was unable to come to a decision, and the couple later took the matter to the Victorian Civil and Administrative Tribunal, with the planning authority allowing for four daily flights from the property.

In 2020 Metcalf made seven defamatory posts on Facebook about Heather Wellington, who is not seeking re-election this year after 12 years on council.

Ms Metcalf implied Ms Wellington “told lies in relation to a planning permit”, was “delusional”, engaged in corruption and fraudulently claimed reimbursement for fuel expenses.

Ms Wellington was awarded $100,000 and on December 15, 2022, Ms Metcalf was ordered to pay the plaintiff’s costs of the proceeding.

Ms Metcalf earlier this year took to social media to claim the legal costs amounted to hundreds of thousands of dollars.

She has sought leave from the Supreme Court to appeal the orders to pay the legal costs of Ms Wellington.

As part of ongoing legal proceedings, Ms Metcalf filed a notice to produce and a subpoena for a number of documents.

Ms Metcalf claimed Ms Wellington didn’t provide several documents before the trial and wanted access to documents which included emails relating to Ms Wellington’s freedom of information requests as well as an investigation of Ms Wellington for the alleged misuse of her position, documents showed.

In 2019, the Local Government ­Inspectorate absolved Surf Coast Shire Ms Wellington of any wrongdoing two months after it started investigating the councillor.

Ms Metcalf also wanted to see emails to or from Ms Wellington’s council email address which included emails, notes or briefing minutes prepared/sent by the council and councillors in regard to her planning application.

Ms Metcalf’s legal counsel argued the documents being requested were relevant to the appeal application because they relate to how much Ms Wellington failed to discover a number of relevant and discoverable documents prior to trial.

On Friday the Supreme Court handed down its decision on if it would grant Ms Metcalf’s request.

The notice to produce documents and the subpoena were not granted and ultimately set aside by the Supreme Court judges Kevin Lyons, Stephen O’Meara and Susan Kenny.

The judges said the range of documents sought by the defendant was “very broad”.

“Counsel for the defendant properly appeared to concede that the documents sought to be produced might result in more documents being produced than might have been required to be produced by the plaintiff pursuant to the discovery orders,” they said.

“In all these circumstances, we consider the notice to produce and the subpoena were not issued for a legitimate forensic purpose and constitute fishing.

“They must be set aside.”

The matter will return to court at a later date.

Originally published as Kirsty Metcalf fails in bid to subpoena documents from Heather Wellington