Pollack, Philip John v Retravision (NSW) Ltd (ACN 000 384 565) [1996] FCA 1124

CATCHWORDS PRACTICE and PROCEDURE - Whether statement of claim can be amended to plead cause of action arising after proceedings commenced - Subpoena - Legal Professional Privilege - Whether waiver by client Legal Profession Act 1987 Shields v Australian and New Zealand Banking Group (unreported, Federal Court of Australia, 15 August 1995) Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274 Baldry v Jackson (1976) 2 NSWLR 415 King v Milpurrurru (1996) 136 ALR 327 Re Stanhill Consolidated Ltd [1967] VR 749 Trades Practices Commission v Sterling (1978) 36 FLR 244 No. NG 442 of 1995 PHILIP JOHN POLLACK v RETRAVISION (NSW) LIMITED

MOORE J SYDNEY 23 December 1996

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 442 of 1995 ) GENERAL DIVISION ) BETWEEN: Philip John Pollack Applicant AND: Retravision (NSW) Limited (A.C.N. 000 384 565) Respondent JUDGE: Moore J PLACE: Sydney DATE: 23 December 1996 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application to further amend the statement of claim is dismissed. 2. The subpoena to Andrew Stuart Brown of 18 June 1996 is set aside. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 442 of 1995 ) GENERAL DIVISION ) BETWEEN: Philip John Pollack Applicant AND: Retravision (NSW) Limited (A.C.N. 000 384 565) Respondent JUDGE: Moore J PLACE: Sydney DATE: 23 December 1996 REASONS FOR JUDGMENT On 22 June 1995, Philip John Pollack filed an application in this Court accompanied by a statement of claim alleging that Retravision (NSW) Limited ("Retravision") had conducted itself in proceedings in this Court and the Supreme Court of New South Wales in a way that constituted an abuse of process. Pollack claimed damages. Pollack is a solicitor and in 1994 and 1995 had been acting for several individuals engaged in litigation with Retravision both in the Supreme Court of New South Wales and this Court. The cause of action is said to arise from the conduct of that litigation by Retravision. The statement of claim has been amended on several occasions though the essence of the cause of action remains as originally pleaded. An application to strike out the statement of claim was, in substance, dismissed by Einfeld J on 8 March 1996. The practice of Pollack is now being managed by a manager appointed under Part 8A of the Legal Profession Act 1987 (NSW). The manager is Mr Andrew Stuart Brown. On 18 June 1996 the solicitors acting for Retravision in these proceedings, JR Gibb & Co, caused a subpoena for production to issue from the New South Wales District Registry. It was directed to Andrew Stuart Brown, Manager of the Law Society of New South Wales. It required the production in this Court on 26 June 1996 of documents listed in a schedule to the subpoena which provided: " All documents which, at the date of appointment of Andrew Stuart Brown as manager to the practice of Philip Pollack, were in the possession, custody or power of Philip John Pollack and relate to one or all of the following:- a) Stanley Street; b) June Sheila Street; c) Francis Terence Halls; d) Colleen May Halls; e) Simone Alicia Halls; f) Jason Terence Halls; g) Janice June Street; h) Warren Street; i) Lynette Ann Luff; j) Andrew McMahon; k) Ashley Briggs; l) Bruce Rossiter; m) John Raymond Copeland; n) Leah Maree Simpson; o) Michael Edward Howarth; p) James Warren Herbert Byrnes; q) Terry's Sound Lounge Pty Limited; r) Jancollyn (1980) Pty Limited; s) Terry's Pty Limited; t) ACC Australian Credit Corporation Limited; and u) Rancham Pty Limited. and including specifically the file known as "Street & Halls v Retravision (N.S.W.) Limited: (your ref AB754). "Documents" where used herein includes, without limiting the generality of the foregoing, the originals, or where the originals are not available, copies of all correspondence, diary notes, reports, audit reports, file notes, minutes, memoranda of conversation, journals, balance sheets and trust and office account ledgers, memoranda of fees (both paid and unpaid), and shall include computer discs, computer tapes or any other form of electronic storage of information." It is this subpoena that has given rise to this interlocutory application. On 17 September 1996, Pollack made application for, relevantly, two orders. The first was that the subpoena for production be set aside. The second was that leave be given to amend the statement of claim. I will deal first with the application to amend. The amendment is intended to plead that the issue of this subpoena is itself an actionable abuse of process in substantially the same way as the abuse of process was initially pleaded. However the answer to the application to amend raised by counsel for Retravision is both simple and decisive. The Federal Court Rules permit amendments to pleadings and the relevant rules are cast in wide language. O13 r2 provides: "(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. ... (7) An amendment may be made notwithstanding that the effect of the amendment will be to add or substitute a new claim for relief or another foundation in law for a claim for relief if the new claim for relief or foundation in law for that claim arises out of the same facts of substantially the same facts as those already pleaded to support existing claims for relief by the party applying for leave to make the amendment." Reference should also be made to O11 r7 which provides: 7. A party may plead a new matter which has arisen since the commencement of the proceeding. It can be seen that the cause of action alleged to have arisen from the service of the subpoena was founded on conduct on or about 18 June 1986. It was then that the cause of action arose which was many months after the time at which the statement of claim was filed. The applicable principle was discussed by Lockhart J in Shields v Australian and New Zealand Banking Group, (unreported, Federal Court of Australia, 1 August 1995). His Honour said: "A plaintiff must establish his cause of action at the date of the commencement of the proceeding; and an amendment dates back to the original filing of the initiating process. Hence a plaintiff cannot in the absence of statutory authority amend the proceeding without the defendant's consent by adding a cause of action which has accrued to him since the commencement of the action: Eshelby v Federated European Bank Limited [1932] 1 KB 254 and Wigan v Edwards (1973) 1 ALR 497 per Mason J. at 515 with whose reasons for judgment Walsh J. and Gibbs J. agreed on this matter at 501 and 508-509 respectively." See also Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274. Thus, in the present case, the cause of action arose after the proceedings had been commenced. Thus, and in the absence of consent, the amendment should not be allowed unless it is authorised by, relevantly, the Federal Court Rules. The only basis on which it might is O11 r7. The application of that rule depends upon what is comprehended by the word "matter". That word in O11 r7 appears, in the same context, in Part 15 Rule 16 of the Supreme Court Rules 1970 of the Supreme Court of New South Wales. There is a minor difference in the language but it is not, in my opinion, material. In Baldry v Jackson (1976) 2 NSWLR 415 the Court of Appeal determined that the word "matter" did not include a cause of action. That conclusion was based, in part, on an analysis of the Supreme Court Rules as a whole. It appears in the judgment of Samuels JA, with whose reasons Moffit P and Glass JA agreed. While the language of the rules of the Federal Court Rules differ, in some respects, with the rules analysed by Samuels JA, much of it is, for relevant purposes, the same. The decision of the Court of Appeal remains persuasive authority that O11 r7 of the Federal Court Rules does not permit an amendment that pleads a cause of action which arose after the original statement of claim and application was filed. The scope of O11 r7 was adverted to but not dealt with exhaustively by a Full Court of this Court in King v Milpurrurru (1996) 136 ALR 327 at 332.7 per Jenkinson J and 334.1 per Lee J. In the absence of a compelling argument to the contrary, I should follow Shields (supra). I refuse leave to amend the statement of claim. I now deal with the question of whether the subpoena should be set aside. I earlier set out the terms of the subpoena of 18 June 1996 directed to the Manager of the Law Society of New South Wales. On 23 July 1996 the matter was before Davies J. On that occasion, Brown indicated that the subpoena addressed to him concerned files filling eight archived boxes which he characterised as "client's files". In relation to those files the following statement was made by Mr Brown: "The files obviously did contain things like briefs to counsel and what have you and I have now had that opportunity and all the clients have without exception stated they wish to claim legal professional privilege on those files."