Craig v Johnson (No. 4) [2021] NSWSC 81

Supreme Court New South Wales

Medium Neutral Citation: Craig v Johnson (No. 4) [2021] NSWSC 81 Hearing dates: Decided on the papers Date of orders: 12 February 2021 Decision date: 12 February 2021 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The plaintiffs' application for leave to issue subpoenas to Optus and Telstra is rejected. (2) The plaintiffs' notice of motion filed on 27 October 2020 is dismissed. (3) The plaintiffs are to pay the defendants' costs of the motion. Catchwords: PROCEDURE – leave to issue subpoena – unrepresented litigant – oppressive – seeking irrelevant material Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Lorretta Kistmah Craig & Ors (Plaintiffs) Anthony Francis Johnson & Ors (Defendants) Representation: Counsel: Self-Represented (Plaintiffs) D Lloyd (Defendants)

Solicitors: Self-Represented (Plaintiffs) Moray & Agnew (Defendants) File Number(s): 2016/328254 Publication restriction: Nil

Judgment 1. The plaintiffs, who are self-represented, by Notice of Motion filed on 27 October 2020 seek leave of the Court to issue subpoenas to Optus and Telstra. 2. I refuse that leave for the reasons that follow.

Background 1. The plaintiffs have sued the defendants who are partners in a firm of solicitors Johnson Winter Slattery, "JWS", for damages for professional negligence. The plaintiffs allege that when acting on their behalf in Commercial proceedings in the Equity Division of this Court, JWS failed to give them proper advice in relation to an offer of settlement made by the defendants in those proceedings. 2. Issues in these current Common Law proceedings, listed for final hearing for five weeks commencing on June 2021, include the proper construction of the written offer made by the defendants in those Commercial proceedings, the attitude that the defendants may have taken if requested to clarify the offer had such a request been made and what conversations were had between the plaintiffs and JWS about the offer. 3. The plaintiffs have pleaded - and intend to give evidence about - three telephone calls in which they allege advice was given by JWS to "ignore" the settlement offer. The plaintiffs allege that those calls occurred on 6 September 2013, 9 September 2013 and 17 September 2013 and were conversations between Ms Loretta Craig and Mr Andreas Piesiewicz. 4. The subpoenas in issue each seek production of the following documents: All "documents" as defined in the Dictionary to the Evidence Act 1995 (New South Wales) comprising: 1. Documents recording particulars of all telephone calls made by means of the Optus network occurring between 6 September 2013 and 15 November 2013: 1. to or from any one or more of the following Australian telephone numbers: 1. xx x xxxx xxxx 2. xx x xxxx xxxx 3. xx x xxxx xxxx 4. xxxx xxx xxx 5. xxxx xxx xxx to or from any one or more of the following Australian telephone numbers: 1. xxxx xxx xxx 2. xxxx xxx xxx including the name or names of the Optus account holder pursuant to which the calls were made or received, date of any such calls, the time of the calls, the numbers called and the duration of the calls.