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. Submissions 1. The plaintiffs argued that they require production of the identified documents because the telephone conversations are denied by the defendant and the documents produced would "go to the issue" of establishing that the telephone conversations took place and would "corroborate that fact". 2. The parameters of the documents sought under the two proposed subpoenas, covering as they do a period of just over two months, would, establish that "no conversations" took place in October and November 2013 except for one conversation on 13 November 2013. 3. Further, the plaintiffs argued, in the face of a response from JWS to a notice to produce issued by the plaintiffs that there were no file notes of the telephone conversations between Mrs Craig and Mr Piesiewicz on the dates she identified, and the subpoenaed documents have an important role in "corroborating the plaintiffs' evidence of the three conversations". 4. The defendants argued that the subpoenas seek documents which are far too broad in scope, going well beyond matters that might be relevant to the facts in issue in these proceedings. 5. The subpoenas are not confined to seek records of calls between Mr Piesiewicz and Ms Craig, but rather, as currently drafted, what is sought is records for any call placed to or made from seven different phone numbers. The first phone number is reception at JWS, two of the others relate to a phone belonging to Anthony Johnson, a lawyer at JWS who is not alleged to have been a participant in any of the three identified calls. It is self-evident that as currently drafted, the subpoenas would capture any call to or from, for example, JWS's reception over a two month period. Those calls cannot be relevant to the claims in these proceedings. It would also cause an unnecessary burden to the recipients to produce such a large volume of irrelevant material and would waste costs in the proceedings. 6. Further, there would be an obvious claim for privilege with respect to all the calls other than those alleged to have occurred between Ms Craig and Mr Piesiewicz. 7. In relation to two of the three calls in issue, the documents sought to be produced would be of such little utility that the Court should in its discretion refuse leave. The plaintiffs already have available, (appended to the proposed subpoena to Telstra), a prepaid usage history document from Telstra which shows a telephone call from a prepaid mobile number used by Ms Craig to Mr Piesiewicz's direct line at 8:03pm on 9 September 2013 noting a 13 minute and 42 second call. In light of that material there is no legitimate forensic purpose in the proposed subpoenas seeking the same information in relation to the 9 September 2013 call. 8. In respect of the phone call on 17 September 2013, Mr Piesiewicz does not deny that he spoke with Ms Craig by telephone on that date, but denies the conversation was in the terms alleged by the plaintiffs, as set out in his affidavit sworn 20 December 2019 at [213] and [214]. The documents captured by the proposed subpoenas would not assist with the issue in dispute which is about the content of the conversation on that date, not the fact that it occurred. Principles 1. Rule 7.31 of the UCPR relevantly provides that a subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings. 2. Self-evidently the Court should not grant leave to issue subpoenas that are an abuse of process because they are oppressive or seek material irrelevant to the issues for determination between the parties. Consideration 1. The range of the material caught by the subpoena to Telstra and Optus in the form currently drafted must, of necessity, result in the production of thousands of records about phone calls which are entirely irrelevant to these proceedings. 2. There is a significant question mark over whether it could be a legitimate forensic purpose to require the production of thousands of pages of records about phone calls in an effort to attempt to prove the absence of a particular phone call between particular people during a given period. 3. Further, I accept the defendants' argument that in respect of the identified phone call on 9 September 2013 there is already available between the parties a record evidencing the date and time and length of a particular call between Ms Craig and a solicitor from the defendants' firm. 4. I also accept the defendants' submission that the issue in dispute is not the fact of a phone call between Ms Craig and Mr Piesiewicz having occurred on 17 September 2013, but the content of that phone discussion. 5. The fact that there was no file note of telephone conversations between Mr Piesiewicz and Ms Craig in September 2013 to produce when sought by the notice to produce issued by the plaintiffs is simply the state of the evidence and something the defendants will have to deal with in their case. It does not justify leave to issue a subpoena which is oppressive and will result in the production of thousands of pages of irrelevant telephone records, the production of which is of questionable forensic purpose or utility. Other Orders sought in the Plaintiffs' Notice of Motion 1. The plaintiffs had sought three additional orders in their notice of motion filed on 27 October 2020, including an order that I disqualify myself from hearing the notice of motion. The plaintiffs indicated in their submissions filed on 20 January 2021 that those orders were no longer pressed. Consequently that part of the notice of motion will also be dismissed. 2. Revised proposed subpoenas were provided by the plaintiffs with their submissions of 20 January 2021 in lieu of those that were initially the subject of orders 4 and 5 of the notice of motion. I note that I have determined this application based on those revised proposed subpoenas. 3. In the circumstances costs will follow the event and (Rule 42.1 of UCPR) and the plaintiffs must pay the defendants' costs. Orders 1. I make the following orders: 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. ************ Amendments 05 March 2021 - Coversheet, Representation, Counsel - removed the name "I Archibald" before the word "Plaintiffs" in () and added the word "Self-Represented" Coversheet, Representation, Solicitors - removed the name "Charles Filgate Giles & Associates" before the word "Plaintiffs" in () and added the word "Self-Represented" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2021