Hortis v Papanikolaou [1999] NSWSC 34

New South Wales Supreme Court CITATION : Hortis v Papanikolaou [1999] NSWSC 34 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3643/97 HEARING DATE(S) : 1 February 1999 JUDGMENT DATE : 1 February 1999

George Papanikolaou and Maria Papanikolaou (Appellants) PARTIES : ISP Law (Respondent) (Non party)

JUDGMENT OF : Young J

LOWER COURT JURISDICTION : Supreme Court (Master) LOWER COURT FILE NUMBER(S) : as above LOWER COURT JUDICIAL OFFICER : Master McLaughlin

COUNSEL : Not applicable SOLICITORS : Appellants: Douglas Knaggs Respondent (Non party): D J Catts CATCHWORDS : Procedure [111]; Subpoena; Access; When access should be granted. ACTS CITED : Evidence Act 1898 (NSW) s 12 Supreme Court Act 1970 (NSW) s 74 DECISION : See paragraphs 17-19

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG, J

MONDAY, 1 FEBRUARY 1999

3643/97 - HORTIS V PAPANIKOLAOU

JUDGMENT 1 HIS HONOUR : This is an appeal from Master McLaughlin, who was reviewing an order of a Registrar refusing access to the applicants of documents produced under subpoena by a law firm, ISP Law, which has now ceased to practise as such. 2 It would seem (and I use those words advisedly, as there was very little evidence before either the Registrar or the Master) ISP Law have acted for the present cross-claimants in some commercial matters, which in a sense have led to the current litigation. Thus ISP Law were acting for the cross-claimants in earlier matters, they have never acted for them in the present proceedings. 3 The documents were produced to the court constituted by a Registrar and the question before the Registrar was whether there should be access. The learned Registrar refused access. He did not give any reasons, and it would seem that the decision was made in the hurly burly of a normal directions list. There was some mention made before the Registrar of a possible solicitors' lien. 4 The cross-claimants asked the Master to review that decision. The Master took the view that there was virtually no evidence of anything before him; there was no evidence of any lien; there was no material which could assist him and, accordingly, he should merely dismiss the application to review. However, he made it clear that further applications could be made for access to the documents at appropriate times on proper evidence. From that decision the current appeal was lodged. 5 With great respect, the principles upon which access to documents is given in this Court at the present day appear to have been largely overlooked. 6 It needs to be said that current day practice is different to the practice that existed in former years and because methods of trial have altered, one needs to adjust what happened in former years to produce the same result under the current practice. 7 Subpoenas used to be returnable at the hearing, so that when a document was produced to a court it was produced to the court when it was conducting the trial. 8 When a document was produced to the trial court under s 12 of the Evidence Act 1898 the judge had to consider whether he or she would grant access. The practice in New South Wales, as appears in Glass Seminars on Evidence (Law Book Company, Sydney, 1970) in the paper of Moffitt J, as his Honour then was, at page 7, was that the judge would not grant leave for a party to inspect a document unless that party was bound to put the document in evidence. However, there was a discretion given to the judge and he or she might exercise that discretion the other way. In particular, the judge would not give leave to inspect the document if he or she was informed that the owner of the document may need it to conduct a cross-examination, so that the contents of the document should not be disclosed so as to destroy the cross-examination. 9 In former years there was a big gap between the law of discovery and the law governing subpoenas. However, the decisions made in the old cases on discovery are of assistance in situations such as the present. 10 When a document was discovered the person giving discovery alerted the other side to the existence of the document and it could be inspected. However, it being inspected, and a copy made, did not make it any evidence in the case, and the rule was where the defence was a solicitor's lien, that the lien was no objection to discovery and inspection of the document because the lien only stopped possession of the document, or it being deployed in evidence, not inspection: Lockett v Cary (1864) 10 Jur (NS) 144. In that case Romilly MR held that there could only be inspection of the documents at the solicitor's office, but no copies could be made. In Pratt v Pratt (1882) 30 WR 837, Bacon VC said that copies were merely for the purpose of assisting the memory and were not evidence, unless the original was lost, and as a person could learn a document by heart it was idle to stop copies being made because the copies could not be put in evidence. 11 Today the rules of evidence are more relaxed and it is possible that the copy made could be used in evidence unless some particular order was made. 12 One cannot go back to the old subpoena law because it would not be right to say to a party seeking inspection of documents that that party must deploy all the documents inspected into evidence. One reason for this is that an unscrupulous opponent might put into the box to be inspected all sorts of self-serving statements which the other party would then be bound to tender. One, accordingly, cannot follow the old practice under s 12 of the former Evidence Act 1898 when subpoenas were returnable at the hearing. 13 It seems to me that when applications are made for access and the claim is voiced by the owner of the documents that there is a solicitor's lien that at least until the issue of the lien is resolved or dealt with by some process like the application in lieu of distringas under s 74 of the Supreme Court Act 1970, one should follow by analogy the discovery decisions to which I have referred. That is, access should be allowed to the documents on the basis that copies may be taken but only on an undertaking that those copies will not be tendered in evidence in any court without further leave of a court and on the basis that it is understood that any lien affecting the document is not discharged. 14 When a Registrar has to consider the question of access to documents the first question to consider is whether the documents could be relevant to the case of the person seeking production. It is not only documents which are relevant to a fact in issue that may be subpoenaed, but documents ancillary to such issues. Prima facie the assertion of the person issuing the subpoena that they are so relevant, at least if supported by some reasoning, should be accepted and access should be granted. 15 The onus is really on the person objecting to show some reason why access should be denied. A reason may be that the forensic value of the documents is such that they should not be prematurely disclosed to the opponent, especially in a fraud case. There may well be other good answers which the Registrar will have to evaluate. Where there is a claim for a solicitor's lien then ordinarily an order should be made for access, preserving the lien and taking an undertaking as to copying. In due course the way of dealing with liens is for a proper bill to be produced and security given for the lien or other arrangements made. 16 I should add that in the instant case there was no actual evidence of lien. All I have is a suggestion that there is an amount owing of some $14,000 by the solicitors concerned and a counter-allegation that whilst there may be some moneys owing for costs, there is also the liability of those solicitors for damages which will need to be resolved in due course. 17 Accordingly, the court grants access to the documents produced, upon the solicitor for the cross-claimants undertaking that any copies made in the course of inspecting the documents will not be deployed in evidence and on the basis that any existing lien of the solicitors producing the documents is preserved pending further order of the court. 18 The next question is the question of costs. The learned Master ordered the cross-claimants to pay the costs. As I am really setting aside his decision, that order must go. 19 It seems to me that the present appeal is the first time that the matter has really been considered on the basis of principle and that the appeal before me was something in which each side got something and lost something. I think that the Master should have allowed the appeal and, accordingly, the cross-claimants should have their costs before the Master and each side should pay their own costs of the appeal before me. oOo