New South Wales Supreme Court CITATION : Abriel & Ors v Rothman [2002] NSWSC 1010 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20636/01 HEARING DATE(S) : 24 October 2002 JUDGMENT DATE : 24 October 2002 Rudolph Abriel PARTIES : Vera Abriel Premier Knits Pty Ltd Stephen Rothman SC JUDGMENT OF : Sperling J at 1 COUNSEL : Mr Abriel in person Mr J G Duncan for the Defendant SOLICITORS : Mr Abriel in person McCabe Terrill Lawyers for the Defendant CATCHWORDS : Practice & Procedure - subpoena - whether abuse of process - no question of principle DECISION : Subpoena set aside; Plaintiffs to pay Defendant's costs of the motion. - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Sperling J Thursday, 24 October 2002 20636/01 Rudolph Abriel & Anor v Stephen Rothman Judgment 1 His Honour: The defendant appeared as counsel for the plaintiffs on an appeal to the Full Court of the Federal Court of Australia. In subsequent proceedings in this Court, the plaintiffs sue the defendant for damages alleging fault on his part in relation to the conduct of the Federal Court proceedings. The allegations include alleged failure to argue certain grounds of appeal and alleged fault either in representations made or in failure to advise said to have occurred in the course of dealings by the defendant with the plaintiffs in relation to those proceedings. 2 The defendant, by its amended notice of motion filed in court today, pursuant to leave granted at an earlier time, claims an order that the proceedings in this Court be summarily dismissed, and failing that, that there be an order for security for costs. That notice of motion is returnable on 4 November 2002. 3 The plaintiffs have issued a subpoena directed to the defendant requiring his attendance to give evidence at court on 4 November. In response to that, the defendant has filed a notice of motion, dated 23 October 2002 and filed in court today, seeking an order that the subpoena be set aside. 4 The Court will set aside a subpoena if it is, to use the technical expression, an abuse of the Court's process, by which is meant that the subpoena would serve no legitimate forensic purpose. 5 So far as concerns the motion to be heard on 4 November, it is to be observed that evidence on such a motion must ordinarily be given by affidavit. Where, however, for any reason it is not practicable so to do, the Court will allow oral evidence to be called. If a litigant wishes to adduce evidence from an opposite party and has a legitimate basis upon which to do so, that would ordinarily be a case in which the Court would receive oral evidence in lieu of affidavit. 6 In correspondence, the first plaintiff has said that he wishes to cross-examine the defendant when called in response to the subpoena. I do not give that language a technical meaning. The argument before me has been conducted on the basis that the defendant is to be asked such questions as might legitimately be put to him when called to give evidence, whether technically by way of cross-examination or otherwise. 7 It is ordinarily the case that on a defendant's application for summary judgment, the defendant does not adduce evidence going to the facts of the case. That is because summary judgment is, generally speaking, not available if the outcome of the proceedings might turn on a disputed issue of fact. 8 The Court is informed by Mr Duncan of counsel, who appears for the defendant, that on 4 November 2002 the basis upon which it will be argued that the defendant is entitled to summary judgment is twofold: first, that in relation to some at least of the allegations made against the defendant in the principal proceedings, there is a defence of professional immunity as a barrister; and, secondly, that as to all of the allegations made, there was no damage resulting form any such breach of duty because the outcome of the proceedings in the Federal Court would have been no different if the defendant had conducted himself as the plaintiffs now assert he should have done. 9 So far as concerns the prospect of the defendant giving evidence on 4 November, the first point to be made is that the defendant is not a compellable witness in relation to any matter of expert opinion. He is not, for example, compellable to answer whether if such and such had been argued on the appeal in the Federal Court the result would or might have been different. He is a compellable witness only in relation to relevant questions of fact. 10 On the face of it, there does not appear to be any matter of fact, either in relation to the application for summary dismissal or in relation to the application for security for costs, on which the defendant would be in a position to give evidence with any prospect that such evidence might assist the present plaintiffs to resist the orders that are to be sought. In the course of argument today, the first plaintiff, who appeared by leave for all the plaintiffs, was asked by me on a number of occasions what evidence it was thought that the defendant would give, if asked, which would assist the plaintiffs in opposing the orders to be sought on 4 November. There was no responsive answer to my questions. 11 I have to say that it is apparent to me that Mr Abriel, quite understandably and without intending any disrespect to him, does not have an appreciation of the limited scope for evidence and argument in relation to the applications that are returnable on 4 November. He believes that justice would be best served if Mr Rothman were called to give evidence on 4 November and were examined in relation to his account of the events, and of his own thought processes concerning the proceedings in the Federal Court, out of which proceedings in this Court arise. In that regard, he is mistaken. The Court cannot indulge the misconception. 12 In the circumstances which I have outlined, I am satisfied that for the defendant to be required to attend court on 4 November and to be called as a witness would serve no legitimate forensic purpose in aid of the plaintiffs' interests. 13 In view of that finding, the only order which I should entertain making, and which I make, is that the subpoena is set aside. 14 Application is made on behalf of the defendant for the costs of the motion to set aside the subpoena. The ordinary order of the Court is that costs follow the event. The defendant has succeeded on the application and no reason appears as to why the ordinary rule should not be followed. The plaintiffs are ordered to pay the defendant's costs of the motion. –oOo- Last Modified: 10/30/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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