Thomas v State of New South Wales [2005] NSWSC 1061

Reported Decision : 66 NSWLR 44

New South Wales Supreme Court

CITATION : Thomas v State of New South Wales [2005] NSWSC 1061

HEARING DATE(S) : 18 October 2005

JUDGMENT DATE : 21 October 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The orders made by the Registrar on 4 October 2005 are set aside; the notice to produce dated 25 August 2005 is referred back to the Registrar for further hearing; the questions of the costs of this appeal and the hearing that has taken place before the Registrar are referred to the Registrar for determination; the application to transfer the proceedings to this Court is also referred to the Registrar for hearing.

CATCHWORDS : Review or appeal from Registrar - nature of application and onus - notice to produce (before and at hearing) - procedure at hearing - Uniform Procedure Rules - loss of client legal privilege by disclosure.

LEGISLATION CITED : Uniform Procedure Rules 2005

Bruce Malcolm Thomas (Plaintiff) PARTIES : State of New South Wales (Defendant)

FILE NUMBER(S) : SC 12020/05

Mr T Molomby SC (Plaintiff) COUNSEL : Mr P Saidi (Defendant)

Legal Aid Commission NSW (Plaintiff) SOLICITORS : I V Knight Crown Solicitor (Defendant)

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT FILE NUMBER(S) : 12020/05

LOWER COURT JUDICIAL OFFICER : Assistant Registrar Howe

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

21 October 2005

12020 of 2005 Bruce Malcolm Thomas v State of New South Wales

JUDGMENT 1 His Honour: In 1986, the plaintiff came to be incarcerated in Parramatta Gaol. He came to charged with various offences following injury suffered by another inmate on 24 August 1986. Initially, the plaintiff was convicted on certain charges. An appeal was allowed and the convictions were quashed. 2 The plaintiff claims that whilst in prison, he suffered from, inter alia, assaults, anxiety and depressive illness. 3 On 10 July 2002, the plaintiff commenced proceedings in the District Court. He has since amended the process. A claim for damages is made. The causes of action include malicious prosecution. A part of his damages arise from alleged personal injury. 4 In 2003, the plaintiff received advice from legal representatives as to the quantification of his claim. The court has been informed that this advice was given orally and that no documentation was involved. The defendant refused a request to consent to unlimited jurisdiction. 5 On 16 May 2005, the plaintiff filed a summons in this court seeking an order that the proceedings be transferred to it pursuant to s145 of the District Court Act 1973. It was listed before the Registrar on 9 September 2005. 6 A written advice was obtained from Mr Molomby SC and Ms Kylie Nomchong dated 26 April 2005 (the joint advice). A copy of it was served on the plaintiff (it was an annexure to an affidavit intended to be relied on in the hearing of the proceedings). The effect of the advice was to express an opinion that if the plaintiff succeeded in his claim the quantum of it would exceed the jurisdictional limit of the District Court. 7 The defendant served a notice to produce on the plaintiff. It required the production of certain documents relating, inter alia, to the joint advice. The purpose of the notice was to obtain material for use at the hearing of the summons. 8 Whilst it required production on a hearing day (9 September 2005), it also required a response in accordance with the provision of Rules 21.11 of the Uniform Civil Procedure Rules 2005 (the Rules). It is in a form that follows Form 22 as prescribed thereunder. The notice to produce reads as follows:- A) In relation to the "Joint Advice" (the joint advice of Mr Tom Molomby SC and Ms Kylie Nomchong dated 26 April 2005, which is annexed and marked "C" to Affidavit of David Coorey, sworn 16 May 2005 and served on the defendant under cover of letter from the plaintiff's solicitor dated 17 May 2005): 1. Any Letters(s) of Instruction (and enclosures) from the plaintiff's solicitor to both Counsel regarding the preparation of the Joint Advice. 2. Any Statement(s) of the Plaintiff provided by the Plaintiff and/or the Plaintiff's solicitor to Counsel for the purpose of obtaining the Joint Advice. 3. Any Statement(s) of the Plaintiff provided to the Plaintiff's Solicitors and forwarded by the Plaintiff's Solicitor to Counsel for the purpose of seeking such Joint Advice. 4. Records of any conversations or conferences involving Counsel and/or the Plaintiff and/or the Solicitor, where such conversations or conferences were relied upon in the preparation of the Joint Advice. 5. Any other documentation forwarded by the Plaintiff and/or the Plaintiff's solicitors to Counsel for the purpose of obtaining such Joint Advice. B) Any document(s) recording the advice given by the plaintiff's solicitors to the Plaintiff relating to the appropriate forum for the commencement of the proceedings brought on behalf of the Plaintiff. C) Any document(s) recording the instructions given by the Plaintiff to his solicitors with respect to the appropriate forum in which the Plaintiff's claim should be commenced. 9 The plaintiff moved to have the notice to produce set aside. This application was heard by Assistant Registrar Howe. On 4 October 2005, he delivered reasons for his decision to set aside the notice to produce. 10 The defendant has filed a notice of appeal from registrar (the appeal). It contains five grounds of appeal and seeks to have, inter alia, the orders made by the Registrar set aside. It is brought pursuant to the Rules. 11 It is convenient to digress and mention certain of the provision of the Rules which are relevant to the matters of the appeal and notices to produce. 12 The procedure for applications for review of decisions of a Registrar (other than a Judicial Registrar) may be found in Rule 45. These provisions are significantly different to their predecessors (see Part 61 rule 3 of the Supreme Court Rules 1970). Whilst the rule still speaks of a "review" of a decision of a Registrar, it also uses the term "appeal". The rule introduces changes to the procedure that had existed under the former regime. The rules speak of the institution of an appeal. The notice of motion must set out the grounds relied on in support of the application. Provision is made for the filing of a notice of contention. There are new provisions concerning evidence (Rule 45.23). It is expressly provided that an application does not operate as a stay of the decision of the Registrar. 13 Whilst the use of the language of both "review" and "appeal" may be thought to be confusing, presumably the intention is for a review of a decision of a Registrar to take on at least certain of the trappings of an appeal. This would seem to be consistent with the changes that have taken place over the years. 14 Many of the earlier decisions concerning such a review were made when the functions of a registrar were at least largely administrative. Since that time, the jurisdiction that may be entertained by a Registrar has significantly increased. These days, a Registrar may entertain much of the jurisdiction that was exercised by the former Masters. An exercise of the referral power can confer the jurisdiction entertained by an Associate Justice. 15 The Rules contemplate the serving of a notice to produce either before hearing (Part 21 Division 2: Rules 21.9 – 21.12) or at hearing (Part 34: Rules 34.1 and 34.2). 16 The former provisions appear in a Part that deals with discovery and inspection. The latter is confined to production at hearing (of any specified document or thing). 17 Rule 21.10 specifies what may be the subject of a notice to produce. It may be any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served and "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". 18 Rule 21.11 specifies what the party called upon to produce must do when served with a notice to produce (in the absence of an otherwise order from the court). 19 Rule 21.12 deals with personal injury claims and is in the following terms:- In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, a party is not required to comply with a notice to produce in relation to a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise. 20 The intention seems to be to circumscribe the use of notices to produce. It is restricted to documents and things that are specified or specific. 21 In the present case, what has taken place concerning the notice to produce would not have amounted to compliance with the Rules. If they had application it may be that, inter alia, the defendant has not met the requirements of Rule 21.10 and the plaintiff has not complied with Rule 21.11 (it has not served any notice as contemplated by that Rule in relation to privileged documents). There seems to be an issue as to whether or not it is a claim for damages arising out of bodily injury. 22 At the commencement of the hearing of the appeal, it soon became generally appreciated that the Uniform Procedure Rules presented the parties and the court with some novel considerations. There were also considerations as to whether or not the notice to produce and the application to be set aside should be dealt with by having regard to those Rules. The parties were given a short adjournment to consider the problems that had been thrown up. 23 Upon resumption, the court was asked to deal with the notice to produce and the application to have it set aside on the basis that the Rules had no application to them. Submissions were then made in that context. 24 As the appeal itself had been brought under the Rules, it was common ground that it should be dealt with on that basis. 25 Whilst there may have been some doubt as to the position under the previous regime, it seems to me that under the Rules, the appellant bears an onus to make out an alleged ground and to satisfy the court that it is a ground that justifies the disturbing of the decision of the Registrar. 26 The grounds relied on by the defendant are as follows:- 1. The Assistant Registrar erred in finding, at paragraph 10 of his decision, that the primary purpose behind the Joint Advice referred to was not to seek legal advice. 2. The Assistant Registrar erred in concluding, at paragraph 13 of his decision, that because no documents were referred to as being relied upon in the Joint Advice, no such documents existed. 3. The Assistant Registrar erred in finding, at paragraph 16, that there was nothing in the Joint Advice to demonstrate that there had been any disclosure of instructions given to Counsel by either the instructing solicitor or the client. 4. The Assistant Registrar erred in finding that any client legal privilege has not been either impliedly or expressly waived insofar as same applies to paragraph "A" of the Notice to Produce. 5. The Assistant Registrar erred in holding that the material sought in paragraphs "B" and "C" of the Notice to Produce enjoy client legal privilege, and that they do not go to a disputed issue in the litigation. 6. The Assistant Registrar erred in law in setting aside the Notice to Produce dated 25 August 2005 issued by the defendant and addressed to the plaintiff. 27 The arguments propounded by the parties saw the court being taken to the written reasons of the Registrar. 28 In this case, I am satisfied that the onus has been discharged. 29 There is no issue that the joint advice provided a legal opinion on the question of the likely quantum of any judgment that may be obtained by the plaintiff in the proceedings. There is no issue that what has been done has brought about a loss of client legal privilege in respect of it (its contents have been knowingly and voluntarily disclosed). The contents of the joint advice reveal that material had been provided to counsel for the purposes of the obtaining of that advice (probably a brief to advise and perhaps supplementary material). It may be that a considerable volume of material was involved. 30 By reason of the manner in which the application was conducted before him, the Registrar was left to grapple with a largely unmanageable task. No call was made on the notice to produce. As a result, there was no production of documents to the court and no claim for privilege was made in respect of specific documents. 31 Whilst the plaintiff conceded that there had been a disclosure in respect of the joint advice, the stance was taken that the loss of privilege did not extend to any other document. The question of whether or not there were any other documents was left at large by the parties and saw the Registrar engaged in speculation. 32 The Registrar was left to do his best in these difficult circumstances to come to terms with the questions of whether or not there were other documents and as to what their nature might be. This exercise had to be performed in a context where the notice to produce was lacking in specificity as to the documents the defendant sought to have produced. 33 In the appeal, the plaintiff complained of the lack of specificity. It also sought to advance an argument that, inter alia, because of it, the notice to produce was oppressive. This was an argument that had not been ventilated before the Registrar and the attempt to raise it in the appeal was opposed by the defendant. 34 It seems to me that the dictates of justice are best served in the circumstances of this case if the orders made by the Registrar are set aside and the application to set aside the notice to produce is returned to him for further hearing. If this is done, what should have been attended to in the first place can now be addressed (inter alia, there can be a call on the notice to produce, claims for privilege can be made in respect of produced documents and the basis of each claim can be clearly identified). This will also give the plaintiff the opportunity to ventilate any argument that it may now want to present concerning the notice to produce itself. 35 The orders made by the Registrar on 4 October 2005 are set aside. The notice to produce dated 25 August 2005 is referred back to the Registrar for further hearing. The questions of the costs of this appeal and the hearing that has taken place before the Registrar are referred to the Registrar for determination. The application to transfer the proceedings to this court is also referred to the Registrar for hearing. **********