New South Wales Supreme Court CITATION : Grace v Grace [2010] NSWSC 1527 HEARING DATE(S) : 1 December 2010 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 1 December 2010 DECISION : Order that the subpoena issued to James Tuite & Associates on 22 November 2010 be set aside. CATCHWORDS : PROCEDURE – Evidence – Subpoena – Subpoena for production of documents –whether legitimate forensic purpose to obtain further evidence for use on costs argument, which would undermine substantive findings CATEGORY : Procedural and other rulings Biseja Pty Ltd v NSI Group Pty Ltd [2006] NSWSC 1497 CASES CITED : Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) (1987) 1 WLR 1027 Jones v Dunkel (1959) 101 CLR 298 Meltend Pty Ltd & Rosenbaum v Restoration Clinics of Australia Pty Ltd & Marzola (1997) 75 FCR 511 David Alexander Grace (plaintiff) Deborah Sharon Grace (first defendant) Julienne Grace (second defendant) PARTIES : Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant) Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant) Dutchie Pty Ltd (sixth defendant) Phoenix Rising Investments Pty Ltd (seventh defendant) FILE NUMBER(S) : SC 06/259566 COUNSEL : D Williams SC w S Goodman (plaintiff) A Moses SC w D Stewart (first, second & seventh defendants) SOLICITORS : James Tuite & Associates (plaintiff) Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Wednesday, 1 December 2010 2006/259566 David Alexander Grace v Deborah Sharon Grace & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff applies orally for an order setting aside a subpoena for production issued at the request of the defendants on 22 November 2010, first returnable on 30 November 2010, and implicitly adjourned until today 1 December, and addressed to the plaintiff's solicitors James Tuite & Associates, requiring production to the court of the following documents: 1. All documents in relation to communications between James Tuite & Associates and/or any person on behalf of James Tuite & Associates with CompliSpace Pty Ltd (ABN 24 099 302 655) and/or any person on behalf of CompliSpace Pty Ltd (ABN 24 099 302 655) from 8 November 2010 to date. 2. All documents relating to receipt, review and any conclusion as the copies of the First and Second Defendant's discovery identified as 33-082 to 33-607 delivered to CompliSpace Pty Ltd (ABN 24 009 302 655) (formerly Premium Advisory) on or about 4 December 2007, for the period 4 December 2007 to 31 December 2009. "Documents" includes but is not limited to correspondence, letter, memorandum, reports, facsimile transmissions, emails (both printed and electronic), file notes, handwritten notes, minutes of meetings (both printed and handwritten), diaries (both hand written and electronic), computer disks or other such methods of storage of information from a computer hard drive as many be employed. 2 Upon service of the subpoena, the plaintiff's solicitors requested the defendants' solicitors Clinch Long Letherbarrow to explain the legitimate forensic basis claimed for it, which they essayed to do in a letter of 25 November 2010 to James Tuite & Associates relevantly as follows: James Tuite & Associates subpoena Your client has in submissions by Senior and Junior Counsel asserted to the Court that there was no obvious mistake apparent to an inspecting party (paragraph 5 of the plaintiff's written submissions) in relation to the privileged documents in volume 33 of our clients' discovery. No evidence was led by your client on that issue, and your client's Senior Counsel relied on the fact that your client had changed solicitors. It was held by the Court that no adverse inference would be drawn against your client as to the failure to call your client's former solicitor. This was in part based on the fact that your client had changed solicitors, and given in the shortness of time for the application to be prepared prior to it being dealt with by the Court. Following the decision of the Court on this application, your client's Senior Counsel informed the Court that indemnity costs were sought in relation to the application [T 915.30]. There is a legitimate forensic purpose in our clients exploring what communications in fact occurred from 8 November 2010, being the time of our client's application, to date between you and your client's previous solicitors. Further, in light of the positive assertions that an inspecting party would not have recognised the obviousness of the mistake, it is legitimate to explore what in fact occurred in relation to you and your client's former solicitors upon receipt and review, and any conclusion drawn in relation to documents identified in discovery as 33-082 to 33-607. In essence: (a) whether or not the failure to call evidence was, in fact, due to CompliSpace being your client's former solicitors; (b) the shortness of time for the application; and (c) whether or not your and/or the previous solicitors in fact considered the documents to have been provided other than by mistake, are properly matters that should be ventilated in determining the costs of the application. It is clear that these matters shed light on whether there has been any relevant conduct on the part of your client or his lawyers that would deprive him of a costs order, let alone an indemnity costs order. 3 The decision of the Court referred to in that letter was one in which, on 16 November 2010, for reasons which I gave shortly then and have subsequently elaborated and will be published as soon as their engrossment has been finalised, I held that the documents, called in that judgment the volume 33 or V 33 documents, insofar as they were ever privileged, had lost any entitlement to privilege by waiver as a result of, inter alia (1) their disclosure in the open part of the list of documents, (2) their production for inspection, (3) references made to them in tender bundles served before the hearing, (4) the inevitability that they must have been referred to in the course of answering requests for particulars, and (5) the failure to assert any claim for privilege earlier than it was in about the third week of the hearing. Further, I held that there was no such obvious mistake in the disclosure of the documents as would have attracted the principle referred to in cases such as Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) (1987) 1 WLR 1027, [144]; Meltend Pty Ltd & Rosenbaum v Restoration Clinics of Australia Pty Ltd & Marzola (1997) 75 FCR 511, 524-526; and Biseja Pty Ltd v NSI Group Pty Ltd [2006] NSWSC 1497, [14]. In reaching that conclusion, I declined to draw an inference adverse to the plaintiff from the circumstance that he had not called the solicitor who had inspected the documents when discovered to say that it did not occur to him or her that there had been a mistake – because, first, the claim for privilege and the application for an order for return of the relevant documents and an injunction restraining further use of the information derived from them had come on for hearing with about 24 hours' notice and, secondly, the solicitors who had been acting for the plaintiff at the time when discovery was given were no longer the plaintiff's solicitors. 4 After I had given judgment in respect of that application the plaintiff sought an order for costs including that the defendants pay his costs of the application on an indemnity basis. Although the plaintiff wished to proceed immediately with that application, at the request of the defendants I deferred it until the conclusion of the hearing. 5 Other relevant context includes that today is the 27th hearing day of the trial which, as things presently appear, will see the evidence conclude tomorrow. 6 It is clear enough, on the face of Clinch Long Letherbarrow's letter of 25 November 2010, that the purpose of the subpoena in question is to obtain, if it exists, evidence to show either that the solicitor who inspected the documents did in fact advert to the possibility that the disclosure of the V 33 documents was mistaken, and/or at least that there had been such communications between the plaintiff's present solicitors and that solicitor since the claim for privilege had arisen as would falsify the basis on which I declined to draw a Jones v Dunkel (1959) 101 CLR 298 inference adverse to the plaintiff from the failure to call that solicitor to give evidence. 7 In other words, it seems to me plain enough that, whilst eschewing any attempt to reopen the court's ruling on the claim for privilege, the purpose of the subpoena is to elicit evidence for use on the costs argument to show that, had further material been before the court at the time at which the privilege decision was made, there would or should have been a different outcome. 8 In my view, that is not a legitimate forensic purpose. If it were, then it would be open to a party who suffered an adverse judgment by reason of a Jones v Dunkel inference, then on a costs argument to call additional evidence to show that it was wrong for that Jones v Dunkel inference to be drawn. That is essentially what the defendants seek an opportunity to do here. 9 Even in respect of interlocutory and evidentiary applications, as well as substantive matters, there must be finality and, in my view, to permit this course to be followed would be so contrary to the Court's statutory duty to dispose of these proceedings justly, quickly and inexpensively, that it ought not be embraced. 10 I order that the subpoena issued to James Tuite & Associates on 22 November 2010 be set aside. ********** 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.