Taylor v Tracey O'Neill t/as O'Neil Marengo (a Firm) [2012] NSWSC 626

Supreme Court New South Wales

Medium Neutral Citation: Taylor v Tracey O'Neill t/as O'Neil Marengo (a Firm) [2012] NSWSC 626 Hearing dates: 7 June 2012 Decision date: 08 June 2012 Before: McCallum J Decision: Decision of Registrar refusing to set aside subpoena upheld. Catchwords: PRACTICE AND PROCEDURE - subpoenas - application for review of decision of Registrar refusing to set aside subpoena to Commissioner of Police seeking criminal record of plaintiff and her deceased partner - whether abuse of process Legislation Cited: Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: A v Z [2007] NSWSC 899; (2007) 212 FLR 255 National Employers Mutual General Insurance Association v Waind [1978] 1 NSWLR 372 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Trade Practices Commission v Arnotts Limited (1989) 21 FCR 306 Category: Interlocutory applications Parties: Liana Maree Taylor (plaintiff) Tracey O'Neill t/as O'Neil Marengo (a Firm) (defendant) Representation: Counsel: A Abbas (solicitor) G Craddock SC Solicitors: AHA Taylor Lawyers (plaintiff) DLA Piper (defendant) File Number(s): 2009/297567 Publication restriction: None

Judgment 1These are proceedings for professional negligence brought by Ms Liana Taylor against a firm of solicitors whom she retained to act for her in respect of her claims against the estate of her late partner, Mr Wayne Groves. In short summary, Ms Taylor alleges that the defendant failed to advise her to commence and conduct proceedings under the laws then in force in the State of New South Wales to pursue de facto relationship and succession claims against the estate. 2The application before the Court concerns three subpoenas issued at the request of the defendant. The first is a subpoena to the Commissioner of Police. On 10 May 2012, an application by the plaintiff to have that subpoena set aside was dismissed by the Registrar. The plaintiff seeks review of that decision. 3The plaintiff's application is otherwise concerned with two subpoenas issued for the purpose of obtaining her medical records from two medical organisations. However, when the matter was referred to me as duty judge for hearing, the plaintiff sought further time to put on evidence in respect of that part of the application. 4The plaintiff's legal representatives ought to have obtained that evidence earlier and been in a position to serve it at or around the time when the notice of motion was filed. However, I did not think that the consequences of their failing to do so should be visited upon the plaintiff. Since the subpoenas call for the production of documents which undoubtedly will record protected confidences, I considered it appropriate to allow the plaintiff a further opportunity to put on evidence directed to the issues raised by s 126B of the Evidence Act 1995. 5Accordingly, the application insofar as it concerns the medical records subpoenas was stood over for further hearing on a later date. This judgment determines the application for review of the decision of the Registrar in respect of the subpoena directed to the Commissioner of Police. 6The relief sought by the plaintiff is as follows: Orders in the manner of certiorari against the decision of Registrar Bradford dismissing the plaintiff's motion in these proceedings made on 10 May 2012 and in its place order that the subpoena against the Commissioner of Police in and for the State of New South Wales the subject of that motion be set aside. 7Mr Craddock of Senior Counsel, who appeared for the defendant, was kind enough to observe that the plaintiff did not in truth need to establish grounds for an order in the nature of certiorari, noting that the Court has power under r 49.19 of the Uniform Civil Procedure Rules 2005 to review the decision. 8The transcript of the Registrar's decision was not available at the hearing. Mr Craddock submitted that the hearing could nonetheless proceed in accordance with the principles applicable to such an application, citing Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [52] per Basten JA. His Honour there stated his view as to the proper approach to an application in relation to a decision of the Registrar, which included the proposition that a review, unlike an appeal, does not require demonstration of error. 9It should be observed that his Honour's view on that issue did not receive the endorsement of the other two members of the Court. Hodgson JA expressed the view (at [8]) that, in the case of a decision on practice or procedure, the exercise of the discretion to intervene "will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence". Ipp JA agreed with Hodgson JA on that issue: at [17]. 10However, an exchange with Mr Abbas on behalf of the plaintiff revealed that he had not turned his mind to the issue of error at all, or to the terms of the Registrar's decision. He sought simply to have the decision "reviewed" in accordance with instructions from his client to that effect. Accordingly, I am satisfied that it is appropriate to determine the application notwithstanding the unavailability of the transcript of the Registrar's decision. 11The subpoena required the Commissioner of Police to produce the following documents. Your complete file of Liana Maree Taylor (also known as Liana Maree Ferre and Liana Maree Cross, (DOB: 20 October 1970), (last known address: 4/9 Banksia Road, Bellevue Hill in the State of New South Wales) including but not limited to all police incident reports, COPS reports, list of convictions, criminal records, transcripts, statements, investigations, correspondence, notes, reports and all other documents pertaining to any criminal prosecutions. Your complete file of Wayne Albert Groves (DOB: 12 March 1953), (late of 998 Botany Road, Mascot in the State of New South Wales) including but not limited to all police incident reports, COPS reports, list of convictions, criminal records, transcripts, statements, investigations, correspondence, notes, reports and all other documents pertaining to any criminal prosecutions. 12The plaintiff submitted that the subpoena was an abuse of process, having no legitimate forensic purpose. Separately, it was submitted that the subpoena was unduly broad in that it failed to limit the period of time in respect of which documents were sought. 13The principles to be applied in determining such an objection are well known. They begin with the unexceptionable proposition that the Court has power, to prevent an abuse of its process, to set aside a subpoena which has not been issued for a legitimate forensic purpose. 14Mr Craddock drew my attention to the helpful analysis and application of that principle in the decision of Brereton J in A v Z [2007] NSWSC 899; (2007 212 FLR 255). In that decision, his Honour acknowledged that, at first sight, there is significant authority for the proposition that a subpoena is not issued for a legitimate forensic purpose unless it is likely that the material called for will "materially assist the case of the issuing party". His Honour, concluded, however, that the correct test is the less stringent test stated in Waind, which holds only that there must be a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case: National Employers Mutual General Insurance Association v Waind [1978] 1 NSWLR 372, 384 or could possibly throw light on the issues in the case: Trade Practices Commission v Arnotts Limited (1989) 21 FCR 306. 15With his usual clarity of thought, Brereton J observed (at [18]) that "the stricter test would require an issuing party to be able to predict the contents of documents potentially relevant, and would unduly constrain the ability of litigants to investigate the facts". 16The naked purpose of the subpoena to the Commissioner of Police in the present case is to investigate whether either the plaintiff or the deceased has or had a criminal record or any other history of dealings with police. Mr Craddock frankly acknowledged that there is no overt indication in the pleadings of any prior encounters with the criminal justice system. He submitted, however, that there is ample material in the pleadings and elsewhere to suggest that both the plaintiff and the deceased had a long involvement with the drug cocaine, at one point evidently acknowledging the use of 7g per day of that drug. 17Mr Craddock submitted that the defendant is entitled to see whether the plaintiff has a criminal record of the kind commonly seen in people heavily addicted to drugs, which frequently include convictions not only for possession or supply of drugs but also for offences of dishonesty. 18The potential relevance of prior convictions was put principally as going to the plaintiff's credit, which will be a critical issue in the case. The plaintiff contends that the defendant advised her that she had an arguable claim as a "domestic partner" under the Wills Act 1997 (Vic) to claim provision out of the estate in proceedings in Victoria. She further contends that, in pursuance of that advice, she moved to Victoria to conduct proceedings in that State (paragraph 16 of the further amended statement of claim). Those proceedings were settled by mediation. 19The plaintiff contends that, under the laws of New South Wales and on the premise that she was the de facto spouse of the deceased, she had far greater entitlements against the estate than were available in the proceedings in Victoria. 20Many of the disputed issues of fact in the proceedings will turn critically on the plaintiff's credit. They include the issue whether she was in a continuous de facto relationship with the deceased for more than two years; whether the defendant advised her to commence proceedings in Victoria and her mental state at the time she made various decisions during that period, including settling her claim in Victoria. 21Separately, Mr Craddock submitted that the existence of a criminal record or prior dealings with police may shed light on the plaintiff's financial position at relevant times. 22As to any criminal record or dealings with police on the part of the deceased, Wayne Groves, Mr Craddock relied on the likelihood, having regard to the quantity of cocaine in question, of there having been time spent in custody during the period when the plaintiff alleges she and Mr Groves were in a continuous de facto relationship. Whilst time in custody would not necessarily be excluded from the calculation of the period of a de facto relationship, it may be accepted that those matters would be likely to add to the relevant evidence on that issue. 23In A v Z, Brereton J said (at [19]) In my view, that is the test which ought to be applied in the present circumstances where, although what is sought are documents from the custody of the police, they are not sought in the context of a prosecution. Indeed, it is known that the defendant, to whose potential prosecution they might otherwise relate, has been granted immunity. Accordingly, I would approach the question primarily on the basis of asking whether, on the one hand, the documents called for are apparently relevant or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate purpose for the issue of subpoena, or whether on the other, they are manifestly irrelevant and incapable of touching matters of credit, in which case the subpoena would be an abuse of process. 24I am satisfied that the documents sought are capable of providing a legitimate basis for cross-examination in the proceedings. The requirement in criminal proceedings for the Crown to supply to an accused person with a record of any prior convictions of a crown witness assumes that the existence of a criminal record may be relevant to credit. Whilst different considerations may apply in civil proceedings, the issues of fact raised in the present proceedings demonstrate a reasonable basis for thinking that material held by police will likely add in some way to the relevant evidence in the case. 25As to the period of time for which documents are sought, having regard to the matters relied upon by Mr Craddock, I am satisfied that there is no warrant for confining the subpoena to any particular period of time. 26Accordingly, I do not think any basis has been demonstrated for setting aside the decision of the Registrar. Prayer 5 in the plaintiff's notice of motion is refused. The balance of the motion is stood over to 21 June 2012 for further hearing.