Supreme Court New South Wales Medium Neutral Citation: Tony Hassan Noun v Margaret Pavey [2013] NSWSC 846 Hearing dates: 7 June 2013 Decision date: 07 June 2013 Jurisdiction: Equity Division Before: Rein J Decision: Application dismissed with an order for costs against the plaintiffs. Orders the solicitor and counsel for the defendants be released from their undertakings that they have given in relation to items 1 to 5 of the first Notice to Produce except for a document at pp 174-175 of Exhibit 1. Direct the plaintiffs' solicitors to notify the defendant's solicitors on or before 21 June 2013 whether or not the claim for confidentiality is maintained in respect of the remaining documents. Catchwords: PRACTICE AND PROCEDURE - application to have the Registrar's decision in relation to two Notices to Produce issued on behalf of the defendants set aside - plaintiff's claim that the Notices to Produce should be set aside on the basis that it was intended to subvert the Supreme Court Practice Notes 5 and 11, the documents are confidential and the Notices to Produce lacked legitimate forensic purpose - application by the defendants that the defendants' solicitor and counsel be released from undertakings in relation to alleged confidential documents Legislation Cited: Family Law Act 1975 (Cth) Pay Roll Tax Act 1971 (NSW) Supreme Court Act 1970 (NSW) Taxation Administration Act 1996 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 611 Dae Boong International Co Pty Limited v Gray [2009] NSWCA 11 Halpin and Others v Lumley General Insurance Ltd [2009] NSWSC 644; (2009) 258 ALR 588 House v The King (1936) 55 CLR 499; (1936) 10 ALJR 202; [1936] HCA 40 Lamru Pty Limited v Kation Pty Limited [2013] NSWSC 195 Tasty Chicks Pty Limited v Chief Commissioner of State Revenue (2011) 245 CLR 446 Tomko v Palasty (No. 2) (2007) 71 NSWLR 61 Sciacca v Langshaw Valuations Pty Limited [2012] NSWSC 1450 Solarus Projects Pty Ltd v Vero Insurance Ltd [2013] NSWSC 328 Category: Interlocutory applications Parties: Tony Hassan Noun (First Plaintiff) THN Pty Limited (Second Plaintiff) Margaret Anne Pavey (First Defendant) Alexander McIntyre Stewart Kennedy (Second Defendant) Mark Melbourne (Third Defendant) Representation: Counsel: Mr C. Bevan (Plaintiffs) Mr S.A. Lawrence (Defendants) Solicitors: Turner Freeman Lawyers (Plaintiffs) Bank Haddock Fiora (Defendants) File Number(s): 2012/93374 EX TEMPORE Judgment 1REIN J: Registrar Musgrave, on 21 March 2013, dismissed the plaintiffs' motion to have two Notices to Produce issued on behalf of the defendants set aside. He published his reasons on that date. The learned Registrar did impose a regime of confidentiality in relation to paragraphs 1 to 6 of the first Notice to Produce, given the claims made as to confidentiality by the plaintiffs' solicitor 2The plaintiffs, for whom Mr C. Bevan of counsel appears, seeks a review of the Registrar's decision pursuant to rule 49.19 of Uniform Civil Procedure Rules 2005 (NSW) ("the Rules"). Mr Bevan has provided a detailed outline of written submissions and also spoken to those submissions today. He challenges each of the conclusions which the Registrar reached. I received an outline of submissions from the defendant's counsel, Mr S. A. Lawrence, and he has spoken to those submissions today. 3I should note at the outset that the Notice to Produce relied on Part 21.10 of the Rules which is in the following terms: 21.10 Notice to produce for inspection by parties (cf SCR Part 23, rule 2 (1); DCR Part 22, rule 2 (1), (1A) and (2)) (1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced. 4Essentially, the documents sought in the Notice to Produce were documents referred to in the affidavit of Mr Tony Noun, one of the plaintiffs, and the request for the remaining documents arose out of various paragraphs of Mr Noun's affidavit and the affidavit of Ms Renuka Sharma. Mr Noun's affidavit is found in the Court book, which has been made Exhibit A, at page 93 and Ms Sharma's affidavit is found at p 254 of Exhibit A. 5There is a threshold issue, which is: How is a review pursuant to rule 49.19 to be conducted? The defendants rely on the decision of the Court of Appeal Tomko v Palasty (No. 2) (2007) 71 NSWLR 61 ("Tomko") and also Dae Boong International Co Pty Limited v Gray [2009] NSWCA 11, [17]-[19] Hodgson JA ("Dae Boong"). 6Rule 49.19 of the Rules is in the following terms: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (cf SCR Part 61, rule 3; DCR Part 43, rule 15) If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 7The plaintiffs assert that the views of Basten JA in dissent in Tomko were held to be correct in the High Court's decision in Tasty Chicks Pty Limited v Chief Commissioner of State Revenue (2011) 245 CLR 446, [11] - [22] ("Tasty Chicks"). 8The plaintiffs assert that the consequence is that: This review should, therefore, be approached as a fresh application to set aside Notices to Produce, taking account of the Registrar's reasons, but without there being a requirement to establish a case to "intervene" in the matter. (see the Plaintiffs' Submissions in Reply, p 2) 9The defendants submit that the views of Hodgson JA in Tomko, with which Ipp JA agreed, represent the approach that should be taken. Those principles are summarised Mr Lawrence's submission in this way: (1) Review is not an appeal: Tomko at [6] per Hodgson JA, (Ipp JA agreeing). (2)The review requires the Court to exercise discretion: Tomko at [6]. (3)That discretion extends to a decision as to whether (and if so how) to intervene, and there is an onus on the person seeking to have the Court set aside or vary a Registrar's decision to make out a case that the Court should, in the interests of justice, exercise its discretion to intervene: Tomko at [7], Dae Boong at [18]. (4)In the case of a decision on practice or procedure, that will normally require at least the demonstration of an error of law, or an error of the kind referred to in House v The King (1936) 55 CLR 499 or a material change of circumstances or evidence satisfying the requirements of fresh evidence: Tomko at [8]. Even then, the Court may not think that the interests of justice require intervention. (5)The Court may be more willing to intervene in a case of a Registrar's decision that finally determines a party's rights or has a decisive impact on those rights: Tomko at [9]. 10Mr Bevan did not assert that the formulation set out above was inaccurate rather he asserted that Tasty Chicks had overruled Tomko. I do not accept that Tasty Chicks has overruled Tomko. Tomko is not mentioned in Tasty Chicks either in the Court of Appeal's judgment or in the High Court's judgment. Tasty Chicks was concerned with the Taxation Administration Act 1996 (NSW) and its interconnection with the Pay Roll Tax Act 1971 (NSW). Section 97 of the Taxation Administration Act provided that the review was deemed to be an appeal for the purpose of the Supreme Court Act 1970 (NSW). The High Court agreed with Gzell J's approach at first instance and held that the trial judge was entitled to re-exercise the powers of the Chief Commissioner of Taxation under the relevant provisions of the legislation. 11The High Court in Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 245 CLR 446 said this at [5]: An "appeal" from an administrative decision to a court is the creature of statute and it confers original, not appellate, jurisdiction. Further, where a jurisdiction called an "appeal" is enlivened, it is essential to identify its nature and the duties and power of the court in the exercise of that jurisdiction. The term "review" presents similar considerations. It takes its meaning from the context in which it appears. It may be used by the statute in question to empower decision-making by an administrative body, or to confer a species of original jurisdiction on a court. If the latter, again it will be necessary to identify the nature of the "review" and the duties and powers of the court in the exercise of that jurisdiction. 12Tasty Chicks does not expressly overrule Tomko and as Tomko does not deal at all with reviews from a Registrar I do not accept that that decision has implicitly overruled Tomko. 13I should mention that in some respects the distinction between the approach taken by Basten JA in Tomko and the approach taken by Hodgson JA may not, in practical terms, be all that significant. At [52](4)(a) Basten JA noted that: a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement 14The determination here relates to access to documents and is one which in no way no way terminates the proceedings (or prevents its commencement) and is one clearly concerned with the management of an ongoing proceeding. 15I should note that Mr Bevan, in the course of oral submission, stated that his contentions should be treated as a formal submission given the majority view in Tomko. 16Mr Lawrence drew my attention to number of decisions of the Court of Appeal since the decision in Tasty Chicks in which judges in first instance in this court have followed Tomko. For instance, Sciacca v Langshaw Valuations Pty Limited [2012] NSWSC 1450 per McCallum J, Re Colorado Products Pty Ltd (in prov liq) [2013] NSWSC 611, per Black J and Lamru Pty Limited v Kation Pty Limited [2013] NSWSC 195 per Lindsay J, Solarus Projects Pty Ltd v Vero Insurance Ltd [2013] NSWSC 328 per Button J. 17In Solarus Button J noted the two views expressed in Tomko and noted that McCallum J in Sciacca had drawn attention to the fact that Hodgson JA's approach was binding and his Honour proceeded to deal with the matter on the basis that the applicant was not required to identify error in the judgment of the Registrar. However, it is clear from what his Honour said at [37] and [40] of his judgment that he regarded the decision involved as one that was not a mere interlocutory step along the way towards a hearing but one that had the potential to determine whether or not Solarus Projects Pty Ltd would be able to mount a case for rectification against the insurer and hence a decision which could have "a decisive" impact on the rights of the parties. I take his Honour to be applying what was said at [9] of Tomko. This decision does not assist the plaintiffs in this case. 18It follows that, in my view, the plaintiffs bear the onus of establishing that the Court, in the interests of justice, should exercise its discretion to intervene and must demonstrate an error of law or an error of the kind referred to in House v The King or a material change of circumstances or evidence. These requirements are not met here. I should say, however, that for reasons which follow the question of onus is not critical to my determination as I regard the Registrar's decision as clearly correct. 19The documents which are sought are all documents to which reference is made directly, or indirectly, in the plaintiffs' affidavits and some of them have been exhibited or annexed to the affidavit but in redacted form. 20Subject to a confidentiality regime, where such a regime is genuinely required, a party to proceedings must be entitled to see a full copy of what is relied upon by the other party. 21To seek such documents pursuant to rule 21.10 is in my view not an application for discovery and the constraints upon seeking orders for discovery imposed by Practice Note SC 11 simply do not apply. The Registrar was correct in holding that the Notice to Produce did not involve an attempt to subvert the Practice Note. 22That some of the documents might lead the defendant's solicitor to retain an expert to investigate, which might in turn lead to the defendant seeking to rely on an expert's report in accordance with Practice Note SC Eq 5 does not involve any breach of that practice note either. Until the material is obtained it is premature to consider whether either step is necessary. That is the view the Registrar took and again he was clearly correct so to do. 23In relation to confidentiality, the defendants accepted at the hearing and, indeed prior to the hearing before the Registrar, that only the first defendant, Ms Pavey, should be given access to the documents sought in documents 1 to 6 of the first Notice to Produce. 24The plaintiffs contend that since part of the claim against Ms Pavey is that she has had access to confidential information and retains confidential information to permit her to see the allegedly confidential information frustrates the purpose of the proceedings. In my view this contention cannot be sustained. If the claim is that Ms Pavey has confidential information then she has seen it already and she is entitled to understand precisely the case formulated against her. 25In any event, having seen the documents that are the subject of paragraphs 1 to 5, most of them are not documents for which a claim for confidentiality can be maintained, as Mr Bevan conceded. 26I shall refer, as an example of the documents which the plaintiffs' resist producing, to paragraph 102 of Mr Noun's affidavit in which he says that exhibited to his affidavit are a bundle of "redacted e-mails...relating to my retainer of Margaret Pavey": see page 118. 27The defendant's solicitor seeks to obtain the unredacted copies so that they can be shown to her client. These are documents said to relate to the retainer by Mr Noun of Ms Pavey (and not the firm by which she was previously employed), which retainer, on the first defendant's defence, is denied. The idea that Ms Pavey should not be able to see the complete document before responding to Mr Noun's affidavit is, in my view, preposterous. 28Another example is that Mr Noun at paragraph 124 says he received a file from Maddocks solicitors by whom Ms Pavey was previously employed. Ms Pavey seeks access to that file, an access that the defendant again resists. Since the documents are referred to as part of the evidence on which the plaintiffs rely and which Mr Noun has identified in his affidavit, Ms Pavey must be entitled as a matter of fairness to see those documents. 29Another matter which was raised in relation to specifically the Maddocks file was that it relates to a family law matter. Mr Bevan relied on s 121 of Family Law Act 1975 (Cth). He eschewed reliance on ss 121(1) and (2) but relied on ss 121(3). It is clear that s 121(3) is giving content to the published material that is the subject of ss 121(1) and (2) and I fail to see any basis on which that argument can be sustained. 30Mr Bevan asserted, in his submissions in reply, that in relation to two items of evidence the defendants were really trying to obtain material before they put on their affidavit. In particular the evidence that Ms Pavey seeks relates to a spreadsheet which Mr Noun says establishes that he had paid money to Ms Pavey in relation to her retainer and which he has exhibited to his affidavit. As I have said, that retainer is denied. In the defence, not only is the retainer denied, but also the receipt of money from Mr Noun is denied. 31That defence is verified and I do not think it can be said that the defendant has not made clear her position by verification of the defence that she does dispute that any payments were made to her. I can see no reason why, since the spreadsheet is relied on in copy form, Ms Pavey should not be entitled to examine the electronic version of that document. It is the same document as to which I referred to earlier in relation to the possibility of an expert being retained. 32In relation to Mr Melbourne, it is asserted by Mr Noun that there is evidence which establishes that he took documents of the type which the plaintiffs claim he wrongly removed. Mr Melbourne seeks any report from Forensic Document Services which has arisen out of the matters referred to in paragraphs 231 and 232 of Mr Noun's affidavit. 33The plaintiffs, having referred to that material in Mr Noun's affidavit, it seems to me that Mr Melbourne should be entitled to see what report, if any, is said to found the conclusions to which Mr Noun has apparently come about Mr Melbourne's activities. 34The final ground which was put to Registrar Musgrave, and which is again asserted before me, is that the Notices to Produce lacked legitimate forensic purpose. There is absolutely no basis for that contention as Registrar Musgrave held. The purpose is to enable Ms Pavey and Mr Melbourne to respond to the affidavits that have been filed by the plaintiffs. 35In respect of material relating to Mr Melbourne, although it is not necessarily the case that the plaintiffs have a report from Forensic Documents Services referred to in paragraph 231 of Mr Noun's affidavit, paragraph 232 does rather suggest that a document has been or may have been provided. Accordingly, I think that Mr Melbourne is entitled to that, if in fact the plaintiffs have such a document. 36This is not a case where the plaintiff having secret material and having made no reference to it, seeks an order that it not have to produce such material: see Halpin v Lumley General Insurance [2009] NSWSC 644 Hoeben J (as his Honour was then) as an example of that kind of situation. 37For these reasons, in my view the application for review should be dismissed with an order for costs against the plaintiffs. The only question remaining is the question of confidentiality to which I earlier referred. I am concerned that a number of the documents, for which confidentiality has been claimed, do not appear from Exhibit 1 to attract any claim for confidentiality at all and have been redacted without any proper basis. 38The solicitor and counsel for the defendants seek to be released from the undertakings that they have given in relation to items 1 to 6 of the first Notice to Produce. 39In relation to items 1 to 5 of the first Notice to Produce, except for a document which in Exhibit 1 is marked pages 174 to 175, I am satisfied that the defendant's solicitor and barrister should be released from their undertakings. There is a question mark about other documents the subject of paragraph 6 of the Notice to Produce. I propose to set up a regime for the plaintiffs' solicitors to review with the assistance of counsel, if appropriate, the claim for confidentiality that has been maintained in respect of documents 174, 175 and item 6. Item 6 apparently involves a lot of documents which have not been placed before the Court today. 40I direct the plaintiffs' solicitor to notify the defendant's solicitor on or before Friday 21 June whether or not the claim for confidentiality is maintained in respect of any of the remaining documents. ********** 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. Decision last updated: 25 June 2013