Supreme Court New South Wales Medium Neutral Citation: Hammond v Thompson [2013] NSWSC 987 Hearing dates: 9 July 2013 Decision date: 25 July 2013 Before: Simpson J Decision: (i) The application for leave to appeal is refused. (ii) The plaintiff must pay the defendant's costs. Catchwords: APPEAL - appeal against interlocutory decision of the Local Court - application for leave to appeal - whether Magistrate erred in declining to set aside a subpoena and Notices to Produce - no error found - application for leave to appeal refused with costs Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Local Court Act 2007 Uniform Civil Procedure Rules 2005 Cases Cited: Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALR 529 Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 149 ALR 25 Category: Principal judgment Parties: Tracie Hammond (Plaintiff) Mark Thompson (Defendant) Representation: Counsel: P Hammond (Plaintiff) M Thompson (Defendant) Solicitors: N/A (Plaintiff) N/A (Defendant) File Number(s): 2013/125291 Decision under appeal Date of Decision: 2013-03-27 00:00:00 Before: Magistrate Corry File Number(s): 2010/265510 Judgment 1Pursuant to s 40(2)(a) of the Local Court Act 2007, the plaintiff (Tracie Hammond) seeks leave to appeal against an interlocutory decision made by Magistrate Corry in the Local Court on 27 March 2013, dismissing two Notices of Motion filed on her behalf. 2The substantive proceedings consist of a claim made by Ms Hammond against the defendant, Mark Thompson, by Further Amended Statement of Claim ("the FASoC") filed originally in this Court on 7 April 2011 but transferred to the Local Court by order of Hislop J on 14 December 2012. By way of background, it appears that Mr Thompson, who is a barrister, represented Ms Hammond in personal injury proceedings she brought against Westfield Ltd and Westfield Shopping Centre Management Co Pty Ltd ("Westfield"). He was instructed by Gerard Malouf & Partners, Solicitors ("Maloufs"). The FASoC makes extensive allegations of negligence and malpractice against both Mr Thompson and Maloufs who were named as the first defendants in those proceedings. The proceedings against Westfield settled following mediation. The proceedings against Maloufs have also settled out of court. 3Despite the extensive nature of the claims originally made against Mr Thompson, all that remains is a claim that he negligently failed to advise Ms Hammond that a sum of money (by way of repayment to Centrelink), would be deducted from the settlement funds. An identical claim was made against Maloufs. The sum in fact deducted was $5135.35. That is the amount in which the plaintiff's present claim against Mr Thompson is quantified. No hearing date for the claim has been allocated. 4By way of defence, Mr Thompson has pleaded, inter alia, that, to the extent that he is liable to Ms Hammond (which he denies), he was a concurrent tortfeasor (with Maloufs) within the meaning of the Civil Liability Act 2002 and that he is entitled to an assessment of their proportionate liability. He also pleads in paragraph 10 of his Defence: "10. As to the whole of the claim [Ms Hammond] has already received satisfaction of same from [Maloufs] by way of a settlement entered into between them on about 22 February 2012." 5Mr Thompson served upon Ms Hammond two Notices to Produce, dated, respectively, 15 January 2013 and 31 January 2013. Both were expressed to be returnable on 31 January 2013, which was a date fixed for callover of the claim. 6The first identified six categories of documents Ms Hammond was called upon to produce. They were (I paraphrase): (i) and (ii) all records relating to any request and receipt by Ms Hammond of Centrelink benefits dating back to 1 December 2007; (iii) all records relating to Ms Hammond's employment with Nepean Hospital between 1 December 2007 and 31 June 2009, including earning records and notices of injury or accident; (iv) all records relating to settlement of Ms Hammond's claim against Maloufs, including the terms of settlement; (v) and (vi) all records relating to requests and/or receipt by Patrick Hammond of Centrelink benefits between 1 December 2007 and 30 September 2010. 7The second notice to produce called for production of all documents relating to the settlement of Ms Hammond's claim against Westfield. 8On 31 January 2013, Mr Thompson issued a subpoena to Maloufs, calling for production of all documents relating to the settlement of Ms Hammond's claim against Westfield, including instructions to settle, authorities to receive, and consent judgments, and all records relating to settlement of the claim brought by Ms Hammond against Maloufs in professional negligence. The subpoena was expressed to be returnable on 28 February 2013. 9By Amended Notice of Motion filed on a date that is not clear on the evidence, Ms Hammond sought orders that each Notice to Produce be set aside on one or both of the grounds that they constituted an abuse of process, or the requests contained therein were "wide, oppressive and have no relevance to any fact in issue". She also sought an order that paragraph 10 of the Defence be struck out on the grounds that it was embarrassing, and/or frivolous and vexatious. Other orders were sought that are of no present concern. 10By a second Notice of Motion Ms Hammond sought an order that the subpoena directed to Maloufs be set aside on the grounds that its issue was an abuse of process, and that the documents called for had no relevance to any fact in issue in the substantive proceedings. 11These Notices of Motion came on for hearing before Magistrate Corry in the Local Court at Penrith on 18 March 2013. Ms Hammond was at all times represented by her husband, Patrick Hammond, who is not legally qualified. At the hearing, Mr Thompson did not press for production of the documents the subject of items (v) and (vi) in the list above ([6]). Those paragraphs were struck out of the Notice to Produce. 12Mr Hammond advanced a number of arguments. These arguments were substantially the same in relation to both the Notices to Produce and the subpoena. They were: (1)It is an abuse of process to issue a subpoena (or Notice to Produce) at a time when a hearing date for the substantive proceedings has not been allocated. Since no hearing date had been fixed, the issue of Notices to Produce and the subpoena were an abuse of process. (2)A subpoena may be set aside where it has been issued for the purpose of obtaining discovery or further discovery against a party; (3)A subpoena may be set aside where it has been issued for the purpose of obtaining discovery against a third party. The subpoena should be seen as an attempt to obtain discovery from Maloufs; (4)A subpoena or Notice to Produce may be set aside where its issue amounts to a "fishing expedition" - ie an attempt to ascertain whether any documentary (or other) evidence exists to support a claim or assertion; both Notices to Produce and the subpoena were no more than attempts to ascertain whether Ms Hammond or Maloufs were in possession of any documents that would support Mr Thompson's case; (5)A subpoena or Notice to Produce may be set aside where its subject matter cannot be shown to have relevance to the issues involved in the litigation. The documents sought by way of the subpoena and the Notice to Produce could not be shown to be relevant to the issues in dispute between the parties; (6)The Notices to Produce should not have been issued without the leave of the court, because no hearing date had been fixed. Mr Hammond cited UCPR 34.1 which relevantly provides: "(1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner: (a) at any hearing in the proceedings or before any such examiner, or (a1) at any time fixed by the court for the return of subpoenas, or (b) by leave of the court, at some other specified time, any specified document or thing." (7)With respect to paragraph 10 of the Defence, Mr Hammond argued that the allegation there pleaded was "vague at best" and ought to be struck out as failing to comply with UCPR 15.1, which requires of a pleading that it: "must give particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case the pleading requires him or her to meet." 13In support of the propositions numbered (1)-(5) above, he relied upon the decision of Powell J in Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98. In that case, Powell J identified the circumstances in which a court will set aside a subpoena: "1. unless the subpoena was issued for the purpose of a pending trial, hearing or application; 2. ... 3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence; 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party; 5. where the subpoena has been used for the purpose of obtaining discovery against a third party; 6. ... 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, 'fishing'." (internal citations omitted) He went on to say: "3. Since the right to have a subpoena issued is conferred upon parties to litigation to enable them to have evidence available to tender during, or to have access to documents which might be used during, and for the purposes of, a trial, hearing or application which is then pending, the subpoenas in question have been issued for a purpose other than that to achieve which the right is conferred on litigants." His Honour then added: "Lest this be thought to be a rather extreme view, it is convenient to record the following passage in the judgment of Bowen LJ in Elder v Carter [(1890) LR 25 QBD 194]: '... I am as certain as one can be of anything with regard to practice, that it is not intended to enact that at any stage of a proceeding a judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third person, unless the production of it at that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of ...'." 14Magistrate Corry delivered judgment on 27 March 2013. He declined to set aside either of the Notices to Produce or the subpoena. 15In respect of Mr Hammond's reliance on Botany Bay, Magistrate Corry said: "... It should be noted that that judgment predates the Civil Procedure Act and Rules, and more particularly para 14.1 of the Local Court Practice Note 2011, which requires and warrants that parties to proceedings should issue subpoenas as early as possible and the clear intent is that subpoenas would be issued well before a hearing." 16In relation to the argument that Mr Thompson ought to have sought discovery rather than issue a subpoena, Magistrate Corry said that it: "... seems to require an added layer of procedural delay and cost which is unjustified in a claim that is so modest and the court is required in mandatory terms by s 56(2) of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in dispute, and further, by s 60 to have regard to the proportionality of costs. The submission that discovery, although it is available in the General Division, should be a prerequisite in such a small claim misses the point of both those provisions in the Act and therefore I am not of the view that on that ground alone the subpoena should be set aside." He rejected the submission that the subpoena represented a "fishing expedition" and held that it was limited to classes of documents related to the substantive proceedings. He considered that the documents required were "easily ascertainable" and relevant to facts in issue because Maloufs were integrally entwined in Mr Thompson's dealings with Ms Hammond and her instruction to Maloufs and Maloufs instructions to Mr Thompson had relevance as to direct proof of the factual issues in the proceedings. 17He also noted Mr Thompson's reliance on s 35 of the Civil Liability Act, requiring assessment of proportionality between concurrent tortfeasors. He referred to authority on the same topic: Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 149 ALR 25 and Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALR 529. 18His Honour turned to the Notices to Produce. 19He rejected the submission that leave was required for the issue of the notices, holding that the definition of "hearing" in s 3 of the Civil Procedure Act 2005 was wide enough to include a callover. 20He held that paragraphs 1 to 3 of the first Notice to Produce sought financial records of Ms Hammond, and said: "In those circumstances it is hard to see why such information sought would not be relevant to those facts." 21He was satisfied that the documents sought in paragraph 4, seeking documentary material relevant to the settlement with the Maloufs were relevant to the grounds of defence and therefore subject to an order for production. 22He made similar findings in relation to the categories of documents sought in the second Notice to Produce. 23He held that the Maloufs file was also relevant to allow testing of any evidence the plaintiff might give in the proceedings. 24He declined to strike out paragraph 10 of the Defence. 25He then turned his attention to matters not the subject of the present application. 26He dismissed both Notices of Motion. The application for leave to appeal 27On the hearing of the application, Mr Hammond advanced exactly the same arguments as he had put before Magistrate Corry. He argued that Magistrate Corry had been wrong to reject those arguments. A repeated theme in the submissions was that Magistrate Corry failed to adhere to the principle of precedent by following authority of superior courts by which he was bound. 28In many respects, the principles of law stated by Mr Hammond were uncontroversial. However, their application invariably depends on the underlying facts. For example, it is well established that subpoenas may not be used as a substitute for discovery either from a party to proceedings or from a third party. However, for that principle to be relevant, it has to be established that the subpoena, or the Notices to Produce, were issued for that forbidden purpose. Magistrate Corry correctly proceeded on the basis that neither Notice to Produce nor the subpoena were issued for that purpose. That made the principle inapplicable. Magistrate Corry was correct in this approach. 29It is also well established that a subpoena will be set aside if it constitutes a "fishing expedition" - that is, is issued in the hope that it will yield some information that will support the case of the issuing party, without any proper basis for a belief that there exist any items or documents that will yield that information. Magistrate Corry rejected that description of the Notices to Produce and the subpoena, holding that neither fell into that category. In doing so, he was again correct. It is plain that there is a very sound basis for believing that documents exist evidencing the settlement between Ms Hammond and Maloufs. 30It is further well established that a subpoena or a Notice to Produce will be set aside if it cannot be shown that there is reason to believe that the material sought to be produced is likely to or may possibly have some relevance to the issues in the proceedings. The documents required to be produced have clear relevance to two aspects of Mr Thompson's defence - apportionment of liability, and, more importantly, what, if anything, Ms Hammond had recovered from Maloufs. 31During the course of argument on the application, Mr Hammond agreed that he understood that what was sought by Mr Thompson was documentary evidence of the settlement between Ms Hammond and Maloufs; and that the quantum of that settlement was relevant to the issues I have identified above. He also agreed that Ms Hammond could not recover twice - if she has recovered all, or any part, of the sum claimed, from Maloufs, she cannot recover that amount again from Mr Thompson. 32Mr Hammond maintained, however, that proper procedures had not been followed, and that Ms Hammond, as a litigant, was entitled to strict and technical compliance with prescribed procedure. 33This was relevant, for example, to his argument that Mr Thompson required leave to issue the Notices to Produce by reason of UCPR Pt 34.1(1). This was, again, because a hearing date had not been fixed. 34He therefore challenged Magistrate Corry's view that Mr Thompson did not need leave, because s 3 of the Civil Procedure Act defines "hearing" sufficiently widely to include a callover. Section 3 defines a hearing to include an interlocutory hearing. 35Mr Hammond relied heavily upon the decision of Powell J in Botany Bay. This the magistrate effectively discarded as having been superseded by the later principles stated in the Civil Procedure Act. 36Botany Bay was decided in 1984. Since then, it has become commonplace and, indeed, encouraged, for parties to litigation to prepare their cases well in advance of allocated hearing dates. Given the greater complexity in litigation it is essential, and to the benefit of all concerned, including the court, that they do so. It is very common that subpoenas are issued well before a hearing date is fixed, in order that all parties are aware of the nature of the case to be made against them, and in order to facilitate preparation of their own cases and possible settlement. In that respect, the magistrate was correct to see the decision in Botany Bay as somewhat dated. Indeed, it is interesting that Powell J acknowledged that the proposition he stated might "be thought to be a rather extreme view". The principles stated in Botany Bay must be read in the light of the philosophy and policy of the Civil Procedure Act. To the extent that there is conflict between those principles and the statute, the statute prevails. 37Whether the s 3 definition of "hearing" is sufficiently wide to include "callover" need not be decided. The dates by which production was originally required have long since passed and new dates of return will have to be fixed. Leave can be granted for them to be returnable on another day. 38Mr Hammond acknowledged that his point in this respect was a technical one. To take it transgresses s 56 of the Civil Procedure Act. Moreover, while these interlocutory skirmishes continue, Ms Hammond's claim against Mr Thompson languishes. If she perceives that she has a genuine claim against him, and given that Mr Hammond acknowledged on her behalf that information concerning the settlement with Maloufs would have to be provided at some time prior to the hearing, it is not in her interests to delay bringing on the proceedings. That is one very good reason to refuse leave. Mr Hammond's response, when this was put to him, was that there are issues of costs orders which would, if his arguments were successful, be set aside. I have, however, concluded that his arguments have no chance of success. A very good reason to refuse leave is that the points taken are entirely without merit. There is no substance in this complaint by the plaintiff. 39In my opinion there is no substance in any of the challenges to the magistrate's conclusion. 40The application for leave to appeal is refused. The plaintiff must pay the defendant's costs. ********** 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 July 2013