Supreme Court New South Wales Medium Neutral Citation: Greenfield v Australian Rugby League Commission Ltd [2018] NSWSC 359 Hearing dates: 21 March 2018 Date of orders: 21 March 2018 Decision date: 21 March 2018 Jurisdiction: Common Law Before: Garling J Decision: (1) The Notice of Motion filed 31 August 2017 is dismissed. (2) Order each party to pay their own costs of the motion. (3) Stand the proceedings over before the Registrar on 18 April 2018 at 9.00am at which time the parties will be expected to provide agreed short minutes indicating a timetable to enable the matter to be brought to a hearing as soon as it is practicable. Catchwords: CIVIL PROCEDURE – interlocutory proceedings –notice of motion alleging contempt for failure to comply with subpoena – UCPR r 33.12 – where failure of parties to act expeditiously – overriding purpose – notice of motion dismissed Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Michael Greenfield (P) Australian Rugby League Commission Ltd (D) Representation: Counsel: R Brown (P) M Milton (D) File Number(s): 2015/87313 Publication restriction: Not Applicable EX TEMPORE Judgment Plaintiff's Claim 1. These proceedings are brought by the plaintiff, Mr Michael Greenfield, claiming damages from the Australian Rugby League Commission Ltd (the defendant) as a consequence of serious personal injuries suffered in an incident on 25 May 2012. 2. At the time of the incident, the plaintiff was playing professionally for the Melbourne Storm Rugby League Football Club in the National Rugby League ("NRL") competition. It is alleged that at that time the defendant was the body responsible for administering and supervising the game of rugby league. 3. It is unnecessary for the purpose of this judgment to set out the whole of the claim by the plaintiff but, in brief, he alleges that he suffered his serious injury as a result of being subject to what has been described as a "shoulder charge tackle", or perhaps more accurately "a shoulder charge", a physical manoeuvre that was permitted to occur in the NRL competition games, but had previously been banned for all rugby league players in competitions for those under the age of 18. 4. The thrust of the plaintiff's claim against the defendant was that it knew about the existence of this feature of the game. It knew that data prior to 25 May 2012, revealed that the average impact force of a shoulder charge tackle was considerably higher than the force generated from conventional front-on or other forms of tackling. It is alleged that it also knew that a significant percentage of shoulder charge tackles, in the order of 16%, had the potential to result in head or neck injuries and concussion. 5. Against that background, it is alleged that the defendant owed an obligation to alter the rules of rugby league for the NRL to prevent the use of shoulder charge tackles. 6. The plaintiff claims damages because he says that, having sustained serious personal injuries, he is now unable to play rugby league again and to obtain the financial benefits of his skill in that form of professional sporting endeavour and other aspects of his working life. Issue of Subpoena 1. On 26 June 2015, nearly three years ago, the plaintiff issued a subpoena to the defendant to produce a range of documents. It is not unfair to say that the four paragraphs of the subpoena sought a very broad range of documents. There was no limitation other than being prior to the incident sued upon. The subpoena required, on its face, extensive searches of the defendant's documents and all the archived documents that the defendant had in its possession or custody or control. 2. For many reasons, in my view, that subpoena was unenforceable and was bad on its face. Those reasons include the lack of time specification, the lack of geographic or competition specification, the use of the words to define documents including "relating to", and not the least because the subpoena was a clear attempt to obtain discovery by the defendant in proceedings where discovery was not available unless a Court was persuaded that a discovery order should be made. 3. It seems that my view of this subpoena came to be shared by the plaintiff's solicitor himself because, over the past 2½ years, negotiations have taken place at a snail's pace regarding the scope of the subpoena and if it could be narrowed; what documents the defendant was willing to provide; the basis for the documents sought; and other issues touching upon any obligation for the production of the documents including, for example, the defendant's proposal to use particular electronic search terms to find documents that might be relevant. These are all matters which commonly occur when discovery is ordered and supervised by a Court. Notice of Motion 1. Apparently tiring of this snail's pace negotiation and ignoring that it was accepted that the schedule to the subpoena needed significant amendment, the solicitors for the plaintiff filed a Notice of Motion on 31 August 2017, which sought two substantive orders. They were: 1. that pursuant to r 33.12 of the Uniform Civil Procedure Rules 2005 ("the UCPR"), the Proper Officer of the Australian Rugby League Commission Ltd be brought before the Court to provide lawful excuse for its failure to comply with the subpoena or be dealt with for contempt of Court; and 2. that the defendant pay the plaintiff's costs of the application. 1. Rule 33.12 of the UCPR provides that a failure to comply with a subpoena without lawful excuse is a contempt of Court and the addressee may be dealt with accordingly. Of course, the addressee of the subpoena was the defendant corporation. Rule 33.12 does not provide the Court with any power to require the attendance of a Proper Officer to give any excuse relating to the failure to produce documents, let alone a lawful excuse. 2. The Motion had a further fundamental difficulty, that is, it dealt with a subpoena which, as I have previously said, was by reason of its terms and width apt to be set aside but, more importantly, a subpoena which not even the plaintiff sought to enforce. 3. On 5 December 2017, at the request of the parties, the Registrar listed the Motion for hearing today with a one day estimate. 4. In the last few days the Court was informed that the parties had agreed to stand the Motion over for one month as they had reached agreement about the production of documents, and the time period was necessary to enable the completion of that production exercise. Discernment 1. Any order whether by agreement or otherwise which the Court makes with respect to interlocutory proceedings, such as those sought in this Notice of Motion, is to be made with the overriding purpose of the Civil Procedure Act 2005 and the UCPR to be kept in mind. That overriding purpose calls upon the Court to ensure that the real issues in dispute are resolved in a just, quick and cheap manner. 2. There is nothing about what has occurred here, from the filing of the subpoena and the service of it up until today, which suggests that either party has complied with their duty to the Court to deal with the real issues in these proceedings so as to further the overriding purpose. 3. It is, frankly, a disgrace that parties have taken nearly three years to discuss what documents the defendant may be willing to produce. During that time the plaintiff's case has not progressed. 4. Parties have a clear obligation under s 56 of the Civil Procedure Act to assist the Court to further the overriding purpose, which I have earlier described, and to participate in the processes of the Court. Neither the parties nor their lawyers in this case, as it seems to me, can be thought to have even touched upon their obligations even lightly. On the one hand the plaintiff, in a complex case such as this, is entitled to seek relevant documents. On the other, the defendant is obliged to provide those documents. Quite why this simple process has taken almost three years is a complete mystery. 5. Litigation, particularly of this kind which involves a damages claim for serious injuries to an individual, is not a game to be engaged in by thrust and parry between lawyers ignoring the real issues, who then ask the Court to set aside time, thereby holding out other litigants from a hearing, simply for a motion seeking to enforce a subpoena which the issuing party has itself abandoned. This type of conduct is, frankly, a complete waste of the Court's time. 6. I am not prepared to adjourn this Motion for a month. The Motion is hopeless. It should never have been brought, and neither party is entitled to any credit for their conduct leading up to it, or their conduct in dealing with it after it was filed. 7. It is time the parties in this case took their obligations seriously and proceeded expeditiously to take all necessary preparatory steps to bring this matter to a hearing. 8. I make the following orders: 1. The Notice of Motion filed 31 August 2017 is dismissed. 2. Order each party to pay their own costs of the motion. 3. Stand the proceedings over before the Registrar on 18 April 2018 at 9.00am at which time the parties will be expected to provide agreed short minutes indicating a timetable to enable the matter to be brought to a hearing as soon as it is practicable. ********** 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: 22 March 2018