Balzola v Federal Capital Press of Australia Pty Ltd (No. 3)

[2016] NSWDC 258

District Court

New South Wales

Medium Neutral Citation:	Balzola v Federal Capital Press of Australia Pty Ltd (No. 3) [2016] NSWDC 258
Hearing dates:	20 October 2016
Date of orders:	20 October 2016
Decision date:	20 October 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Stand over part heard this application to Monday 24 October 2016 at 9:00am. (2) Any producing party objecting to access to the documents already produced is to file any application together with an affidavit or statement in support by 4:00pm 21 October 2016, setting out why the subpoena addressed to them (which has already been answered by them) should be set aside and appear in person on Monday 24 October 2016 at 9:00am before Gibson DCJ in Court 13D, John Maddison Tower, 86 Goulburn Street, Sydney NSW 2000, for the purpose of making such an application. Plaintiff to provide the court with email addresses for each of these persons so that the court can notify them of these orders today, and advise them that if they do not appear orders for access may be made in their absence. (3) An order for general and uplift access to documents in the following subpoena packets: subpoena packets 14, 15 and 17. (4) Note the concession of the plaintiff that legal professional privilege for retainer documents, including costs agreement and memoranda of fees. (5) Dismiss the plaintiff’s objection to production of the documents from the Penrith City Council (subpoena packet 8) and grant the defendants immediate uplift access to those documents. (6) Grant the defendants uplift access to subpoena packets 10, 11, 12 and 13, such documents to be made available to the plaintiff by making them available for collection by the plaintiff after 4:00pm today. (7) Noting the plaintiff’s concession in relation to retainer documents, Gibson DCJ will remove from packets 5, 6, 7, 9 and 16 the relevant documents so that any of these parties when appearing before the court on Monday 24 October 2016 will have an opportunity to make any further submissions in relation to these documents. (8) As to the defendants’ application for an order for substituted service on the Honourable Rev. Fred Nile MLC: (a) Grant leave to the defendants to rely upon the affidavit of Mr Doctor filed in court today; (b) An order, pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW), that the subpoena to produce dated 15 September 2016 issued the Honourable Rev. Fred Nile MLC (the subpoena) is taken to have been served on the Honourable Rev. Fred Nile MLC on 21 September 2016 by it having been sent by email to the Honourable Rev. Fred Nile MLC at the addresses [email protected] and [email protected]. (c) Stand the subpoena over to Thursday 27 October 2016 before Gibson DCJ. (d) Direct that a copy of these orders be served on the Honourable Rev. Fred Nile MLC by email to the addresses [email protected] and [email protected]. (e) Liberty to apply to the Defamation List Judge in relation to the subpoena and/or these orders on 3 days’ notice. (9) Costs reserved.
Catchwords:	SUBPOENA – defendant issues subpoenae to parties who then produce documents to the Subpoena Registry – plaintiff objects to inspection of the documents on the bases of legal professional privilege, parliamentary privilege, Hearne v Street and the Chorley principle – whether solicitor can object to production of documents where his client has not done so – whether legal professional privilege applies to costs agreements and memoranda of costs - access granted to documents where no objection to production made by, or likely to be made by, the producing parties – application for access stood over to enable producing parties to consider whether to oppose production – defendants’ application under UCPR r 10.14 for an order that a subpoena to a third party should be taken to have been served by reason of the document having been brought to his notice in circumstances where he was evading service – order made that service on the third party by his email addresses amounted to sufficient service for the subpoena
Legislation Cited:	Evidence Act 1995 (NSW), ss 117 and 118 Uniform Civil Procedure Rules 2005 (NSW), r 10.14
Cases Cited:	Baker v Campbell (1983) 153 CLR 52 Boyd v Bunce [2015] NSWSC 1924 Commissioner of Australian Federal Police v Propend Finance (1997) 188 CLR 501 CSR Limited v Eddy [2008] NSWCA 83 Elcham v Darling Island Sydney [2005] NSWSC 448 Hearne v Street (2008) 235 CLR 125 Huang v Abayawickrama [2012] FCA 1504 Kennedy v Wallace (2004) 213 ALR 108 Lake Cumbeline Pty Ltd & Ors v Effem Foods Pty Ltd (1994) 13 ACLC 55; 126 ALR 58 London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 Pentelow v Bell Lawyers Pty Ltd [2016] NSWDC 186 R v Zdravkovic [2015] ACTSC 154 Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083 Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002
Texts Cited:	Legislative Council of New South Wales Practice
Category:	Procedural and other rulings
Parties:	Plaintiff: Robert Balzola First Defendant: Federal Capital Press of Australia Pty Ltd Second Defendant: Lisa Cox
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendants: Mrs L Barnett   Solicitors: Plaintiff: Robert Balzola & Associates Defendants: Banki Haddock Fiora
File Number(s):	2013/261368
Publication restriction:	None

Judgment

The applications before the court

1. The plaintiff brings proceedings for defamation against the defendants following an article published on 28 August 2012 in the Canberra Times. These proceedings are listed for hearing before a judge and jury for three weeks commencing on 21 November 2016. As no trial judge has yet been appointed I have, in accordance with Practice Note 6, heard applications in the Defamation List from the parties, the nature of which are set out below. All the applications relate to issues arising from the issuing of subpoenae by the defendants in preparation for the trial.

2. The plaintiff by notice of motion seeks the following orders:

1. Directions as to Access made on 5 and 10 October 2016 as to General Access to the Defendants for satchels marked 1 to 9 after 7 days First Access to the Plaintiff from 5 October 2016 be vacated.

2. Order pursuant to UCPR 1.9(3) that the Defendants be denied access to the following satchels on grounds of Legal Professional Privilege:

1. Satchel marked ‘5’ – Concerned Citizens of Canberra Inc.

2. Satchel marked ‘6’ – Hoxton Park Residents Action Group Inc.

3. Satchel marked ‘7’ – Colin Broadbridge.

4. Satchel marked ‘9’ – Protect Penrith Action Group Inc.

3. Order pursuant to UCPR 1.9(3) that the Defendants be denied access to the following satchels on grounds of Parliamentary Privilege: Satchell marked ‘3’ to the Hon David Clarke MLC.

4. Directions as to General Access made on 5 and 10 October 2016 for satchels marked 10 to 14 be vacated.

5. Order granting First Access to produced items marked satchels 10 to 14 be granted by this Court for 7 days from date of this order.

3. The defendants seek access to the documents produced by the parties to whom subpoenae were addressed.

4. The defendants also seek orders in relation to a subpoena where it is asserted that a non-party to the litigation is seeking to avoid service. The relevant orders sought are:

1. An order, pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW), that the subpoena to produce dated 15 September 2016 issued the Honourable Rev. Fred Nile MLC (the subpoena) is taken to have been served on the Honourable Rev. Fred Nile MLC on 21 September 2016 by it having been sent by email to the Honourable Rev. Fred Nile MLC at the addresses [email protected] and [email protected].

2. Direct that a copy of these orders be served on the Honourable Rev. Fred Nile MLC by email to the addresses [email protected] and [email protected].

5. As both the hearing and a court-appointed mediation are imminent, the application is one of some urgency. I heard the applications this morning and dealt with as many as could be determined in the absence of the third parties whom the plaintiff asserts will object to production; those applications have been stood over part-heard to Monday 24 October 2016.

6. This judgment sets out my reasons for the orders I have made today. As its contents are designed in part to assist those non-parties who have produced documents and have indicated today to the plaintiff that they may wish to reconsider their position, this judgment has been prepared in some haste and is somewhat informal in its content and presentation.

Access to documents produced under subpoenae

7. The relevant subpoenae were filed on three dates in September 2016. On 15 September 2016 subpoenae were issued to the following parties:

(a) Catch the Fire Ministries Inc;

(b) Christian Democratic Party (Fred Nile Group) Inc;

(c) Club Redfern Ltd;

(d) Concerned Citizens of Canberra;

(e) Rev. Dr Daniel Nalliah;

(f) the Hon David Clarke MLC;

(g) Department of Citizenship and Immigration;

(h) Rev. the Hon Fred Nile MLC;

(i) Hoxton Park Residents Action Group Inc;

(j) Liana Allan;

(k) Naji Najjar;

(l) Penrith City Council;

(m) Protect Penrith Action Group Inc;

(n) Trevor Andrew Hall.

8. On 16 September 2016, Banki Haddock Fiora, on behalf of the defendants, arranged for a further subpoena to produce to be issued in these proceedings to Sergio Redegalli.

9. On 21 September 2016, Banki Haddock Fiora arranged for further subpoenas to produce to be issued in these proceedings to the following five persons:

1. Colin Broadbridge;

2. Greg Briscoe-Hough;

3. Rev. Canon Dr David Claydon;

4. Philip Sutherland;

5. Angela Penklis.

10. Documents have been produced without objection from those parties. The registrar made orders, including orders for first access by the plaintiff, in circumstances where the plaintiff took no objection to the documents. Having had first access to those documents, the plaintiff now seeks orders that the defendants should not be permitted access to documents produced by the parties.

11. The objections taken to inspection of documents for which access to the plaintiff (but not the defendants) has already been granted may be summarised as follows:

1. Parliamentary privilege: documents produced by Mr Clarke.

2. “Legal professional privilege”: documents contained in Subpoena Registry packets 5, 6, 7, 9, 10, 11, 12 and 13.

3. A “Hearne v Street” objection: packet 8 (Penrith City Council).

12. While the parties addressed me as to dominant purpose (and I note the plaintiff’s reliance upon Kennedy v Wallace (2004) 213 ALR 108), the issues for determination in the application today have been determined on general legal principles which do not require the construing of this issue.

The client professional privilege claim

13. The plaintiff’s written submissions first state that, as he was the “lawyer” within the meaning of s 117 Evidence Act 1995 (NSW) for certain of the persons who produced documents, he is entitled to challenge documents produced in packets 5 – 8, 10 (Reverend Nile’s Christian Democrats) and 13 (Ms Allen). In oral submissions, Mr Rasmussen sought to extend this restriction to any subpoena addressed to any person who was Mr Balzola’s client or former client, arguing that such documents are the subject of “legal professional privilege”.

14. The argument put to me is that there are two limbs to s 118, one being advice privilege and the other being litigation privilege. The plaintiff relies upon both limbs and submits that, whether the claim is made by the client or the solicitor, s 118 operates to prevent disclosure of documents by either of them, on the basis of a blanket protection of “legal professional privilege”.

15. As Ms Barnett points out in her helpful written submissions, the term “legal professional privilege” has been described as ambiguous, in that it appears to suggest that the privilege is that of the lawyer, when it is in fact that of the client (see Baker v Campbell (1983) 153 CLR 52 at 85). That is why the Evidence Act 1995 (NSW) now refers to “client legal privilege” in place of the previously used term “legal professional privilege”.

16. However, the plaintiff was probably correct to use the term “legal professional privilege” rather than the statutory term “client legal privilege” because, as the person making the claim for privilege is a person other than the producing party, the common law and not the Evidence Act 1995 (NSW) applies to this application: Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083 at [27] – [29]; Boyd v Bunce [2015] NSWSC 1924 at [18]; Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 at [12]. His error was in marrying up this term with s 118.

17. Whatever it is called, this privilege applies where the objection is taken by the client, not the lawyer: Commissioner of Australian Federal Police v Propend Finance (1997) 188 CLR 501 at 570. If the client produces the documents, the legal adviser cannot seek to rely upon the privilege and, as the clients in question have produced documents to the court, that is the end of the claim for privilege.

18. Although Mr Rasmussen sought to argue that their rights should have been pointed out to them by the defendants and that the court should inquire if this was the case, there is no obligation for the defendants to do so, not least because the pro forma portions of the subpoena document do this in clear and unambiguous terms.

19. Mr Rasmussen next sought to lead evidence from Mr Balzola that certain of the persons who had produced documents now wished to change their minds and to object to the production of documents under subpoena. A short list of names was provided to the court. I have stood over those subpoenae to Monday 24 October 2016, to enable those clients to come to court to articulate their objections.

20. However, where there is no evidence that the plaintiff’s former clients have objected to the production of documents, the plaintiff will need some other basis upon which to assert that the defendants should not have access immediately. This led to two further submissions.

21. The plaintiff first argued that, by reason of the Chorley principle (London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872), he was the client (or co-client) with his own clients, and can claim legal professional privilege on that basis. This novel argument is premised upon the fact that the plaintiff is a solicitor acting for himself in the defamation proceedings in which these subpoenae have been issued. By extension, the plaintiff argues, he should also be seen as the client in each of these cases, so he has a separate basis for claiming legal professional privilege, independently of the persons who have produced documents, in relation to each of the separate answers to documents under subpoena.

22. This submission is misconceived. The Chorley principle is restricted to the entitlement of a solicitor who is acting for himself to claim legal costs (Pentelow v Bell Lawyers Pty Ltd [2016] NSWDC 186). It cannot extend to a situation where a solicitor has been retained by a client to act on his or her behalf. It is not necessary for me to say more, as Mr Rasmussen withdrew this submission.

23. This second argument the plaintiff put forward was that a claim of advice privilege and litigation privilege (again, erroneously, brought under s 118 and not the common law) existed in relation to documents containing costs agreements and memoranda of fees:

“In particular, it is submitted the material being costs agreements, disclosure statements, advices and client instructions” fall within the statutory definitions of “confidential communication” and/or “confidential documents” within the meaning of s 117 of the Act.” (written submissions, paragraph 11)

24. Costs agreements and memoranda of fees are not generally protected by legal professional privilege: CSR Limited v Eddy [2008] NSWCA 83 at [62] (costs agreements); Lake Cumbeline Pty Ltd & Ors v Effem Foods Pty Ltd (1994) 13 ACLC 55 (extract); 126 ALR 58 at 68 (memoranda of fees).

25. I have granted the defendants access to those documents sent to the court by producing parties who have not been identified by the plaintiff as proposing to bring applications to set aside production.

26. However, noting that parties who appear on Monday will have the same difficulties in claiming legal professional privilege for costs agreements and memoranda of fees as the plaintiff has had, I suggested to the parties that I should inspect the documents and put these particular documents in a separate bundle, so that they can consider any application they may wish to make in light of the decisions referred to in paragraph 21 above. I shall, however, await the submissions of the parties who proposed to seek to set aside these subpoenae before permitting any access by the defendants to any of their documents, including fee notes and costs agreements.

The “Hearne v Street” claim

27. The plaintiff objected to production of submissions by local resident groups to development applications under consideration by Penrith City Council on the basis that the development application procedure amounted to, or was analogous to, court proceedings, and any request to the Council to produce those submissions contravened the obligations discussed by the High Court in Hearne v Street (2008) 235 CLR 125.

28. Mr Rasmussen withdrew this submission in the course of argument. This means that it was not necessary to deal with the defendants’ other basis for opposing this application, namely that the plaintiff failed to notify either the defendants or the court of this objection until after the period of first access had elapsed, with the result that the documents in question had already been inspected by the defendants (see paragraphs 47 – 49 and 53 – 54 of the affidavit of Mr Beattie).

29. Access to the documents in packet 8 from Penrith City Council has accordingly been granted.

The parliamentary privilege claim

30. The plaintiff relies upon the statement in the Legislative Council of New South Wales Practice, Chapter 3, p. 47:

“There is no statute in New South Wales which defines the powers and privileges of Parliament. In all other Australian jurisdictions, with the limited exception of Tasmania, the privileges of Parliament are determined either by reference to the British House of Commons or by specific statute, as in the case of the Parliamentary Privileges Act 1987 (Cth). By contrast, in New South Wales, the immunities and powers of Parliament rely on the common law principle of ‘reasonable necessity’, together with certain statutory provisions, including the adoption of Article 9 of the Bill of Rights 1689. This famous article declares: That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

31. The plaintiff submits that the material produced by Mr Clarke is for the making of speeches and debates upon topics of high public importance and for the purpose of the functioning of the producing party in his capacity as an elected member of the Legislative Council of New South Wales and Parliamentary Secretary for Justice.

32. As Mr Clarke is one of the persons whom the plaintiff has indicated may seek to set aside the subpoena addressed to him, this issue has been stood over for argument to 24 October 2016.

33. This brings me to the application by the defendants in relation to a subpoena to the Honourable Reverend Fred Nile MLC. That subpoena has been unable to be personally served upon him, which is a strict requirement for all subpoenae, despite a series of attempts. The defendants therefore seek an order that their attempts to serve the subpoena should be considered sufficient for the subpoena to be deemed to have been served. The plaintiff made no submissions to the court in relation to this issue.

The defendants’ application under UCPR r 10.14

34. The defendants seek orders that the subpoena to produce addressed to the Honourable Reverend Fred Nile MLC be taken to have been served by it having been sent by email to the email addresses set out in the orders sought.

34. Rule 10.14 UCPR provides:

“10.14 Substituted and informal service generally

(1) If a document that is required or permitted to be served on a person in connection with any proceedings:

(a) cannot practicably be served on the person, or

(b) cannot practicably be served on the person in the manner provided by law,

the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

(3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.

(3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes:

(a) a statement as to the applicant’s knowledge of the whereabouts of the person to be served, and

(b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).

(4) Service in accordance with this rule is taken to constitute personal service.”

36. The defendants rely upon the affidavit of Mr Doctor, a solicitor in the employ of Banki Haddock Fiora, the solicitors for the defendants, sworn on 19 October 2016. That affidavit sets out the steps taken to serve the Honourable Reverend Fred Nile MLC (“Reverend Nile”) personally and how, despite those efforts, personal service has been unable to be effected.

37. Ms Barnett submitted that it was clear from the contents of this affidavit that the subpoena had come to the attention of Reverend Nile, that the email addresses it had been sent to are email addresses used by him, and that his response to the subpoena amounted to attempts to evade service.

38. The court should not lightly make orders under UCPR r 10.14, let alone act on submissions that a party is seeking to evade service (R v Zdravkovic [2015] ACTSC 154). I propose to set out the evidence of the defendants’ attempts to serve the subpoena in some detail, as this has been the course taken in similar applications (see, for example, Elcham v Darling Island Sydney [2005] NSWSC 448 at [4]).

The defendants’ attempts to serve a subpoena on Reverend Nile

39. On the day the subpoena was filed, Mr Doctor, having obtained information as to the address of the Reverend Nile, telephoned his office and spoke to a lady who identified herself as “Kay”. The conversation, which I have extracted from paragraph 7 of the affidavit of Mr Doctor, was as follows:

She said:   Reverend Nile’s office, this is Kay.

He said:   My name’s Alasdair Doctor, I’m a solicitor from a law firm called Banki Haddock Fiora. I have a subpoena addressed to Mr Nile that needs to be served on him fairly soon, can I organise a time for that?

She said:   You need to email me and then Reverend Nile can get back to you, my email is [email protected].

He said:   OK, can I include the subpoena with the email, that way Mr Nile can have a look at it as soon as possible?

She said:   Yes that’s fine, I’ll make sure he gets it.

He said:   Thanks, and can we organise a time to see Mr Nile and serve it?

She said:   Yes.

He said:    My number is 92663423.

40. Mr Doctor sent the email that same day. On the following day (20 September 2016) he telephoned Reverend Nile’s parliamentary chambers and again spoke to Ms Allen as follows (affidavit of Mr Doctor, paragraph 10):

She said:   Reverend Nile’s office, this is Kay.

He said:   This is Alasdair Doctor again, can we organise for service of the subpoena on Mr Nile today?

She said:   Yes, he will call you today.

He said:   Has he seen the subpoena?

She said:   Yes, I forwarded your email on to him.

41. When Mr Doctor did not receive the return call from Reverend Nile, he rang on the following day (21 September 2016) and had the following conversation with Ms Allen (affidavit of Mr Doctor, paragraph 11):

She said:   Reverend Nile’s office, this is Kay.

He said:   This is Alasdair Doctor again calling about service of the subpoena.

She said:   He’s in the Chamber. He will call you back.

42. Mr Doctor had another subpoena to serve on a Mr David Clarke MLC and he attended Parliament House on that day (21 September 2016) to do so. He and Mr Clarke walked together from Parliament House to the footpath outside Sydney Hospital so that Mr Doctor could serve him with a subpoena outside the parliamentary premises. Mr Doctor had also brought a copy of the subpoena for Reverend Nile with him and, given the requirement that Reverend Nile would similarly need to be served outside the premises of the Parliament, telephoned Ms Allen again to see if he was free (affidavit of Mr Doctor, paragraph 14):

She said:   Reverend Nile’s office, this is Kay.

He said:   This is Alasdair from Banki Haddock Fiora. I am outside Parliament with the subpoena to produce for Mr Nile. I know Parliament is on break, could he please come outside so I can serve it?

She said   I just need to check where he is.

43. Mr Doctor was put on hold for about five minutes. When Ms Allen returned, the conversation was as follows (affidavit of Mr Doctor, paragraph 14):

She said:   He wants to know what it is about and why does he need it?

He said:   You told me that you had given it to him after I emailed you?

She said:   Yes, I did, look, can I just come and get it?

He said:   Yes, that’s fine, as long as you’re willing to accept service on Mr Nile’s behalf.

She said:   Yes, I’ll come down now.

44. At 1.35 pm a woman approached Mr Doctor and identified herself as Kay Allen. The conversation was as follows (affidavit of Mr Doctor, paragraph 15):

He said:   Here is the subpoena.

She said:   Mr Nile told me that I wasn’t allowed to take it, it’s not part of my job, he doesn’t want to deal with it now and he’s going overseas tomorrow.

I said:   Mr Nile knows of the existence and contents of the subpoena; it’s likely that informal service would be granted, it would be much easier for everyone if he just came down and accepted service. I’ve already served David Clarke today, with which there was no issue.

She said:   OK, I’ll go talk to him, wait here.

45. Mr Doctor waited in Macquarie Street while Ms Allen entered the grounds of Parliament House. He remained there for almost half an hour and at 1.55 pm again called Reverend Nile’s office. Ms Allen answered the call and the conversation was as follows (affidavit of Mr Doctor, paragraph 16):

He said:   What is happening, you asked me to wait outside?

She said:   He is talking to David Clarke about the subpoena.

He said:   OK, well is he going to come down here at some point and accept service?

She said:   I don’t know, you’ll just have to wait; he’s a very busy man; I’ll call you about it, just wait.

46. Mr Doctor agreed, and waited, but no one came. He rang Reverend Nile’s office at 2.15 pm, 2.20 pm and 2.25 pm but none of his calls were answered. His 2.30 pm call was answered by Ms Allen and the conversation was as follows (affidavit of Mr Doctor, paragraph 18):

He said:   What is happening with Mr Nile?

She said:   He’s gone back to the Chamber; he doesn’t want to deal with this, it has nothing to do with him.

He said:   So he won’t come and accept service?

She said:    No he won’t.

47. That evening, Mr Doctor sent an email to the two email addresses set out in the orders I have made. That email included a letter from Banki Haddock Fiora setting out all of the above attempts Mr Doctor had made to serve the subpoena on Reverend Nile and drew his attention, notwithstanding Reverend Nile’s “apparent refusal to accept service”, to the provisions of UCPR r 33(6)(3) in relation to the obligation to comply prior to the first return date (5 October 2016). Another copy of the subpoena was also attached.

48. There was no reply to the email or the letter attached to it.

49. At the first return date for the subpoena (5 October 2016) the court had no record of production of any documents by Reverend Nile, and the return date was stood over to 10 October 2016.

50. On that same day, 5 October 2016, Mr Doctor sent another email to Reverend Nile, advising that no documents had been produced, that the date for compliance had been extended to 10 October, and requesting compliance.

51. There was no reply to the email or to the letter attached to it.

52. On 10 October 2016 the court again had no record of production of any documents by Reverent Nile. A printout from the subpoena registry dated 18 October 2016 confirmed that this was the case as at that date. In those circumstances, the application before me was brought.

53. The email addresses have been used by Reverend Nile for many years Mr Doctor appends to his affidavit correspondence in the form of emails, all dated during 2008, between Reverend Nile and the Health Care Complaints Commission. Reverend Nile’s email address also appears as his contact details for the Christian Democratic Party newsletter (Exhibit I).

54. There are very few cases where a third party has sought to evade service of a subpoena. Although many thousands of subpoenae to third parties are issued by courts around Australia every year, compliance with the obligation to provide documents is such a standard response that the courts and litigants tend to take it for granted. Some institutions, such as police services, receive so many subpoenae that they employ staff to answer them, and have special systems for the purpose of compliance. It says a great deal for the respect with which the court subpoena system is regarded in this country that the rate of compliance is so high, despite the inconvenience and expense involved to those third parties.

55. While compliance with the production of documents for litigation purposes can be a problem for busy people or organisations, the court expects them to do so, subject to the payment of appropriate conduct money. Warnings concerning the failure of a party to comply are set out in most courts’ pro forma subpoena forms, including the District Court of New South Wales. Where a party to proceedings seeks to avoid service of a subpoena, such conduct is regarded as particularly serious and may be a contributing factor to the dismissal of proceedings; Huang v Abayawickrama [2012] FCA 1504 at [36] and [41] – [42]. Where a third party seeks to avoid service, the consequences could amount to a serious injustice occurring, whether to the party issuing the subpoena or to the opponent, and the avoiding of service should be viewed as similarly serious, particularly given the potential for the person seeking to avoid service being the subject of an application to be dealt with for contempt of court.

56. Ms Barnett submitted that every effort to serve Reverend Nile had been made, only one of which was Mr Doctor “standing in Macquarie Street for hours” waiting to hear from him and trying to reach him by telephone.

57. For a subpoena to be called upon, it must be served personally. However, UCPR r 10.14 confers a discretion on the court, where a particular mode of service (such as personal service) is required, to make orders for informal service where the court is satisfied that the contents of the court documents in question were brought to the attention of the relevant person or party.

58. It is clear, from the facts set out above, that Reverend Nile has attempted to evade service of the subpoena filed by the defendants in these proceedings, and that I should exercise the discretion conferred upon me by UCPR r 10.14 to make the orders sought.

59. I have not made an order for service of these orders by the defendants on Reverend Nile, as I consider that this notification is more appropriately carried out by the court. Accordingly my associate has sent copies of these orders to Reverend Nile by email, in addition to the emails he has sent to the list of producing parties challenging the subpoenae issued to them, which list was supplied by the plaintiff to my associate for this purpose. A copy of this judgment will also be provided to the producing parties and to Reverend Nile as soon as practicable.

Orders

1. Stand over part heard this application to Monday 24 October 2016 at 9:00am.

2. Any producing party objecting to access to the documents already produced is to file any application together with an affidavit or statement in support by 4:00pm 21 October 2016, setting out why the subpoena addressed to them (which has already been answered by them) should be set aside and appear in person on Monday 24 October 2016 at 9:00am before Gibson DCJ in Court 13D, John Maddison Tower, 86 Goulburn Street, Sydney NSW 2000, for the purpose of making such an application. Plaintiff to provide the court with email addresses for each of these persons so that the court can notify them of these orders today, and advise them that if they do not appear orders for access may be made in their absence.

3. An order for general and uplift access to documents in the following subpoena packets: subpoena packets 14, 15 and 17.

4. Note the concession of the plaintiff that legal professional privilege applies for retainer documents, including costs agreement and memoranda of fees.

5. Dismiss the plaintiff’s objection to production of the documents from the Penrith City Council (subpoena packet 8) and grant the defendants immediate uplift access to those documents.

6. Grant the defendants uplift access to subpoena packets 10, 11, 12 and 13, such documents to be made available to the plaintiff by making them available for collection by the plaintiff after 4:00pm today.

7. Noting the plaintiff’s concession in relation to retainer documents, Gibson DCJ will remove from packets 5, 6, 7, 9 and 16 the relevant documents so that any of these parties when appearing before the court on Monday 24 October 2016 will have an opportunity to make any further submissions in relation to these documents.

8. As to the defendants’ application for an order for substituted service on the Honourable Rev. Fred Nile MLC:

1. Grant leave to the defendants to rely upon the affidavit of Mr Doctor filed in court today;

2. An order, pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW), that the subpoena to produce dated 15 September 2016 issued the Honourable Rev. Fred Nile MLC (the subpoena) is taken to have been served on the Honourable Rev. Fred Nile MLC on 21 September 2016 by it having been sent by email to the Honourable Rev. Fred Nile MLC at the addresses [email protected] and [email protected].

3. Stand the subpoena over to Thursday 27 October 2016 before Gibson DCJ.

4. Direct that a copy of these orders be served on the Honourable Rev. Fred Nile MLC by email to the addresses [email protected] and [email protected].

5. Liberty to apply to the Defamation List Judge in relation to the subpoena and/or these orders on 3 days’ notice.

9. Costs reserved.

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