Bowers v The Law Society of New South Wales

[2021] NSWCA 118

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bowers v The Law Society of New South Wales [2021] NSWCA 118

Hearing dates:

31 May 2021

Date of orders:

31 May 2021

Decision date:

01 June 2021

Before:

Payne JA

Decision:

The Court orders in relation to the amended notice of motion filed by James Bowers dated 6 May 2021 and filed 12 May 2021:

1. Dismiss the amended notice of motion dated 6 May 2021 and filed 12 May 2021.

2. The applicant on the motion to pay the costs of the first, second and third respondents on the motion.

The Court orders in relation to the notice of motion filed by the Law Society of New South Wales dated 26 April 2021 and filed 27 April 2021:

1. Set aside the notice to produce addressed to the Law Society of New South Wales.

2. The respondent on the motion to pay the costs of the applicant on the motion.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – leave to appeal – notice to produce – no issue of principle

Legislation Cited:

Legal Profession Uniform Law (NSW), s 464

Privacy Act 1988 (Cth)

Uniform Civil Procedure Rules 2005 (NSW), r 34.1

Cases Cited:

Bowers v The Law Society of New South Wales (No 7) [2021] NSWSC 611

British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197

Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245; [1981] HCA 35

Category:

Procedural rulings

Parties:

James Bowers (Applicant)
The Law Society of New South Wales (First Respondent)
The College of Law Ltd (Second Respondent)
NSW Legal Services Commissioner (Third Respondent)

Representation:

Counsel:
P Gerber (Applicant)
J Entwisle (First Respondent)
J Curtin (Second Respondent)
R Withana (Third Respondent)

Solicitors:
Gerber Legal (Applicant)
The Law Society of New South Wales (First Respondent)
Baker McKenzie (Second Respondent)
NSW Legal Services Commissioner (Third Respondent)

File Number(s):

2021/97439

Publication restriction:

Nil.

Judgment

1. This matter is listed in this Court for a concurrent hearing of an application for leave to appeal and an appeal on 29 July 2021. On 31 May 2021, in the referrals list I heard two notices of motion in these proceedings.

2. By amended notice of motion dated 6 May 2021 and filed 12 May 2021 Mr Bowers, the applicant, sought the following orders:

“1   An order for expedition.

2   An order adding NSW Legal Services Commissioner as a Respondent to the appeal.

3   An order striking out the responses of the Law Society and College of Law for failure to answer notices to produce and/or comply with the Privacy Act 1988 (Cth).

4. Orders under s 68 Civil Procedure Act against the Law Society, College of Law and NSW Legal Services Commissioner.”

3. At the conclusion of the argument on 31 May I made the following orders:

“1.   Dismiss the amended notice of motion dated 6 May 2021 and filed 12 May 2021.

2.   The applicant on the motion to pay the costs of the first, second and third respondents on the motion.

3.   Reasons reserved.”

4. The applicant on the second motion dated 26 April 2021, the Law Society of New South Wales, sought the following orders:

“1   That the notice to produce to court to the first respondent dated 9 April 2021 be set aside.”

5. At the conclusion of the argument I made the following orders:

“1.   Set aside the notice to produce addressed to the Law Society of New South Wales.

2.   The respondent on the motion to pay the costs of the applicant on the motion.

3.   Reasons reserved.”

6. These are my reasons for making the orders in [3] and [5].

7. The proceedings before the primary judge concern an application by Mr Bowers for a variation of his practising certificate to allow him to practise as a principal of a law practice. He also seeks relief under the Privacy Act 1988 (Cth), requiring the respondents to produce to him his “personal information” as defined in that Act.

8. On 19 March 2021, Adamson J dismissed the applicant’s application for expedition and for the immediate hearing of the relief sought in his Summons. Her Honour instead ordered that there be determined as a separate question, in advance of the balance of the proceedings, whether or not the first respondent had constructively refused the applicant’s variation application by operation of s 464 of the Legal Profession Uniform Law (NSW).

9. That separate question was heard on 22 April 2021 and determined by her Honour in the negative on 26 April 2021. The balance of the relief sought by the applicant was heard on 25 May 2021 including, relevantly, the relief sought by Mr Bowers under the Privacy Act. That decision was handed down on 31 May 2021 but was not referred to by the parties or taken into account in making the orders at [3] and [5] above: Bowers v The Law Society of New South Wales (No 7) [2021] NSWSC 611.

10. By Amended Summons dated 6 May 2021, the applicant seeks leave to appeal each of Adamson J’s decisions of 19 March 2021 and 26 April 2021.

Mr Bowers’ notice of motion

11. Mr Bowers’ proposed order 2 may be dealt with immediately. The NSW Legal Services Commissioner is already the third respondent to the application for leave to appeal. There was never a need for proposed order 2.

12. In relation to proposed order 1 Mr Gerber, who appeared for Mr Bowers, accepted that as the matter had been set down for a concurrent hearing in this Court on 29 July 2021, an order for expedition was not pressed.

13. In relation to proposed order 3, Mr Gerber accepted that there was a high degree of overlap with proposed order 4. No separate submission in support of so drastic an order as to “strike out” the responses of the Law Society and the College of Law was advanced. I am not satisfied that any such order is warranted here. There was no evidence supporting the making of such an order. Indeed, the College of Law pointed out that it had not as yet filed a response. The same appears to be true of the Law Society.

14. The present application is not the occasion to consider the circumstances in which a drastic order such as proposed order 3 may be warranted. Suffice to say there is no basis even arguably suggested for the making of such an order here. This is not a case where there was any suggestion of deliberate destruction of documents, whether before or after the litigation commenced: see the discussion in Lane v Registrar of Supreme Court (NSW) (1981) 148 CLR 245; [1981] HCA 35 at 260; British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197. Proposed order 3 must be rejected.

15. In relation to proposed order 4, it was common ground between the parties that:

1. orders seeking identical documents to those sought by proposed order 4 had been sought from Adamson J both for the purposes of the separate question decision and the substantive hearing on 25 May 2021;

2. Adamson J had refused to make the orders sought on either occasion; and

3. whilst it was submitted that the present application for leave to appeal did not raise the issue, it was open to Mr Bowers, if so advised, to seek to amend and agitate Adamson J’s refusal to make the orders sought when seeking leave to appeal.

16. No basis was suggested on behalf of Mr Bowers to believe that any document sought by reason of proposed order 4 bore upon any relevant questions in the concurrent hearing listed for 29 July 2021. Whilst I accept that there may, possibly, be rare cases in which it is necessary for this Court to require production of documents not considered in a first instance hearing for the purposes of an application for leave to appeal or an appeal proper, that power should be used sparingly. This is not such a case.

17. For the foregoing reasons I made the orders set out at [3] above.

The Law Society’s notice of motion

18. On 9 April 2021, the applicant served a notice to produce on the first respondent pursuant to r 34.1 of the Uniform Civil Procedure Rules 2005 (NSW) seeking “All personal information of [Mr Bowers] as defined in the Privacy Act 1988 (Cth)”. This notice is in identical form to two notices to produce issued in the proceedings below and covers the same documents as sought by proposed order 4 in Mr Bowers’ motion which I have addressed above. By notice of motion dated 26 April 2021, the Law Society sought an order that the notice to produce be set aside.

19. I have concluded that the notice to produce must be set aside. The proceedings in this Court, insofar as they relate to the Law Society, concern a question of statutory construction and related procedural orders. The documents sought are not arguably relevant to those issues. No basis was suggested on behalf of Mr Bowers to believe that any document sought by the notice to produce bore upon any relevant questions in the concurrent hearing listed for 29 July 2021. The notice to produce must be set aside.

20. For the foregoing reasons I made the orders set out at [5] above.

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Decision last updated: 01 June 2021