Cooper v Miljus (Ruling)

[2012] VCC 2153

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
FAMILY PROPERTY DIVISION

Case No. CI-12-01823

SHELLIE COOPER	Plaintiff
v
GORAN MILJUS	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2012
DATE OF RULING:	30 November 2012
CASE MAY BE CITED AS:	Cooper v Miljus (Ruling)
MEDIUM NEUTRAL CITATION:	[2012] VCC 2153

RULING
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SUBJECT: PRACTICE AND PROCEDURE                  
CATCHWORDS: Subpoena served on a non-party before trial pursuant to Rule 42A – subpoena requiring production of a solicitor’s file to the Registrar – whether the documents were for “evidence” – whether the non-party could claim legal professional privilege – whether the subpoena was too wide               
CASES CITED: Newnham v Davis [2010] VSC 13
RULING: the subpoena is set aside.                  

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Johnson	BTE Flynn Murone & Co
For Michael Vuckovic	Mr A Hands	Michael Vuckovic

HIS HONOUR:

Introduction

1       The plaintiff and the defendant were in a domestic relationship which commenced in April 1997 and ceased in June 2008.  Three children were born during their relationship, in 2000, 2002 and 2004.

2       The plaintiff commenced a proceeding under Part IX of the Property Law Act 1958 seeking a just and equitable alteration of property interests from the jointly owned property in the possession of the parties. The proceeding is scheduled to be heard as a special fixture before Judge O'Neill on 3 December 2012.

3       The plaintiff served two subpoenas on Mr Michael Vuckovic, solicitor.  The first is a Rule 42A subpoena dated 11 October 2012 requiring Mr Vuckovic to produce the following documents to the Registrar by 8 November 2012:

"The complete file incl[u]ding letters, notes, memoranda, Certificates of Title, agreement, mortgages, agreements or any documents whatsoever in connection with Mortgage dated 31st of July, 2001, between Dorde Miljus of 1 Parkmore Road, East Bentleigh, Victoria and Goran Miljus, but not limited to, the complete file under reference of MV:20767."

4       The second subpoena is a Rule 42 subpoena requiring Mr Vuckovic to attend to give evidence at the trial of this proceeding at 10:30am on 3 December 2012.

5       Mr C Johnson appeared for the plaintiff and Mr A Hands appeared for Mr Vuckovic.

6       I was referred to, and I read:

·     The affidavit of Mr Vuckovic sworn 28 November 2012.

·     The affidavit of Mr Frank Paul Murone, solicitor, sworn 27 November 2012.

The Issues

7       Mr Johnson and Mr Hands summarised the issues as follows:

·        Mr Dorde Miljus is not a party to the proceeding.

·        A subpoena under Rule 42A requires a person not a party to the proceeding to produce documents “for evidence before … the trial of the proceeding”.

·        A subpoena under Rule 42A is available when the documents to be produced may be potentially admissible as evidence in the proceeding and have some potential relevance to the issues in the proceeding: Newnham v Davis.[1]

[1][2010] VSC 13

8       Mr Dorde Miljus is the father of the defendant.  In a financial statement sworn by the defendant on 14 September 2011, he alleges that the parties borrowed $300,000 from Mr Dorde Miljus.  That sum is said to be secured by a mortgage.

9       Mr Johnson submitted that the plaintiff wishes to adduce evidence of the composition of the asset pool and its liabilities in order to present to the Court what she says is the net asset pool from which any order should be made.  He submitted that if there is a mortgage securing the borrowing, then the plaintiff intends to tender documents relevant to the mortgage from Mr Vuckovic’s file to challenge the defendant’s evidence that monies were borrowed, and were secured by a mortgage.

10      Mr Hands submitted that what the plaintiff is attempting to do is to use Rule 42A for the purpose of discovery, which is impermissible.  He also submitted that the file is that of a non-party and attracts legal professional privilege which is not waived.

11      Mr Johnson and Mr Hands invited me to look at the file so that I could make up my own mind whether there is any merit in their submissions.  They agreed, at my suggestion, that given that the trial is on the following Monday that it will be sufficient for me to deliver short reasons as quickly as possible. They agreed that if the plaintiff succeeds, she should get her costs, and if she fails, Mr Vuckovic should get his costs.

Disposition

12      I have carefully read the file and have carefully examined the Schedule of Documents referred to under paragraph 11 of Mr Vuckovic’s affidavit.  I have reached the conclusion that the Rule 42A subpoena is primarily being used to obtain discovery rather than being directed to the production of documents for evidence.

13      Mr Johnson informed me that discovery had not been completed as between the plaintiff and the defendant.  He informed me that his instructing solicitor had applied by letter to the solicitor for the defendant for discovery of specific documents, but none had been forthcoming.  The inference I draw is that it was following that attempt at discovery that the Rule 42A subpoena was filed and served.

14      In any event, the file must be covered by legal professional privilege.  Mr Dorde Miljus engaged and retained Mr Vuckovic to provide legal services.  To the extent that the documents contain instructions given by Mr Dorde Miljus to Mr Vuckovic, or that documents were produced as a result of instructions, then the privilege is that of Mr Dorde Miljus, which he has not waived.

15      Although Mr Hands did not submit, and perhaps did not need to submit, that the subpoena was too wide, on examination of it, I think it is.  It is trite to say that a subpoena must be drafted with exquisite care because the recipient is not obliged to try to work out what it is that has been subpoenaed.  The use of the expressions “the complete file” and “any documents whatsoever” are too wide.

The Second Subpoena

16      Mr Hands submitted that I should set aside the subpoena served upon Mr Vuckovic. I will not do so. There is no apparent connection between the two subpoenas.  The first subpoena is relevant to a file, but the second subpoena requiring Mr Vuckovic to attend may be for a different purpose.  I propose to leave that question to Judge O'Neill to determine.

Orders

17      I will order that the Rule 42A subpoena be set aside, and that the plaintiff pay Mr Vuckovic’s costs of the application to set aside the subpoena to be assessed by the Costs Court, in default of agreement.

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