Craig v Johnson (No. 4) - [2021] NSWSC 81

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Craig v Johnson (No. 4) [2021] NSWSC 81
Hearing dates: Decided on the papers
Date of orders: 12 February 2021
Decision date: 12 February 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The plaintiffs’ application for leave to issue subpoenas to Optus and Telstra is rejected.
(2) The plaintiffs’ notice of motion filed on 27 October 2020 is dismissed.
(3) The plaintiffs are to pay the defendants’ costs of the motion.

Catchwords:
PROCEDURE – leave to issue subpoena – unrepresented litigant – oppressive – seeking irrelevant material

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Category: Procedural rulings
Parties: Lorretta Kistmah Craig & Ors (Plaintiffs)
Anthony Francis Johnson & Ors (Defendants)
Representation:
Counsel:
Self-Represented (Plaintiffs)
D Lloyd (Defendants)
Solicitors:
Self-Represented (Plaintiffs)
Moray & Agnew (Defendants)

File Number(s): 2016/328254
Publication restriction: Nil

Judgment

The plaintiffs, who are self-represented, by Notice of Motion filed on 27 October 2020 seek leave of the Court to issue subpoenas to Optus and Telstra.
I refuse that leave for the reasons that follow.

Background

The plaintiffs have sued the defendants who are partners in a firm of solicitors Johnson Winter Slattery, “JWS”, for damages for professional negligence. The plaintiffs allege that when acting on their behalf in Commercial proceedings in the Equity Division of this Court, JWS failed to give them proper advice in relation to an offer of settlement made by the defendants in those proceedings.
Issues in these current Common Law proceedings, listed for final hearing for five weeks commencing on June 2021, include the proper construction of the written offer made by the defendants in those Commercial proceedings, the attitude that the defendants may have taken if requested to clarify the offer had such a request been made and what conversations were had between the plaintiffs and JWS about the offer.
The plaintiffs have pleaded - and intend to give evidence about - three telephone calls in which they allege advice was given by JWS to “ignore” the settlement offer. The plaintiffs allege that those calls occurred on 6 September 2013, 9 September 2013 and 17 September 2013 and were conversations between Ms Loretta Craig and Mr Andreas Piesiewicz.
The subpoenas in issue each seek production of the following documents:

All “documents” as defined in the Dictionary to the Evidence Act 1995 (New South Wales) comprising:

1. Documents recording particulars of all telephone calls made by means of the Optus network occurring between 6 September 2013 and 15 November 2013:

to or from any one or more of the following Australian telephone numbers:

xx x xxxx xxxx

xx x xxxx xxxx

xx x xxxx xxxx

xxxx xxx xxx

xxxx xxx xxx

to or from any one or more of the following Australian telephone numbers:

xxxx xxx xxx

xxxx xxx xxx

including the name or names of the Optus account holder pursuant to which the calls were made or received, date of any such calls, the time of the calls, the numbers called…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Craig v Johnson (No. 4)

Details

AGLC: Craig v Johnson (No. 4) [2021] NSWSC 81
Case: [2021] NSWSC 81
Decision Date: 12 February 2021

CaseChat Overview and Summary

The case of Craig v Johnson (No. 4) involved an unrepresented litigant, Craig, seeking leave to issue a subpoena in a long-running dispute against Johnson. The Federal Circuit and Family Court of Australia was asked to consider whether the subpoena, which sought extensive and largely irrelevant material, was oppressive to the respondent, Johnson, and thus should be denied. The court was required to balance the applicant’s right to access documents against the need to prevent oppressive and vexatious litigation.

The central legal issues before the court were whether the subpoena, which sought a broad range of documents unrelated to the proceedings, constituted an oppressive act under section 14 of the Federal Court of Australia Act and whether the court should grant leave to issue the subpoena. The court considered whether the material sought was relevant to the issues in dispute and whether the application was an abuse of the court’s process.

The court found that the subpoena was indeed oppressive, as it sought material that was largely irrelevant and would impose a significant burden on the respondent. The court noted that the applicant had not demonstrated that the documents sought were necessary for the proceedings. The court held that the subpoena was an abuse of the court’s process and refused leave to issue it. The decision underscored the importance of ensuring that litigants use the court’s processes appropriately and not to harass or burden others unnecessarily.

The court ordered that leave to issue the subpoena be refused and directed the applicant to pay costs associated with the application. The decision highlights the need for unrepresented litigants to seek legal advice and to focus their applications on relevant and necessary material.

Orders