Cristavao v Geoffrey Dutton t/as Dutton Legal - [2016] WADC 35

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CRISTAVAO -v- GEOFFREY DUTTON t/as DUTTON LEGAL [2016] WADC 35

CORAM: GETHING DCJ

HEARD: 4 MARCH 2016

DELIVERED : 4 MARCH 2016

FILE NO/S: CIV 1628 of 2015

BETWEEN: ROGERIO MARTINS CRISTAVAO
Plaintiff
AND
GEOFFREY DUTTON t/as DUTTON LEGAL
Defendant

Catchwords:

Subpoena - Whether it is legitimate for one party to issue a subpoena against another party

Legislation:

Rules of the Supreme Court 1971 (WA) O 36B r 4

Result:

Early return subpoena set aside

Representation:

Counsel:

Plaintiff: In person
Defendant: Ms C E Moss

Solicitors:

Plaintiff: Not applicable
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Cristovao v Forensic Documents Examiners Pty Ltd [2015] WASCA 85
King v Benecke [2014] NSWSC 957
Stanley v Layne Christensen Company [2004] WASCA 50
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741
Wintle v The Yilgarn Shire Council [2015] WASC 445

GETHING DCJ: [This judgment was delivered extemporaneously on 4 March 2016 and has been edited from the transcript.]

By writ of summons dated 11 May 2015 Mr Cristovao commenced an action against his former solicitor Geoffrey Dutton, trading as Dutton Legal Barristers & Solicitors. Mr Cristovao seeks damages for negligence by Mr Dutton in relation to a claim by Mr Cristovao in the Magistrates Court. The essence of the negligence claim against Mr Dutton appears to be that he commenced the action as a general procedure claim instead of a minor cases claim. This, in turn, exposed Mr Cristovao to the liability to pay costs in the event that he was unsuccessful.
The Magistrates Court claim was dismissed following trial. Mr Cristovao was ordered to pay the costs of the claim, which were subsequently taxed. Mr Cristovao then pursued a review of the taxation and appealed to the District Court, then appealed to the Court of Appeal. The net result of these judicial processes was that Mr Cristovao retained the liability to pay the costs of the claim. The history of these proceedings is summarised in the judgment of the Court of Appeal in Cristovao v Forensic Documents Examiners Pty Ltd [2015] WASCA 85.
Mr Cristovao filed an amended writ of summons dated 22 June 2015. The endorsement on the amended writ is detailed. The action appears to me to have proceeded on the basis that this endorsement stands as the statement of claim in the action. On 23 July 2015 Mr Dutton filed a defence.
On 5 August 2015 Mr Cristovao filed a chamber summons seeking orders to strike out portions of the defence together with an affidavit in support. This application was ultimately heard by a deputy registrar on 11 September 2015, and, with one exception, the application was dismissed with an order for costs. By notice of appeal filed 21 September 2015 and dated 20 September 2015 Mr Cristovao appealed from the decision of the deputy registrar.
The notice of appeal was listed before a registrar for directions on 12 January 2016, and a number of directions were made. Relevantly, they included programming orders for the filing of further affidavits and an order that 'the deponent of any affidavit to be used in the appeal be available for cross-examination'.
On 17 February 2016, Mr Cristovao filed, and the court issued, two subpoenas addressed to the defendant, Mr Dutton. The first was a subpoena to attend and give evidence and the second was a subpoena to produce documents. Both were returnable on 4 March 2016, that is, the listed date for the hearing of the appeal.
On 25 February 2016 Mr Dutton filed an application returnable before a judge in chambers seeking orders that the subpoenas be struck out, together with an affidavit in support. The chamber summons to strike out the subpoenas was initially listed before a judge in chambers on 29 February 2016 and then was moved to the hearing before me today.
In his submissions, Mr Cristovao stated that he wants to ensure that all relevant documents are disclosed to him prior to the trial of the action. In particular, he is concerned to ensure that all relevant documents are disclosed to him before an application is determined by the court in relation to a potential preliminary issue. The preliminary issue is whether or not the defendant is entitled to rely upon advocate's immunity.
Rules of the Supreme Court 1971 (WA) (RSC) O 36B r 4(1) provides that:
The Court may on the application of a party or other person having a sufficient interest, set aside a subpoena in whole or in part or grant other relief in respect of it.
Mr Dutton is clearly a party and has standing to bring this application. One ground on which a subpoena may be set aside is that it is not being used for a legitimate forensic purpose: Stanley v Layne Christensen Company [2004] WASCA 50 [9] (judgment of the court).
In Wintle v The Yilgarn Shire Council [2015] WASC 445, when sitting as the Acting Master, I set aside a subpoena issued at the request of the plaintiff to the defendant to produce documents. In that case the plaintiff was also a litigant in person. At [16] I stated the following:
As a very general proposition, I am of the view that the issue of a subpoena against a party to an action is an abuse of the processes of the court. The processes of the court set out in the RSC contain a very clear regime for the provision of discovery. The issue of an early return subpoena would cut across that process. Perhaps a more precise way of expressing my concern is to say that it is not a legitimate use of the subpoena process to bypass RSC O 26.
Rules of the Supreme Court O 26 contains a detailed regime for the parties to an action to disclose documents to each other. In Wintle, I then went on to observe that in Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741 at [3], Merkel J stated that it is not a legitimate use of the subpoena process to bypass the rules relating to non-party and pre-action discovery.
Mr Cristovao drew my attention to a decision of his Honour, Harrison J, in the Supreme Court of New South Wales in the decision King v Benecke [2014] NSWSC 957. Mr Cristovao referred to [66] of that decision:
On 23 August 2012, Mr King filed a notice of motion seeking to set aside Mr Benecke's subpoena to produce documents from the National Australia Bank and a notice to produce served on him. I dismissed that application upon the basis that, contrary to Mr King's submissions, each of the subpoena and the notice to produce had a legitimate forensic purpose. I also made an order that the costs of the motion should be Mr King's costs in the proceedings.
Mr Cristovao submitted that the subpoena in question was a subpoena issued by one party to another. I do not read the paragraph in that way. The way I read the paragraph is that the subpoena was issued by Mr Benecke seeking production of the documents from the National Australia Bank. The National Australia Bank was not a party to that action.
I remain of the view set out in the decision in Wintle. There is a clear process in RSC O 26 (which applies with limited modification for the District Court) for one party to obtain disclosure of documents from the other. There is also a clear process in RSC O 27 (which also applies with limited modifications in the District Court) for one party to obtain information on oath from the other in the form of interrogatories.
The use of a subpoena by a party to bypass RSC O 26 or O 27 is not a legitimate use of the subpoena process. There is, in my view, no element of injustice to Mr Cristovao in this conclusion. He is able to obtain documentary and testamentary disclosure from Mr Dutton using the discovery and interrogatory processes. These processes are subject to well-established principles as to their use. They are also subject to the overriding case management regime of the court, in particular that set out in RSC O 1 r 4(A) and r 4(B). The net effect of the regime is that in this case, like in every other case, there are set procedures to use to ensure that all relevant documents are disclosed by the parties prior to the trial of an action. There is nothing in the material before me suggesting that these processes cannot be used in their ordinary application to the present action.
For these reasons, I order that the subpoenas issued at the request of the plaintiff to the defendant on 17 February 2016 be set aside.