D v Australian Financial Security Authority

[2017] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	D v Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50
Hearing dates:	10 March 2017
Decision date:	21 March 2017
Before:	Ward JA; Sackville AJA
Decision:	1.   Leave to appeal from the decision of Mahony SC DCJ is refused with costs. 2.   Summons seeking leave to appeal from the decision of Sidis ADCJ be dismissed with costs.
Catchwords:	PROCEDURE – application for leave to appeal against interlocutory decisions made in District Court of NSW – refusal of application by self-represented litigant for leave to issue a subpoena – limitations on grant of leave to self-represented applicant to amend pleadings – Leave to appeal refused in respect of both impugned decisions
Legislation Cited:	Family Law Act 1975 (Cth), s 121 Privacy Act 1988 (Cth), s 25 Uniform Civil Procedure Rules 2005 (NSW), rr 7.3 14.28, 14.30
Cases Cited:	Attorney General of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2012] WASCA 73 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 House v The King (1936) 55 CLR 499; [1936] HCA 40 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW), ss 6(1), 6(3) Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 Portal Software v Bodsworth [2005] NSWSC 1115 Re Will of Gilbert (1946) 46 SR (NSW) 318 The Age Company Ltd v Liu [2013] NSWCA 26
Category:	Principal judgment
Parties:	D (Applicant) Australian Financial Security Authority formerly known as Insolvency & Trustee Service Australia (First Respondent) Philip Madden (Second Respondent) Tara Czinner (Third Respondent) Sally Susan Nash (Fourth Respondent) The Registrar General of New South Wales (Fifth Respondent) Australian Restructuring Insolvency & Turnaround Association (Sixth Respondent) Savice Pty Limited trading as LJ Hooker, Picton (Seventh Respondent)
Representation:	Counsel: Applicant in person Ms TA Berberian (First, Second and Third Respondents) Ms M Avenell (Fourth Respondent) H Altan (Fifth Respondent)   Solicitors: HWL Ebsworth Lawyers (First, Second and Third Respondents) Mullane and Lindsay (Fourth respondent) Ms F Harris, Department of Finance & Services (Land & Property Information) (Fifth respondent)
File Number(s):	2016/227940; 2016/277430
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 01 July 2016 Before: Mahony SC DCJ; Sidis ADCJ File Number(s): 2015/00124114

Judgment

1. THE COURT: The applicant seeks leave to appeal from separate interlocutory decisions made in the course of the same proceedings commenced by her in the District Court of New South Wales. The applicant is referred to by pseudonym on the coversheet of this judgment, since the gravamen of the underlying dispute relates to her identification in public documents as a party to certain Family Court proceedings.

2. The first of the impugned decisions is the refusal by Mahony SC DCJ on 1 July 2016 to grant the applicant leave to issue a subpoena addressed to the first respondent, the Australian Financial Security Authority, formerly known as Insolvency & Trustee Service Australia (AFSA), who was appointed in 2007 as trustee of the bankrupt estate of the applicant’s former husband. We refer to this as the First Impugned Decision.

3. The second is the refusal of Sidis ADCJ to grant leave to the applicant to amend her pleadings so as to include claims in defamation contained at [17] of the proposed further amended statement of claim and her Honour’s decision only to permit the applicant to claim against, relevantly, the Registrar-General of New South Wales (the fifth respondent) in negligence. We refer to this as the Second Impugned Decision.

4. The question whether s 121 of the Family Law Act 1975 (Cth) (the Family Law Act) has been breached by any party and, if so, whether that gives rise to a civil action for damages seems to be the threshold issue governing the multitude of claims made by the applicant in the District Court proceedings.

5. As explained later in this judgment, the respective applications for leave to appeal concern matters of practice and procedure and raise no issues of principle. In the usual course it would be appropriate to dismiss the applications and to give brief reasons for so doing. However, this case has already had a long and unfortunate history in which the threshold issue has not yet been addressed. We therefore set out the background in more detail than otherwise might be appropriate.

Background

6. The District Court proceedings arise out of the circumstances in which, following the applicant’s divorce and the bankruptcy of her former husband, the applicant’s former matrimonial home was sold pursuant to a statutory trust for sale.

7. The applicant’s complaint is that a copy of Family Court orders (made on 19 August 2011), setting aside earlier consent orders by which her former husband’s interest in the matrimonial home had been transferred in its entirety to her and vesting the property in the second and third respondents on a statutory trust for sale, was attached to the contract for sale of the property and distributed to prospective purchasers without the redaction of her name and other identifying information (including the file number of the Family Court proceedings).

8. The applicant initially brought proceedings only against AFSA (the first respondent in the current proceedings) the two trustees employed by it (the second and third respondents) and the solicitor who acted for AFSA on the sale (the fourth respondent).

9. The causes of action raised against those parties were identified by Taylor SC DCJ, when ruling in May 2016 on a summary dismissal application brought by them (see [14] below), as being for: breach of publication order; breach of s 121 of the Family Law Act1975 (Cth); breach of the Privacy Act1988 (Cth) (the Privacy Act); negligence; breach of confidence; breach of privacy; defamation; and breach of statutory duty arising from a breach of s 121 of the Family Law Act (see [11] of his Honour’s reasons).

10. By letter dated 3 August 2015, addressed to the solicitors acting for the first to third respondents, the applicant served a notice to produce dated 29 July 2015. The notice to produce was in terms addressed only to AFSA. It was returnable on 14 August 2015 and required the production of the following documents:

1.   All the files of AFSA in regard to the action taken by you, AFSA, (formerly ITSA), your Trustees and your solicitor, Sally Susan Nash from the commencement of proceedings in the Family Court of Australia, WOC 799 of 2007, resulting in the Trustees signing an Agency Agreement with LJ Hooker Picton dated 5 January 2012, the resulting sale process through to settlement and administration and disbursement of funds from the sale either by your Trustees or your solicitor, Sally Susan Nash.

2.   The documents should include all file notes, telephone notes, memos, correspondence and anything related to the proceedings referred to in point 1 by any of your staff, trustees or solicitors or any other person acting on your behalf. [emphasis in original]

11. In response to that notice to produce, by letter dated 11 August 2015, the solicitors acting for AFSA forwarded to the applicant (by way of what they said was “an informal, partial response”) a number of documents which they said were “all of the documents in our client’s possession relating specifically to your complaint about the Family Court’s orders being attached to the Contract for Sale”. In their letter, the solicitors pointed out that the proceedings concerned the alleged publication of Family Court orders in 2012 and said that they did not see how documents going back to the commencement of proceedings in 2007 could bear on whether the (2011) orders were published in 2012 or whether there was any legal justification for them to be published.

12. The applicant was apparently dissatisfied that the solicitors for the first to third respondents (AFSA and the two trustees) had themselves decided what was relevant for her to see. She caused a subpoena to be issued on 5 January 2016. The subpoena was again addressed to AFSA and required production of documents described in very similar terms as those sought by the notice to produce:

1.   All the files of AFSA in regard to the action taken by you, AFSA, (formerly ITSA), your Trustees and your solicitor, Sally Susan Nash from when you instructed your solicitor, the Fourth Defendant, Sally Susan Nash to commence proceedings to set aside consent orders issued by the Family Court of Australia in WOC 799 of 2007 resulting in the Trustees signing an Agency Agreement with LJ Hooker Picton dated 5 January 2012, the resultant sale process of my former matrimonial home through to settlement and administration and disbursement of funds from the sale either by your Trustees or your solicitor, Sally Susan Nash.

2.   The documents should include all file notes, telephone notes, memos, correspondence and anything related to the proceedings referred to in point 1 by any of your staff, trustees or solicitors or any other person acting on your behalf. [emphasis in original]

13. Leave had not been obtained for the issue of that subpoena (as required under r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), since the applicant did not have legal representation in the proceedings). The applicant, by notice of motion filed 5 January 2016 sought that leave. At least by reference to the heading of the notice of motion, it appears that the applicant also sought to enforce the notice to produce that had been served in August 2015. In support of that application, the applicant filed an affidavit affirmed by her on 11 December 2015 to which she annexed, among other things, the documents that had been informally produced to her in response to the notice to produce.

Summary dismissal judgment – 16 May 2016

14. Before the applicant’s subpoena application was heard, Taylor SC DCJ heard and dismissed a summary dismissal application brought by the then defendants to the proceedings (the first four respondents).

15. In so doing, his Honour nevertheless struck out [4] of the amended statement of claim (which contained an allegation of “breach of the Publication Order under Section 121 of the Family Law Act, which are criminal acts and offences against Commonwealth legislation”), pursuant to r 14.28(1) of the UCPR. His Honour treated other references to breach of a publication order as being “in the context of notification by the plaintiff of facts alleged to be relevant to a cause of action other than breach of a publication order” and did not strike out those references.

16. As to the second cause of action identified by his Honour (for breach of s 121 of the Family Law Act), his Honour noted that the applicant did not, in her submissions, adopt this cause of action (see [33]). His Honour stated that no statutory cause of action for damages arising from a breach of s 121 was created under the Family Law Act ([34]). He then said:

In circumstances where it is not at all clear that the statement of claim plead a statutory cause of action and where the plaintiff does not rely on it, I do not propose to make orders for judgment on, or the striking out of, such a cause of action.

17. For similar reasons, his Honour did not make any order for judgment, nor did he strike out, any claim based on a statutory cause of action under the Privacy Act ([40]).

18. As to the defamation claim, his Honour was not prepared to allow any such claim to proceed – on the basis that no imputations had been pleaded, as required by r 14.30(2) of the UCPR. His Honour noted that the only reference to defamation in the pleading was on the first page of the amended statement of claim under the heading “TYPE OF CLAIM”. His Honour made clear that the striking out of that reference from the amended statement of claim was not intended to preclude the applicant from seeking to leave to amend her claim, if she could identify any defamatory imputations alleged to have been published by the defendants (at [58]).

The First Impugned Decision

19. After the hearing of the summary dismissal motion, the applicant’s notice of motion in relation to the subpoena and notice to produce was heard by Mahony SC DCJ on 1 July 2016.

20. In the course of the argument on that motion, AFSA’s position (consistent with the stance it had taken in correspondence with the applicant) was that the bulk of the documents requested in each of the notice to produce and subpoena were irrelevant to the current proceedings. It took the position that what it had informally produced was all that was relevant and submitted that the balance of the notice to produce (and the subpoena that had been issued without leave) should be set aside on the basis of irrelevance.

21. His Honour was informed that there was no factual dispute between the parties as to the attachment of the orders to the contract for sale or as to the dissemination of the copies of the contract; rather, that the factual dispute was as to whether the first to third defendants (AFSA and the trustees) specifically instructed the fourth defendant in the District Court proceedings (the solicitor) to attach a copy of the Family Court orders to the contract for sale.

22. In his Honour’s ex tempore reasons for the dismissal of the applicant’s notice of motion, Mahony SC DCJ expressly accepted AFSA’s submission that any documents held by AFSA relating to the Family Law proceedings “as widely set out in the notice to produce” could not be relevant to any issue to be determined by the District Court, given that the causes of action identified were said to arise from the sale of the property by the Official Trustee.

23. His Honour said that:

Any documents relating to the Family Law proceedings prior to the final orders being made on 19 August 2011 could not be relevant to any issue to be determined by the causes of action pleaded by the plaintiff in this Court.

24. It is clear from his Honour’s reasons that he did not dismiss the application on the basis that the subpoena had been issued without the leave of the Court. Rather, his Honour noted that if there were valid reason for the subpoena being issued there was power to grant leave nunc pro tunc. Instead, his Honour dismissed the application on the basis of his view, having read the affidavit upon which the applicant relied and the documents produced by AFSA, that “there is no line of inquiry” that could be followed in terms of the production of the documents which would assist the applicant in the garnering of evidence for her case in the proceedings.

25. As to the notice to produce, his Honour was of the view that it had been substantially complied with and that no further relief could be sought in relation to it.

26. An order was made that the costs of the motion be costs in the cause, his Honour explaining to the applicant that “in other words, if you [the applicant] win eventually you will not have to pay the costs”. His Honour also ordered that the conduct money paid to AFSA be reimbursed.

The Second Impugned Decision

27. After the dismissal of the applicant’s application for leave to issue the subpoena, the applicant prepared an amended statement of claim, naming three further parties as defendants – The New South Wales Government, Land & Property Information (more accurately, the Registrar-General) (as fifth defendant); Australian Restructuring Insolvency & Turnaround Association (as sixth defendant); and Savice Pty Limited trading as LJ Hooker, Picton (as seventh defendant) – and amending the defamation claim.

28. The applicant’s application for leave further to amend her statement of claim came before Taylor SC DCJ on 12 August 2016. It was part-heard by his Honour on that date. However, in the course of that application, his Honour determined to recuse himself from the further hearing of the application, having regard to the content of one of the particulars of defamation which referred to the publication of the reasons for judgment of 16 May 2016 (see particular (p) to [17] of the further amended statement of claim. Whether it was appropriate for his Honour to take that course, which was apparently not requested by any of the parties, is not a matter before us.

29. The application for leave to file the further amended statement of claim subsequently came before Sidis ADCJ for re-hearing.

30. Objection was raised by AFSA and the two trustees (the first three named defendants) to two paragraphs in the proposed further amended pleading (paragraph [12], which the applicant ultimately did not press, and paragraph [17], which was the claim in defamation).

31. The fourth defendant (the solicitor), whose earlier request for the deletion of references in the proposed further amended statement of claim to the “publication order” had been complied with by the applicant, did not oppose the amendment. Her position was that issues as to whether the claim was out of time or whether the publications could lead to a valid case in defamation would be dealt with in the defence and it was on that basis that she had consented to the proposed amended statement of claim being filed.

32. The fifth defendant (the Registrar-General) opposed being joined to the proceedings and opposed the grant of leave to file the proposed further amended statement of claim. The sixth defendant (the Australian Restructuring Insolvency & Turnaround Association), in respect of whom the applicant has since filed a notice of discontinuance, neither consented to nor opposed the amendment. There was no appearance for the seventh defendant (the real estate agent who acted on the sale of the former matrimonial home).

33. In essence, the AFSA’s objection to the re-pleaded defamation claim ([17]) was twofold: first, as to the defamatory capacity of the publication of Family Court orders (the material particularised at A-F of the proposed further amended statement of claim) and, second, on the basis of a limitation issue, in that the affidavit particularised at [17](f) was an affidavit sworn on 18 November 2014 by the fourth respondent and filed in the Federal Circuit Court for a hearing on 1 December 2014, well outside the limitation period of one year for defamation actions, and that it was protected by absolute privilege on the basis that it was prepared for the purpose of Court proceedings.

34. The Registrar-General made submissions to the effect that, to the extent that the claim for damages extended to a cause of action in defamation based on an alleged breach of s 121 of the Family Law Act, leave should be refused (on the basis outlined by Taylor SC DCJ in his Honour’s May 2016 decision – namely that: the notation on the orders was not an order (at [30]); a cause of action for damages for breach of a Family Court order could not be maintained in the District Court (at [31]); and under the Family Law Act there was no entitlement to damages arising from a breach of s 121 (at [34]). It was submitted that s 121 of that Act did not apply to the Registrar General on the facts of the case; that no imputations had been pleaded as required under r 14.30(2) of the UCPR in respect of the defamation claims and that the claim for breach of the Privacy Act could not be maintained in the District Court (referring to Taylor SC DCJ’s reasons at [36]).

35. Sidis ADCJ gave brief reasons in the course of the hearing as to the basis on which she proposed to make the orders that were made. Her Honour noted that the applicant was not pressing [12] of the proposed further amended statement of claim. Her Honour expressed the view that [17] of the proposed pleading was not sustainable. Her Honour ordered, relevantly, that:

1.   I grant leave [to] the plaintiff to file [a] further amended statement of claim on the following basis:

(a)   paragraph 17 of the proposed amendment is not allowed for the reason that the majority of the claims made are statute barred and the remainder are not reasonably sustainable

(b)   paragraph 12 is not pressed by the plaintiff;

(c)   the claims made against the 4th and 5th defendants will be limited to claims in negligence only.

36. The reference in order 1(c) to the fourth and fifth defendants appears to be in error. The transcript makes clear that her Honour was limiting the leave granted for the joinder to the proceedings of the Registrar General (the fifth defendant) and the Australian Restructuring Insolvency & Turnaround Association (the sixth defendant) “on the basis that the matters pleaded are read only in the context of claims in negligence against them and not in breach of the statutes referred to in those pleadings”. Her Honour also ordered that costs of the motion be costs in the cause.

Proposed grounds of appeal from the decision of Mahony SC DCJ

37. The draft notice of appeal filed by the applicant, lists under the heading “Appeal Grounds” some 26 numbered paragraphs (see Annexure A to these reasons). They appear largely to comprise a recitation of events and/or submissions from the applicant’s perspective.

38. Insofar as the proposed grounds of appeal can be distilled from the document, it appears that the applicant challenges the refusal to grant leave to issue the subpoena on the grounds that: first, his Honour erred in his findings both in law and in fact in deciding that the subpoena was issued in breach of r 7.3 of the UCPR (ground 1); second, that his Honour erred in describing AFSA’s production of documents (in response to the notice to produce) as “substantially complying” with the notice to produce (ground 20); third, that no evidence was adduced that “allowed” his Honour to form the view that the documents sought were broadly irrelevant to the current proceedings (ground 25); and, fourth, that there was no explanation given in the judgment as to what documents were relevant (seemingly a complaint as to adequacy of reasons) and no explanation for allowing AFSA to ignore court directions on 16 May 2016 or to fail to file documents in Court prior to 1 July 2016 (seemingly a complaint as to failure to enforce the notice to produce) (ground 26).

39. The applicant seeks a re-hearing of the matter to order the production of the respondents (the first to third respondents) as required under the notice to produce but from the date of instructing the fourth respondent in early 2010 (not the date of commencement of the Family Law proceedings in 2007), so that the Court can determine the relevance of the documents and whether the applicant should have access to them. The applicant also seeks costs of the motion and costs of these proceedings.

40. The first to third respondents to the application have filed a draft notice of contention, in respect of which they will seek leave if leave to appeal is granted. They contend that his Honour’s decision should be affirmed on grounds other than those relied upon by his Honour, namely that:

1.   The applicant’s notice to produce dated 29 July 2015 and subpoena to produce dated 5 January 2016 did not serve a proper forensic purpose because the only potential relevance of the documents thereby requested was as to matters which were not in dispute because they were subject of admissions by the respondents;

2.   Further production pursuant to the Notice to Produce or Subpoena to Produce would not have served a legitimate forensic purpose because the first respondent had already produced to the applicant copies of all documents in its possession, custody, or control relating to the subject matter of the proceedings in the court below.

Submissions

41. The applicant’s summary of argument includes a list of (what must be taken to be rhetorical) questions (see Annexure B), raising at least some matters that on any view of things are irrelevant to the question whether there was an error on the part of the primary judge in refusing to exercise the discretion in favour of a grant of leave to issue the subpoena (such as whether consideration was given to “issues of apprehended bias”, when it is not suggested that this was an issue raised at the hearing of the application before the primary judge, and querying why the Chief Judge or anyone from the court had not responded to a complaint lodged by the applicant on 1 June 2016).

42. The written summary of argument is a further recitation of events and includes serious allegations against the solicitor for the first, second and third respondents of misleading the Court (see [46]) but does not address the perceived relevance to the applicant’s District Court case of the documents access to which is sought to be compulsorily obtained by way of the notice to produce or subpoena; nor of the train of enquiry to which production of the relevant file is said to go.

43. As to the issue of costs, the applicant maintains that she should not be held responsible for the costs of the motion before the primary judge because she says she was not at fault; rather, she says, the Court Registry was at fault. She maintains that until the “declaration of error” by the Registry on 9 August 2016 she was under the belief that approval had been given by the Registrar of the Court to file and serve the subpoena on the first, second and third respondents.

44. The applicant argues that leave should be granted to have the notice to produce enforced. She asserts that documents held by all respondents are being “deliberately withheld to protect respective Respondents” and that release of the documents sought will disclose where most of the liability in relation to her claim will rest. She says that “[t]o close this avenue of enquiry will lengthen the trial considerably adding disproportionate costs”.

45. The first to third respondents submit that the summons should be dismissed against the second and third respondents in any event as they are not proper parties to the present application because the notice to produce and subpoena to produce were addressed only to AFSA and, as such, the orders made on 1 July 2016 did not affect them.

46. They further argue against the grant of leave on the basis that extensive factual admissions have been made in the defence filed on 4 September 2015: relevantly, that each has either admitted or did not deny that a copy of the 19 August 2011 orders was attached to the contract for sale; that a copy of the orders attached to the contract was un-redacted; and that copies of the contract with the orders attached were distributed to prospective purchasers of the property. Hence, they maintain their objection based on relevance. (AFSA also notes that it would have been entitled to assert legal professional privilege over the documents already informally provided to the applicant. It maintains that the possibility that the material subpoenaed is privileged informs the discretion to refuse leave for the grant of the subpoena – that is, to the extent that the subpoena calls for documents that the applicant would not be entitled to have access on the grounds of privilege, leave to grant the subpoena would be futile.)

47. It is submitted that the applicant has demonstrated no reasonable grounds for supposing that AFSA’s files may have contained a document which would have somehow advanced her case notwithstanding the broad factual admissions over and above the documents relating to the breach of privacy issue and to the extent that she sought to pursue factual enquiries going beyond the admissions and the documents already provided those enquiries were nothing more than a fishing expedition and the notice to produce and subpoena were liable to be set aside on that basis (see Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320 at 329-330; [2015] NSWCA 303 at [42] (Emmett JA) (Lowery); ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [13]-[21]; [28] (Tobias AJA) (ICAP Australia)).

48. The respondents also submit that the question whether the primary judge’s orders will cause substantial injustice if not reversed calls for a hypothetical assessment of the future course of the proceedings if those orders are allowed to stand (referring to Attorney General of Botswana v Aussie Diamond Products Pty Ltd (No 2) [2012] WASCA 73 at [142] (Martin CJ)). It is submitted that in the present case the orders do not prejudice the applicant because the factual basis of her claim has been admitted and hence the respondents would not be permitted at trial to lead evidence or make submissions controverting those admissions (referring to Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 at [110]. It is thus submitted that there has been no specific forensic disadvantage identified that would be suffered as a result of the orders.

Determination

49. Leave to appeal is required because the order complained of is an interlocutory order. It is also an order made in the exercise of discretion on a matter of practice and procedure. In such cases, there is a high hurdle facing an applicant for leave (see for example Re Will of Gilbert (1946) 46 SR (NSW) 318 at 323, where it was said that appeals on points of practice and procedure should be kept on a “tight reign”; Lowery at [4]-[5]).

50. In The Age Company Ltd v Liu [2013] NSWCA 26, Bathurst CJ, with the agreement of Beazley JA (as her Honour then was) and McColl JA said (at [13]) that:

Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable.

See also Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397 at [45].

51. Moreover, for the applicant to succeed on an appeal from such an order (assuming leave were to be granted) it would be necessary for her to demonstrate that the primary judge erred in the House v The King sense ((1936) 55 CLR 499 at 504-505; [1936] HCA 40) so as to warrant appellate intervention; i.e., that the primary judge made an error of principle, a material error of fact, took into account irrelevant considerations or failed to take into account relevant considerations; or otherwise that the decision is so unreasonable as to manifest an error of that kind.

52. This is not a case where leave should be granted.

53. No issue of principle or of public importance is involved. Nor has it been demonstrated that the exercise of decision of the primary judge has been affected by any error in the House v The King sense such as to warrant appellate intervention; or that the primary judge’s decision would result in substantial injustice if allowed to stand.

54. The complaint made as to his Honour’s reference to a breach of the rules in relation to the issue of the subpoena without leave goes nowhere since this was not determinative in his Honour’s ultimate conclusion that leave should be refused.

55. As to the complaint about the finding of substantial compliance with the notice to produce, this was a view formed after his Honour had referred both to the pleaded case and had reviewed the material that had been informally produced. There is nothing to suggest that his Honour’s conclusion was not open on the material he had reviewed.

56. As to the complaint in relation to his Honour’s findings as to lack of relevance, first, there was no need for the respondents to adduce evidence to support such a finding. Those findings were open on a review of the material before his Honour. The relevant test, had there been an application to set aside the notice to produce is whether the documents sought have a sufficient apparent connection to justify their production or inspection (see Portal Software v Bodsworth [2005] NSWSC 1115). There was no error in the primary judge considering the potential relevance of the material sought when deciding whether to grant leave to issue the subpoena.

57. Although his Honour’s reasons focussed on the call for documents that would have pre-dated the making of the orders and their attachment to the contract of sale, his reasoning applies equally to later documents. The respondents note that, as to documents falling within the notice to produce or subpoena which post-date 19 August 2011, it was submitted to the primary judge that those too would serve no legitimate forensic purpose since their only potential relevance went to factual issues which had already been admitted by the defendants and were therefore no longer in dispute and that AFSA had in fact given the applicant production of all of the documents in its possession which related specifically to the breach of privacy issue.

58. The notice to produce called for the production of AFSA’s entire file from the commencement of proceedings in the Family Court of Australia. The proposed subpoena requested the entire file “from when you instructed your solicitor … to commence proceedings to set aside consent orders issued by the Family Court of Australia”.

59. In circumstances where the applicant’s claims against the respective respondents relate to the fact that (which is not denied) copies of the contract for sale had been distributed to prospective purchasers with an un-redacted copy of the 19 August 2011 orders attached to them, and copies of documents have already (albeit informally) been produced to the first to third respondents’ solicitors which go to the question of the attachment of the un-redacted costs orders to the contracts, no legitimate forensic purpose in seeking access to the file has been shown.

60. As to the making of the costs order, the primary judge explained to the applicant the meaning of an order that costs be in the cause. The making of a costs order is not to punish a party (see Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59); rather it is compensatory in nature. Costs in general will follow the event. In that regard, the making of an order of the kind that was here made was not unfavourable to the applicant, in that she will not bear the costs of the motion if she succeeds at trial.

61. Leave to appeal from the decision of Mahony SC DCJ is refused with costs.

Proposed grounds of appeal from the decision of Sidis ADCJ

62. The draft notice of appeal filed by the applicant, lists the following proposed grounds of appeal:

1.   Her Honour Acting Judge M Sidis has erred in her findings both in law and in fact in deciding that the defamatory imputations should be struck out in the Further Amended Statement of Claim filed on 18 August, 2016.

2. Her Honour Acting Judge M Sidis stated the limitation period in defamation to be 1-year. The Limitation Act 1969, Section 56A, states that a person may apply to the court for an order extending the limitation period of up to three years running from the date of the publication. Her Honour Acting Judge M Sidis gave no consideration to this Section of the Act before dismissing the Appellant’s claim to include the defamatory imputations in the Further Amended Statement of Claim.

3. The defamatory imputations made by the Fourth Defendants are defamatory acts where the Fourth Defendant knew the malicious statements made were false and irrelevant and were intended to discredit the Appellant and deflect from the enquiry into the Fourth Defendant’s breach of S 121 of the Family Law Act.

63. The applicant seeks by way of relief an order for the re-hearing of the matter to allow the inclusion of the defamatory imputations in the further amended statement of claim “as granted by His Honour Judge Taylor on 16 May 2016” whether or not they fall into the limitation period. She also seeks the transfer of the District Court proceedings to the Supreme Court of New South Wales. This is on the basis that she has again had to file an appeal to the Supreme Court because of errors made by persons in the District Court and because two judges in that Court have now recused themselves from hearing her claim.

Submissions

64. The applicant in her summary of argument again poses a number of seemingly rhetorical questions (Annexure C). She then summarises her argument, first by reference to Taylor SC DCJ’s reference (when the matter was before his Honour in May 2016) to the applicant’s ability to seek leave to amend her claim if she were able to identify defamatory imputations.

65. The applicant next recounts the events in relation to the proposal for amendment of the statement of claim, from her perspective, and again makes an accusation against the solicitor for the first to third respondents of acting to mislead the Court (also accusing the first to third respondents of being complicit with the fourth respondent in failing to speak the truth; and accusing the fourth respondent of malicious conduct and an abuse of her role as a member of the New South Wales Law Society).

66. The fourth respondent argues that leave should not be granted in the present case because, first, the applicant’s argument proceeds on material misconceptions as to what took place in the District Court; second, there is power in the District Court to control proceedings in that court including as to the content of statements of claim and the primary judge was entitled to consider the proposed defamation pleadings defective on their face; third, the applicant has not clearly identified any point of general principle or public importance; and fourth, any appeal would not have a sufficient prospect of success to warrant a grant of leave.

67. It is noted that no application for an extension of the limitation period has been made by the applicant. Further, the fourth respondent points to the character of the orders as public documents; to the lack of specification of a defamatory imputation in various of the matters complained of (A – F); and to the claim for absolute privilege that would lie in respect of the publication at F.

68. The Registrar-General refers to the submissions that were made to the primary judge as to the claims sought to be made against the Registrar-General and contends that for the same reasons as argued in the Court below the primary judge was correct to refuse to grant leave to the applicant to bring claims under s 121 of the Family Law Act, s 25 of the Privacy Act or in defamation against the Registrar-General. It is submitted that none of the requirements for the grant of leave to appeal from a discretionary interlocutory decision on a matter of practice and procedure has been established.

Determination

69. Leave to appeal from the second impugned decision should also be refused. Again, no issue of principle or public importance is raised. The pleading, especially in relation to the defamation claims sought to be made against the respective respondents, suffers from the defects to which the respondents have pointed in that the defamatory imputations are not properly identified. That alone is sufficient to dispose of the complaint as to the refusal to allow the proposed [17] of the further amended statement of claim.

70. As to the restriction of the claims against the Registrar-General other than in relation to negligence, again there has been no error shown in the exercise of her Honour’s discretion, as a matter of case management, to confine the amendment to claims that were at least arguable on their face and within jurisdiction of the District Court (as opposed to the claims in respect of which the Registrar-General asserted there was no jurisdiction or could not – for reasons earlier identified by Taylor SC DCJ – be maintained).

71. In the circumstances, it is difficult to avoid the conclusion that the applicant would be well-advised to seek legal advice in the formulation of the claims that she seeks to advance against the respective respondents. In the meantime, no basis has been shown to warrant appellate intervention in what has become a pleading stoush.

69. Finally, as to the application for the matter to be transferred to the Supreme Court, neither of the bases on which that application is pressed by the applicant warrants the transfer of the matter from the District Court. The fate of the applicant’s current leave applications tells against any suggestion that she has been forced to make applications to this Court more than once as a result of errors on the part of persons in that Court. And the fact that two judicial officers have recused themselves from hearing the matter (apparently due to an allegation in a paragraph for which leave has not been given) hardly leads to the conclusion that there are not others more than capable of hearing and determining the claim as it presently stands.

70. In the course of argument, the Court was informed that the fourth respondent (the solicitor)’s lawyers had raised an issue as to whether the proceeding should be transferred to the Supreme Court for a determination under s 6(1) or s 6(3) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) on the basis that the further amended statement of claim raised a “special federal matter” for the purposes of that legislation. That issue was not, however, explored fully in the course of argument and in the absence of considered argument on the issue we do not propose to comment on it.

71. There being no reason to do other than follow the general rule in relation to costs, the summons seeking leave to appeal from the decision of Sidis ADCJ should also be dismissed with costs.

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Annexure A

Grounds of appeal from Mahony SC DCJ’s decision

1. His Honour Judge Mahony has erred in his findings both in law and in fact in deciding that the Subpoena to Produce issued 5 January, 2016 by the Appellant addressed to the First Respondent was issued in breach of Part 7 Rule 3 of the Uniform Civil Procedure Rules 2005.

2. On 24 July, 2015, the Appellant requested leave of His Honour Judge Bozic to issue a subpoena on the First Respondent, Australian Financial Security Authority. This was granted on 24 July, 2015 and is evidenced by transcript. The Judge then stated that a subpoena was not necessary and that the Appellant could serve a Notice to Produce. His Honour referred to rule 34.1. Mr Olson of HWL Ebsworth, attending on behalf of the First, Second, Third & Fourth Respondents, made no objection.

3.   On 31 July, 2015, the Appellant filed a Notice to Produce to Court and served it upon the First, Second & Third Respondent's Solicitors on 3 August, 2015.

4.   On 11 August, 2015, The Respondent’s solicitor wrote to the Appellant, in an informal, partial response to the served Notice to Produce to Court, enclosing a number of documents (28 pages).

5.   On 11 August, 2015, the Respondent’s solicitor wrote a second letter to the Appellant again referring to the Notice to Produce to Court.

6.   On 17 August, 2015 the Appellant responded to the above correspondence wherein HWL Ebsworth, the Solicitors for the First, Second & Third Respondents allege that the Fourth Respondent, Sally Nash, acted without the instructions of the First, Second & Third Respondents. In this letter, the Appellant sought information and documents from the First, Second & Third Respondents and the Appellant also amends the Notice to Produce to Court to produce documents “from the date your clients instructed Ms Nash to litigate” which is in early 2010 and to produce “not only what you think is relevant”. No reply was received and no further documents or information was received by the Appellant.

7.   On 11 December, 2015 the Appellant forwarded by post a letter to the Sydney District Court Registry enclosing a Notice of Motion to Issue Subpoena or Enforce Notice to Produce together with Affidavit of the Appellant in support of the Notice of Motion dated 11 December, 2015 and Subpoena to Produce. The Appellant asked the Court’s leave in that letter to determine whether it wished to enforce the Notice to Produce to Court or whether the Court would grant permission to issue the Subpoena to Produce addressed to the First Respondent. Filing fees were paid by the Appellant to the District Court, $82 on the Notice of Motion and $80 on the Subpoena to Produce, a total of $162. This sum was deducted from the Appellant's credit card. The Affidavit of the Appellant in support of this Notice of Motion contained copies of documents and correspondence referred to in the previous paragraphs numbered 3, 4, 5, & 6.

8.   The Appellant at the same time, namely 11 December, 2015 forwarded a written request to the District Court Registry regarding leave to issue the Subpoena to Produce addressed to the First Respondent. The Appellant’s supporting Affidavit in support of the Notice of Motion to issue the Subpoena set out for the Court's benefit, the fact that the Appellant believed that the First Respondent was not complying with the Notice to Produce to Court directive served previously and that compliance with the Notice to Produce to Court could be brought about by the issue of the abovementioned Subpoena to Produce addressed to the First Respondent.

9.   The District Court sealed Subpoena to Produce to Court document was returned to the Appellant by post from the District Court Registry and was received by the Appellant on 12 January, 2016.

10.   The Appellant notes that a Registrar of the Court is able to approve leave to issue a Subpoena to Produce under Uniform Civil Procedure Rules (UCPR) 2005, Regulation 33 and Regulation 34.

11. The Court is particularly referred to in UCPR Regulation 33.4 on issuing of subpoenas:-

(4)   A subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with subrule (3).

12.   The sealed Subpoena to Produce was served on HWL Ebsworth, Solicitors for the First Respondent on 12 January, 2016 by Express Post. The document, according to Australia Post tracking was delivered/collected by HWL Ebsworth on 14 January, 2016 at 11 am.

13.   The date for return of documents set out in the Subpoena to Produce was 19 January, 2016.

14. On 20 January, 2016, HWL Ebsworth, Solicitors for the First Respondent, wrote to the Appellant. This letter was received by the Appellant on 26 January, 2016 after her return to her Victorian home following the commencement of the hearing of the Summary Dismissal Applications before His Honour Judge Taylor on 24 January, 2016. The letter told the Appellant, amongst other things, that the Uniform Civil Procedure Rules provided that subpoenas be served at least five (5) days before documents were to be produced. HWL Ebsworth said that although the subpoena required production by 19 January, 2016, the Court had adjourned the return of subpoena to 1 February, 2016.

15.   When the Appellant raised the matter of the Notice to Produce document or Subpoena to Produce on the First Respondent to His Honour, Judge Taylor on 24 January, 2016, His Honour deferred the matter until the summary dismissal hearing had taken place.

16.   During the course of the many days of hearing of the Summary Dismissal Applications filed by the First, Second, Third & Fourth Respondents, His Honour Judge Taylor did not deal with and dispose of the Notice of Motion to Issue Subpoena or Enforce Notice to Produce to Court before he entered his judgment dismissing the Respondents’ Application to dismiss the Appellant’s claim. His Honour referred the matter of the Notice of Motion to Judicial Registrar Howard at the Directions Hearing on 30 May, 2016.

17.   The Solicitors for the First Respondent have never indicated to the Appellant or to the Court, prior to 1 July, 2016 that the Subpoena to Produce may have been defective, nor did they make any objection to the fact of service on them of the subpoena or object to receiving and banking conduct money.

18.   The Solicitors for the First Respondent have relied on their provision of documents under cover of their letter of 11 August, 2015 which total included 28 pages. The Appellant already held 12 of those pages.

19.   Up until 1 July, 2016 the First Respondent nor it’s solicitors had provided any documents to court and those that they did provide to the Appellant that had never been viewed by the Appellant, were limited to a total of 15 pages.

20.   The Appellant believes on the evidence, including documents referred to in her Affidavit in Support of the Notice of Motion dated 5 December, 2015 that His Honour Judge Mahony has erred completely in describing the First Respondent's production of documents as substantially complying with the Notice to Produce to Court.

21.   Mr Olson, Solicitor for HWL Ebsworth, Solicitors for the First, Second & Third Respondents at the hearing of the matter on 1 July, 2016 before His Honour Judge Mahony made no objection to the contents of the Affidavit of the Appellant dated 11 December, 2015 which Affidavit was supporting the Notice of Motion filed 5 January, 2016 seeking enforcement of the Notice to Produce to Court and Subpoena to Produce. Mr Olson at the hearing on 1 July, 2016 did not seek to cross examine the Appellant on her Affidavit.

22.   The First Respondent’s solicitors, HWL Ebsworth had not complied with the Order of Judicial Registrar Howard at the Directions Hearing on 30 May, 2016 whereby Judicial Registrar Howard ordered, in point 6, the First, Second & Third Respondents to file and serve any Notice of Motion to set aside the Appellant's Notice to Produce to Court by 20 June, 2016.

23.   This is despite the advices of His Honour Judge Hatzistergos and His Honour Judge Taylor during the course of this matter both of whom had advised the First Respondent's solicitor and counsel regarding the production of documents and the fact that it was not open to the First Respondent or it’s solicitors to determine what documents were relevant in terms of production.

24.   His Honour Judge Mahony at the Notice of Motion hearing on 1 July, 2016 said that he had read the Affidavit of the Appellant and had read the reasons for judgment of His Honour Judge Taylor delivered 16 May, 2016. His Honour, Judge Mahony had, with respect, clearly not read the Affidavit of the Appellant dated 11 December, 2015 and its annexures including the Appellant’s letter dated 17 August, 2015 directed to the First Respondent's solicitors, HWL Ebsworth which set out numerous documents sought by the Appellant.

25.   The Appellant submits that no evidence was adduced by the First Respondent on 1 July, 2016 that allowed His Honour to exclude the evidence of the Appellant and to form a view and subsequently a judgment based on oral evidence of the First Respondent’s solicitor who said that the First Respondent’s objection to the Notice to Produce to Court and to the Subpoena to Produce was that the documents requested in each of the documents is broadly irrelevant to the current proceedings to which His Honour Judge Mahony advised the First Respondent’s solicitor that this is not a matter for the Respondent to determine.

26.   No explanation was provided by His Honour Judge Mahony, in his Judgment as to what documents were relevant and also His Honour provided no explanation for allowing the First Respondent to ignore Court Directions of 16 May, 2016 or to fail to file documents in Court prior to 1 July, 2016.

Annexure B

Questions re first impugned decision

1.   How is it that an experienced District Court Judge such as His Honour Judge Mahony blames the Applicant for issuing a Subpoena to Produce without referral to the evidence, the Online Registry or the Court file? Or in fact have knowledge of what the law says on the subject. Possession of a District Court sealed Subpoena might have been an alert sign, given the Applicant is self represented.

2.   Did His Honour Judge Mahony have access to the Court file, the Online Registry or any internal material that could instruct him in understanding the nature of the Applicant’s claim at the hearing on 1 July, 2016?

3.   Did His Honour Judge Mahony give any consideration to the issues of apprehended bias, or the issues of court problems that were sufficient to cause His Honours Judge Levy and subsequently Judge Taylor to recuse themselves?

4.   Why is it that Mr Olson, Solicitor for the First, Second & Third Respondents, who has been in attendance on all the days that this matter has been in court, been allowed to provide contrary or alternate evidence, been allowed to avoid Court orders, sit silently in court when the court should have been advised of his or his clients’ shortcomings? Mr Olson’s statements in misleading the court or misdirecting it are important when viewing the totality of his actions at court.

5.   Why did the Respondents, if they knew the subpoena was incorrectly approved, not object to its service on them at any time prior to the hearing on 1 July, 2016 and why did His Honour Judge Mahony not question Mr Olson, the Respondents’ solicitor on his inconsistent statements?

6.   Why did Judge Mahony make a costs order against the Applicant when the Respondents were guilty of not complying with the Notice to Produce to Court in the first instance, and then the subpoena and perhaps, if they knew the subpoena had been incorrectly filed, they failed to notify the court prior to the hearing?

7.   Why didn’t the Chief Judge or anyone from the court respond to my complaint lodge on 1 June, 2016?

Annexure C

Questions re second impugned decision

1.   Why did Acting Judge M Sidis not avail herself of the opportunity of acquainting herself with the claim and the many hearings prior to her obtaining the file so that she could make an informed decision on the Motion and the Applicant’s right to include the defamatory imputations in the Further Amended Statement of Claim?

2.   Why did Her Honour Acting Judge M Sidis not review or refer to the Judgment and Reasons for Judgment of His Honour Judge Taylor of 16 May, 2016 on the Summary Dismissal hearings wherein he stated (point 26, page 61) “that there is a contravention of s 121” so that Her Honour could make an informed decision?

3.   Why did Acting Judge M Sidis not recuse herself as did His Honour Judge Taylor if the Applicant had accused the court of wrongdoing as His Honour Judge Taylor claimed the Applicant had in paragraph 17 (p) of the Further Amended Statement of Claim?

4. Why did Acting Judge M Sidis hear the Motion in a court room with members of the public and their legal representatives present when His Honour Judge Taylor made a non-publication order under s 7 of the Court Suppression and Non-publication Orders Act 2010 on 16 May, 2016?

5.   Why did Her Honour Acting Judge M Sidis not adjourn the matter so that the Applicant might have an opportunity to respond to the pleadings made by the Respondents to strike out the defamatory imputations, knowing that the First, Second & Third Respondents had failed to inform the Applicant of their objections and to which the Fourth Respondent had consented until Her Honour allowed them an opportunity to reconsider their consent and make submissions?

6. Why did Her Honour Acting Judge M Sidis “read down” the Applicant’s claim against the Fifth & Sixth Respondents when it is clear that they were involved in the dissemination of material defamatory to the Applicant and knowing that it was evident that they had breached s 121 of the Family Law Act?

7.   Why did Her Honour Acting Judge M Sidis allow the Sixth Respondent to plead the pleadings of the Fifth Respondent in order to have the pleading “read down” to negligence only?

8.   Why did Her Honour acting Judge M Sidis not view a copy of the Family Court Orders whereby, if she had, it would have become abundantly clear what some of the issues were and that those issues were previously dealt with by His Honour Judge Taylor in the Summary Dismissal hearings?

Decision last updated: 23 March 2018