FAL Management Group Pty Ltd v Denham Constructions Pty Ltd

[2015] NSWSC 1035

Supreme Court

New South Wales

Medium Neutral Citation:	FAL Management Group Pty Ltd v Denham Constructions Pty Ltd [2015] NSWSC 1035
Hearing dates:	27 July 2015
Decision date:	27 July 2015
Jurisdiction:	Equity Division - Technology and Construction List
Before:	McDougall J
Decision:	Notice of motion dismissed with costs.
Catchwords:	PROCEDURE – subpoenas – where material to be obtained under subpoena related to a cause of action not pleaded in the defendant’s Technology and Construction List Response – consequence that those documents would not be relevant to questions in the proceedings – where subpoenas in any case defective because drafted ambiguously and with excessive width LEGAL PRACTITIONERS – communications with the Court – where a solicitor sent an email to judicial chambers without prior consent of other parties – where the communication related to contentious matters – failure to adhere to Solicitors’ Rules – usual consequence of referral to Office of the Legal Services Commissioner – whether appropriate in present case
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW) Contractors Debts Act 1997 (NSW)
Cases Cited:	Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Category:	Procedural and other rulings
Parties:	FAL Management Group Pty Limited as Trustee for TF Investment Trust (Plaintiff) Denham Constructions Pty Ltd (First Defendant)
Representation:	Counsel: A Jordan (Plaintiff) M Irwin (Solicitor) (Defendant)   Solicitors: Thomson Geer Lawyers (Plaintiff) Crisp Legal (Defendant)
File Number(s):	2014/324010

Judgment

1. HIS HONOUR: These proceedings relate to issues arising out of a construction contract made between the plaintiff and the defendant, a purported subcontract made between the defendant and a related entity, and a subcontract made between that related entity and a demolition subcontractor. Those contracts have given rise to an excessive amount of litigation.

2. In the matter with which I am concerned, the plaintiff seeks relief in respect of an amount said to be owing to the demolition subcontractor. The issues involve consideration of the Building and Construction Industry Security of Payment Act 1999 (NSW) and the Contractors Debts Act 1997 (NSW).

3. The matter is listed for hearing on some issues on Thursday next, 30 July. The parties have provided a Court Book and written submissions.

Communications with the Court

4. The matter came back before the Court today because on 24 July 2015, the defendant's solicitors sent an email to the chambers of the List Judge, seeking orders for leave to serve subpoenas on short notice. It is common ground today that the email was not sent with the prior consent (or for that matter, prior knowledge) of the plaintiff's solicitors. That deficiency was, to a small and insufficient extent, sought to be rectified by copying the plaintiff's solicitors in on the email.

5. If the email had sought (for example) no more than the urgent listing of the matter for directions in respect of the subpoenas, that might have been acceptable. However, it went further. It set out what were in effect written submissions containing the reasons why, it was said, the subpoenas were required. Those submissions set out a number of contentious matters.

6. It is not appropriate for a party to litigation, or its legal advisers, to communicate with the Court, except in very limited circumstances, without the prior knowledge and consent of the other party or parties to that litigation. That position is made clear by both the Barristers' Rules and the Solicitors' Rules. Its importance has been emphasised in decisions of this Court. Those decisions have been publicised to the profession. It is intolerable that, despite the warnings to which I have referred, the practice still occurs.

7. To my mind, the time has come to take a stand on this. In the ordinary way, that would involve referring the correspondence and these reasons to the Office of the Legal Services Commissioner. I will in due course hear if there are reasons why that should not be done. However, before doing so, I will deal with the notice of motion.

The Notice of Motion

8. The proposition that the defendant sought to agitate, was that material that might be obtained in response to the subpoenas could go "to the core of the defendant's abuse of process contentions". Those contentions are set out in outline submissions that were forwarded to the Court (pursuant to directions given, and hence entirely appropriately) some days ago.

9. However, there is no pleading of abuse of process in the defendant's Technology and Construction List Response. Accordingly, the subpoenas could do no more than seek to fish, in the pond constituted by the documents of the various recipients, for material in support of an unpleaded case, perhaps with a view to pleading it. That is not an appropriate use of the subpoena process. Subpoenas are issued to require documents to be produced that are relevant to questions in the proceedings. That has been the law for the last 80 years or more. So far as I know, more recent decisions (and in referring to 80 years I was referring to Commissioner for Railways v Small (1938) 38 SR (NSW) 564) have done no more than emphasise the need for there to be a proper relationship between the subpoenas and some issue of fact that arises in the proceedings.

10. For that reason alone, it is plain that the leave sought should not be granted. There are other reasons, including that the width of drafting of the subpoenas would make it, if not impossible, at least difficult to produce all documents sought in time. No doubt, the subpoenas could be redrafted to avoid this problem. However, it is not for the Court or the intended recipients to carry out that exercise. It is for the party seeking to have the subpoenas issued to draft them with adequate specificity. In that respect, I do not regard it as an appropriate drafting technique to call for copies of all communications or other correspondence between named entities, and then to seek to limit it, partially and ineffectively, by words such as "in particular". If what is sought are the “particular” documents, that should be stated. If what is sought is all documents in the unqualified class, the recipient should not be left to guess.

11. In circumstances where the matter is fixed for hearing on the Thursday of this week (and I am speaking on the Monday) it is not appropriate to put the recipients to the trouble of searching their records for the material referred to, "in particular" the more limited subcategories.

Order

12. I order that the notice of motion filed in court today be dismissed with costs.

[Further submissions.]

13. In the particular circumstances, I will not refer the matter to the Office of the Legal Services Commissioner.

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Decision last updated: 29 July 2015