George and Inspector-General in Bankruptcy
[2009] AATA 837
•16 October 2009
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/1698
General Administrative Division )
Re: Lauren George
Applicant
And: Inspector-General in Bankruptcy
RespondentDIRECTION
TRIBUNAL: Senior Member Bernard J McCabe
DATE: 19 May 2010
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the date of the interlocutory decision in this application to 16 October 2009 and the date of the reasons for the interlocutory decision to 29 October 2009.
.............[Sgd]......................................................
Senior Member
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR DECISION [2009] AATA 837
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1698
GENERAL ADMINISTRATIVE DIVISION ) Re LAUREN GEORGE Applicant
And
INSPECTOR-GENERAL IN BANKRUPTCY
Respondent
INTERLOCUTORY DECISION
Tribunal Senior Member Bernard J McCabe Date16 October 2008
PlaceBrisbane
Decision The Tribunal directs that summons to produce documents issued on 6 August 2009 be revoked. ...................[Sgd]...........................
Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Summons to produce documents – Summons issued to third party – Objection – Whether the summons should be revoked – Relevance of documents – Documents subject to lien – Summons revoked
Administrative Appeals Tribunal Act 1975 (Cth) ss 40(1A), 40(1C)
REASONS FOR INTERLOCUTORY DECISION
29 October 2008 Senior Member Bernard J McCabe 1. Ms Lauren George, the applicant, has applied to the Tribunal to review a decision of the Inspector-General in Bankruptcy, the respondent, to extend her period of bankruptcy. Ms George issued a summons to Mr Patrick Marrinan, her former solicitor, requiring him to produce a file that was compiled in connection with family law proceedings that were conducted before her bankruptcy. She says the contents of the file are relevant to the proceedings in the Tribunal.
2. Mr Marrinan resists the summons on two grounds. First, he says Ms George’s file is irrelevant to the bankruptcy proceedings. The file relates to several family law- and domestic violence-related matters in which Mr Marrinan represented Ms George. I was told those matters touched on parenting orders, a property settlement, and domestic violence disputes (although I understand that Ms George does not seek access to those parts of her file dealing with the domestic violence matters).
3. Second, Mr Marrinan says the file is subject to a lien and the lien would be worthless if he were required to give the file to Ms George. Mr Marrinan claims he is owed in excess of $110,000 by Ms George. He obtained a Costs Assessment Order from the Costs Assessment Registrar in the Family Court. He provided a copy of that Order to the Tribunal.
4. Ms George responds to Mr Marrinan’s arguments as follows. She says the file is relevant to the bankruptcy proceedings because Mr Marrinan initiated the bankruptcy by issuing a bankruptcy notice in respect of his unpaid bill.
5. The applicant also says Mr Marrinan does not have a lien over her file. She says Mr Marrinan’s fees were excessive and the subject of an ongoing dispute. She submits the agreement for a lien is void because Mr Marrinan entered it in bad faith as he did not subsequently attend a mediation session as agreed. She adds that the Order from the Family Court was granted on the basis of that agreement and false statements by Mr Marrinan.
6. Mr Marrinan provided me with copies of:
·the Order of the Family Court;
·a letter from Ms George’s former solicitors which appears to confirm the bill was effectively served on her; and
·a letter from the Legal Services Commission dated 8 October 2009 which confirms the Commission does not propose to take any further action on Ms George’s complaint because it is satisfied a disciplinary body would not make an adverse finding against Mr Marrinan.
7. Mr Marrinan confirmed to me that he has not been the subject of any adverse findings or disciplinary action at the hands of regulators in connection with his dispute over Ms George’s bill.
8. The Tribunal’s power to issue summons appears in s 40(1A) of the Administrative Appeals Tribunal Act 1975. The power to issue a summons also includes a power to revoke, amend or vary a summons. A person may only refuse a summons to produce documents pursuant to a summons if he or she is authorised by a Tribunal member pursuant to s 40(1C). Should Mr Marrinan be allowed to refuse to produce the documents?
9. It is unclear how the file is relevant to these proceedings. As best as I can tell, a file containing documents pertaining to parental orders, a property settlement, and domestic violence matters has little bearing on the Tribunal’s review of a decision of the Inspector-General in Bankruptcy to extend Ms George’s bankruptcy.
10. In any event, I accept Mr Marrinan has a valid possessory lien over the file. That lien arises by operation of law when a solicitor’s client does not pay his or her legal fees. In this case, a bill has been prepared and served on the applicant and filed and recorded in the Family Court. The bill has not been paid in full and the quantum of the bill has not been effectively disputed. Mr Marrinan retains possession of the file, and he has asserted the right to retain possession. His apparently legitimate rights would be compromised if he were required to produce the documents for delivery to Ms George pursuant to a summons in these proceedings.
11. The courts have said a solicitor with a valid lien should not be required to produce documents pursuant to a subpoena where the production of the documents would negate the lien: see, for example, Re Aveling Barford Ltd [1989] 1 WLR 360 at 363 per Hoffman J; see also Bolster v McCallum (1966) WN (NSW) 281 at 284 per Jacobs JA; see generally GE Dal Pont, The Law of Costs (2nd ed, 2009) at [26.36]. I do not see why a different rule should apply in this case.
12. I authorise Mr Marrinan to refuse to produce the documents requested under the summons issued to him on 6 August 2009 to produce Ms George’s file. I also revoke that summons.
I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
Signed:.............................[Sgd].................................................
Michael Buckingham, AssociateDate of Hearing 16 October 2009
Date of Decision 16 October 2008
Date of Written Reasons 29 October 2009
Solicitor for the applicant Unrepresented
Solicitor for the respondent Self-representedSolicitor for third party Self-represented
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