Glenella One Pty Limited v Duncan - [2016] NSWSC 996

Supreme Court

New South Wales

Medium Neutral Citation: Glenella One Pty Limited v Duncan [2016] NSWSC 996
Hearing dates: 29 June 2016
Date of orders: 29 June 2016
Decision date: 29 June 2016
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) General access to the documents produced under subpoena by Vodafone Hutchison Australia Pty Limited on 10 May 2016, bearing packet number S-6, is granted.
(2) The cross-defendants will pay the cross-claimant’s costs, of and incidental to the motion.

Catchwords: PRACTICE AND PROCEDURE – subpoena – documents redacted incorrectly – general access sought – no general confidentiality – limited use available – access granted.
Category: Procedural and other rulings
Parties: Glenella One Pty Limited (Plaintiff, First Cross-Defendant, First Respondent)
Andrew David Duncan (First Defendant, Cross-Claimant, Applicant)
White Turtle Pty Ltd (Second Defendant, Second Cross-Defendant)
Morten Weaver (Third Defendant, Third Cross-Defendant)
Jane Duncan (Fourth Cross-Defendant)
Ted Manny (Second Respondent)
Sally Jane Warwick (Third Respondent)
Representation:
Counsel:
G McGrath SC (Plaintiff, First Cross-Defendant, First Respondent)
M Klooster (First Defendant, Cross-Claimant, Applicant)
Self-represented (Third Defendant, Third Cross-Defendant)
Solicitors:
Owen Hodge Lawyers (First Defendant, Cross-Claimant, Applicant)
Cordato Partners Lawyers (Plaintiff, First Cross-Defendant, First Respondent)
Self-represented (Third Defendant, Third Cross-Defendant)

File Number(s): 2014/163175

Ex tempore Judgment

Before the Court is a motion on notice filed 8 June 2016. The motion seeks general access to documents produced under subpoena by Vodafone Hutchison Australia Pty Limited on 10 May 2016 bearing packet number S-6 in the list of subpoenas held by the Court. The subpoenas and access to them has a long and tortuous history. It is necessary, unfortunately, for me to recite some background to the proceedings.
The proceedings before this Court when initially commenced involved proceedings for possession, which aspect of the proceedings has been terminated by conduct that cannot be undone. The second aspect is damages or equitable compensation in relation to what is said to be a fraud perpetrated by one or more of the cross-defendants, either individually or together. The fraud relates to breaches of trust in which the first cross-defendant was dispossessed of property that was said to be held in trust for him.
The allegations are made in the first cross-claim to the amended statement of claim. The amended statement of claim, which is taken by Glenella One Pty Limited, the plaintiff in the proceedings, is now essentially damages against the defendants and in particular, the first defendant, Mr Duncan, for losses or damages related to the occupation of premises that have since been sold under a mortgagee sale.
The amended first cross-claim is taken by Mr Duncan against the plaintiff in the proceedings, a Mr Manny and a Ms Warwick and is the document that seeks equitable compensation for breach of trust and/or what I will globally call fraud and/or misconduct.
The misconduct involves, it is said, four cross-defendants, including Mr Manny, Ms Warwick, Glenella and White Turtle. The first cross-claim is verified by the solicitor acting on behalf of Mr Duncan. The Court is not in a position (and ought not be in a position at this point in time) to determine the rights and wrongs of the substantive proceedings before the Court. The Court can only deal with allegations and whether or not issues arise and whether there are good grounds to do as is sought in the motion or otherwise.
On or about 9 May 2016, a subpoena was served on Vodafone seeking records in relation to two telephone numbers, one of them ending in 339 and one ending in 626. There was an allegation by the solicitors for the defendants that the subpoena was in bad form and/or too wide and the cross-defendants' solicitors proposed short minutes of order which, as I understand it, issued by consent.
On 11 May 2016, short orders were made, but first access was given to the plaintiff who is, of course, one of the cross-defendants; that they make copies; and that they redact, presumably in accordance with the short minutes that had previously been made. In the process, the plaintiff or its solicitors redacted the records of 339 that were, to and from, the number 626. It did so because it found out somewhat inconsistently with its earlier instructions that 626 was not owned by one of the parties.
On 26 May 2016, the plaintiff’s solicitors wrote to the solicitors for the cross-claimant alleging, presumably on instructions, that the number ending in 626 does not belong to a party in the proceedings.
The Court has now heard from the representatives of the cross-defendants on this application, who has filed written submissions. It is accepted by the cross-defendants' counsel that the 626 number is not a number that is owned by any one of the cross-defendants. Nevertheless, they oppose general access to those records on the basis that it does not disclose a forensic purpose.
The cross-defendants or at least the counsel for the cross-defendants nevertheless accept that one of the cross-defendants had access to that phone and used it. I earlier referred to an affidavit of one of the cross-defendants, which stated that he had not, before a particular date in October, met another of the cross-defendants. While the telephone records would not disclose whether the two cross-defendants met, it certainly would disclose whether the two cross-defendants spoke.
There is a forensic purpose in dealing with the credit of the cross-defendant, who presumably, will have to give evidence in circumstances where a possible implication of the comment and sworn statement that they had not met was that they were unknown to each other before the date mentioned.
As to the forensic purpose in redacting records that do not belong to any of the cross-defendants or obtaining general access to them, given that one (at least) of the cross-defendants utilised that service, I can see a forensic purpose in obtaining those records. Secondly, I can see a forensic purpose in obtaining the records of number 626 more generally, given that it is possible that an intermediary was used for the purpose of making contact or making arrangements as to what is alleged to be in a very broad sense a possible conspiracy between the cross-defendants.
In those circumstances and given that there is no confidentiality in the records in 626 asserted by the cross-defendants, I grant general access to the cross-claimant to the records pertaining to 626 in the bundle of documents sought.
I turn then to the bundle in so far as it contains records pertaining to 339. Before me is an affidavit of Mr Weaver, who, it is said, is, subject to issues associated with the effect of the Bankruptcy Act, a party to the proceedings.
Mr Weaver is apparently the person who owns or has use of the phone records of the number that ends in 339. Mr Weaver asserts that the cross-claimant's legal representatives will abuse anything found in the documents. Frankly, the affidavit does not provide anything that would satisfy the Court that an officer of the Court would so act.
Nevertheless, I understand the issue as to confidentiality and I sympathise with it. In this day and age, all of us are the subject of electronic recordings in ways that perhaps we would rather not be. We can be traced as to where we were, where we made calls, where we drove and used an E-tag, where we were filmed, in a whole range of areas. That is an unfortunate aspect of the surveillance of members of society akin to nineteen eighteen-four, the novel by George Orwell. Nevertheless it is a fact with which we all live.
As earlier stated, the 339 records were redacted to take out the number that is now conceded ought not to have been. It was done because incorrect instructions were provided to the solicitor so acting.
Given the nature of the fraud that is alleged, whether true or otherwise, the added issue associated with incorrect instructions makes the Court extremely cautious about allowing the solicitors on instructions to redact records that are said by their clients to be not related or not utilised by the cross-defendant.
In all of the circumstances, it seems to me that general access should be granted to the records in 339. In relation to those, at this stage, access is granted only to counsel and/or solicitors acting for the cross-claimant. The Court will hear any application as to what use if any, may be made of the information obtained from those records.
In the circumstances, and on the basis of an undertaking as to limited access and use just given (and the reasons just given), I grant general access to the documents produced under subpoena by Vodafone Hutchison Australia Pty Limited on 10 May 2016, bearing packet number S-6.
I have now heard the parties as to costs.
The cross defendants will pay the cross-claimant’s costs of and incidental to the motion.
I should comment that I make the orders as to costs for three reasons. One, because ordinarily costs follow the event. In this case the event is the granting of the motion for general access.
The limitation in relation to the access and the undertaking given by the cross-claimant is one that does not affect the fact that the order made is the one in the motion and could have been suggested to the applicant on the motion at an earlier time, with or without the undertaking.
Secondly, that is not to say that the Court will not allow more general access and use so that whatever is sought to be done with the records may be done.
Thirdly, the limitation on access and use is imposed more as a matter of comity and appreciation to some degree of the privacy that Mr Weaver desires.
For those reasons, I order that the costs be paid in accordance with the order that I have just made.

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Decision last updated: 18 July 2016

Medium Neutral Citation:	Glenella One Pty Limited v Duncan [2016] NSWSC 996
Hearing dates:	29 June 2016
Date of orders:	29 June 2016
Decision date:	29 June 2016
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) General access to the documents produced under subpoena by Vodafone Hutchison Australia Pty Limited on 10 May 2016, bearing packet number S-6, is granted. (2) The cross-defendants will pay the cross-claimant’s costs, of and incidental to the motion.
Catchwords:	PRACTICE AND PROCEDURE – subpoena – documents redacted incorrectly – general access sought – no general confidentiality – limited use available – access granted.
Category:	Procedural and other rulings
Parties:	Glenella One Pty Limited (Plaintiff, First Cross-Defendant, First Respondent) Andrew David Duncan (First Defendant, Cross-Claimant, Applicant) White Turtle Pty Ltd (Second Defendant, Second Cross-Defendant) Morten Weaver (Third Defendant, Third Cross-Defendant) Jane Duncan (Fourth Cross-Defendant) Ted Manny (Second Respondent) Sally Jane Warwick (Third Respondent)
Representation:	Counsel: G McGrath SC (Plaintiff, First Cross-Defendant, First Respondent) M Klooster (First Defendant, Cross-Claimant, Applicant) Self-represented (Third Defendant, Third Cross-Defendant) Solicitors: Owen Hodge Lawyers (First Defendant, Cross-Claimant, Applicant) Cordato Partners Lawyers (Plaintiff, First Cross-Defendant, First Respondent) Self-represented (Third Defendant, Third Cross-Defendant)
File Number(s):	2014/163175