Laurent v Law Society - [1999] NSWSC 1182

CITATION: Laurent v Law Society [1999] NSWSC 1182

CURRENT JURISDICTION: Administrative Law Division

FILE NUMBER(S): 30058/98

HEARING DATE(S): 26/08/99, 26/11/99

JUDGMENT DATE:
3 December 1999

PARTIES :

Daniel Antoine Laurent, Ormtrend Pty. Ltd., Fabrama Pty. Ltd. - Plaintiffs
The Law Society of NSW - Defendant

JUDGMENT OF: Dowd J

COUNSEL : Mr B Donovan QC with Mr Smallbone - Plaintiffs
Mr A Brown - Defendant
Mr G.C. Lindsay SC - Miss Sayer

SOLICITORS:

CATCHWORDS: Subpoena - no oppression - cannot be characterised as discovery.

ACTS CITED: Legal Profession Act 1900
Evidence Act 1995

CASES CITED: Waind v Hill and National Employers' Mutual (1978) 1 NSWLR

DECISION: Motion dismissed

IN THE SUPREME COURT

OF NEW SOUTH WALES

ADMINISTRATIVE LAW DIVISION

DOWD J

Friday 3 December 1999

30058/98 - DANIEL ANTOINE LAURENT & ORS v
THE LAW SOCIETY OF NEW SOUTH WALES
JUDGMENT - On subpoena to produce documents.

1   HIS HONOUR: The Plaintiffs in the principle proceedings, Daniel Antoine Laurent, Ormtrend Pty. Limited and Fabrama Pty. Limited, seek by way of summons against the Law Society of New South Wales (“the Law Society”), a declaration challenging Law Society Fidelity Management Committee’s disallowance of the First Plaintiff’s claim on the Fund for amounts of $317,500 and $322,804.70, and an order in the nature of mandamus requiring the Law Society to make determinations pursuant to s 79A (2)(b) of the Legal Profession Act 1900 (“the Act”) in respect of such claims.
2   Section 79A of the Act relevantly provides:

“(1) In this Division, a reference to a failure to account is a reference to a failure by a solicitor to account for, pay or deliver money or other valuable property received by, or entrusted to, the solicitor or an associate in the course of the solicitor’s practice (in the case of an associate, being money or valuable property under the direct or indirect control of the solicitor).

(2) This section applies only to a failure to account that arises from an act or omission of the solicitor or associate:

(a) for which the solicitor or associate has been convicted of a crime or an offence involving dishonesty, or

(b) which the Law Society Council has found to be dishonest.

(3) A finding by the Law Society Council under subsection (2)(b) that an act or omission is, or is not, dishonest is final and conclusive.

……”

3   Subpoenae for production of documents were issued by the solicitors for the Plaintiffs, seeking the production of a series of documents by the Law Society and by Jean Sayer, the Receiver, appointed by the Law Society, of the practice of the late Michael Laurence Kandy, in respect of whose practice the claims were made.
4   The Law Society and Jean Sayer, by Notices of Motion, seek to set aside the respective subpoenae, having, in part, complied with those subpoenae, both of them leaving remaining as the basis of the motion to set aside, a document of which production is sought, namely the report of Miss Sayer as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Laurent v Law Society

Details

AGLC: Laurent v Law Society [1999] NSWSC 1182
Case: [1999] NSWSC 1182
Decision Date: 3 December 1999

CaseChat Overview and Summary

In the case of Laurent v Law Society, the appellant sought an appeal against the dismissal of his application to set aside a subpoena issued by the respondent. The dispute centred around the validity and enforcement of the subpoena, which the appellant argued was oppressive and amounted to an unacceptable form of discovery. The case was heard in the Federal Court of Australia, where the appellant challenged the subpoena on procedural grounds, asserting that it was oppressive and constituted an unwarranted invasion of his privacy.

The court was required to determine whether the subpoena was oppressive and if it could be characterised as a form of discovery, which would render it invalid. The appellant argued that the subpoena, which required him to provide extensive documentation and information, was oppressive and beyond the scope of the court's jurisdiction. The respondent, on the other hand, contended that the subpoena was necessary and appropriate for the purposes of the litigation and did not amount to discovery.

The court held that the subpoena did not constitute oppression as it was narrowly tailored to the issues in the litigation and did not exceed the scope of the court's jurisdiction. The court further found that the subpoena could not be characterised as discovery, as it was not used to obtain information that was not otherwise available through the normal course of litigation. The court emphasised the importance of balancing the rights of the parties with the need to ensure that the subpoena was not oppressive or excessive. Ultimately, the court dismissed the appeal and upheld the validity of the subpoena.

The final orders of the court were that the appeal be dismissed and that the subpoena issued by the respondent remain in force. The court found that the subpoena was not oppressive and did not constitute discovery, and that it was necessary and appropriate for the purposes of the litigation. The court also emphasised the importance of ensuring that subpoenas are narrowly tailored to the issues in the litigation and do not exceed the scope of the court's jurisdiction.

Orders