Lawlor v Courtesy Real Estate (NSW) Pty Limited
[2014] FCCA 1471
•10 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAWLOR v COURTESY REAL ESTATE (NSW) PTY LIMITED & ORS | [2014] FCCA 1471 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside part of subpoena for production of documents – principles for setting aside subpoena for production – part of subpoena to produce set aside. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.15A.09 |
| Australian Gas Light Company ACN 052 167 405 v Australian Competition and Consumer Commission [2003] FCA 1101 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504 NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 R v Saleam [1999] NSWCCA 86 R v Tastan (1994) 75 A Crim R 498 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 |
| Applicant: | SALLY-ANNE LAWLOR |
| First Respondent: Second Respondent: Third Respondent: Fourth Respondent: Fifth Respondent: Sixth Respondent: Seventh Respondent: | COURTESY REAL ESTATE (NSW) PTY LIMITED ACN 002 934 152 T/A RAY WHITE LOWER NORTH SHORE PETER DOUGLAS MATTHEWS KINGSLEY RAYMOND YATES SHANE MICHAEL SLATER RAY WHITE (NEW SOUTH WALES) PTY LIMITED STEPHEN JOHN NELL STUART DAVIES |
| File Numbers: | SYG 827 of 2013 & SYG 2450 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Howell |
| Solicitors for the Applicant: | Harmers Workplace Lawyers |
| Counsel for the First, Second, Third and Fourth Respondents: | Mr G Johnson |
| Solicitors for the First, Second, Third and Fourth Respondents: Solicitors for the Fifth, Sixth and Seventh Respondents: | Gilbert & Tobin Ms Edwards |
ORDERS
Paragraphs 5, 6, 7 and 11 of the subpoena issued to the applicant on 12 June 2014 (subpoena) are set aside.
Paragraph 4 of the subpoena is set aside to the extent it calls for the production of unexecuted agency agreements.
Paragraph 10 of the subpoena is set aside to the extent it calls for the production of bank statements for the period before 13 February 2013.
The first, second, third, and fourth respondents pay 80% of the applicant’s costs of the application in the case to set aside the subpoena.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 827 of 2013 & SYG 2450 of 2013
| SALLY-ANNE LAWLOR |
Applicant
And
| COURTESY REAL ESTATE (NSW) PTY LIMITED ACN 002 934 152 T/A RAY WHITE LOWER NORTH SHORE First Respondent PETER DOUGLAS MATTHEWS KINGSLEY RAYMOND YATES SHANE MICHAEL SLATER RAY WHITE (NEW SOUTH WALES) PTY LIMITED STEPHEN JOHN NELL STUART DAVIES |
Seventh Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application under r.15A.09 of the Federal Circuit Court Rules 2001 (Cth) to set aside part of a subpoena to produce documents issued to the applicant by the first, second, third and fourth respondents (respondents).
Principles
A party who issues a subpoena for production (issuing party) must, when challenged, be in a position to do three things: articulate the purpose for which the documents called by the subpoena are required; demonstrate the stated purpose is a legitimate forensic purpose; and demonstrate the subpoena calls for, and only calls for documents that are reasonably necessary to fulfil the articulated purpose.
That the issuing party must demonstrate a legitimate forensic purpose for the production of the documents called by the subpoena has been recognised in a number of cases. For example, Barr AJ, in R v Tastan, said:[1]
It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made.
[1] (1994) 75 A Crim R 498 at page 504, quoted with approval by Brownie AJA in NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [22] (Spigelman CJ and Ipp AJA agreeing).
The purpose or purposes for which it is legitimate to issue a subpoena have been stated in both positive and negative terms. On the one hand, the purpose is not restricted to enabling the party issuing the subpoena to have the documents for the purpose of tendering them into evidence.[2] On the other hand, it is not legitimate to issue a subpoena for the purpose of “fishing”; that is, for the purpose of discovering whether the party issuing the subpoena has a case.[3] The purpose for which it is legitimate to issue a subpoena falls between these two purposes. That purpose has been identified by Jordan CJ in Commissioner for Railways v Small,[4] where his Honour distinguished the illegitimate purpose of “fishing” from the legitimate purpose of endeavouring to obtain evidence to support the issuing party’s case.[5] Thus, the purpose for which it is legitimate to issue a subpoena is to obtain evidence to support the issuing party’s case.
[2] Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 per Moffitt P at pages 384C-385D (Hutley and Glass JJA agreeing).
[3] Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at page 575.
[4] (1938) 38 SR (NSW) 564 at page 575.
[5] (1938) 38 SR (NSW) 564 at page 575: “[A] party is no more entitled to use a subpoena … than he is a summons for interrogatories, for the purpose of ‘fishing’, i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all . . . ”
The test for determining whether the documents called for by the subpoena are documents, and only documents, that are reasonably necessary to fulfil the asserted legitimate forensic purpose, has been stated in a number of ways. Thus, the documents called for by a subpoena may be held to fulfil the asserted legitimate forensic purpose if they “have an apparent relevance”,[6] or if the documents have “at least some apparent potential relevance to the matters in issue in the litigation”[7] or if the documents sought “could reasonably be expected to throw light on some of the issues in the principal proceedings”.[8] The expression that is often used – and which I will employ in determining the application before me – is “on the cards”. That is, a subpoena will be issued for the legitimate purpose of obtaining evidence in support of the issuing party’s case if it is “on the cards” that “the documents will materially assist his case”.[9]
[6] Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at page 103 (Beaumont J): “Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established?”
[7] Australian Gas Light Company ACN 052 167 405 v Australian Competition and Consumer Commission [2003] FCA 1101 at [8] (French J, as his Honour then was).
[8] Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504 (Spender J).
[9] R v Saleam [1999] NSWCCA 86 at [11]
There is an overlap between the questions whether the purpose for which the issuing party asserts he or she has issued a subpoena is a legitimate forensic purpose – to obtain evidence to support the issuing party’s case – and whether the documents called for by the subpoena fulfil the asserted purpose. If, for example, the documents called for by the subpoena include documents in relation to which it cannot be said that it is on the cards that they will materially assist the issuing party’s case, the inference will readily be drawn that the subpoena has not been issued for a legitimate forensic purpose.
Accordingly, when determining whether a subpoena or part of a subpoena should be set aside on the ground that it has not been issued for a legitimate forensic purpose, or on the ground that it calls for documents beyond what is necessary to fulfil the legitimate forensic purpose, the Court must:
a)identify the issue or issues with respect to which the issuing party claims his case will be materially assisted by the production of the documents called for by the subpoena;
b)determine whether it is “on the cards” that the documents will materially assist the issuing party’s case on that issue.
In practical terms, whether or not in any given case it will be on the cards that documents called for by a subpoena will materially assist a party’s case will be determined by assessing the relevance or apparent relevance of the documents to the matters that are in issue in the proceedings.
It follows that before I can consider whether any part of the subpoena should be set aside, it will be necessary for me to briefly identify the relevant issues in the proceedings.
Issues in the case
The applicant, Ms Lawlor, is a real estate agent who was an employee of the first respondent (Ray White Lower North Shore). She alleges that she was induced to enter into a contract of employment with Ray White Lower North Shore as a result of misrepresentations made to her; and, while employed, Ray White Lower North Shore breached the contract of employment, and unlawfully discriminated against her. Ms Lawlor further claims that, as a result of Ray White Lower North Shore’s misrepresentations, breach of contract, and discrimination, Ms Lawlor suffered loss or damage being loss of income, bonuses and other benefits as an employee of Ray White Lower North Shore, loss of opportunity for advancement in Ray White Lower North Shore, offence, humiliation, distress and anxiety, damage to persons and professional reputation, and medical expenses.
The subpoena
As I say above, Ms Lawlor seeks to set aside only part of the subpoena.
Paragraph 4 - agency agreements
The first paragraph of the subpoena which Ms Lawlor seeks to set aside is paragraph 4 which calls for the production of “all agency agreements, whether or not executed, in relation to the Business”. The expression “Business” is defined to mean the business known as “2088 Realty”.
The respondents submit that these documents are relevant to the claim of loss of reputation Ms Lawlor alleges she suffered because of the respondents’ impugned conduct. They submit it is on the cards that the existence of such documents will materially assist the respondents on this issue. To the extent the Business has such agency agreements, the stronger the respondents’ case will be that Ms Lawlor has not suffered loss of reputation.
Ms Lawlor, on the other hand, submits that an unexecuted agreement can amount to no more than a proposal to act as agent. And an executed agreement says nothing about whether any agency agreement will or may result in any remuneration to Ms Lawlor.
In my opinion, executed agency agreements are relevant to the issue of an agent’s reputation to sell and market properties. An agency agreement usually restricts the rights of property owners to sell or lease their property through other agents and to pay a commission to the agent if the agent sells or leases or manages the property. A property owner would not agree to such restriction unless he or she had trust and faith in the agent properly undertaking the marketing and sale or management of the property. And the measure of an agent’s reputation is the extent of the willingness of consumers to acquire the agent’s services. Accordingly, the greater the number of signed agency agreements that will be produced in answer to this part of the subpoena, the more likely it will be that the respondents’ case will be materially assisted on the issue of whether Ms Lawlor suffered a loss in reputation.
On the other hand, I cannot see how the production of unexecuted documents can assist the respondents’ case on this issue. I agree with Ms Lawlor’s submission that such documents can amount to nothing more than a proposal to act as agent.
Accordingly, in my opinion, the respondents are only entitled to call for the production of executed agency agreements, and paragraph 4 should be set aside to the extent it calls for unexecuted agency agreements.
Paragraph 5 – list of clients
Paragraph 5 of the subpoena calls for the production of “a list of all clients of the business at any time and their address”. The respondents submit that these documents are relevant to the issue of Ms Lawlor’s allegation of loss of reputation.
In my opinion, it is not on the cards that any such documents would materially assist the respondents’ case on the issue of Ms Lawlor’s loss of reputation. I construe “clients” to mean persons with whom the Business has entered into an agency agreement. So construed, the production of executed agency agreements should disclose all the clients of the business, past and present. Producing a list of clients will either reveal the same information as that revealed by the executed agreements, or additional information that goes beyond that which will materially assist the respondents’ case.
Accordingly, paragraph 5 of the subpoena should be set aside.
Paragraph 6 – market proposals
Paragraph 6 of the subpoena calls for the production of “all market proposals provided or given to any client or prospective client of the Business”. The expression “market proposals” is intended to mean “market appraisal”, as explained in paragraphs 9-11 of the affidavit of Mr Pomeroy. What is intended to be captured are documents that are created as a result of persons contacting the Business in response to the invitation contained on the website of the Business that the Business be contacted “for an obligation free market appraisal”.
The respondents submit that it is on the cards that such documents will materially assist their case on the issue of Ms Lawlor’s loss of reputation. I do not agree. That persons may have responded to the invitation contained on the website of the Business, and the Business has provided obligation free market appraisals cannot rationally affect the assessment of the reputation of Ms Lawlor. The reputation of a real estate agent does not consist in giving obligation free market appraisals; it consists in the power of the agent to attract property owners to engage him or her to sell or lease or manage property.
Paragraph 6 of the subpoena, therefore, should be set aside.
Paragraph 7 ‑ emails from business email addresses
Paragraph 7 of the subpoena calls for “all emails sent from and received by” email addresses which appear to be associated with the Business.
This paragraph is obviously too broad. It seeks the production of all emails to and from the Business. As submitted by Ms Lawlor, the documents sought are not limited by date, time, subject matter, or sender or receiver. The width of the paragraph gives rise to the inference that its purpose is to fish out a case, not to obtain evidence to support the respondents’ case.
Paragraph 7 of the subpoena, therefore should be set aside.
Paragraph 10 – bank statements
Paragraph 10 of the subpoena calls for the production of “all bank statements in relation to Ms Lawlor for the period from 1 January 2008 to date”. Ms Lawlor is willing to produce bank statements for the period after 13 February 2013, being the date on which her employment terminated, but not for the period before 13 February 2013.
The respondents submitted that bank statements for the period before 13 February 2013 are relevant because they may show that the applicant was suffering from some financial stress. In my opinion, that indicates a purpose of fishing.
Paragraph 10 of the subpoena, therefore, should be set aside to the extent it calls for bank statements for the period before 13 February 2013.
Paragraph 11 ‑ diaries
Paragraph 11 of the subpoena calls for the production of “all diaries kept by Ms Lawlor during the period 1 January 2008 to date”.
This paragraph calls for diary notes which are not restricted by reference to subject matter. The width of the paragraph suggests a purpose of fishing. Paragraph 11, too, should be set aside.
Conclusion and disposition
For these reasons, I propose to order that:
a)paragraphs 5, 6, 7 and 11 of the subpoena be set aside;
b)paragraph 4 of the subpoena be set aside to the extent it calls for the production of unexecuted agency agreements; and
c)paragraph 10 of the subpoena be set aside to the extent it calls for the production of bank statements for the period before 13 February 2013.
I also propose to order that the first, second, third and fourth respondents pay 80% of Ms Lawlor’s costs of the application in the case to set aside the subpoena.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 10 July 2014
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