Lawrence v Sammut (No. 2)
[2022] NSWSC 390
•05 April 2022
Supreme Court
New South Wales
Medium Neutral Citation: Lawrence v Sammut (No. 2) [2022] NSWSC 390 Hearing dates: On the papers Date of orders: 05 April 2022 Decision date: 05 April 2022 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The application by the plaintiff for leave to issue subpoenas to Karen McLean and Associates, MWL Financial Group, and Harrison and Gill Chartered Accountants is refused.
(2) The plaintiff is to pay the defendant’s costs of the application.
Catchwords: CIVIL PROCEDURE – unrepresented litigant – leave to issue subpoenas – documents sought irrelevant to remaining issues in proceedings – no point of principle
Legislation Cited: Civil Procedure Act 2005 NSW
Legal Professional Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Lawrence v Sammut [2022] NSWSC 344
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Category: Procedural rulings Parties: Wayne James Lawrence (Plaintiff)
Alice Alexandria Sammut (First Defendant)
Paul William Ciantar (Second Defendant)Representation: Counsel:
Solicitors:
JC McDonald (Defendants)
Self-represented (Plaintiff)
McLean & Associates (Defendants)
File Number(s): 2021/57931 Publication restriction: Nil
Judgment
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These proceedings concern an appeal under s 89 of the Legal Professional Uniform Law Application Act 2014 (NSW) from a determination of a Costs Review PaneI in February 2021.
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The background and relevant history to the proceedings is set out in [1] to [14] of Lawrence v Sammut [2022] NSWSC 344. That judgment concerned the setting aside of notices to produce issued by the plaintiff, and should be read together with this judgment.
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The problems with the notices to produce the subject of that judgment are similar to the problems that apply to the subpoenas now sought to be issued, namely, that the material sought is irrelevant to the issues that remain live before the Court in these proceedings. Those issues are confined to argument regarding the action the Court should take in response to a referee’s report on costs.
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By notice of motion filed 18 March 2022, the plaintiff seeks leave to issue subpoenas to the defendant’s solicitor Karen McLean and Associates, the MWL Financial Group, and Harrison and Gill Chartered Accountants.
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Because he does not have a solicitor acting for him, the plaintiff requires the Court’s leave to issue the subpoenas: Uniform Civil Procedure Rules 2005 (NSW), (UCPR) r 7.3.
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For the reasons that follow, leave is refused.
The Application Material
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The plaintiff’s application is supported by an affidavit affirmed by him on 16 March 2022 appending the proposed subpoenas and a one-page annexure to the Court’s application form for leave to issue subpoenas. This single page appears to comprise his submissions in support of the leave sought, together with two and a half pages of submissions forwarded by email to Chambers on 1 April 2022.
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The Schedule to each subpoena is reproduced exactly as it appears in the subpoena, including numbering, typographical, drafting and punctuation errors, to illustrate the problematic nature of the subpoenas sought to be issued.
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The subpoena to McLean and Associates is difficult to follow and is prolix. The Schedule is as follows:
“SCHEDULE
The documents or things you must produce are as follows:
1. Copy of this subpoena.
2. Documents
Communications;
a. Copy Report Donald Cant Watts Corke (nsw) & instructions provided and advice of tax invoice dated 20 December 2017.
b. All financial arrangements Karen Mclean and Karen Mclean associates clients with the financial group MWL already have a financial group as to the funding and completion of the subdivision in 2018 to 2021.
c. Applications for Homeowner Warranty Insurance at 5 Angophora Crescent Forestville 2087 certificate number HBCF18027758.
d. Karen Mclean & Paul William Ciantar & Alice Sammut between S & TL Cavllaro lie 198199 C Salvatore Cavallaro, Traci Lee Cavallaro. Copy of trade licenses from each of trades.
e. Karen Mclean & Karen Mclean and Associates. Application for section 73 from Sydney Waterboard, Application and approval of PCA Northern Beaches Council driveway and retention tank.
f. Any certificates issued to the builder S &TL Cavllaro lie 198199(, Salvatore Cavallaro,Traci Lee Cavallaro. Paul William Ciantar & Alice Sammut between, Karen Mclean or Karen Mclean and associates.
g. ICARE Builder project Insurance completion advice form a copy of any correspondence associated with the form including emails
In this subpoena:
a. Applications for Homeowner Warranty Insurance at 5 Angophora Crescent Forestville 2087 certificate number HBCF18027758 25 May 2018 Premium paid $799.10 copy of tax invoice and confirmation of payment.
b. All correspondence and arrangements made with MWL finance group Chatswood manager Barbara Keating and all financial arrangements involved with Karen Mclean and associates.
c. Bill of cost item 697 date 12 October 2018 Bank statements trust, account statements, control money account statements, payment to Sun court Met-way, payment of legal costs of the defendants, interest-bearing controlled monies or similar account pending the determination, the proceeds of the sale and applied towards adjustments.
d. The bill of costs items 699 date 12 October 2018 to 701 additional invoices paid, various tax invoices and copies.
e. Copy of item 916 the bill of costs date 02/02/19 -item 961 construction certificate for driveway and retention tank-
f. Bill of cost item 716 date 08/11/18 to item 751 date 19/12/18 copy of all tax invoices and all payments made as per the consent orders dated 12 October 2018.
g. Bill of course item 752 date 19/12/18 in preparation of loan repayment calculations and subdivision costs attaching draft summary based on summaries provided by A Sammut at item 753 provide copies of payment method and the review.
h. Provide copy of contract for the completion of the subdivision between Karen Mclean associates and the defendants in the payment and arrangements made between the parties in the administration of paying all the tax invoices and accounting for the GST and bass statements as per the requirement under the legislation when carrying out subdivisions.
i. All documents' agreements and instructions is to include any recorded or information and include but not limited to correspondence emails including any attachments to emails.
j. The property means a lot 584 within DP752038 also known as 5 Angophora Cres Forestville NSW 2087.
k. All financial arrangements and correspondence with Harrison and Gill chartered accountants Forestville between Karen Mclean and Karen Mclean associates or their employees.
l. The evidence relied upon of the Karen Mclean and associates dated 17 November 2017 claiming that the plaintiff has not advanced $435,000 please produce the document or documents provided to you to support that allegation.
m. The evidence the builder license 28 September 2018 affidavit fair trading does not identify a builder in their database for the driveway and retention tank.
n. Please provide leave of the court for the defendants to hand up submissions on 05/02/2019 document that provided leave through a submission substantially different to the original submission.”
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The Schedule to the subpoena directed to MWL Financial Group is as follows:
“SCHEDULE
The documents or things you must produce are as follows:
3. Copy of this subpoena.
4. Documents
Communications;
1. Copy Report Donald Cant Watts Corke (nsw) copy of tax invoice dated 20 December 2017.
2. Copy of all valuations and guarantors to the mortgage.
3. Nicole Barbaro - Domonic Barbaro
4. Applications for Homeowner Warranty Insurance at 5 Angophora Crescent Forestville 2087 certificate number HBCF18027758.
5. Karen Mclean ,Paul William Ciantar & Alice Sammut between S & TL Cavllaro lie 198199 C Salvatore Cavallaro, Traci Lee Cavallaro. Copy of trade licenses from each of trades.
6. Karen Mclean & Karen Mclean and Associates. Application for section 73 from Sydney Waterboard, Application and approval of PCA Northern Beaches Council driveway and retention tank.
7. Any certificates issued to the builder S & TL Cavllaro lie 198199(,Salvatore Cavallaro,Traci Lee Cavallaro. Paul William Ciantar & Alice Sammut between, Karen Mclean or Karen Mclean and associates.
8. !CARE Builder project Insurance completion advice form a copy of any correspondence associated with the form including emails
In this subpoena:
9. Application form for finance 5 Angophora Cres Forestville 2087.
10. Approval of finance terms and conditions mortgages and all relevant documents as to the approval and finance provided.
11. Copy of the mortgage or in the alternative for the security that was placed for the approval of the finance.
12. Schedule of payments and schedule of repayments and discharge of mortgage and guarantors' to the loan
13. Bank statements trust, account statements, control money account statements, payment to Sun court Met-way, payment of legal costs of the defendants, interest-bearing controlled monies or similar account pending the determination, the proceeds of the sale and applied towards adjustments.
14. The bill of costs items 69 additional invoices paid, various tax invoices and copies.
15. Preparation of loan repayment calculations and subdivision costs attaching draft summary based on summaries provided by A Sammut.
16. Provide copy of contract for the completion of the subdivision between Karen Mclean associates and the defendants in the payment and arrangements made between the parties in the administration of paying all the tax invoices and accounting for the GST and bass statements as per the requirement under the legislation when carrying out subdivisions.
17. All documents' agreements and instructions is to include any recorded or information and include but not limited to correspondence emails including any attachments to emails.
18. The property means a lot 584 within DP752038 also known as 5 Angophora Cresant Forestville NSW 2087.”
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The Schedule to the subpoena directed to Harrison and Gill, Chartered Accountants is as follows:
“SCHEDULE
The documents or things you must produce are as follows:
19. Copy of this subpoena.
20. Documents
Communications;
In this subpoena:
1. All documents' agreements and instructions to include any recorded or information and include but not limited to correspondence emails including any attachments to emails.
2. The property means a lot 584 within DP752038 also known as S Angophora Cresant Forestville NSW 2087.
3. All accounts and payments related to the subdivision at Forestville including bass statements GST credit debit from the trades people.
4. Any documents that relate to exemptions from GST payments or capital gains tax on the subdivision including the sale of each lot.
5. The partnership returns for the subdivision and for the rental of the boarding-house at the rear of the property.
6. Alice Sammut the owner/ developer under homeowners warranty insurance but there's no ACN and ABN please provide or produce copy of those numbers.”
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The text of the affidavit does not contain any submission or explanation as to the relevance of the documents sought by the three proposed subpoenas.
Decision
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Without any disrespect to the plaintiff, the submissions contained in the single page document referred to in [7] and the two and a half pages of written submissions dated 1 April 2022, are incomprehensible. To the extent that they can be understood or interpreted, they appear to reflect a fixation on issues long ago dealt with and determined, and possibly an intention to obtain and use certain documents to reopen proceedings in the Federal Court.
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Nothing at all explains or even refers to the potential relevance of any of the material sought to the issues that remain in the proceedings, which are, as explained in Lawrence v Sammut, limited to the end stages of costs review proceedings, dealing with the referee’s report on the costs assessment of the Costs Review Panel that had been ordered by this Court last year in an effort to move this matter to finality.
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This Court should not allow its processes to be deployed to require production of documents that have no relevance at all – apparent or otherwise – to the current proceedings.
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Adopting the most generous interpretation possible of “apparent relevance” to an issue in the proceedings, (see the discussion of Bell P (as he then was) at [33] to [80], and in particular at [59] to [61] in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145[1]) - and this must of course be, in context, the remaining issues in the proceedings - none of the documents sought in the schedules to the subpoenas satisfy that base level requirement.
1. Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
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Accordingly, the plaintiff’s application must be dismissed with costs.
Orders
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The orders I make are as follows:
The application by the plaintiff for leave to issue subpoenas to Karen McLean and Associates, MWL Financial Group, and Harrison and Gill Chartered Accountants is refused.
The plaintiff is to pay the defendant’s costs of the application.
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Endnote
Decision last updated: 06 April 2022
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