Maurice Blackburn Cashman Pty Ltd v Burmingham

[2008] VSC 45

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9783 of 2004

MAURICE BLACKBURN CASHMAN PTY LTD	Plaintiff
V
DAVID BURMINGHAM	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2008
DATE OF JUDGMENT:	25 February 2008
CASE MAY BE CITED AS:	Maurice Blackburn Cashman v Burmingham
MEDIUM NEUTRAL CITATION:	[2008] VSC 45

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PRACTICE AND PROCEDURE – Subpoena – leave to issue subpoena – whether documents  sought to be produced sufficiently relevant to matters in issue.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DA  Klempfner	Maurice Blackburn Cashman
There was no appearance for the Defendant

HIS HONOUR:

1. The defendant, David Burmingham, seeks leave to issue a number of subpoenas.  The question of leave is determined on the basis of the email from Mr Burmingham to the Court dated 22 February 2008 and the documents attached to that email. 

1. Such application is made ex parte.  Since Mr Burmingham resides in Queensland and has difficulties travelling to Melbourne, I agreed to deal with his application on the papers without requiring his attendance in Melbourne.  Counsel for MBC was present in Court since the case was listed for directions but no other orders were sought or made.

1. Leave will be granted in a case such as the present where it appears that the subpoena in question is directed to the production of documents which might be reasonably relevant to the matters in issue between the parties in this proceeding.

1. I have determined what is in issue in this proceeding by an examination of the pleadings in the light of the defendant’s memorandum which is attached to the email.  My examination of the pleadings discloses as follows:

(a)There is no counterclaim seeking damages from the plaintiff, Maurice Blackburn Cashman Pty Ltd (“MBC”).  Mr Burmingham’s complaints about MBC’s conduct is directed to the entitlement of MBC to the sums which it claims for its professional services and disbursements.

(b)There is no claim made by Mr Burmingham against Mr Martin QC, who is not a party to the proceeding.  

(c)There is no claim made by Mr Burmingham against the National Mutual Life Association of Australasia Ltd trading as AXA Australia, which is not a party to this proceeding. 

(d)There is no claim made by Mr Burmingham against AXA Asia Pacific Holdings Ltd, which is not a party to this proceeding.

(e)Mr Burmingham’s retainer of MBC was entered into in 2000 and was terminated in May or June 2003.

(f)MBC was retained by Mr Burmingham with respect to his claim under an insurance policy issued by ACL and the proceeding which he brought in this Court (No. 7142 of 2000) against ACL.  It seems that AXA later assumed responsibility for the liability of ACL under the policy.

(g)The defendant’s claim against ACL/AXA was settled in December 2003, that is, after the MBC ceased acting for him.

(h)After the settlement there were further disputes between Mr Burmingham and ACL/AXA with respect to the settlement.  Mr Martin QC acted as mediator with respect to these disputes pursuant to court order.[1]

(i)At the mediation on 27 August 2004 Mr Burmingham executed a further settlement agreement which he says does not bind him[2] for a number of reasons which it is not necessary that I enumerate or consider here.

(j)The proceeding against ACL/AXA was ordered to be dismissed on 30 August 2004.

(k)There are ongoing disputes between Mr Burmingham and ACL/AXA with respect to $200,000 being part of the settlement sum set aside in trust.[3]

[1]Defence para 16(c)(iv).

[2]Defence para 16(c)(xix) ff.

[3]Defence para 22.

The Martin Subpoena

1. Communications at a mediation are privileged.[4]  They may not be given in evidence.

   [4]Supreme Court Act s 24A.

1. The validity of the mediation is not in issue in this proceeding.

1. The validity of the order of 30 August 2004 cannot be impugned in this proceeding.

1. The document referred to in the draft subpoena are not relevant to any issue joined on the pleadings in this proceeding.

1. Leave will be refused.

Turks Legal

1. Turks Legal were the solicitors for ACL/AXA in Mr Burmingham’s proceeding against that company.[5]

   [5]Memorandum para 2.1.2.

1. The correspondence etc sought in the draft subpoena may be relevant to the matters in issue in this proceeding.

1. Leave will be granted.

The AXA Australia Subpoena

1. The correspondence etc sought in the draft subpoena may be relevant to the matters in issue in this proceeding.

1. Leave will be granted.

AXA Asia Pacific

1. The correspondence etc sought in the draft subpoena may be relevant to the matters in issue in this proceeding.

1. Leave will be granted.

The Federal Court Subpoena

1. A subpoena will not issue against another court.[6]

   [6]Rule 42.02(2)(b).

1. Leave will be refused.

Conclusion

1. Accordingly, leave will be granted to Mr Burmingham to issue subpoenas against Turks Legal, AXA Australia and AXA Asia Pacific in terms of the drafts attached to these reasons.  Otherwise his application will be refused.

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