McKean Park (a firm) v Centra Australia No 1 Pty Ltd
[2011] VCC 1191
•5 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-06269
| McKEAN PARK (a firm) | Plaintiff |
| v | |
| CENTRA AUSTRALIA NO 1 PTY LTD | Defendant |
| (ACN 133 857 459) |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 July 2011 |
| DATE OF RULING: | 5 August 2011 |
| CASE MAY BE CITED AS: | McKean Park (a firm) v Centra Australia No 1 Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1191 |
RULING
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Catchwords: PRACTICE AND PROCEDURE – service of a subpoena pursuant to Rule
42A – procedure under Rule 42A not permissible as a means of taking general discovery.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Zappia | Allens Arthur Robinson |
| For the Defendant | Mr S Tatarka | Kliger Partners |
| HIS HONOUR: |
Introduction
1 The applicant is Suncorp-Metway Limited (“Suncorp”). It was served with a subpoena by the defendant (“Centra”), which is the respondent to this application. Suncorp seeks an order that the subpoena be set aside.
2 Centra entered into a contract with Therry Street Developments Pty Ltd to acquire the management rights and approximately 32 apartments in an hotel development at 43 Therry Street, Melbourne known as the Skylounge.
3 The plaintiff is a firm of solicitors (“the Solicitors”). Centra engaged the Solicitors to provide legal services with respect to the acquisition. Suncorp was involved in the acquisition. Its role, as far as I can ascertain, was limited to the provision of finance for the benefit of Centra.
4 It is unnecessary for me to set out the facts in any more detail, save to note that the pleadings disclose that Centra alleges that the Solicitors also acted for Suncorp. Centra alleges that at a critical time, the Solicitors notified Centra that they had become aware that they were also retained by Suncorp, and as a result, felt compromised and in a conflict of interest. The Solicitors informed Centra that they could no longer accept a retainer to act for it.
5 Centra refused to pay the Solicitor’s fees for the work allegedly performed by the Solicitors at the time when it informed Centra that they could no longer accept a retainer to act for it. The Solicitors subsequently commenced a proceeding in the Magistrates’ Court to recover $14,983.66, being its fees. The proceeding was commenced by the filing of a Complaint on 15 April 2010.
6 Centra filed a Defence dated 12 July 2010, and subsequently, a Counterclaim on 2 August 2010. The Statement of Counterclaim pleads a retainer; terms of the retainer; a breach of the retainer and its terms, and loss and damage resulting from the breach in a very significant sum well in excess of the monetary jurisdiction of the Magistrates’ Court. The proceeding was subsequently uplifted to the County Court.
The Subpoena
7 The Subpoena was filed on 9 June 2011. The Subpoena is authorised by Rule 42A of the County Court Civil Procedure Rules 2008.
8 Rule 42A.01 permits the use of such a subpoena limited to the following purpose:
“(1) This Rule applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before—
(a) the hearing of an interlocutory or other application in the proceeding; or (b) the trial of the proceeding.”
9 The procedure to be followed by the addressee served with a Rule 42A subpoena is referred to in Rule 42A.05(1). It requires the addressee to produce the subpoenaed documents to the Registrar by delivering or sending the same to the Registrar on or before the date specified in the subpoena.
10 It is convenient to refer to a number of principles which govern the permissible use of a Rule 42A subpoena, which Mr Zappia submitted were relevant to the submissions which he intended to make, that the subpoena must be set aside:
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Rule 42A only authorises the issue of such a subpoena when the documents sought by the subpoena may potentially be admissible as evidence in the proceeding.[1]
•
Rule 42A is not available for the purpose of discovery. There is an established procedure for obtaining discovery from a non-party: Rule 32.07.[2]
•
The use of a Rule 42A subpoena to obtain discovery to enable a party to plead its case is impermissible. It is Rule 32.07 by which discovery from the non-party can be obtained to enable a party to properly plead and prepare its case.[3]
•
In order to be admissible as evidence, the documents sought by the subpoena must have at least some potential relevance to the issues defined in the proceeding.[4]
•
The interests of justice and efficiency will be served if a subpoena is issued requiring documents to be produced before the time for the hearing of the proceeding, but it will ordinarily not be in the interests of justice for the subpoena to be returnable before discovery has been given by the parties to each other.[5]
•
A Rule 42A subpoena is an intrusion upon the liberty of the subject so that the server of the subpoena must make it crystal clear to the addressee precisely what it is that the addressee is obliged to produce and what it is that the addressee is not obliged to produce, because a failure to comply with such a subpoena constitutes a contempt of court which is a serious matter.[6]
[1] Newnham v Davis [2010] VSC 13, per Kaye J at paragraph 6
[2] Belsart Pty Ltd v Man Po Holdings (Australia) Ltd [1998] VSC 46, per Beach J at paragraphs 16-18. Beach J was there dealing with Rule 42.10 which is in much the same terms as Rule 42A. Also Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd [1999] VSC 242, per Gillard J at paragraph 77-80.
[3] Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd (supra) at paragraph 78.
[4] Newnham v Davis (supra) at paragraphs 6 and 10.
[5] Universal Press Pty Ltd v Provest Ltd (unreported, FCA, 14 July 1999) per Hill J at pages 8-9 (BC890828 - the page numbering I suspect is not consistent with the original ruling, but applied by the reporter).
[6] Universal Press Pty Ltd v Provest Ltd (supra) at page 5. Also Finnie v Dalglish [1982] 1 NSWLR 400 at 407-408.
The Subpoena
11 The subpoena requires Suncorp to produce the following documents:
"The documents and things you must produce are as follows:
1 All letters, e-mails, faxes or document evidencing communications between any employee, servant or agent of:
(a) McKean Park and Suncorp; (b) Suncorp and Therry Street Developments; and/or (c) Therry Street Developments and McKean Park produced in the period August to October 2009 and relating to the financing of the development at 43 Therry Street, Melbourne, known as ‘Skylounge’ (‘the Property’) by Therry Street Developments Pty Ltd.
2 File notes of any conversation between any employee, servant or agent of:
(a) McKean Park and Suncorp; (b) Suncorp and Therry Street Developments; and/or (c) Therry Street Developments and McKean Park for the period August to October 2009 and relating to the financing of the development at 43 Therry Street, Melbourne, known as ‘Skylounge’ (‘the Property’) by Therry Street Developments Pty Ltd."
12 The conclusion I have reached after considering the submissions made by Mr Zappia and Mr Tatarka, and in light of the authorities which I have read which bear on the issue of the permissible use of Rule 42A, is that the Subpoena must be set aside.
13 Firstly, the breadth of the documents sought by the Subpoena infringes the very purpose of the work which Rule 42A is designed to perform. There is nothing in the documents which Suncorp is required to produce which is consistent with those documents being evidence. Rather, the documents which Suncorp is required to produce constitute a general request for discovery.
14 Mr Tatarka essentially submitted that what Centra wants is to have the documents produced so that the documents can be inspected for the purpose of Centra then obtaining from the body of documents those which Centra
15 Secondly, the pleadings relied upon by Centra do not contain any pleading relevant to the conflict of interest by reference to the relationship alleged to exist between the Solicitors and Suncorp with any sufficient detail or clarity to make the production of the documents by Suncorp immediately relevant to the proceeding.
16 Thirdly, the request for production of documents is far too wide. It requires Suncorp to make judgments about what it is obliged to produce.
17 Fourthly, the nature of the request for the production of documents from a non-party is permitted by Rule 32.07. It seems to me that what Centra has attempted to do is to circumvent relying on the general process of discovery and the procedure permitted by Rule 32.07 by seeking discovery by serving a Rule 42A subpoena.
18 Lastly, the most recent Affidavit of Documents sworn by Ms Hua, Solicitor, on 24 June 2011, for the Solicitors, contains a schedule sub-joined to paragraph 3 which enumerates documents over which the Solicitors maintain privilege.
19 On my reading of the documents in that schedule there are documents referred to which are relevant to the relationship between the Solicitors and Suncorp. If those documents are the documents which Centra seeks through the service of the Rule 42A Subpoena, then it should have challenged the claim of privilege to determine whether the documents are in fact capable of such a claim, or should be discovered. To that end, the issue of discovery is not complete.
20 If the process of taking discovery has not been completed, and in this case, by a challenge to the claim of privilege, then using a Rule 42A subpoena is not permissible.
Conclusion
21 After giving due consideration to the submissions made by Mr Zappia and Mr Tatarka, I am satisfied that the Rule 42A Subpoena must be set aside for the reasons set out above.
22 I will make a formal order to that end, and I will also order that Centra pay the reasonable costs of Suncorp to be taxed on County Court Scale “D”. However, I will reserve the right of the parties to further mention this matter if there are any other orders sought.
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