Perla v Bethencourt

Case •

[2005] NSWSC 823

•

18 August 2005

No judgment structure available for this case.
CITATION:

Perla v Bethencourt [2005] NSWSC 823
HEARING DATE(S): 15 August 2005
 
JUDGMENT DATE : 


18 August 2005

JURISDICTION:

Common Law Division
JUDGMENT OF:

Associate Justice Harrison

DECISION:

(1) Leave to appeal is refused; (2) The order of Magistrate G Bradd dated 16 December 2004 is affirmed; (3) The summons filed 11 January 2005 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed; (5) The Local Court file should be returned
CATCHWORDS:

Leave to appeal decision of Local Court Magistrate - issue of a subpoena
LEGISLATION CITED:

Local Court (Civil Claims) Rules 1988 (NSW)
CASES CITED:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
In re the Will of FB Gilbert (dec) (1946) 46 SR(NSW) 318
Paringa Mining & Exploration Co Pic v North Flinders Mines Ltd (1988) 165 CLR 452
PARTIES:

Elena Perla t/as Perla & Jordan Lawyers
(Plaintiff)

Luis Alberto Bethencourt
(Defendant)

FILE NUMBER(S):

SC 10064/2005
COUNSEL:

Mr P D Gray-Grzeszkiewicz
(Plaintiff)

Mr A J Bowen
(Defendant)
SOLICITORS:

Perla & Jordan Lawyers
(Plaintiff)

Ms Linda Wright,
DGB Lawyers
(Defendant)

LOWER COURT JURISDICTION:

Local Court

LOWER COURT FILE NUMBER(S):

4837/2003

LOWER COURT JUDICIAL OFFICER :

G Bradd LCM


      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      ASSOCIATE JUSTICE HARRISON

      THURSDAY, 18 AUGUST 2005

      10064/2005 - ELENA PERLA t/as PERLA & JORDAN
                  LAWYERS v LUIS ALBERTO BETHENCOURT
      JUDGMENT (Leave to appeal decision of Local Court
              Magistrate – issue of a subpoena)

1 HER HONOUR: By summons filed 11 January 2005 the plaintiff seeks leave to appeal the decision of Local Court Magistrate G Bradd dated 16 December 2004 in proceedings 4837/2003 and that the judgment of LCM Bradd be set aside and orders be entered in accordance with the motion before the Magistrate on 16 December 2004. The plaintiff relied on her affidavit sworn 20 May 2005. The defendant relied on the affidavit of Gregory Hatfield sworn 7 March 2005.

2 The plaintiff is Elena Perla t/as Perla & Jordan Lawyers, who acted as solicitor for Jennifer Rees (the plaintiff in the Local Court proceedings) from 10 April 2003 until 15 October 2004. The defendant is Luis Alberto Bethencourt, who was the defendant in the Local Court proceedings. For convenience I shall refer to the former solicitors Perla & Jordon Lawyers by the solicitor acting, namely Ms Perla in this judgment.


      Grounds of appeal

3 Ms Perla seeks leave to appeal the decision of the Magistrate. The grounds of appeal are firstly, that the Magistrate erred at law in admitting into evidence certain affidavits identified in the plaintiff’s submissions; secondly, the Magistrate erred at law in finding that the subpoena under consideration had a legitimate forensic purpose, when there was no evidence upon which such a finding could be made and thirdly, the Magistrate erred at law in dismissing the plaintiff’s motion and consequently in applying the usual order as to costs.

4 Section 69(2B) provides that an appeal against an interlocutory order does not lie to this Court except by leave. Where an interlocutory order does not determine the rights of the parties, the order would usually be an exercise of discretion on a point of practice or procedure. In In re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318, Jordan CJ at 322-323 stated:

          “…it is only in the most exceptional circumstances that a Court of Appeal could regard itself as justified in interfering with the exercise of a discretion by a judge of the first instance – only where he has misapplied the law, or his order is likely to lead to a miscarriage of justice: Evans v Bartlam [1937] AC 473 at 480-1, 486-7. In this connection, however, I am of the opinion that, as was pointed out by this Court in In re Ryan (1923) 23 SR 354 at 357; 20 Austn Digest 81, there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges or first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. But an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a some-what different position.”

5 The High Court, in Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc (1981) 148 CLR 170, at pp 177, 180, a case relating to an interlocutory undertaking, approved of this passage and cited a portion of it. The High Court in Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452, referred to a portion of above passage and stated at 458:

          “In general, the orderly administration of justice would be impeded if this Court intervened in interlocutory proceedings in a matter pending in a court of trial. It is the responsibility of a court of trial to determine the course of interlocutory proceedings, subject to appeal to the relevant intermediate appellate court.”

      Local Court proceedings

6 It is necessary to briefly refer to the history of the Local Court proceedings. By statement of claim filed 15 May 2003 Jennifer Rees sued Mr Bethencourt in relation to property damage arising from a car accident which allegedly occurred on 22 February 2003. Ms Perla was the solicitor acting for Ms Rees. The NRMA’s solicitors acted for Mr Bethencourt.

7 On 27 October 2004, the matter was listed for arbitration. On 15 October 2004 Ms Perla received a letter from Goldbergs Lawyers advising her that Ms Rees had not instructed her (the solicitor) to institute proceedings in Ms Rees’ name. Ms Rees swore an affidavit in which she deposed that she first became aware of these proceedings on about 14 July 2004. Ms Perla was on notice that her retainer was in issue. On 20 October 2004 (seven days before the arbitration) Ms Perla filed a notice of ceasing to act. Consequently, Ms Perla did not appear at arbitration nor did the plaintiff or the plaintiff’s current solicitors. The defendant sought costs and was awarded costs and it was ordered that those costs were payable by Ms Perla personally.

8 Subsequent to the arbitration, Ms Perla filed two notices of motion; one seeking to have the costs order made at arbitration set aside, the other seeking to have the subpoena addressed to her set aside. Mr Bethencourt also has an outstanding motion seeking to have the statement of claim dismissed. The motions not involving the subpoena were specially fixed for hearing on 1 February 2005.

9 Prior to 16 December 2004, Ms Perla supplied the defendant’s solicitors with the documents they sought in paragraphs 1 to 2.1 to 2.6 of the subpoena as she was of the opinion that Ms Rees had acted inconsistently with her retainer and had waived her claim of privilege in relation to these documents. Ms Perla had been served with the affidavits that the defendant referred to (albeit some the evening before the hearing). The Local Court (Civil Claims) Rules 1988 (NSW) (the rules) provide that a party intending to use an affidavit shall serve it on each other interested party no later than a reasonable time before the occasion arises (Part 25 r 7).

10 On 16 December 2004 the notice of motion to set side the subpoena came before Magistrate G Bradd. Ms Perla appeared for herself and Mr Bowen appeared for the defendant.

11 At the outset Mr Bowen stated:

              “I can indicate that for the sake of completeness it’s the defendant’s submission that you will need to read all the affidavits to properly deal with my friend’s application, and my count that’s a total of seven affidavits, so I thought I’d just indicate that to you at the outset.”

      and then Ms Perla stated:
          “And it’s my submission that there is no need to read any of this information. In this matter there’s two outstanding notices of motion and they’ve been given a special fixture on 1 February because there’s going to be a need for the presence of the witnesses for cross examination. I believe that the subpoena that the defendant has issued to me, which I am objecting to complying to at the moment, refers to one of those notices of motion which is specifically to dismiss the statement of claim and to have certain costs payable by the solicitor personally, and they are alleging certain breaches of the Legal Profession Act.”

12 Ms Perla continued with her wide ranging submissions (which I do not need to reproduce here). Ms Perla then went onto make submissions on why the subpoena should be set aside and said, “For the moment those are my submissions”. Then at 4.20-46 the following exchange took place:

          “…
          PERLA: But when you read the affidavit of Ms Rees, I’d like you to pay attention please to the fact that she was aware of the proceedings, but she was frightened. What has happened is that the repairer, his affidavit is on file as well, was approached by a Lebanese mafia group and they wanted protection money.
          BOWEN: I’m loathe to interrupt my friend, but I think it’s inappropriate that submissions are made on the basis of evidence that has not been read.
          PERLA: I’m not making submissions.
          BOWEN: I repeat my submission that the quickest way of dealing with this application would be for you to read all the affidavits.
          HIS HONOUR: I’ll just take it as an iterative process at this stage. I don’t think I can receive evidence from the bar table.
          PERLA: No, it’s not evidence. I was trying to summarise it, but if you’re going to read the evidence of Ms Rees--
          HIS HONOUR: I’ll just have a look and see if I can find it first and then we’ll go from there.”

13 After that point was reached, Mr Bowen asked for other affidavits to be read and Ms Perla did not specifically object to them being read.

14 Ms Perla raised no objection to the Magistrate’s approach of then dealing with the paragraphs of the subpoena and objections thereto seriatim. Ms Perla made complicated and wide ranging submissions generally and in relation to each disputed paragraph of the subpoena.

15 The subpoena addressed to Ms Perla sought production of documents in the following terms:

          “1. All documents evidencing a retainer, costs disclosure or costs agreement between Jennifer C Rees of 6 Amelia Street, North Ryde NSW 2113 and you or your firm, Perla & Jordan Lawyers for work related to proceedings number 4837 of 2003 before the Downing Centre Local Court (“the present proceedings”) or any other work related to a claim for damages to motor vehicle, registration number AMY-44X, which was allegedly damaged on or about 22 February 2003 (“the claim”).

          2. All correspondence between Jennifer C Rees and you or your firm Perla & Jordan Lawyers in relation to the present proceedings or the claim, including:

              2.1 letters

              2.2 facsimile transmissions

              2.3 emails

              2.4 file notes of records of telephone conferences

              2.5 file notes of records of conferences in person

              2.6 records of instructions

              2.7 electronic copies of all correspondence from your computer system (saved on either a hard disk, back-up tape or floppy disk)
          3. All documents evidencing a retainer, costs disclosure or costs agreement between Fadi El Jamal and you or your firm Perla & Jordan Lawyers for work related to the present proceedings or any other work related to the claim.
          4. All correspondence between Fadi El Jamal and you or your firm Perla & Jordan Lawyers in relation to the present proceedings or the claim, including:

              4.1 letters

              4.2 facsimile transmissions

              4.3 emails

              4.4 file notes of records of telephone conferences

              4.5 file notes of records of conferences in person

              4.6 records of instructions

              4.7 electronic copies of all correspondence from your computer system (saved on either a hard disk, back-up tape or floppy disk)
          5. All correspondence between OJ Smash Repairs and you or your firm Perla & Jordan Lawyers in relation to the present proceedings or the claim, including:
              5.1 letters

              5.2 facsimile transmissions

              5.3 emails

              5.4 file notes of records of telephone conferences

              5.5 file notes of records of conferences in person

              5.6 records of instructions

              5.7 electronic copies of all correspondence from your computer system (saved on either a hard disk, back-up tape or floppy disk)
          6. Your professional diary/ schedule/ agenda for the period 22 February 2003 to 23 November 2004.
          7. All documents evidencing payment of a cheque received on or about 1 July 2004 and presented on or about 5 July 2004 by yourself or Perla & Jordan Lawyers on behalf of the Defendant in the sum of $2,500 in respect to the costs Order made in favour of the Plaintiff (Jennifer C Rees) pursuant to Court Orders on 9 June 2004 including but not limited to:
              7.1 trust and office account receipts and receipt requisitions
              7.2 entries in the office or trust account ledger
              7.3 trust and office account statements
          8. All trust and office account records from Perla & Jordan Lawyers relating to the conduct of this matter on behalf of Jennifer C Rees including but not limited to:
              8.1 trust and office account receipts and receipt requisitions
              8.2 entries in the office or trust account ledger
              8.3 trust and office account statements
              8.4 all records of monies paid into the trust account
              8.5 all records of monies paid out of the trust account
          9. All trust and office account records from Perla & Jordan Lawyers relating to the conduct of this matter on behalf of Fadi El Jamal.
              9.1 trust and office account receipts and receipt requisitions
              9.2 entries in the office or trust account ledger
              9.3 trust and office account statements
              9.4 all records of monies paid into the trust account
              9.5 all records of monies paid out of the trust account”

16 Ms Perla had already provided documents in answer to paragraph (1) and it is now conceded that the documents sought in paragraphs (7) and (8) are relevant and should be produced. The Magistrate set aside the electronic records sought in 2.7, 4.7 and 5.7. The balance of the subpoena relates to documents concerning Fadi El Jamal and his business, OJ Smash Repairs, were ordered to be produced but the Magistrate did not grant access to those documents. The notice of motion to join Fadi El Jamal as a party is yet to be heard.

17 Ms Perla submitted leave should be granted for three reasons, namely firstly, the appeal raises issues as to the conduct of hearings generally in the Local Court; secondly, while a degree of procedural leniency in the conduct of a hearing in a Local Court may be appropriate even when similar leniency would not be appropriate in a Superior Court, such procedural leniency should be moderated where it is inconsistent with the rules especially when those rules purpose is to ensure procedure fairness; thirdly, that in this appeal, the Magistrate dealt with the subject of evidence before him in a manner that was too lenient, in that it was inconsistent with the rules, and led to errors of law and had a stricter approach been taken, then the errors of law may have been avoided; and fourthly, that this appeal had significance beyond the apparently limited legal issues that are raised and that significance extends to the conduct of motions in Local Courts generally.

18 Ms Perla also submitted that as she was successful in relation to a number of documents sought under the subpoena the notice of motion should not have been dismissed nor should she have had to pay costs. The majority of the documents sought in the subpoena were ordered to be produced, it was within the Magistrate’s discretion to award costs against her. It is my view that leave ought not be granted because the hearing of the case is ongoing and the decision reached cannot be said to lead to a miscarriage of justice nor has he misapplied the law. Perhaps, technically the notice of motion should not have been dismissed but this in itself does not lead to a miscarriage of justice.

19 The Magistrate was entitled to arrive the decision he did. The issue of a subpoena is an interlocutory one and in the circumstances outlined above is not one in which this court would seek to intervene. This summons has had the very real effect of delaying the outstanding interlocutory matters that have yet to be determined by the Local Court before the trial can take place. Leave to appeal is refused. The order of Magistrate G Bradd dated 16 December 2004 is affirmed. The summons filed 11 January 2005 is dismissed.

20 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s cost as agreed or assessed.


      The court orders:

      (1) Leave to appeal is refused.

      (2) The order of Magistrate G Bradd dated 16 December 2004 is affirmed.

      (3) The summons filed 11 January 2005 is dismissed.

      (4) The plaintiff is to pay the defendant’s costs as agreed or assessed.

      (5) The Local Court file should be returned.
      **********
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