Pollack, Phillip John v Retravision (NSW) Ltd
[1997] FCA 552
•20 JUNE 1997
CATCHWORDS
PRACTICE - subpoena to produce documents - application to set aside - whether oppressive - whether documents sought relevant to the proceedings - whether subpoena amounts to attempts to circumvent a ruling of the Court setting aside an earlier subpoena.
Federal Court Rules, O 27, r 9.
Trade Practices Commission v Arnotts Ltd, 7 July 1989, FCA, Beaumont J, unreported (edited version reported at (1989) 21 FCR 306).
Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645.
BT Australasia Pty Ltd v State of New South Wales (1996) 140 ALR 268.
Telstra Corp v Australis Media Holdings, 20 February 1997, S Ct NSW, McLelland CJ in Eq, unreported.
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555.
PHILIP JOHN POLLACK v RETRAVISION (NSW) LTD
NG 442 of 1995
Sackville J.
Sydney
20 June, 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. NG 442 of 1995
GENERAL DIVISION
BETWEEN:
PHILIP JOHN POLLACK
Applicant
AND:
RETRAVISION (N.S.W.) LIMITED
Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY
DATE: 20 JUNE, 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
Paragraphs A 5, 6, 8, 9, 10, 11, 12, 13, 15, 16 and 17 of the subpoena issued on 11 March 1997 to Mr A.S. Brown, be set aside.
The balance of the notice of motion filed on 10 April 1997 be stood over until 27 June 1997.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. NG 442 of 1995
GENERAL DIVISION
BETWEEN:
PHILIP JOHN POLLACK
Applicant
AND:
RETRAVISION (N.S.W.) LIMITED
Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY
DATE: 20 JUNE, 1997
REASONS FOR JUDGMENT
This is an application by way of notice of motion filed on 10 April 1997, pursuant to Federal Court Rules (“FCR”) O 27, r 9, to set aside a subpoena. The subpoena was issued on 11 March 1997, on the application of the respondent in the principal proceedings (“Retravision”). The subpoena was directed to Mr A.S. Brown, a solicitor employed by the Law Society of New South Wales. Mr Brown was appointed on 23 February 1996, pursuant to s 114B of the Legal Profession Act 1987 (NSW), to be the manager of the legal practice of the applicant in the principal proceedings (“Mr Pollack”). The subpoena comprises 18 paragraphs and seeks categories of documents which, for the most part, are contained in files maintained by Mr Pollack when he was in practice and now under Mr Brown’s control. There are now 101 boxes of files relating to Mr Pollack’s legal practice in storage under Mr Brown’s control.
This is not the first occasion on which Retravision has sought the production of documents by Mr Brown. On 18 June 1996, Retravision caused a subpoena to be issued to Mr Brown seeking all documents which related to one or all of 21 named clients of Mr Pollack. Mr Brown succeeded in an application to have the subpoena set aside. In a judgment delivered on 23 December 1996, Moore J found that Mr Brown had instructions to claim such legal professional privilege as might attach to the documents he produced in response to the subpoena: Philip John Pollack v Retravision (NSW) Limited, 23 December 1996, FCA, Moore J, unreported. His Honour summarised the position as follows (at 8-9):
“In the present case Retravision has not endeavoured to identify any document or class of documents that it seeks to obtain by the subpoena to Brown by reference to the forensic purpose to which the document or documents will be put. The only suggestion of the use that might be made of the documents was a vague reference to damages and cross examination of Pollack. Having regard to the cause of action relied on by Pollack, it would presently appear that the only documents that would be likely to be relevant are those that concern the litigation between Retravision and the former clients of Pollack. That being so, there is a high probability that those documents are ones in respect of which a claim for privilege could properly be made. I propose to set aside the subpoena.”
The Parties
The applicant on the motion to set aside the subpoena is Mr Brown, on whose behalf Mr Blackburn appeared. Mr Vincent appeared with Mr Tregenza on behalf of Retravision, the respondent to the notice of motion. Mr Evatt, who appeared for Mr Pollack, sought to be heard in support of the motion. Mr Vincent submitted that Mr Evatt should not be heard, since Mr Pollack’s interests in relation to the motion were the same as those of Mr Brown. I decided that Mr Pollack, as a party, was entitled to put submissions in support of the motion if he wished to do so, provided that there was no significant overlap with Mr Blackburn’s submissions. I indicated that, if it became clear that the interests of Mr Brown and of Mr Pollack were identical, that might have a bearing on any costs order.
The Principal Proceedings
The principal proceedings were commenced by Mr Pollack against Retravision on 22 June 1995. The further amended statement of claim was filed on 9 July 1996. It alleges that at all material times Mr Pollack was a solicitor acting for four persons (Mr and Ms Street and Mr and Ms Halls) and certain other persons and companies associated with them (“the clients”). The statement of claim further alleges that the clients were engaged in litigation with Retravision, both in the Federal Court (“the Federal Court proceedings”) and the New South Wales Court of Appeal (“the Court of Appeal proceedings”). The key allegation (para 7) is that in and about May 1995, Retravision, by itself, its solicitor and servants and agents, abused the procedures of the Federal Court. The particulars to this allegation claim that Retravision’s dominant purpose in filing a notice of motion seeking, inter alia, a costs order against Mr Pollack personally was to harass and intimidate Mr Pollack, in order to force him to cease to act for the clients. The particulars also claim that affidavits were filed on Retravision’s behalf with the same improper purpose, and that those affidavits made false and misleading statements about Mr Pollack. It is said in the particulars that Retravision, through its servants and agents, either knew that the statements were false or acted with reckless indifference to their falsity. Mr Pollack claims damages, special damages and punitive damages.
Retravision’s defence denies any improper purpose in filing the notice of motion and affidavits. It also denies that
Retravision made false or misleading statements of and concerning the applicant; or
such statements were made without cause or sufficient evidence or that Retravision knew or should have known of their falsity or otherwise made the statements with reckless indifference to their falsity.
In their present form, the proceedings leave the issues in a state of uncertainty. Paragraph 7 of the amended statement of claim alleges that Retravision abused the process of the Federal Court. The body of the pleading contains no allegations of material facts that support such an allegation, although some such allegations appear in the particulars to paragraph 7. The device of relegating material facts to the particulars makes it unclear whether the allegation that the affidavits were false (and that Retravision was aware of the falsity) is a necessary part of Mr Pollack’s case. It is also unclear which parts of the affidavit are said to be false and on what grounds those parts are false.
The uncertainty is exacerbated by the form of the defence. It is not clear whether Retravision intends affirmatively to assert the truth of the contents of the affidavits filed in the Federal Court, or whether it intends to assert that any false statements were made unknowingly. It is also unclear whether the defence intends to plead fraud on the part of Mr Pollack. At one stage in the argument, Mr Vincent seemed to accept that this was intended and that, in accordance with FCR, O 11, r 10, any allegations of fraud should have been pleaded with particularity.
The pleadings were discussed in the course of argument, since Retravision must demonstrate that the documents it seeks from Mr Brown have apparent relevance to the issues in the principal proceedings, in the sense of serving a legitimate forensic purpose: Trade Practices Commission v Arnotts Ltd, 7 July 1989, FCA, Beaumont J, at 21. When the difficulties were pointed out, Mr Evatt made it clear that he did not regard it as essential to Mr Pollack’s case to allege the falsity of any statements in the affidavit. He also indicated that Mr Pollack would file a further amended statement of claim pleading the material facts supporting the allegation that Retravision had abused the process of the Federal Court, and eliminating the allegation that the affidavits were, to Retravision’s knowledge, false. This is a matter of some importance, since such amendments would narrow the issues in the case and presumably avoid the prospect of a potentially far-reaching inquiry into the truth or otherwise of a large number of (as yet unidentified) statements in affidavits filed and read in the Federal Court proceedings.
The Subpoena
Mr Vincent did not seek to support several paragraphs of the subpoena (paras A 5, 6, 13). The remainder of the subpoena is as follows:
“A.All documents in relation to the following:
1.The negotiation of and/or instructions for the preparation of any sale agreement between Terry’s Sound Lounge Pty Ltd (“TSL”) and Terrys Pty Ltd (“Terrys”) in relation to the sale of compact discs, records, cassettes or other musical equipment between 1 July 1994 and 31 August 1994.
2.The drafting, preparation, engrossment and/or execution of any sale agreement between TSL and Terrys in relation to the sale of compact discs, records, cassettes or other musical equipment between 1 July 1994 and 31 August 1994.
3.The attendance upon the applicant by any person for the execution of a sale agreement between TSL and Terrys relating to the sale of compact discs, records, cassettes or other musical equipment between 1 July 1994 and 31 August 1994.
4.Diaries and appointment books of the applicant for the period from 1 July 1994 to 31 August 1994.
...
7.An application for stamping or the payment of stamp duty in respect of the sale agreement (“the Sale Agreement”) between TSL and Terrys relating to the sale of certain compact discs, records, cassettes or other musical equipment bearing the date 25 July 1994.
8.The location of the original Sale Agreement and any person in possession of the original Sale Agreement.
9.Instructions given to the applicant on behalf of TSL, Terrys or Jancollyn and/or advice given by the applicant to the directors of TSL, Terrys or Jancollyn and any memorandum, correspondence or notes in connection with any steps undertaken by the applicant in relation to the withdrawal by Colleen May Halls from the account held by TSL with the National Australia Bank Ltd at 256 Bong Bong Street, Bowral of the following moneys:
Withdrawal Date Amount Payee
19 July 1994 $15,000 Simone Halls
22 July 1994 $20,000 Simone Halls
25 July 1994 $10,000 Simone Halls
27 July 1994 $10,000 Jason Halls
10.The disbursement of the sums referred to in the last preceding paragraph.
11.Appointment of Michael Gilovitz as administrator of TSL purportedly at 8.22 am on 27 July 1994 or at any other time.
12.Communications between the applicant, Francis Terence Halls, Colleen May Halls and James Warren Herbert Byrnes and any other person in relation to the appointment of Michael Gilovitz as administrator of TSL.
...
14.The instructions given by Colleen May Halls or any other person to the applicant to discontinue Court of Appeal Division Proceedings No. CA40054 of 1994 on 4 April 1995.
15.The negotiation, instructions for the preparation, the preparation of, the engrossment of (including any drafts thereof), the execution of the undated and unregistered Bill of Sale expressed to be made between Colleen May Halls as mortgagor and Andrew McMahon and Ashley Briggs as mortgagee purportedly securing an advance of $25,000 on the security of the following items:
1. One Howard Miller grandfather clock
2. 1 Chappell 6 foot grand piano
3. 1 Aeolian pianola
4. 1 18th century Victorian card table
5. 1 three quarter size billiard table
whether or not the document has been executed or not executed.
16.Evidencing or recording off the receipt and the disbursements of the advance of the sum of $25,000 referred to in the last preceding paragraph.
17.The whereabouts of and the names of those in possession of the original and fully executed Bill of Sale.
B.Any mailing or postage book used in connection with the legal practice of the applicant which included the period from 1 July 1994 to 31 August 1994 or any part thereof.”
The Contentions
Mr Blackburn, supported by Mr Evatt, argued that all paragraphs of the subpoena should be set aside on the following grounds:
The subpoena is oppressive because it requires Mr Brown to undertake unduly burdensome searches of large volumes of material and to consider individual documents to determine whether they are subject to legal professional privilege.
The subpoena does not seek documents having any apparent relevance to the proceedings and constitutes a fishing expedition.
The subpoena amounts to an attempt to circumvent the ruling of Moore J in relation to the first subpoena.
The subpoena seeks documents that are bound to be the subject of legal professional privilege and thus should be set aside now, even though the usual course is to require the production of documents subject to privilege and to deal with the claim for privilege when inspection of the documents is sought.
Paragraphs A 8, 9, 10, 11, 12, 15, 16, 17
I think that several paragraphs of the subpoena can be dealt with briefly. I invited Mr Vincent to explain how the documents sought in paragraph A 9 of the subpoena could be said to be of apparent relevance to the issues in the principal proceedings, even assuming that the falsity of the affidavits filed in the Federal Court proceedings remained an issue. Mr Vincent acknowledged that there was nothing in the affidavits filed in the Federal Court to suggest that Mr Pollack had assisted Ms Halls to withdraw moneys from the account maintained by Terry’s Sound Lounge Pty Ltd (“TSL”) or had otherwise dealt improperly with the moneys. Nonetheless, he submitted that the documents could go to Mr Pollack’s credit. However, he did not put forward any basis for suggesting that the documents identified in paragraph A 9 (leaving to one side any claim for privilege that might be made) would or might indicate improper conduct on Mr Pollack’s part. In my view, it has not been shown that the documents sought by paragraph A 9 of the subpoena are of apparent relevance to the issues in the principal proceedings. Paragraph A 10 must be in the same position.
Mr Vincent did not suggest that the date of Mr Gilovitz’s appointment, or Mr Pollack’s knowledge of the matter, was relevant to any issue pleaded or to anything contained in the affidavits filed in the Federal Court proceedings. He asserted that the documents sought in paragraphs A 11 and A 12 were or might be relevant to Mr Pollack’s credit. However, he was unable to explain how this might be the case. There was nothing in the evidence to suggest that Mr Gilovitz had been appointed as administrator at any time other than the time and date his appointment purported to take effect. Again, in my view, the material sought has no apparent relevance to the principal proceedings.
The same conclusion should be reached in relation to paragraphs A 15 to A 17. Mr Vincent did not advance any substantial argument to support these paragraphs.
In my view, paragraph A 8 should also be set aside, on the ground that its terms are too wide and impose an unfairly burdensome obligation on Mr Brown. A reference to documents “relating to” or “in relation to” a particular matter is not necessarily fatal. Paragraph A 8 does not require Mr Brown to make fine judgments as to whether particular documents are sufficiently related to issues in the proceedings. However, the paragraph requires him to examine a potentially large quantity of documentation to determine whether there is any reference to the location of “the original Sale Agreement” (defined in paragraph A 7) or to any person in possession of the original. The paragraph is not limited as to time, nor is it limited to references that might shed light on the current location of the Sale Agreement. Paragraph A 8 does not merely require production of the original Sale Agreement, but requires Mr Brown to examine the wording of a large number of documents to ascertain whether they refer to the location of the Sale Agreement or to any person who might have had possession of the agreement at any time. This is unfairly burdensome.
Paragraphs A 1, 2, 3, 4, 7 and B
Mr Vincent argued that these paragraphs of the subpoena sought documents that satisfy the test of apparent relevance to issues in the proceedings because they relate to the question of Mr Pollack’s possible participation in what is said to be the back-dating of the Sale Agreement. It is not entirely clear how Mr Pollack’s possible participation in such conduct (assuming the conduct occurred) is relevant to the proceedings, in the absence of a clearly pleaded allegation to that effect. In a statement filed in the present proceedings, Retravision’s solicitor, Mr Gibb, canvasses the question of Mr Pollack’s possible participation, but in an argumentative (and probably inadmissible) manner. Mr Pollack, in a statement of 25 June 1996, also filed in the present proceedings, complains that an affidavit filed in the earlier proceedings included allegations that he (Mr Pollack) was a party to the making of a false document. I was not taken to the terms of the earlier affidavit. The pleadings in their present form are unclear as to whether Mr Pollack’s alleged participation in the creation of a false document is an issue, or is relevant to an issue in the proceedings.
There may be difficulties with some of these paragraphs of the subpoena, even assuming they seek documents apparently relevant to issues in the proceedings. Paragraph A 2, for example, is framed in very wide terms. Moreover, as Mr Blackburn pointed out, there will inevitably be questions of legal professional privilege arising from a paragraph that seeks “all documents in relation to...instructions for the preparation of any sale agreement” between named parties. This is so regardless of whether the test to be applied is the common law sole purpose test or the “dominant purpose” test adopted by ss 118 and 119 of the Evidence Act 1995 (Cth): see Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645 (FCA/Branson J); BT Australasia Pty Ltd v State of New South Wales (1996) 140 ALR 268 (FCA/Sackville J); Telstra Corp v Australis Media Holdings, 20 February 1997, S Ct NSW, McLelland CJ in Eq, unreported.
In my view, the appropriate course is to await the foreshadowed amended pleadings before ruling finally on these paragraphs of the subpoena. The amended pleadings may make it clear that Mr Pollack’s possible involvement in the alleged backdating of the Sale Agreement is simply not relevant to any issue. If that is the case, it will have consequences for these paragraphs of the subpoena.
I should add that I am not persuaded that the burden imposed on Mr Brown of complying with these paragraphs of the subpoena would be so great as to warrant them being set aside as oppressive: Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 (FCA/FC), at 570. There would certainly be inconvenience and a number of hours of work for Mr Brown (but significantly less than the 16 hours which he said in his affidavit would be needed for compliance with the entirety of the subpoena). However, if the documents sought are relevant to the issues, I do not think that the degree of inconvenience is so great as to warrant those paragraphs being set aside.
I should also add that I do not regard these particular paragraphs as a colourable attempt to evade the ruling of Moore J. I think that certain other paragraphs of the subpoena, which Mr Vincent did not attempt to support, might have been open to this objection. But these paragraphs, despite the difficulties to which I have referred, attempt to focus on particular classes of documents and are drafted in a more limited fashion than the earlier subpoena.
Paragraph A 14
Mr Vincent contended that paragraph A 14 sought documents relevant to the proceedings because Mr Evatt, on behalf of Mr Pollack, had served a notice under ss 97 and 98 of the Evidence Act 1995 (Cth) (“Evidence Act”). That notice states that Mr Pollack will rely on matters in the Court of Appeal proceedings (in which his then clients ultimately withdrew an appeal from a decision in favour of Retravision in the Commercial Division of the Supreme Court). He apparently seeks to do so on the basis that Retravision’s conduct in the Court of Appeal proceedings will show that it had a tendency to act in a manner detrimental to Mr Pollack’s interests and to abuse the processes of the Court. I was informed that the pleadings originally contained a reference to the proceedings in the Court of Appeal, but these were excised in consequence of some earlier interlocutory proceedings.
I think that further consideration should be given to the notices under the Evidence Act before deciding whether paragraph A 14 of the subpoena should be set aside. When making that decision it may also be necessary to take into account that, on the face of it, the documents sought are likely to be the subject of legal professional privilege.
Conclusion
Paragraphs A 8, 9, 10, 11, 12, 15, 16 and 17 of the subpoena should be set aside. Mr Vincent did not seek to support paragraphs A 5, 6 and 13 and they, too, should be set aside.
I have made directions for the filing of amended pleadings. Paragraphs A 1, 2, 3, 4, 7, 14 and B should be reconsidered when the amended pleadings are filed and the notice of motion should be stood over for this purpose. It may also be necessary to take into account the significance of the notice given on behalf of Mr Pollack under ss 97 and 98 of the Evidence Act. I shall address the question of costs at a later stage.
I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.
Associate:
Dated: 20 June, 1997
Heard:12 June, 1997
Place: Sydney
Decision:20 June, 1997
Appearances: Mr C.A. Evatt, instructed by Michael Maher, Solicitor, appeared for the applicant.
Mr R.A. Vincent and Mr R.W. Tregenza, instructed by J.R. Gibb & Co, Solicitors, appeared for the respondent.
Mr T.D. Blackburn, instructed by J.M. Probert, Solicitor, appeared for Mr Brown.
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