PQ (a pseudonym) v The Law Society of New South Wales (No 4)

[2021] NSWSC 459

Supreme Court

New South Wales

Medium Neutral Citation:

PQ (a pseudonym) v The Law Society of New South Wales (No 4) [2021] NSWSC 459

Hearing dates:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   The plaintiff to pay the New South Wales Legal Services Commissioner’s costs of the plaintiff’s notice of motion filed on 18 March 2021.

(2)   Make no order as to the New South Wales Legal Services Commissioner’s costs of 30 April 2021.

Catchwords:

CIVIL PROCEDURE — Subpoenas — Objection to production of documents or things — Objection on the basis of ss 467 and 468 of the Legal Profession Uniform Law (NSW)

PRACTICE AND PROCEDURE — Determination of role in proceedings — Party never served

COSTS — Party/Party — General rule that costs follow the event — Application of the rule

Legislation Cited:

Government Information (Public Access) Act 2009 (NSW)

Legal Profession Uniform Law (NSW), ss 467, 468

Uniform Civil Procedure Rules 2005 (NSW), r 42

Category:

Procedural rulings

Parties:

PQ (a pseudonym) (Plaintiff)
The Law Society of New South Wales (First Defendant)
The College of Law Limited (Second Defendant)
Office of the Legal Services Commissioner (Third Defendant)
Council of the Law Society of New South Wales (Fourth Defendant)

Representation:

Counsel:
In person (Plaintiff)
M Lewis (First and Fourth Defendants)
J Curtin (Second Defendant)
S Andrews (Third Defendant)

Solicitors:
The Law Society of New South Wales (First and Fourth Defendants)
Baker & McKenzie (Second Defendant)
Office of the Legal Services Commissioner (Third Defendant)

File Number(s):

2020/365622

Publication restriction:

Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-publication Orders Act 2010 (NSW), s 7)

Judgment

Introduction

1. By notice of motion filed on 18 March 2021, PQ (the plaintiff) sought an order that the New South Wales Legal Services Commissioner, John McKenzie (the Commissioner), produce to the Court the documents described in a subpoena issued at the request of the plaintiff on 4 March 2021, which was served on the Commissioner on 5 March 2021.

Factual background to the application

2. The schedule to the subpoena required production of the following documents:

“All personal information of [PQ] as defined in the personal information Protection Act 1998 (NSW) [sic]”

3. On 9 March 2021, the Commissioner wrote to the Registrar of this Court, objecting to production of the documents to the Court on the basis of ss 467 and 468 of the Legal Profession Uniform Law (NSW) (the Uniform Law) which relevantly provide:

“467      Protection from liability

(1)     No liability attaches to a relevant person for any act or omission done or omitted in good faith and in the exercise or purported exercise of functions under this Law, the Uniform Regulations or the Uniform Rules.

(2)     In this section—

relevant person means—

(a)     the Council or the Commissioner; or

…

(e)     a delegate of the Council, the Commissioner or a local regulatory authority; or

(f)     a person who is a member of the staff of, or acting at the direction of, any of the entities referred to in paragraphs (a) to (e).

468   Non-compellability of certain witnesses

(1) A relevant person referred to in section 467 is not compellable in any legal proceedings (including proceedings before the designated tribunal for the purposes of Chapter 5) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Law.

…”

4. The plaintiff’s notice of motion referred to above was served on the Commissioner on 16 March 2021. On 25 March 2021, the Commissioner wrote to the plaintiff again (having made the point in correspondence dated 2, 3 and 9 March 2021) reiterating the provisions of ss 467 and 468 of the Uniform Law and referring to the fact that he had requested information under the Government Information (Public Access) Act 2009 (NSW) (GIPA) and that such a request was the subject of proceedings in the NSW Civil and Administrative Tribunal. The Commissioner notified the plaintiff that if he were to proceed with his notice of motion in this Court, the Commissioner would ask that it be dismissed with costs.

5. At a directions hearing before me on 29 March 2021, the plaintiff continued to press his notice of motion against the Commissioner, which was listed for hearing on 22 April 2021.

Consideration

6. At the hearing on 22 April 2021, Ms Andrews, who appeared on behalf of the Commissioner, contended, on the basis of ss 467 and 468 of the Uniform Law, that the Commissioner is not amenable to subpoena and was entitled to refuse to produce documents to the Court in answer to the subpoena. Ms Andrews confirmed that the Commissioner accepted that he was, however, bound to provide information pursuant to GIPA.

7. The plaintiff accepted that he was not entitled to production of documents to the Court because of the effect of ss 467 and 468 and accepted, accordingly, that the notice of motion ought be dismissed. I dismissed the notice of motion on 22 April 2021.

8. The Commissioner sought an order for costs of the notice of motion. The plaintiff did not wish to be heard against the application and informed me that he did not have any submissions on that question.

9. The notice of motion sought relief to which, as a matter of law, by reason of ss 467 and 468 of the Uniform Law, the plaintiff was not entitled. Notwithstanding the Commissioner informing the plaintiff of these provisions soon after receipt of the subpoena, the plaintiff continued to press his motion and requested, on 29 March 2021, that it be listed for hearing. Although the plaintiff, at the hearing on 22 April 2021, accepted the force of the Commissioner’s submissions, he had not indicated to the Court that this would be the case in advance of the hearing. The Commissioner had foreshadowed, by letter dated 25 March 2021 and at the hearing on 29 March 2021, that he would seek the costs of the notice of motion.

10. The general rule is that costs ought follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. I am not persuaded that there is any reason (nor was one identified) why costs ought not follow the event.

Further application for costs

11. By notice of motion filed on 21 April 2021, the College of Law (the second defendant) sought summary dismissal of the plaintiff’s claim against it. The motion was listed for hearing on 30 April 2021. The Commissioner, who had appeared on the last occasion by reasons of its role as the respondent to the notice of motion filed on 18 March 2021 (referred to above), sought, in an email to my Associate, to be excused from appearing today.

12. I requested that the Commissioner appear today in order that the Commissioner’s role in the proceedings could be confirmed. The issue arose because the summons filed on 24 December 2020 named the Commissioner as the third defendant, whereas the amended summons filed on 6 April 2021 omitted the Commissioner as a party, although no order had been made removing the Commissioner as a party.

13. Ms Andrews, who appeared for the Commissioner on 30 April 2021, confirmed that the Commissioner had never been served with the original summons and was not aware that he had been named as a party until my Associate drew it to his attention yesterday for the purposes of confirming the Commissioner’s role. Ms Andrews sought an order that the plaintiff pay the Commissioner’s costs of the hearing on 30 April 2021.

14. The plaintiff submitted that, as he had never served the Commissioner, the Commissioner was never a party and that, as he had removed the Commissioner as a party when filing the amended summons, there was no basis on which he ought be required to pay the costs of the Commissioner for the appearance on 30 April 2021.

15. The Court requested that the Commissioner be represented at the hearing on 30 April 2021 in order that his status in the proceedings could be confirmed in open Court. As such, it was the Court, and not the plaintiff, which caused the Commissioner to incur the costs of the brief hearing this morning. As soon as the Commissioner’s status was confirmed, which occurred at the outset of the hearing, I excused Ms Andrews. In those circumstances, I decline to order that the plaintiff pay the Commissioner’s costs of the hearing on 30 April 2021.

Orders

16. For the reasons given above, I make the following orders:

1. The plaintiff to pay the New South Wales Legal Services Commissioner’s costs of the plaintiff’s notice of motion filed on 18 March 2021.

2. Make no order as to the New South Wales Legal Services Commissioner’s costs of 30 April 2021.

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Decision last updated: 30 April 2021