PQ (a pseudonym) v The Law Society of New South Wales (No 6)

[2021] NSWSC 496

Supreme Court

New South Wales

Medium Neutral Citation:

PQ (a pseudonym) v The Law Society of New South Wales (No 6) [2021] NSWSC 496

Hearing dates:

On the papers

Decision date:

07 May 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Direct the defendants to file and serve any further affidavit evidence on which they intend to rely by 14 May 2021.

(2)   Direct the plaintiff to file and serve any written submissions or further affidavit or documentary evidence by 18 May 2021, together with a document in which he identifies the evidence which has already been served on which he intends to rely.

(3)   Direct the defendants to file and serve any written submissions by 20 May 2021.

(4)   Direct the parties to deliver a joint court book to my Associate by 21 May 2021.

(5)   Confirm the hearing date of 25 May 2021.

Catchwords:

CIVIL PROCEDURE — Court administration — Case management — Directions and orders

Legislation Cited:

Privacy Act 1988 (Cth)

Cases Cited:

PQ (a pseudonym) v The Law Society of New South Wales [2021] NSWSC 258

PQ (a pseudonym) v The Law Society of New South Wales (No 3) [2021] NSWSC 420

Category:

Procedural rulings

Parties:

PQ (a pseudonym) (Plaintiff)
The Law Society of New South Wales (First Defendant)
Council of the Law Society of New South Wales (Fourth Defendant)

Representation:

Counsel:
In person (Plaintiff)
M Lewis (First and Fourth Defendants)

Solicitors:
The Law Society of New South Wales (First and Fourth Defendants)

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

1. PQ (the plaintiff) commenced these proceedings by summons filed on 24 December 2020. On 18 February 2021, at a directions hearing, the Registrar made directions for the filing of evidence in answer to a notice of motion filed on 7 January 2021 and, of present relevance, evidence relating to the urgent relief sought in the amended summons (which was directed to be filed that day). The Registrar listed the plaintiff’s claim for urgent relief and the notice of motion for hearing on 11 March 2021.

2. On 11 March 2021, I refused to hear the plaintiff’s application for urgent relief on the basis that the amended summons had not been filed in accordance with the Registrar’s orders made on 18 February 2021 and ordered that the separate question posed by The Law Society of New South Wales, the first defendant (The Law Society), be determined separately: PQ (a pseudonym) v The Law Society of New South Wales [2021] NSWSC 258.

3. The plaintiff filed an amended summons on 6 April 2021.

4. The hearing of the separate question took place on 22 April 2021. Reasons were published on 26 April 2021: PQ (a pseudonym) v The Law Society of New South Wales (No 3) [2021] NSWSC 420.

5. By email to my Associate dated 5 May 2021, the first and fourth defendants (the Law Society and its Council) sought to have the matter re-listed for directions with a view to the balance of the matter (that is, the balance of the claims for relief sought in the amended summons filed on 6 April 2021) being determined. In accordance with the parties’ agreement, the matter is listed for final hearing of all outstanding matters on 25 May 2021.

6. My Associate contacted the parties with a view to listing the matter for directions in advance of the hearing to ensure that the matter would proceed expeditiously on 25 May 2021. No agreement was able to be reached on a suitable time for the directions hearing. On this basis, I invited the parties to make written submissions in support of the directions each proposed.

7. The Law Society and its Council proposed the following directions:

1.   The defendants to file and serve any further affidavit evidence on which they intend to rely by 14 May 2021.

2.   The plaintiff to file and serve any written submissions by 18 May 2021.

3.   The defendants to file and serve any written submissions by 20 May 2021.

4.   The parties to deliver a joint court book to the trial judge’s Associate by 21 May 2021.

8. The defendants have explained that no provision was made in these proposed directions for the plaintiff to file any evidence in response as the plaintiff has indicated that he does not propose to adduce any further evidence.

9. The plaintiff opposed these directions on the basis that “all evidence and submissions should have been filed in accordance with [the Registrar’s] directions of 18 February 2021.”

10. In PQ (a pseudonym) v The Law Society of New South Wales [2021] NSWSC 258 at [40]-[41], I determined that the Registrar’s directions related to the plaintiff’s application for urgent relief and not to the whole of the matter. I accept the defendants’ submissions that it would be procedurally unfair for the defendants to be denied the opportunity to lead evidence in opposition to the balance of the plaintiff’s substantive claims. As the defendants have explained, the further evidence which they propose to adduce is relevant to the plaintiff’s contentions relating to the Privacy Act 1988 (Cth), including whether the documents sought by the plaintiff fall within one of the exemptions provided for in that Act. This claim for relief was not the subject of the Registrar’s directions on 18 February 2021, as it was not contemplated that this issue required urgent determination at the same time as what was proposed on 18 February 2021. For these reasons, I am satisfied that it is appropriate to make the directions, largely in the form sought by the defendants.

Orders and directions

11. For the reasons given above, I make the following order and directions:

1. Direct the defendants to file and serve any further affidavit evidence on which they intend to rely by 14 May 2021.

2. Direct the plaintiff to file and serve any written submissions or further affidavit or documentary evidence by 18 May 2021, together with a document in which he identifies the evidence which has already been served on which he intends to rely.

3. Direct the defendants to file and serve any written submissions by 20 May 2021.

4. Direct the parties to deliver a joint court book to my Associate by 21 May 2021.

5. Confirm the hearing date of 25 May 2021.

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Decision last updated: 07 May 2021