QBE Insurance(Aust) Ltd v Mahaffy
[2012] FMCA 603
•4 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QBE INSURANCE(AUST) LTD v MAHAFFY | [2012] FMCA 603 |
| PRACTICE AND PROCEDURE – Documents – where document claimed to be privileged – whether document voluntarily surrendered to the court – whether document voluntarily sent to respondent – whether to accept document into evidence. |
| Applicant: | QBE INSURANCE (AUST) LTD |
| Respondent: | JEFFREY MAHAFFY |
| File Number: | SYG 2336 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 July 2012 |
| Date of Last Submission: | 4 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr E. A. Walker |
| Solicitors for the Applicant: | James Tuite & Associates Lawyers |
| Solicitors for the Supporting Creditor: | Gadens Lawyers |
| For the Respondent: | In person |
ORDERS
Respondent to pay the applicant’s costs thrown away assessed in the sum of $250.00 to be paid within twenty-one days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2336 of 2011
| QBE INSURANCE (AUST) LTD |
Applicant
And
| JEFFREY MAHAFFY |
Respondent
REASONS FOR JUDGMENT
Mr Walker has objected to the tender of a document which has gone in as Exhibit 1 in these proceedings. Exhibit 1 is a tax invoice from Mercantile Consulting Pty Ltd to James Tuite & Associates, the lawyers for QBE. It is dated 17 June 2010. It makes reference to an electoral role search.
When the document was first tendered Mr Walker objected to it on the basis that it was a privileged document: being a communication between a solicitor and the solicitor’s agent created solely for the purpose of the litigation. I accept that that is what it is.
The reason that the tender went in over Mr Walker’s objection was that Mr Mahaffy told the court that the document had been amongst a bundle of subpoenaed documents that had been voluntarily presented to the court. Today, that bundle of subpoenaed documents, which had been unopened because of an objection by Mr David Mahaffy, was opened, Mr David Mahaffy not appearing before the court to press his objection.
It was agreed that Mr Walker’s instructor would peruse those documents to see whether or not this invoice appeared amongst them. It did not.
I explained to Mr Mahaffy that, as the document was prima facie privileged, he would have to satisfy me that it came into his possession in a manner which constituted a waiver of privilege by QBE.
This afternoon, Mr Mahaffy returned to the witness box. He told the court that the document was one amongst a bundle of documents served upon him by a Steven Hobbs on 28 June 2010. He was cross-examined about that matter. Following the cross-examination, in which Mr Mahaffy stuck to his contention that this was how he received the documents, I asked him whether he could provide for me a copy of the affidavit of service to which he referred. He was kind enough to do so. The affidavit of service reads in its relevant parts as follows:
“On Monday 28 June 2010 at 11.18, I duly served Jeffrey Mahaffy with the following documents:
A letter from James Tuite & Associates dated 10 December 2009, a true copy of which is annexed hereto and marked with the letter A;
Notice to lodge objections, a true copy of which is annexed hereto and marked with the letter B;
Application for assessment of party and party costs, a true copy of which is annexed hereto and marked with the letter C;
Bill of costs of QBE Insurance Australia Limited for assessment, a true copy of which is annexed hereto and marked with the letter D; and
A sealed copy of certificate of order.”
A Certificate of Order is a document from the Local Court.
Mr Mahaffy, in his bundle of documents that he handed up, included that document. It has on the back:
“Steven Hobbs (process server) 28/6/10 in grounds of Supreme Court complex, Hospital Road.”
When I asked Mr Mahaffy why he believed that there would be included amongst the documents served upon him a tax invoice one year after the date of the costs order and, therefore, totally irrelevant to the costs order, he said to me that the documents with which he was served included documents post the costs order.
I have looked through the bundle of documents that Mr Mahaffy has got and the bundle of documents in the affidavit of service. They appear to me to be identical, and none of them are post the costs order. It seems to me most unlikely that this document, Exhibit 1, was provided to Mr Mahaffy in the manner in which he says.
Mr Mahaffy is unable to explain how the document came into his possession, and I am not prepared to draw any inference that privilege was waived in the manner in which he obtained it. For those reasons, I propose to strike out Exhibit 1, to return the document to Mr Mahaffy and to ignore its contents.
After I delivered judgment on Mr Walker’s application to set aside the tender of Exhibit 1, Mr Mahaffy produced yet another letter from James Tuite & Associates, this time dated 27 August 2010. The letter says:
“We refer to the previous bill of costs served personally on you in this matter. We enclose, by way of service, the following documents: (1) amended application for assessment of party/party costs; (2) notice to lodge objections; and (3) amended bill of costs. You have 21 days to lodge any objection.”
The amended bill of costs includes, as the penultimate item, a charge of $25.00 for an electoral search done on 17 June 2010. The cost of the electoral search, which is found in Exhibit 1 and dated 17 June 2010, is $25.00 plus GST, and the cost sought in this bill is also $25.00. It would appear that all amounts are exclusive of GST.
I am prepared to infer from this document that the electoral search to which he refers is the electoral search found as Exhibit 1. In all the circumstances, I will be prepared, therefore, to admit the document, but it may be that Mr Walker wishes to argue that the tender of the document that was provided to the applicant for one purpose might not be available for tender for another purpose. I will, therefore, hold my final decision on the matter in abeyance until tomorrow morning.
In the meantime, Mr Mahaffy has wasted this court’s time by going on oath to the effect that the document was contained with the documents served upon him by Mr Steven Hobbs. This case has already taken far too long, much of it because the court has indulged Mr Mahaffy as a litigant in person. I believe that it is appropriate that he should be condemned in the costs in respect of that complete waste of the court’s and Mr Walker’s time. Mr Mahaffy will pay the applicant’s costs assessed in the sum of $250.00 within twenty-one days.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Date: 9 July 2012
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