Sulcs v Oliveri

[2007] NSWSC 858

CITATION:	Sulcs v Oliveri [2007] NSWSC 858 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 August 2007
JUDGMENT OF:	Hammerschlag J
EX TEMPORE JUDGMENT DATE:	1 August 2007
DECISION:	The defendant's two notices of motion are dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – Notice to Produce - Whether counsel who consented to timetable for compliance with Notice to Produce had authority to do so – No evidence that counsel was under any misapprehension, did not have actual authority, was making a mistake or that there was any other factor which would have vitiated ostensible authority
LEGISLATION CITED:	Uniform Civil Procedure Rule
CASES CITED:	Harvey v Phillips (1956) 95 CLR 235 Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528
PARTIES:	P.M. Sulcs & Associates Pty Ltd ACN 002 730 958 Dominic Oliveri
FILE NUMBER(S):	SC 3548/2004
COUNSEL:	D.A.Smallbone with J. Cohen (Plaintiff / Cross Defendant) G.C. Lindsay SC with C.P. Locke (Defendant / Cross Claimant)
SOLICITORS:	Connah, Steed & Co (Plaintiff / Cross Defendant) Watsons, Solicitors & Barristers (Defendant / Cross Claimant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

HAMMERSCHLAG J

1 AUGUST 2007

03548/2004 P.M. SULCS & ASSOCIATES PTY LTD –v- DOMINIC OLIVERI

EX TEMPORE JUDGMENT

1 HIS HONOUR: There are three motions before the Court. They each related (differently) to a Notice to Produce dated 24 November 2006 which was the subject of orders made by Senior Deputy Registrar Musgrave on 6 March 2007 and entered by Acting Deputy Registrar Bowen on 7 March 2007. The Deputy Registrar’s Order 2 was that:

“The defendant do at or before said further return date of the said notice to produce on 14 March 2007 at 9am produce to the court the documents and things specified in the notice to produce."

2 Two motions are brought by the defendant, for whom Mr GC Lindsay SC, together with Mr Locke of counsel, appeared. Firstly, the defendant brings a motion to set aside that Notice to Produce on the basis that it is an abuse of process. Secondly, he brings a motion for an order that Order 2 be reviewed and either discharged or varied.

3 The plaintiff (for whom Mr Smallbone of counsel, together with Mr Cohen appeared), seeks an order for the examination of the defendant on whether he has complied with the Notice to Produce.

4 Ultimately, the submissions put on behalf of the defendant amounted to the following:

a firstly, Mr Paul William Kerr, of counsel, who attended Court on 6 March 2007 on behalf of the defendant, and who consent to Order 2 on his behalf, did not have authority to do so and was acting to the detriment of the defendant in consenting so that the interests of justice require the order to be set aside;

b secondly, that this is a case where the Court would, on the basis that there was nothing to produce pursuant to the Notice to Produce, set aside the consent order because the overriding interests of justice require that outcome; and

c thirdly, that there had been an earlier Notice to Produce and the present Notice to Produce is effectively a duplication of the earlier one, and hence an abuse of process.

5 As to the first proposition, I am satisfied that if Mr Kerr did not have actual authority to consent to Order 2 on behalf of the defendant, he had clear ostensible authority to do so. Mr Kerr had been briefed the day before by the defendant’s solicitor, Ms Penelope Purcell. He discussed with her his view of the Notice to Produce. His advice was that the defendant could not simply ignore it and if he was concerned about relevance, the appropriate way to deal with it was to produce the documents to the Court after which there could be submissions made about disclosure.

6 When Mr Kerr attended Court on 6 March 2007 the solicitor for the plaintiff produced draft Short Minutes of Order, which included a timetable for compliance with the Notice to Produce, and an order that the defendant pay costs of the day on an indemnity basis. Mr Kerr consented to the timetable but not to the proposed costs order. The timetable orders were made by consent and costs were reserved. Mr Kerr reduced the pertinent facts to writing in a letter dated that day which is attached to his affidavit.

7 The law concerning the ostensible authority of solicitors or counsel to make a compromise is well settled. There was nothing on the occasion when consent was given which would have indicated to the solicitor for the plaintiff that in consenting on behalf of the defendant, Mr Kerr was under any misapprehension, did not have authority, was making a mistake, or that there was any other factor which would have vitiated the authority he ostensibly had to consent to that order: see Harvey v Phillips (1956) 95 CLR 235.

8 The notion that Mr Kerr was acting to the detriment of his client was not developed and not made out.

9 Mention was made in argument to the decision of Finlay J in Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528, in which His honour held at 538:

“…whenever parties agree to a compromise of litigation they do so subject to the procedures of the court, which include the possibility that the court may consider it unjust to enforce the terms of settlement, or that it is in the interests of justice that the matter proceed to trial."

10 In Lewis v Combell Constructions Pty Ltd, judgment was entered after the defendant’s solicitor had accepted an offer of compromise to settle for $127,000 made by mistake by the plaintiff’s solicitor where the intended figure was $227,000.

11 His Honour found that a reasonable solicitor in the same position as the defendant’s solicitor with knowledge of all the same facts would have thought it was likely to have been a mistake. That is not this case.

12 There is clearly a bitter dispute between these parties which goes back a long time. Whether order 2 is incapable of performance, that is whether documents under the Notice to Produce have, to the full extent of the defendant's capabilities to produce them, been produced, is a vexed question of fact. Indeed, the plaintiff seeks to examine the defendant orally on that very question.

13 At the present stage of these proceedings and on the evidentiary material as it stands, I am unable resolve that question of fact.

14 The most that can be said is that each party has a position from which it presently is not prepared to retreat – the plaintiff that the defendant is not in compliance, the defendant that he has complied fully.

15 In those circumstances, it seems to me a finding that the Notice to Produce, particularly having regard to the consent orders made, is an abuse of process, is not fairly open.

16 So far as duplication is concerned, as I have said, there is a vexed question between the parties as to whether there has or has not been compliance. The earlier Notice to Produce is not presently being pressed and has not been the subject of other than the briefest submissions. I do not consider that the circumstances are such that the existence or terms of that earlier Notice to Produce, which was apparently modified after objections were taken, means that the present Notice to Produce constitutes an abuse. Whether ultimately the Court takes any further steps to enforce the present Notice to Produce, or to permit examination as to whether there has or has not been compliance with it, is another question.

17 The outcome, having regard to what I have said above, is that the defendant's two Notices of Motion dated 19 March 2007 and 2 April 2007 are dismissed.

18 After I ruled that the defendant’s motions were dismissed, the oral examination of the defendant sought by the plaintiff took place without objection, so that it became unnecessary to deal with the motion which sought that outcome.

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15/08/2007	-	par 7, first sentence. delete "are" and replace with "is"par 17, word "Motions" replaced with "Motion"; words "is that they" are deleted - Paragraph(s) 7, 17
15/08/2007	-	Incorrect file number - Paragraph(s) In heading