Tagg v Pickering (No 2)
[2015] NSWSC 1977
•11 December 2015
Supreme Court
New South Wales
Medium Neutral Citation: Tagg v Pickering (No 2) [2015] NSWSC 1977 Hearing dates: 11 December 2015 Date of orders: 11 December 2015 Decision date: 11 December 2015 Jurisdiction: Common Law Before: McCallum J Decision: Paragraph 2 of the Schedule to the subpoena to Ryde City Council is set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW)
Catchwords: PRACTICE AND PROCEDURE – subpoenas – UCPR r 33.14 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 33.4 Cases Cited: Tagg v Pickering [2015] NSWSC 1301 Category: Procedural and other rulings Parties: Victor Tagg (plaintiff)
William Pickering (defendant)Representation: Counsel:
Solicitors:
R Weaver (plaintiff)
B Kelleher (defendant)
G Walsh & Co (plaintiff)
Pikes & Verekers Lawyers (defendant)
File Number(s): 2015/188378 Publication restriction: None
Judgment – ex tempore
-
HER HONOUR: These are proceedings for defamation which were last before the Court on 21 August 2015. On that date, rulings were given as to the imputations and directions were made which were calculated to bring the proceedings to a position of completion of all interlocutory steps by 4 December 2015: Tagg v Pickering [2015] NSWSC 1301. Regrettably, compliance with those directions stalled when the plaintiff failed to file a reply as directed by 16 October 2015.
-
For reasons that are not clear on the face of the court file, rather than being listed on 4 December 2015, the proceedings were listed today. The plaintiff seeks further directions, to a degree duplicating the previous timetable, with a view to bringing the proceedings back before the court for second listing on 12 February 2016.
-
In the meantime, the plaintiff has served subpoenas and the defendant has served a notice of motion seeking to have those subpoenas set aside or else access to documents refused. I determined that the expedient course would be to bring forward the argument of that notice of motion listed by the registry for early next year and then to make directions of the kind sought by the plaintiff.
-
The argument in respect of the subpoenas was narrowed by discussion between the two counsel, for which I am grateful. The only issue to be determined is whether the plaintiff can, by subpoena to the secretary of Ryde City Council, obtain:
“copies of all correspondence, whether generated electronically or otherwise, in respect of any agreement to pay William Pickering's legal expenses in respect of a defamation action involving Victor Tagg and William Pickering between 21 February 2015 and 21 October 2015."
-
In correspondence between the parties, those documents were said by the plaintiff's solicitor to be relevant for the following reason:
The documents sought in paragraph 2 relate to a decision by an insurer of Ryde City Council to pay the legal fees of the defendant/cross-claimant in respect of the plaintiff's defamation action and presumably now that relating to the cross-claim. The correspondence sought is, on the balance of probability, likely to produce representations made by the defendant/cross-claimant as to the subject incident and also the basis upon which the defendant/cross-claimant in his mayoral capacity was seeking indemnity from an insurer of Ryde City Council. In particular, whether the subject insurer had an insurance policy that in fact provided for such insurance cover is an important issue which could impact upon the credibility of the defendant/cross-claimant.
-
The reference to the cross-claim is a reference to a claim filed by the defendant against the plaintiff, perhaps unusually in such proceedings, seeking damages for assault. The only connection between the defamation and the assault is temporal, at least so far as the legal issues raised on the pleadings are concerned. In any event, the proposition appears to be that the cross-claim might have been brought for an improper purpose and that the defendant's courage in taking that course might have been fortified by the existence of an insurance policy covering the relevant events. That, in my view, is a matter of pure speculation.
-
In my view, the subpoena is, as submitted by Mr Kelleher on behalf of the defendant, plainly one which amounts to a fishing exercise. Accordingly, I make order 1 in the defendant's notice of motion; namely that paragraph 2 of the Schedule be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW).
-
I make orders 1, 2 and 3 in the notice of motion filed 4 December 2015.
********
Decision last updated: 21 December 2015
0