Tuu v Luu

[2005] NSWLC 12

Local Court of New South Wales

CITATION:	Tuu v Luu [2005] NSWLC 12
JURISDICTION:	Civil
PARTIES:	Thi Ha TUU Nga LUU
FILE NUMBER:	1832 of 2004
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	09/02/2005
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Procedure - Subpoena to produce - Subpoena to third party - Whether subpoena "fishing" - Whether subpoena too wide - Whether subpoena amounts to discovery against a third party
LEGISLATION CITED:
CASES CITED:	Aiden Shipping Co v Interbulk [1986] AC 965 Arhill v General Terminal Co (1991) 23 NSWLR 545 Australian Workers Union v Bowen (1946) 72 CLR 575 Commissioner of Railways v Small (1938) 38 SR (NSW) 564 Nilsen v Loyal Orange Trust (1999) 76 IR 180 Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498 Procinsky v McDermott & Rogers [1955] 4 DLR 606 R v Alister (1984) 154 CLR 404 Southern Pacific Hotel Services v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710 Woodside Petroleum Development Pty Ltd v H & R E & W Pty Ltd (1999) 20 WAR 380
REPRESENTATION:	Mr J Sheller Counsel for the applicants DGB Lawyers Solicitors for the applicants Mr P Gray - Grzeskiewicz Counself for the 2nd Respondent Perla & Jordan Solicitors for the 2nd Respondent
ORDERS:	1. Second respondent's subpoenae to applicants issued 5 August 2005 set aside.; 2. Second respondent's subpoena to applicants issued 28 June 2005 set aside in part (see paragraphs [52] ff).; 3. Costs orders will follow submissions from parties.

Judgment

1. The applicants on the motion now before the Court are the recipients of subpoenae to produce issued at the request of the second respondent, Ms Elena Perla. (The first respondent, Mr David Quinn, has, as it were, merely a ‘watching brief’ in relation to this matter.) The applicants seek to have the Court set aside the subpoena on the bases that they an abuse of process – a ‘fishing expedition’ – or too wide and therefore oppressive, or an attempt to obtain discovery against third parties, or lack a legitimate forensic purpose or a combination of two or more of these.

3. Five subpoenae are the subjects of the motion. Three were issued on 28 June 2005 to, respectively, the Proper Officer, Insurance Australia Group Ltd (‘IAG’); the Proper Officer, NRMA Insurance Ltd (‘NRMA’); and Brian Baird, Linda Wright and Warren Budd trading as DGB Lawyers (‘DGB’). NRMA Insurance Ltd has undergone a name change. It is now called ‘Insurance Australia Ltd’ (‘IAL’) but no point is taken by the applicants in that regard.

5. Two further subpoenae were issued on 5 August 2005 addressed, respectively, to the Proper Officers of IAG and NRMA (or IAL as all parties concede it ought properly to have been nominated).

7. The June subpoenae are in most respects identical in their terms. The schedule to the subpoena addressed to DGB seeks the production of the following documents or categories of documents:

1 . The personnel file of Russell Miller.


2. If Russell Miller was not an employee of DGB at any time during the period 1 July 2003 to 10 June 2005, then all contractual documents between DGB and Russell Miller for the period 1 July 2003 to 10 June 2005.

3. All correspondence with Thi Ha Tu, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 1832 of 2004.

4. Notes of all conversations with Thi Ha Tu.

5. All correspondence with Giang Do, who once resided at 8 Cronin Place, Bonnyrigg NSW.

6. Notes of all conversations with Giang Do.

7. All correspondence with Russell Miller, in relation to Russell Miller obtaining an affidavit from Thi Ha Tu.

8. All Correspondence with NRMA, in relation to Russell Miller obtaining an affidavit from Thi Ha Tu.

9. All affidavits sworn by any of the following people, which were witnessed by Russell Miller:

(a) Thi Ha Tu, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 1832 of 2004.
(b) Giang Do.
(c) Thanh Tham Quach, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 11861 of 2003.
(d) The Chaun Nguyen, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 1951 of 2003.
(e) AI Chi Hoang, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 11686 of 2003.
(f) Doan Minh Nguyen, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 11484 of 2003.
(g) Trung T. Ngo, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 9354 of 2003.
(h) Hai Muoi Luong, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 1354 of 2003.
(i) Loc Anh Huynh, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 11480 of 2003.
Kim Hourt Eap, the Plaintiff in proceedings at the Downing Centre Local Court bearing plaint number 11485 of 2003.
(k) Jeffrey Charles MacDonald, the Plaintiff in proceedings at the Downing Centre Local Court plaint number 11478 of 2003.
(1) Minh T. Duong, the Plaintiff in proceedings at the Downing Centre Local Court plaint number 12328 of 2003.
(m) Banh Ngoc Thao, the Plaintiff in proceedings at the Downing Centre Local Court plaint number 12326 of 2003.
(n) Romany Bun, the Plaintiff in proceedings at the Downing Centre Local Court plaint number 11479 of 2003
(o) Van Tuyen Bui, the Plaintiff in proceedings at the Downing Centre Local Court plaint number 446 of 2004.
(p) Efren Lagunzad, the Plaintiff in proceedings at the Downing Centre Local Court plaint number 11481 of 2003.

5. The subpoenae addressed to IAG and IAL adopt those categories and add two further categories of documents to the list, namely, a request for the personnel file of Ms Isabelle Alam and, alternatively, ‘if Isabelle Alam was not an employee of IAG at any time during the period 1 July 2003 to 10 June 2005, then all contractual documents between IAG [or, mutatis mutandis, IAL] between IAG and Isabelle Alam for [the same period]’.

6. The August subpoenae seek production of the following categories of documents:

1. All Contractual Documents between Thomas Whayman & McCarthy and IAG, in respect of any services to be provided by Thomas Whayman & McCarthy, in relation to any MVA Proceedings.


2. All Correspondence between Thomas Whayman & McCarthy and NRAL4, in respect of any services to be provided by Thomas Whayman & McCarthy, in relation to any MVA Proceedings.

3. All file notes in respect of any conversation between Thomas Whayman & McCarthy and any employee of IAG, in respect of any services to be provided by Thomas Whayman & McCarthy, in relation to any MVA Proceedings

7. Thomas Whayman & McCarthy is a firm of private investigators with its business located in Tasmania.

Background

8. On 12 August 2003, the plaintiff and defendant in this matter were involved in a motor vehicle collision in Liverpool. The plaintiff’s vehicle was then driven by a Mr Do.

9. On 12 September 2005, the Court is scheduled to consider a motion brought by DGB (or, more accurately, Ms Linda Wright) seeking to have the Court dismiss the statement of claim in the matter of Thi Ha Tu v Nga Luu on the basis that the named plaintiff had never instructed the first or second respondents to commence proceedings on her behalf in relation to a motor vehicle damages claim. The motion seeks costs orders against the solicitors, the first and second respondents, personally.

10. While it is true that the litigation of motor vehicle property claims is conducted on virtually industrial scale in the Downing Centre Local Court, the rules and principles governing the commencement of proceedings are quite clear.

11. When an insurer is subrogated to the rights of an insured who, for one reason or another, will not voluntarily to lend his or her name to proceedings which are to be brought in his or her name it has the option of either seeking a court order requiring him to lend his name1 or, if the insured has is contractually obliged to lend his or her name, of repudiating the contract of insurance for breach of the condition that the insured would co-operate and suing on the breach of contract. It probably has the further option of commencing proceedings in its own name and joining the recalcitrant insured.2

12. In Woodside Petroleum Development Pty Ltd v H&R-E&W Pty Ltd 3 Ipp J said:

But the right of subrogation does not entitle the insurer (in the absence of an assignment) to proceed in his own name against the alleged wrongdoer. The insurer is required to obtain authority from the assured authorising the insurer to proceed in the assured’s name against the wrongdoer. If the assured refuses to give such authority the insurer can bring proceedings to compel it to do so: see Esso Petroleum Ltd v Hall Russell & Co [1989] 1 AC 643 at 663. Although no allegation as to the right of subrogation has to be made in the statement of claim, the defendant may raise the absence or inadequacy of that right in its defence; it is then for the insurer to justify its right to proceed in the name of the assured. The other side of the coin is that, where an insurer sues an alleged wrongdoer in its own name, purporting – wrongly – to exercise the right of subrogation, the third party may defend the claim by disputing the existence of any right on the part of the insurer to so bring the action in question: see Esso Petroleum.

In Lord Napier & Ettrick v Hunter [1993] AC 713 it was held that the right of subrogation arises from an implied promise by the assured, in the policy of insurance, to allow the insurer to take proceedings against the wrongdoer (who causes loss covered by the policy) in the assured’s name. Thus the right arises in law, albeit that it is enforceable in equity to the extent necessary to reimburse the insurer who has indemnified the assured against the loss.
12. If proceedings are brought by a third party in the name of a plaintiff who has not authorised them, and has not taken the steps outlined, this can only be regarded as a serious abuse of process. This is the allegation against the second respondent to be determined on 12 September 2005.

13. The Local Court has power to make costs orders against non-parties in appropriate circumstances just as other courts in this State have. The ordering of costs against a non-party will always be exceptional.4 An order against a solicitor should only be made in a clear case, and the discretion ought be exercised with care.5 In Vestris v Cashman 6, Lander J said, “The judge should treat any application for such an order with considerable caution.” Nevertheless, if the allegation is made out against her, Ms Perla faces the very real prospect of a personal costs and on the indemnity basis. Looming in the background there is, no doubt, the prospect of disciplinary action against her. Hence the gravity of the motion of 12 September 2005 and, by extension, this one.

14. Ms Perla asserts that she was properly retained by the plaintiff in this matter, as well as by various others. Ms Tu, however, is no longer represented in any proceedings. According to Mr Quinn’s evidence, he was approached by Perla & Jordan to take over Ms Tu’s and a number of other matters in November 2004 as that firm was about to close. In January 2005, he sought a formal retainer from the plaintiff but was advised in March 2005 that the plaintiff did not wish him to act. He, accordingly, ceased to act.

The evidence

15. The applicants read two affidavits of Linda Wright and, for the background material it provides, an affidavit of Mr David Quinn. The respondent read an affidavit of Ms Elena Perla. Also tendered by the respondent were affidavits of Ha Thi Tu and Hong Ly, a questionnaire headed ‘Questions for plaintiff’ faxed on 26 May 2005 by Mr Des Bligh of Thomas, Whayman & McCarthy to Mr Wayne Vella.

16. Ms Perla gives evidence that the reason for issuing the subpoenae is to obtain evidence for use at the hearing of the motion on 12 September 2005. She states that objection will taken to the applicants reading the affidavits of Ms Tu, sworn 13 September 2004, and Mr Gregory Hatfield, sworn 18 May 2005, pursuant to s.138 of the Evidence Act 1995.

18. She is not more specific in her affidavit as to whether the objection will be on the ground of illegality or impropriety but her contention is based, it seems, on a belief that her a number of her previous clients, including Ms Tu, were ‘poached’, directly or indirectly, by DGB. If, indeed, Ms Tu had retained Perla & Jordan as her solicitors, ss. 57B and 57D of the Legal Profession Act 1987, read in conjunction with Solicitors’ Rule 31 would have prohibited any direct communication with her by other solicitors except in certain limited circumstances that are irrelevant here.

19. In relation to the schedule to the subpoenae, Ms Perla lists 16 persons, apart from Ms Tu, who she says were previous clients of hers, who all gave her instructions in relation to motor vehicle property claims and for whom she commenced proceedings. She states that in each case she commenced proceedings against particular defendants, that each of those defendants were insured with IAG and were represented by DGB. In each case, her clients’ vehicles were repaired by Mr Hong Ly of Linda Smash Repairs and, in each case, ‘suddenly and inexplicably, each of those clients stopped giving me instructions and/or apparently defaulted in paying Linda Smash Repairs’ sum owed for the repairs to their damaged vehicles.

20. Annexed to her affidavit were a number of documents. The first group (Annexures A to D) are a correspondence between Ms Perla and DGB in which she puts DGB on notice of her objections to the admission of the affidavits of Ms Tu and Mr Hatfield and their response that she had no instructions to act for Ms Tu. Annexure E is an affidavit, sworn 17 November 2004, of Mr Gregory Hatfield, an employed solicitor with DGB, relating to proceedings between Ms Jennifer Rees and Luis Bethencourt. Mr Hatfield acted for the defendant in those proceedings. (It is not clear from the context why Mr Hatfield swore the affidavit but that is probably irrelevant here.)

21. In Mr Hatfield’s affidavit he recounts a conversation he had had with a Ms Isabelle Al Alam, an IAL Litigation consultant, who is said to have told Mr Hatfield that she (Ms Al Alam) had spoken to the plaintiff Ms Rees and been told that ‘she does not want to get involved in this matter… she is not instructing any solicitors.’

22. Mr Hatfield’s affidavit then records that his response was, ‘That might be of concern. I’ll have to speak to my supervising partner to see what we should do.’

23. Mr Hatfield’s affidavit recites that on or about 18 December 2003, he had again spoken to Ms Al Alam and been told that ‘the plaintiff is no longer willing to co-operate with us.’

24. On 10 May 2004, he states in his affidavit, he had a further conversation with Ms Al Alam in which she asked him how the insurer (or defendant) should bring up ‘the question of the plaintiff’s solicitor’s retainer’ (by which she meant, presumably, the lack thereof) before the Court at the forthcoming arbitration. His advice was that to challenge the retainer, the defendant would have to file a Notice of Motion and that this would require an affidavit from the plaintiff [to the effect that there was no retainer]. Ms Al Alam asked Mr Hatfield whether he could get an affidavit from the plaintiff and his advice, interestingly, was that they could not as the plaintiff ‘already has legal representation.’ Ms Al Alam then asked, ‘Can we contact the plaintiff?’, to which Mr Hatfield replied that he would have to seek advice from his supervising partner.

25. Ms Perla states in her affidavit that Ms Rees was a client of hers. The affidavit of Mr Hatfield is adduced, I apprehend, to demonstrate that something untoward may have been going on as between IAL and DGB, namely the cutting adrift of her clients.

26. Also annexed (Annexure F) was a copy of a letter sent by DGB to a Mr J McDonald, who, Ms Perla states, was also a client of hers. The letter is dated 8 July 2005 and is under the hand of Mr Hatfield.

27. In that letter Mr Hatfield writes:

After reviewing the draft Affidavits from both of you, we have formed the view that there is not a sufficient basis to bring an application against Perla & Jordan Lawyer or Quinn & Quinn Lawyers for our costs of the proceedings.

This is because there seems to be, on the surface at least, a contract between Mr McDonald and Perla & Jordan Lawyers. This contract is evidenced by Mr McDonald signing certain documents including a statement of evidence which clearly indicates he was the plaintiff in the proceedings.

28. An affidavit of Mr Hong Ly was also tendered on behalf of Ms Perla. Mr Ly operates a business in Cabramatta called Linda Smash Repairs. He attests to meeting Mr Giang Do, the driver of the plaintiff’s motor car at the time of the accident on 12 July 2003. He states that he told Mr Do that he had referred clients in the past to Perla & Jordan and gave Mr Do a questionnaire headed ‘Perla & Jordan Lawyers, MVA Questionnaire’. Attached to the questionnaire is a blank authority for Perla & Jordan to represent the signatory of the questionnaire. Also attached to Mr Ly’s affidavit was a written agreement apparently between Ms Tu and Mr Ly, dated 26 July 2003. Mr Ly states in his affidavit that Mr Do signed the Perla & Jordan questionnaire, which he, Mr Ly, then sent by fax to Perla & Jordan but that Ms Tu signed the written agreement with him for the repairs of the vehicle. His evidence is that his agreement with Ms Tu was that she, upon receipt of a cheque from the insurer, she would make it payable to Linda Smash Repairs. (He now asserts that he has not been paid for the repairs and has instituted proceedings in the Small Claims Division.)

29. He said also in the affidavit that on 11 September 2003, he had spoken to Mr Obeidat of Perla & Jordan who asked him to show a statement of evidence that had been prepared for her to Ms Tu and, if she was satisfied, to have her sign it and to send it back to Perla & Jordan. He said that he had spoken to Ms Tu by telephone and later that day Ms Tu had visited him and signed the statement which he had then faxed to Perla & Jordan.

30. According to Mr Ly, in mid-May 2005, he received a telephone call from Ms Isabelle Alam who said words to the effect of, ‘I am an employee of NRMA. If you continue to send work to Perla & Jordan, I will make sure you never get paid or get any work from NRMA.’

31. He states that after he was shown a copy of Ms Tu’s affidavit of 14 September 2004 he concluded that she was in breach of her agreement with him and sued her for breach of contract. He said that after the Statement of Claim was sent to Ms Tu he had received a telephone call from Mr Do. Mr Do, according to Mr Ly, had said that he had been advised by the NRMA that ‘we do not have to pay you a cent’.

32. Ms Tu’s affidavit of 13 September 2004 was tendered in evidence. It was witnessed by Mr Ian Russell Miller. It appears that Mr Miller may be a private investigator.

33. Her affidavit states her son-in-law, Mr Do, was the driver of her motor vehicle when it was damaged. She states that Mr Do signed some document but she did not know why, that she was not involved in any legal proceedings concerning the cost of repairs, that she was not aware of proceedings being commenced in her name and that she had not given instructions to any solicitors to commence proceedings on her behalf or to recover the cost of repairs to the motor vehicle. She also stated that she had ‘never heard of Perla & Jordan Lawyers’ and had never instructed them to take proceedings on her behalf. She also stated that she had never signed any costs agreement with them.

34. Mr Quinn’s affidavit is of some interest on this point. Annexed is his letter of March 2005 to Ms Tu in which he refers to advice received from Mr (sic) Tu that she had not given instructions to Perla & Jordan. Also annexed was a Perla & Jordan MVA questionnaire and authority dated 24 July 2003 and apparently signed by Mr Do. He also states that the affidavit of 13 September 2004 was not on the Perla & Jordan filed that he received.

35. The affidavit sworn by Mr Hatfield on 18 May 2005, to which objection will be taken at the hearing of the motion on 12 September, was also tendered in evidence. It significance is that it annexes two letters from Ms Tu and Mr Do, the first dated 28 April 2005, in which it is stated that, in response to Mr Hatfield’s letter of 28 February 2005, they ‘agree that Ms Tu had never given instructions to either Perla & Jordan or Quinn & Quinn’ and the second dated 29 April 2005 in which they state that they ‘100% stand by the matters referred to [in] our affidavit, sworn on 13 September 2004.’

The submissions

36. The applicants argue, first, that the only possible forensic purpose for which the documents sought could be used would be to lay a foundation for an argument under s.138 of the Evidence Act 1995 that the affidavits of Ms Tu and Mr Hatfield be excluded; that this argument is futile and that, therefore, the subpoenae ought be set aside as an abuse of process. It is futile, says counsel for the applicants, because it is impossible to imagine that, where the issue is the question of whether or not Perla & Jordan were retained, the key pieces of evidence that they were not are the affidavits of Ms Tu and Ms Hatfield. Section 138 could only apply, if at all, if it were shown that Ms Tu had properly instructed Perla & Jordan. This assumes the very fact in issue. For the magistrate deciding the application on 12 September, so the argument goes, the evidence will have to be before him or her to decide whether or not Perla & Jordan was instructed by Ms Tu.

37. The respondent contends, in response to that argument, that her belief that DGB has been improperly communicating with her clients has a basis in fact. Counsel for the respondent points to the evidence that Mr Hatfield had discussions with Ms Al Alam of IAL concerning a client of Perla & Jordan; the fact that Ms Tu’s affidavit is written in sophisticated English when it appears that she is not very conversant with the language at all; that DGB has had some sort of contact with another client of Perla & Jordan’s (Mr McDonald) concerning the question whether Perla & Jordan were retained; the evidence of a conversation between Ms Al Alam and Mr Ly threatening that if he did not desist from referring clients to Perla & Jordan he would get no more work from IAL and would not be paid for work he had done; and the inexplicable withdrawal of instructions from about 15 clients to suggest that there was a systematic breach of the solicitors’s rules, possibly by DGB, the irregular communications being conducted through an agent. He raises a number of questions: who sent Mr Miller to see Ms Tu? What did they do to get her affidavit? When was the approach made? Who drew the affidavit? How did Mr McDonald come to withdraw his instructions from Perla & Jordan? What were the circumstances behind the letter from DGB to Mr McDonald? Was there a systematic approach being taken to cut Perla & Jordan’s clients away from that firm?

38. The applicants argue that Ms Perla is clutching at straws because there is virtually no evidence of contact but for the evidence of her belief or suspicions and the letter of DGB to Mr McDonald in which they told him that they had concluded that they could not prove that Perla & Jordan had acted without instructions.

39. The applicants then attack the subpoenae, paragraph by paragraph, on the basis of their width, apparent irrelevance and their general piscatorial character.

40. In relation to the June subpoenae, the applicants argue that the demand for production of the personnel files of Russell Miller and Isabelle Al Alam is far too wide and is purely and simply fishing for evidence. They submit that there is no evidence of any impropriety on the part of Ms Al Alam. The respondent says in response (a) that even a narrowly drawn subpoena will inevitably catch material that is irrelevant and (b) that a subpoena addressed to a third party cannot require the recipient to form a judgment as to the relevance of certain materials7. The categories must therefore be simple and easy to comply with. The material is sought to prove the agency relationship between Russell Miller and DGB or IAL or both. In relation to Ms Al Alam, the respondent says that the documents would evidence her position within IAL’s structure.

41. In relation to the correspondence with Ms Tu and notes of conversations with her, the applicants argue that there is no assertion of wrongdoing by DGB. A similar argument is made in respect of correspondence with Mr Do and notes of conversation with him. The relevance of any such documents is also questioned by the applicants. The respondent submits that this material is relevant to the question of contact between DGB and the plaintiff.

42. The applicants argue that correspondence between Russell Miller, and DGB and between DGB and IAL concerning Russell Miller, relating to the obtaining of an affidavit from Ms Tu is very broad and probably privileged anyway. The respondent contends that this material is relevant to the question of agency between Mr Miller and DGB or IAL.

43. The applicants submit that the requirement for affidavits sworn by 16 people before Russell Miller is fishing, irrelevant to the s.138 point and too wide. The respondent says that this material would flesh out the picture of systematic approaches to the clients of Perla & Jordan.

44. In relation to the call for the defendant’s motor vehicle insurance contracts, claim forms and correspondence between the IAG and IAL and the defendant, the applicants question the relevance of these documents.

45. As to the August subpoenae, the applicants also challenge the relevance of these documents and note the width of the call. The subpoenae appear to have been issued because the respondent has possession of documents from Thomas Whayman & McCarthy suggesting that they are private investigators looking into the activities of certain smash repairers and a South Melbourne law firm. If so, the relevance to the s.138 question is queried by the applicants.

46. In relation to the August subpoenae, counsel for the respondent suggested that it may be that, if there is some sort of systematic approach being taken to improperly communicating with clients of Perla & Jordan it may be that interstate private investigators are chosen in order to avoid their being subpoenaed pursuant to the Service and Execution of Process Act. While not conceding that these subpoenae were entirely misconceived, he correctly admitted that he had less with which to defend them than in relation to the June subpoenae.

Principles

47. The relevant principles in relation to subpoenae are well-established. It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made.8 A subpoena to produce documents will have a legitimate forensic purpose if it appears to be "on the cards" that the documents will materially assist the person at whose request the subpoena is issued.9 On the other hand, there will be no legitimate forensic purpose if all the party is doing is trying to get hold of the documents to see whether they may assist him at all in his case10.

48. In Commissioner of Railways v Small outlined the vices of bad subpoenae to produce:

A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it is addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not be required to go to the trouble and perhaps to expense in ransacking his records and endeavouring to form a judgement as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant… And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the court to have it set aside. 11

49. A subpoena which imposes the task of forming a judgment as to relevance to issues in dispute amounts to discovery against a stranger to the proceedings and is therefore impermissible.12

50. If a subpoena is so wide that the time, cost and effort involved in satisfying its demands is disproportionate to its forensic value it ought be set aside as oppressive.13

Findings and conclusions

51. It is self-evident, in my opinion, that the August subpoenae must be set aside. The forensic purpose identified ultimately by her counsel (but not by the respondent in her affidavit) is so obviously speculative that it clearly falls foul of the prohibition against fishing. There is no basis upon which it could be said that it is ‘on the cards’ – that is, reasonably likely – to produce relevant evidence. It is simply groping in the dark in the hope that something useful might turn up.

52. In relation to the June subpoenae, however, the issue is somewhat more complex. I do not think it appropriate to express a judgment of the merits of the objection to be taken by the respondent pursuant to s.138 of the Evidence Act. Even if I thought that it was doomed to failure, she is entitled to argue the point on its merits at the hearing on 12 September. I am conscious of the gravity of the allegation made against her and this emphasises the significance of any relevant evidence that may be produced. It is, of course, a very serious allegation that she makes herself and if she fails to make good on it she is likely to be placed in serious jeopardy. To seek to adduce the evidence she needs to support her objection to the applicant’s evidence under s.138 is therefore, for both those reasons, a legitimate forensic purpose.

53. Having said that, however, I am unconvinced that the respondent should have all the documents she seeks produced in the June subpoenae.

54. There does not appear to me to be any reason to think that it is ‘on the cards’ that the personnel files of Mr Miller or Ms Al Alam would contain material relevant to the issue of Mr Miller being engaged as an agent to contact clients of Perla & Jordan. On the other hand, they would certainly contain sensitive private information. In my opinion, the paragraphs of the subpoenae relating to those categories of documents ought be set aside on the basis that they are ‘fishing’ expeditions. (See para. [1] of the DGB subpoena and para. [3] of the IAG and IAL subpoenae.)

55. On the other hand, any documents evidencing a contract between Mr Miller and DGB or IAL or IAG may, it seems to me, be relevant and provide some evidence, namely, that Mr Miller was engage by DGB or IAL or IAG, that would support the s.138 objection. Documents in those categories should be produced. (See para. [2] of the subpoenae.)

56. In my opinion, paras [3]-[8] of the DGB subpoena and [5]-[10] of the IAL and IAG subpoena are relevant to the question whether there was irregular contact between DGB and Ms Tu, either directly or through an agent. If there has been such contact, there is a reasonable likelihood that documents in those categories would provide some evidence of it.

57. On the other hand, however, it is difficult to view the demand for affidavits from 16 people, 13 of whom have no apparent connection with this case at all, as anything more than fishing, or perhaps dredging, for evidence. It seems that the respondent hopes to show, by adducing such evidence, that there was a pattern of behaviour on the part of Mr Miller. While there may have been affidavits taken by Mr Miller from those people, absent further evidence that he was engaged to subvert Perla & Jordan’s practice, that evidence would be irrelevant. There is no evidence at all that such affidavits exist. This further emphasises my view that the request for these documents is a fishing expedition. At most, it seems to me, the affidavits called for in respect of Ms Tu, Mr Do and Mr Jeffrey McDonald may have some relevance, directly or indirectly, to the question to be raised by the respondent in relation to s.138. The subpoena will therefore be set aside in respect of paras [9](c)-(j) and (l)-(p) in the DGB subpoena and paras [11](c)-(j) and (l)-(p) in the subpoenae addressed to the insurers.

59. It is difficult to see any relevance at all in relation to the documents sought under paras. [12]-[14] of the subpoenae to the insurers and they are set aside.

Orders

59. Second respondent’s subpoenae to applicants issued 5 August 2005 set aside.

60. Second respondent’s subpoenae to applicants issued 28 June 2005 set aside in part. (See paragraphs [52]ff.)

62. Costs orders will be made after hearing submissions from the parties.

Hugh Dillon

Magistrate

1 See Australian Workers’ Union v Bowen (1946) 72 CLR 575 at 589 per Dixon J where he emphasised that the fact that one party has a beneficial interest in another’s right of action does not, of itself, mean that the first party has authority to use the other’s name. See also Derham, SR Subrogation in Insurance Law LBC, Sydney 1985 p.119.

2 See Procinsky v McDermott and Rogers [1955] 4 DLR 606 at 610 and Derham, ibid, at p72.

3 (1999) 20 WAR 380 at 387.

4 See Aiden Shipping Co v Interbulk Ltd [1986] AC 965 at 980 per Lord Goff.

5 See Nilsen v Loyal Orange Trust (1999) 76 IR 180.

6 (1998) 72 SASR 449 at 458

7 See Commissioner of Railways v Small (1938) 38 SR (NSW) 564 at 573.

8 Principal Registrar of the Supreme Court of NSW v Tastan (1994) 75 A Crim R 498

9 R v Alister (1984) 154 CLR 404 per Gibbs CJ at 414.

10 Commissioner for Railways v Small (1938) 38 SR(NSW) 564

11 Ibid at p.573.

12 Southern Pacific Hotel Services v Southern Pacific Hotel Corporation [1984] 1 NSWLR 710.

13 See Arhill v General Terminal Co (1991) 23 NSWLR 545 at 557 per Rogers CJ Com Div