VP Trading International Pty Ltd v Ballymoss Pty Ltd
[2021] VCC 939
•15 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-01140
| VP TRADING INTERNATIONAL PTY LTD (ACN 638 201 715) | First Plaintiff |
| and | |
| VP BRANDS INTERNATIONAL PTY LTD (ACN 614 813 384) | Second Plaintiff |
| V | |
| BALLYMOSS PTY LTD (ACN 006 923 717) | Defendant |
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JUDGE: | HER HONOUR JUDGE A RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2021 | |
DATE OF RULING: | 15 July 2021 | |
CASE MAY BE CITED AS: | VP Trading International Pty Ltd & Anor v Ballymoss Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 939 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Subpoena to non-party before interlocutory hearing – application to set aside subpoena - whether legitimate forensic purpose
Legislation Cited: County Court Civil Procedure Rules 2018
Cases Cited:Harrison v Bauld [2021] VSC 73; HRF Nominees Pty Ltd (in Liq) & Others v Man Civil Constructions Pty Ltd & Others (No.2) [2014] VSC 613; Burchell v Hill [2010] VSC 96; Hera Project Pty Ltd v Bisognin (No.4) [2017] VSC 270
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D Williams QC | Davies Moloney |
| For the Defendant | Mr G Meehan with Mr M Dean | Rennick & Gaynor |
HER HONOUR:
1Two applications were listed for hearing on 8 July 2021 pursuant to orders made by his Honour Judge Macnamara on 9 June 2021 (“the Orders”).
2Order 4 of the Orders permitted the plaintiffs to apply to set aside the defendant’s subpoena filed on 8 June 2021 for production of documents by the plaintiffs’ solicitor, Colman Francis Moloney (“Moloney”), without the need for a summons. By Order 6, the plaintiffs’ application to set aside the defendant’s subpoena was listed on 22 June 2021. This date was subsequently extended to 8 July 2021.
3Pursuant to Order 7 of the Orders, the defendant was permitted to apply to cross-examine Moloney at the hearing of the plaintiffs’ amended summons filed 27 May 2021, without the need for a summons. By Order 8, the defendant’s application to cross-examine Moloney was listed on 22 June 2021. This date was similarly extended to 8 July 2021.
4These orders were made in the context of an extant application by the plaintiffs to set aside judgment entered on 27 May 2021, following non-compliance with self-executing orders made on 8 April 2021. Moloney swore an affidavit on 17 May 2021 in support of the application to set aside the judgment. He explains in his affidavit why the orders regarding the provision of affidavits of documents were not complied with by the plaintiffs. The relevant paragraphs are from paragraph 8 onwards.
5Paragraphs 11 and 12 of the Moloney affidavit say as follows:
“11.By my calculations I should have completed the Affidavit of Supplementary Discovery pursuant to Rule 24.02 on 10 May 2021. I did not do so by reason of pressure of my work, and my having absented myself for a planned family holiday on 8 May 2021. That had the effect on me and my practice of having to attend to a great many matters to accommodate that short absence. I missed the date for the filing and serving of the Affidavit.
12. It was not my clients fault that the date was missed. I am aware of my client calling in late April and enquiring as to the progress of the Affidavit and I assured my client that it was under control.”
6These paragraphs provide the explanation as to why there was non-compliance with the self-executing orders made on 8 April 2021. The solicitor accepts the fault was due to an oversight on his part. The question of whether this is a satisfactory explanation which may permit the setting aside of the default judgment is yet to be determined. The hearing of the plaintiffs’ application to set aside judgment is listed on 20 July 2021.
7The applications before the Court on 8 July 2021 were said to be pertinent to the substantive application listed on 20 July 2021. The defendant wishes to test the matters set out in the Moloney affidavit. In particular, the defendant wants to know what steps, if any, were taken by the solicitor after the orders were made; whether or not instructions were sought and an affidavit of documents prepared, and further information as to why the matter was not attended to by the solicitor. It was said in paragraph 51 of the defendant’s submissions that the explanation given was inadequate.
(a) Application to cross-examine the plaintiffs’ solicitor
8The parties made submissions as to whether the defendant should be given leave to cross-examine Moloney on his affidavit sworn 17 May 2021.
9In response to criticisms made by the defendant’s counsel about the form of the affidavit, counsel on behalf of the plaintiffs said Moloney could swear a supplementary affidavit. Since Moloney was willing to provide a supplementary affidavit, which was ordered to be filed by 4.00pm on 12 July 2021, the issue of whether he should be cross-examined was reserved. The defendant was given liberty to renew its application to seek to cross-examine Moloney following consideration of his supplementary affidavit.
(b) Application to set aside subpoena
10The subpoena relied upon by the defendant is dated 8 June 2021 and addressed to Moloney. He is the principal of the firm of Davies Moloney, the solicitors acting on behalf of the plaintiffs.
11Four discrete categories of documents are sought under the subpoena. The first category seeks original file notes of Davies Moloney for the period from 14 September 2020 to 25 May 2021 concerning:
(i)orders for discovery made in the proceeding on 15 September 2020 to 8 April 2021 (“orders for discovery”);
(ii)the preparation of any affidavit in compliance with the self-executing orders made on 8 April 2021 by her Honour Judge Ryan in the proceeding;
(iii)requests made by Davies Moloney to Joseph Saad and/or the plaintiffs with the provision of documents to enable the preparation of affidavits of discovery in compliance with the orders for discovery and any response thereto by Joseph Saad and/or the plaintiffs;
(iv)the plaintiffs’ compliance with orders for discovery made in the proceeding, including compliance with the self-executing orders made on 8 April 2021 by her Honour Judge Ryan in the proceeding;
(v)discovery in the proceeding.
12The second category of documents sought are copy emails and correspondence for the same period and relating to the five sub-categories identified above.
13The third category of document sought are copies of any advice given by Davies Moloney to Joseph Saad and/or the plaintiffs concerning the self-executing orders made on 8 April 2021 by her Honour Judge Ryan in the proceeding and/or the preparation of any affidavit in compliance with such orders.
14The fourth and final category are any documents evidencing the holiday referred to in paragraph 11 of Moloney’s affidavit sworn 17 May 2021.
Applicable law
15Order 42A is directed towards the production of documents for evidence before the hearing of an interlocutory or other application in a proceeding or the trial of a proceeding. A document required for evidence means a document that may potentially be required for evidence either in chief or in cross-examination. There must be a legitimate forensic purpose for seeking the document.[1]
[1] Per Derham AsJ in Harrison v Bauld [2021] VSC 73, [6]-[9].
16As Derham AsJ noted in Harrison v Bauld[2] at [9]:
“The relevance of a document to the proceeding alone will not substantiate an assertion of a legitimate forensic purpose. There is no legitimate purpose if the party is seeking to obtain documents to see whether they may be of relevance or assistance in his or her case. Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the document and set aside the subpoena.”
(citations omitted)
[2] Ibid [9].
17The same rules apply to subpoenas under Order 42A as to subpoenas generally. This includes the requirements that the documents sought must be sufficiently described, the subpoena must not be oppressive and not be used as a “fishing expedition”.[3]
[3] Per Derham AsJ in HRF Nominees Pty Ltd (in Liq) & Others v Man Civil Constructions Pty Ltd & Others (No.2) [2014] VSC 613, [23].
18A party has standing to bring an application to set aside a subpoena pursuant to Rule 42.04. Rule 42.04 provides as follows:
“42.04 Setting aside or other relief
(1) The Court may, of its own motion or on the application of a party or of any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.
(2) An application under paragraph (1) shall be made on notice to the issuing party.
(3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.”
Plaintiffs’ submissions
19By letter dated 9 June 2021, the plaintiffs outlined the grounds upon which they seek to set aside the subpoena. The grounds outlined were as follows:
(i)it is oppressive;
(ii)it serves no legitimate purpose in relation to the plaintiffs’ application by the amended summons filed 27 May 2021 to set aside the judgment dated 27 May 2021;
(iii)if the Court decides not to order that Mr Moloney be cross-examined, the subpoena will have no utility;
(iv)the subpoena is almost entirely confined to documents which by definition, are the subject of client legal privilege;
(v)a subpoena to produce documents directed to a party is impermissible. Since the subpoena is directed to the plaintiffs’ solicitor, it is directed to the plaintiffs and therefore is impermissible.
No legitimate forensic purpose
20The plaintiffs contend that the defendant has not articulated any legitimate forensic purpose as is required.[4]
[4] The plaintiffs rely upon the authorities referred to in footnote 4 of their written outline of submissions.
21The plaintiffs submit the onus is on the defendant, who has issued the subpoena, to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought. The defendant needs to provide a clear and cogent explanation as to why the documents sought to be produced would assist the Court in determining the application to set aside judgment. The plaintiffs contend the subpoena is a fishing expedition. The plaintiffs also argue that the documents sought are not evidence, as the authorities require. Instead, what the defendant is seeking to do is to attempt to trawl through the plaintiffs’ solicitor’s file in the hope of producing something that might help on the potential cross-examination of Moloney if ordered. Such an exercise is an abuse of process as it is akin to discovery.
22As to the documents concerning the holiday, it was said this category was ridiculously wide. It was not suggested that the solicitor was lying about taking a holiday. The plaintiffs submitted it was even less clear how documents relating to the taking of a holiday could be required for evidence or otherwise for a legitimate forensic purpose.
Privilege
23The other main objection was that most of the documents sought, being file notes and correspondence passing between the plaintiffs and their lawyers and advice to the plaintiffs, are the subject of client privilege. It was said this meant there could be no legitimate forensic purpose for seeking to subpoena documents which inevitably could not be inspected on the ground of privilege.
Oppressive
24The plaintiffs argue the categories are expressed in terms which are so wide as to be oppressive. There has been no real attempt to confine the categories of documents sought which are required “for evidence”.
Subpoena in effect to a party
25The other submission made by the plaintiffs was that subpoenas are issued to non-parties. Subpoenaing a party is impermissible. It is said here what the defendant was seeking to do was to circumvent the proper process by issuing a subpoena addressed to a party’s solicitor. The solicitor is the client’s agent and any privilege in the documents belongs to the client, not the lawyer. It follows then that the practical (and inevitably intended) effect of subpoenaing the solicitor is to obtain documents from the party itself. This is an abuse of process and offers a further ground upon which the subpoena should be set aside.
Defendant’s submissions
26The defendant relied upon its detailed written submissions dated 8 July 2021. In answer to the objections made by the plaintiffs, the defendant submitted firstly that privilege was not a ground for seeking to set aside a subpoena. It cannot be said that claiming or seeking privileged documents was a proper basis for claiming the subpoena was oppressive. If there were objections to the production of documents, this is a matter that could be dealt with by a registrar.
27It was submitted that privilege had been waived because it involved consideration of the solicitor’s conduct.
28Reference was made to paragraph 41 of the written submissions as to the grounds of relevance contained in sub-paragraphs (a)–(e). It was submitted that there was a legitimate purpose in seeking the documents.
29The defendant submitted it was seeking production of relevant documents as they went to the issue of whose fault it was as to why there was non-compliance with the self-executing order made regarding discovery. Reference was made to the decision of Mukhtar AsJ in Burchell v Hill,[5] at paragraphs 13 to 17. It was said that the documents identified are clearly relevant to the question of default as to what the solicitor did or did not do. The defendant wanted to see the file notes to properly test those matters and to potentially tender the file notes. It was argued that the file notes are not the client’s property and belong to the solicitor which was why the subpoena was directed to the solicitor.
[5][2010] VSC 96.
30It was argued the subpoena was not oppressive and the documents were well defined. There had been no evidence from Moloney to say that the task of compliance would be so burdensome as to make it oppressive.
31In answer to the submission made that a party could not be subpoenaed, it was put that the subpoena was not addressed to the plaintiffs. Reference was made to the decision of Riordan J in Hera Project Pty Ltd v Bisognin (No.4),[6] at [43] where his Honour referred to a LIV guideline dealing with recommendations as to how solicitors should act when served with a subpoena to produce a client file.
[6] [2017] VSC 270.
32As regards the documents relating to the holiday, it was not intended to show that the solicitor was in effect lying, but rather how the holiday affected the preparation or lack of preparation of the affidavits and what effect that had on compliance with the order.
Plaintiffs’ submissions in reply
33In reply, counsel for the plaintiffs noted that under the Rules a party can seek to set aside a subpoena. The plaintiffs did not need to file evidence in support of an application to set aside a subpoena.
34The defendant was seeking evidence that went beyond documents and was in fact seeking an explanation of what had occurred as opposed to seeking documents themselves. In respect to the subpoena generally, it could be set aside if it was too wide and again not for a proper purpose. It was submitted that the plaintiffs were not relying on privilege as a stand-alone ground, but as an adjunct to the general ground alleged of oppression and legitimate forensic purpose. It was submitted the application was “over the top”. The LIV guideline was not to the point as it dealt with the position where a file was subpoenaed in a separate proceeding unlike the case here where the subpoena is directed to a solicitor for a party. The reference to the phone call in paragraph 12 of the Moloney affidavit did not amount to an issue waiver of all communications. Each document would have to be looked at if there were questions of privilege to be claimed. As pointed out earlier, it was submitted the primary submission was a want of forensic purpose.
Analysis
35Having considered the arguments put both for and against, I am of the view that the subpoena does not serve a legitimate forensic purpose and should be set aside.
36I accept the plaintiffs’ submission that the defendant has not identified properly what evidence it is seeking by way of documents, but instead wishes to trawl through the solicitor’s file to see whether it can find anything that may be of assistance to defend the interlocutory application. I consider this to be impermissible and amounts to a fishing expedition.
37Although it is true that privilege is not a ground upon which the subpoena could be set aside, I accept the plaintiffs’ submission made as an adjunct to their overall submission that the subpoena is oppressive and serves no legitimate function. The documents sought in paragraph 3 of the subpoena being advice to the client are clearly privileged. The same may well apply to the files notes, emails and correspondence sought in paragraphs 1 and 2. There is no evidence before the Court that the plaintiffs have agreed to waive any privilege if the documents are ordered to be produced under the subpoena. I do not accept the submission put by the defendant that their right to claim privilege has been waived by Moloney. Therefore, even if produced, many if not all of the documents sought would not be available for inspection with the result that the subpoena serves no utility.
38I also consider the breadth of documents sought both as to the categories of documents and the time span (some eight months) is oppressive. I regard it as being an unreasonable and burdensome request.
39The documents sought relating to the solicitor’s holiday are very broad in compass. The reason proffered for seeking documents about the holiday is to obtain an explanation why the holiday prevented the solicitor from attending to the preparation of the affidavits of documents. It is unclear how documents relating to the taking of the holiday could inform that question. I consider this request is also fishing and serves no legitimate forensic purpose.
40For the reasons given, the subpoena will be set aside.
41I will reserve the question of costs on the applications before the Court on 8 July 2021, pending the further hearing of the matter listed on 20 July 2021.
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Certificate
I certify that these 10 pages are a true copy of the Reasons for Ruling of Her Honour Judge A Ryan delivered on 15 July 2021.
Dated: 15 July 2021
Associate to Her Honour Judge A Ryan
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