WINN v Leigh as Former Trustee of the Estate of WINN (No.2)

[2020] FCCA 2198

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINN v LEIGH AS FORMER TRUSTEE OF THE ESTATE OF WINN (No.2) [2020] FCCA 2198

Catchwords:
PRACTICE AND PROCEDURE – Application in a case for compliance with subpoena by a consultant lawyer to a legal firm – finding by Court that subpoena should have been directed to either the firm of lawyers in its trading or business name, or to the trustee of the trust carrying on the business of the law firm – application for compliance misconceived – consideration of protection of private rights – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.15A.14(1).

Cases cited:

Riddick v Thames Board Mills Ltd [1977] QB 881.

Applicant: JULENE WINN

Respondent: DAVID JOHN LEIGH AS FORMER TRUSTEE OF THE ESTATE OF JULENE WINN

Intervener: THE OFFICIAL TRUSTEE IN BANKRUPTCY

Interested Person: GREGORY WAYNE RODGERS

File Number: BRG 1072 of 2018

Judgment of: Judge Egan

Hearing date: 7 August 2020

Date of Last Submission: 7 August 2020

Delivered at: Brisbane

Delivered on: 11 August 2020

REPRESENTATION

The Applicant appearing in person

Interested Person: Mr G Rodgers, Solicitor

No appearance by the Intervener

No appearance by the Respondent

ORDERS

1. The Application in a Case filed by the Applicant on 17 June 2020 be dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1072 of 2018

JULENE WINN

Applicant

And

DAVID JOHN LEIGH AS FORMER TRUSTEE OF THE ESTATE OF JULENE WINN

Respondent

And

THE OFFICIAL TRUSTEE IN BANKRUPTCY

Intervener

And

GREGORY WAYNE RODGERS

Interested Person

REASONS FOR JUDGMENT

1. On 15 August 2019, the applicant lodged a Subpoena in the subject proceedings out of the Registry of this Court at Brisbane. The Subpoena was directed to ‘Gregory Wayne Rodgers of RBG Lawyers’.

2. The applicant was seeking production of documents said by her to be of relevance to her claim in the current proceedings. The documents in question sought by the applicant in the Subpoena related to, and arose out of, legal work performed by the firm ‘RBG Lawyers’ on behalf of the respondent during the period of time that the respondent acted as trustee of the bankrupt estate of the applicant. The applicant has made various claims against the respondent based upon, inter alia, allegations of maladministration by him in his administration of the estate.

3. When this matter came before the Court on 23 July 2020, the Court invited the then Counsel for the applicant to consider whether the subpoena issued on 15 August 2019 ought properly to have been directed to the entity or entities carrying on the business of a legal firm at the relevant time of its representation of the respondent, rather than as against Mr Rodgers in his personal capacity as a lawyer then associated with such firm. As a result of information received from the legal representatives for the intervener during the course of that hearing, it was conceded by the applicant’s counsel that the Subpoena ought to have been directed to ‘RBG Services Pty Ltd’ (in its capacity as trustee for the ‘RBG Services Trust’) which was the entity which carried on the business of RBG Lawyers.

4. Consequent upon the making of the concession by the then Counsel for the applicant, the Court made orders on 23 July 2020 as follows:

   “1. The Applicant have leave to file, and have issued forthwith, pursuant to Rule 15A.02(1)(a) of the Federal Circuit Court Rules 2001 (Cth), subpoenas for production directed to the following parties:

   a. RBG Services Pty Ltd ACN 124 911 388; and

   b. The trustee for the RBG Services Trust ABN 57 392 657 689.

   2. The issue of the Subpoenas be expedited.”

5. The application in a case was adjourned for further hearing before this Court today. The applicant is no longer legally represented. She appeared on her own behalf at todays’ hearing via video-conference. The applicant has failed to issue the subpoenas the subject of the granting of leave as provided for in Order 1 of the Court’s orders made on 23 July 2020.

6. Mr Rodgers helpfully appeared before this Court today by video-conference. He advised the Court that he represented both himself and the firm RBG Lawyers. He referred the Court to an affidavit of one Scott Hazell filed on 5 August 2020. Mr Hazell, at paragraph [1] of his affidavit, swore as follows:

   “1. I am the ILP Legal Practitioner Director (Main) of RBG Services Pty Ltd (trustee of the RBG Services Trust) trading as RBG Lawyers (‘the Firm’). As such, I have access to and control over the books and records of the business of the Firm including the files of the Firm relating to the matters discussed in this affidavit.” 

7. At paragraph [4] of his affidavit, Mr Hazell swore that Mr Rodgers was a former director of the firm RBG Lawyers who was, at the time of the swearing of his affidavit, a consultant to such firm.

8. The Court asked for submissions from the applicant on the question as to whether or not the material before the Court demonstrated that the subpoena filed on 15 August 2019 had been issued against the incorrect entity. The applicant responded by asserting that because the subpoena had been directed to Mr Rodgers ‘of RBG Lawyers’ it had been correctly directed to RBG Lawyers. The Court does not accept such submission. The production of documents by a non-party to proceedings under compulsion of a subpoena is a serious obligation which impinges upon private rights. The filing of a subpoena by parties must be done in circumstances where due regard has first been had to the identification of the correct entity or entities which relevantly had power, possession or control of documents which are sought to be produced by way of subpoena. So much is fundamental for there to be a due administration of justice. In Riddick v Thames Board Mills Ltd 1977 QB 881 at 896 Lord Denning MR said:

   “Compulsion [to disclose on discovery] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires.”

9. The Court accepts the evidence of Mr Hazell that at all material times it was RBG Services Pty Ltd, in its capacity as trustee for the RBG Services Trust, which carried on the business of the firm RBG Lawyers. Mr Hazell further submitted that as a subpoena had not been directed to RBG Services Pty Ltd, or to the firm, neither RBG Services Pty Ltd nor the firm was under an obligation to produce any documents to the Court. [1] Notwithstanding that assertion, Mr Hazell at paragraphs [9] – [15] of his affidavit, helpfully annexed documents which he considered the firm RBG Lawyers would have been required to produce had a subpoena been properly directed to the firm or to RBG Services Pty Ltd. Those annexures, sequentially, related to the documents respectively requested at paragraphs [2] – [8] of the schedule to the subpoena.

   [1]        Paragraphs [6] – [8] inclusive of Hazell Affidavit

10. Documents sought by the applicant at paragraphs [9] and [10] of the schedule to the subpoena had been bundled together by Mr Hazell, but were not produced on the ground of client/lawyer privilege.

11. Mr Rodgers submitted that Mr Hazell had done all that which would have been required of the firm had a subpoena been properly directed to it. In the circumstances, he asked that the application in a case filed on 17 June 2020 requiring him to comply with a subpoena for the production of documents be dismissed.

12. The Court finds that the subpoena filed on 15 August 2019 was erroneously directed to Mr Rodgers, who was not relevantly the appropriate entity which had power, possession or control of the documents sought by the applicant. There was therefore no lawful requirement made of Mr Rodgers requiring him to respond to the subpoena as filed.

13. Submissions made by both parties on the question of service of the subpoena were not needed to be addressed in the light of the Court’s finding as to the erroneous identification of the relevant entity for the purpose of the production of documents listed in the table to the subpoena.

14. The application in a case filed by the applicant on 17 June 2020 is unmeritorious and is dismissed. 

15. Notwithstanding the above findings of the Court, Mr Rodgers did not file a notice of objection to the subpoena as he should have done pursuant to the provisions of Rule 15A.14(1) of the Federal Circuit Court Rules 2001 (Cth). Had he done so, matters would most likely have been resolved/regularised in relation to the enforceability of the subpoena filed on behalf of the applicant at a far earlier time than at today’s hearing.

16. The Court is not minded to make any costs order in the light of such non-compliance by Mr Rodgers.

17. It is ordered accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 11 August 2020