ZN v Australian Red Cross Society

[2002] NSWSC 697

CITATION:	ZN v Australian Red Cross Society & Anor [2002] NSWSC 697
FILE NUMBER(S):	SC 20960/95
HEARING DATE(S):	2 August 2002
JUDGMENT DATE:	14 August 2002
PARTIES :	ZN - Plaintiff Australian Red Cross Society - 1st Defendant Central Sydney Area Health Service - 2nd Defendant Slater and Gordon, Solicitors - applicant for 2nd notice of motion
JUDGMENT OF:	Simpson J

COUNSEL :	MJ Cranitch SC - Plaintiff S Woods - Defendants MJ Joseph - Applicant for notice of motion
SOLICITORS:	Marsdens Law Group - Plaintiff Frances Allpress - Defendants Slater & Gordon - Applicant
CATCHWORDS:	Professional Negligence List - Supreme Court Rules Part 6, Part 13, Part 14C and Part 33 rule 6 - production of materials by subpoena - access to materials obtained for common purpose
LEGISLATION CITED:	Supreme Court Rules 1970 Limitation Act 1969
CASES CITED:	Sampson v Zucker NSWCA; unreported, 11 December 1996 Woods (trading as Turner Freeman) v Hanoldt NSWCA; unreported, 9 March 1995 Commissioner for Railways v Small (1938) 38 SR(NSW) 564
DECISION:	(i) the defendants' notice of motion is dismissed with costs; (ii) the notice of motion filed on behalf of Slater and Gordon is dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE list

SIMPSON J

14 August 2002

20960/95 ZN v AUSTRALIAN RED CROSS SOCIETY
& ANOR
JUDGMENT

1 SIMPSON J: There are two notices of motion before the Court. In the first, the defendants, the Australian Red Cross Society and the Central Sydney Area Health Service, seek orders that proceedings commenced by the plaintiff by statement of claim filed on 22 February 1995, be (in whole or in part) dismissed or, alternatively, struck out. Three different bases were advanced for the orders sought.

2 The second notice of motion was filed on behalf of a firm of solicitors (Messrs Slater and Gordon), strangers to the proceedings, who previously represented the plaintiff. In that notice of motion an order is sought setting aside, in part, a subpoena served on behalf of the plaintiff upon Slater and Gordon.

3 Although the two notices of motion were heard consecutively (the notice of motion seeking that the statement of claim be dismissed or struck out being heard first), evidence that was read in the first but not formally read in the second was referred to in the argument concerning the subpoena. For the purpose of the second notice of motion, therefore, I propose (as I advised counsel and as was accepted by them) to treat the evidence read in the first as evidence in the second. The reverse is not the case. Evidence tendered in the hearing of the second notice of motion is neither relevant to, nor available to be used in relation to, the determination of the first notice of motion.

background

4 In November 1994 the plaintiff contacted Slater and Gordon in relation to a proposed claim against the defendants. The claim arose out of a blood transfusion, or a series of blood transfusions, administered to him between 1988 and 1990, as a result of which, he alleges, he contracted hepatitis C. He alleges that both defendants were professionally negligent in the treatment they gave him. On 25 September 1995 he received a letter from Slater and Gordon advising him that proceedings had been issued in this Court against the first defendant and “the Royal Prince Alfred Hospital”. Slater and Gordon added that, as they did not know when he had contracted the infection, they had filed, as a protective measure, “a document” requesting an extension of time in which to bring his claim. They said that they were reviewing the cases of all clients for whom they acted with a view to choosing a number to run as test cases within the following two years, gathering evidence for such test cases, and talking to medical experts to assist in the preparation of the cases. They said they did not intend to take any further action in relation to the plaintiff’s claim at that time, while the test cases were being prepared for trial.

5 On 28 April 1998 the plaintiff signed a costs agreement. It will be necessary, in considering the second notice of motion, to make further reference to the contents of this agreement.

6 The plaintiff’s case was one of a group of cases (the final size of the group is not clear) with common elements. Five of the group were selected as test cases, with a view to a joint hearing on liability in late 1998. Slater and Gordon began to assemble the necessary evidentiary material to prosecute the test cases. A great deal of material was so acquired.

7 In September 1998 the plaintiff met with Mr Richard O’Keefe, the Slater and Gordon solicitor handling his claim. Mr O’Keefe told him that the firm had reached agreement with the GIO (presumably, the insurance company representing the defendants) and that the plaintiff would not, pursuant to that agreement, receive any compensation or award of damages. The plaintiff refused to sign a proffered release form. The solicitor told him that Slater and Gordon would no longer act for him. Slater and Gordon confirmed this by letter to the plaintiff dated 17 September 1999. On 1 October 1999 they filed a notice of ceasing to act.

8 Thereafter, at different times, the plaintiff was represented by at least two firms of solicitors before his present solicitors became involved. One firm, retained by him in June 2000, told him in early 2002 that they were no longer able to represent him. It is not clear how the retainer of the other firm (the third to represent him) was terminated.

9 Particulars of the plaintiff’s claim were provided and statements of defence filed and served. In December 1995 the defendants filed a notice to set down for trial.

10 By letter dated 1 May 2000 the solicitors for the defendants wrote to the plaintiff, inviting him to discontinue the proceedings on the basis that, if he did so within twenty-one days, they would not seek costs against him; and advising that if he did not accept the offer or take any further steps in proceedings within twenty-one days, they would seek to have the proceedings dismissed “for want of prosecution or inactivity”.

11 The matter was listed for directions on 7 September 2001, when the defendants announced that they were ready to proceed to trial. The plaintiff was not. He did not have expert reports to support his claim.

12 On 14 December 2001 the plaintiff was ordered to file and serve expert evidence by 15 March 2002. The matter was adjourned to 5 April 2002. On 11 January 2002 the plaintiff’s former solicitors served on Slater and Gordon a subpoena requiring production of:

“1. All medical reports obtained in relation to the Plaintiff.
2. Copies of answers to particulars requested by the Defendant (sic).
3. Copies of research into the factual basis of the Plaintiff’s claim.
4. Copies of any expert reports relevant to the Plaintiff’s claim.”

13 By letter of the same date Slater and Gordon responded, saying that they had already produced all the material in their possession relating to the plaintiff, and that they considered the request for the materials sought by paragraphs 3 and 4 to be “fishing”. They advised of their intention, if the plaintiff’s solicitor persisted in calling on the subpoena, to seek to have it set aside.

14 On 24 December 1998 Part 14C was introduced into the Supreme Court Rules. The effect of Part 14C was to create and regulate the Professional Negligence List. By rule 6(1) a party instituting a professional negligence claim is required to file and serve, with the statement of claim, expert reports relevantly including opinions supporting:

(a) the plaintiff’s allegations of breach of duty of care against each person sued for professional negligence;

(b) the general nature and extent of damage alleged;

(c) the causal relationship alleged between the breach of duty or obligation and the damage alleged.

15 At the time of the commencement of the plaintiff’s claim, Part 14C had not been introduced, and the Professional Negligence List did not exist. However, rule 3(3) permitted the Court to order entry in the List of pre-existing professional negligence claims. In relation to the plaintiff’s claim, such an order was made on or about 21 March 2001.

16 By rule 6(2), within twenty-one days of an order being made under rule 3(3), a plaintiff making a professional negligence claim must file and serve a report or reports of the kind contemplated by rule 6(1). It was common ground that the plaintiff did not file any such report within twenty-eight days of the rule 3(3) order being made, or, indeed, at any time prior to 1 August 2002. The adequacy of a report that was ultimately served is one of the issues raised by the defendants’ notice of motion.

the first notice of motion

17 The first notice of motion was filed on behalf of both named defendants, to seek orders that the proceedings be dismissed generally, that they be dismissed in a particular respect, or that they be struck out.

18 The defendants resorted to a variety of Supreme Court rules as authority for the orders sought. These are:

(i) Part 13 rule 5(1) which is in the following terms:

“ [13.5] Frivolity, etc
5 (1) Where in any proceedings it appears to the court that in relation to proceedings generally or in relation to any claim for relief in the proceedings -
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”

Specific reliance was placed upon rule 5(1)(b), it being asserted that the proceedings are frivolous or vexatious.

(ii) Part 33 rule 6, which relevantly provides:
“(1) Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.
(2) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion stay or dismiss the proceedings.”
(iii) Part 14C rule 6(4) which provides:
“(4) If a party fails to comply with subrule (1), (2) or (3), the Court may by order, on the application of a party or of its own motion strike out the whole or any part of the proceedings … as may be appropriate.”

(i) SRC Part 14C rule 6(4): the failure to file and serve expert reports

19 The only expert report provided on behalf of the plaintiff is a report of Dr Christopher Vickers, dated 19 July 2002. It was served as an annexure to an affidavit sworn by the plaintiff in response to the defendants’ notice of motion. Dr Vickers identifies himself as a consultant physician, gastro-enterologist and specialist in liver disorders. His report took the form of answers to specific questions asked of him by the plaintiff’s solicitors in their letter of instruction. These questions did not specifically address the matters mentioned in rule 6(1).

20 The criticism made on behalf of the defendants is not directed to the delay in the provision of the report, but, more fundamentally, to what is asserted to be its failure to address the subrule (1) issues. In effect, the submission was that, while an expert report was provided, it was not an expert report within the meaning of rule 6(1). Particular omissions, it was argued, are:

(i) there was nothing in the report directed to the liability of the second defendant;

(ii) the report does not deal with the plaintiff’s medical condition, as required by rule 6(1)(b);

(iii) the report fails to deal with questions concerning any causal relationship between the breach of duty alleged and the damage alleged, as required by rule 6(1)(c).

21 By way of contrast, counsel for the defendants pointed to a report filed on their behalf, of Professor Paul Holland. The argument was that Dr Vickers’ report failed to meet any of the issues raised by Professor Holland. I reject this submission. What the rule requires is, not a locking of experts’ horns, but expert opinion on the three matters identified.

22 There is, however, considerable substance to the other criticisms made of Dr Vickers’ report.

23 Counsel for the defendants conceded that the report does include an opinion supporting the breach of duty of care alleged by the plaintiff against the first defendant and this was a concession clearly properly made. However, he argued that the report did not allude to the general nature or the extent of the damage alleged nor the causal relationship between the breach of duty alleged and the damage alleged. This is a fair criticism. Plainly, the defendants are entitled to be provided with an outline of the expert opinion upon which the plaintiff will rely to establish his case against them. This includes, as well as liability issues, questions relating to causation and damage. Plainly, in my view, this has not yet happened. That there is, as yet, no report dealing with the liability of the second defendants is a matter of considerable significance. But the real question is whether, at this stage, and in all the circumstances, I should take the drastic step of striking out the plaintiff’s claim as a result of this omission.

24 I am confident that it would not at present be appropriate to do so, although, if the plaintiff is not able, within a reasonable time, to comply with his obligations, fairness and justice will demand that the power be exercised. At this stage I decline to exercise the power conferred by SCR Part 14C rule 6(4). I propose, however, to allow the plaintiff a limited time in which to bring his claim into order.

(ii) SCR Part 33 rule 6: want of prosecution

25 Counsel for the defendants argued that there has been no, or virtually no, progress in the plaintiff’s claim since the termination of his relationship with Slater and Gordon. According to the evidence, that relationship ceased as a result of the letter written to the plaintiff by Slater and Gordon on 17 September 1999, or, at the latest, at the time Slater and Gordon filed a notice of ceasing to act, on 1 October 1999. Until the filing of the plaintiff’s affidavit on 1 August 2002, containing, inter alia, the report of Dr Vickers, nothing has been done that advances the plaintiff’s case. Counsel referred to paragraph 16 of the plaintiff’s affidavit in which he deposed to having received a letter from GIO, in late 1999 or early 2000, warning him of their intention of filing a notice of motion seeking orders striking out his claim. Counsel contrasted this with the activity on behalf of the defendants deposed to in an affidavit of Darrell Kake, a legal clerk in the employ of the solicitor for the defendants. This shows that in April 2001 the defendants served nine expert reports on the plaintiff’s then solicitors; that the matter had been listed in the Court on 7 September 2001 when the defendants’ counsel advised that the defendants were ready to proceed; that the plaintiff had been directed to file his expert evidence by 15 March 2002, but had failed to do so; and that no real reason for the delay had been advanced on behalf of the plaintiff. The last mentioned matter perhaps overstates the position. In his affidavit the plaintiff has given quite extensive evidence setting out the history of his attempts to secure legal representation and this is sufficient to permit an inference that it is his difficulties in doing so that have largely been the cause of the delay.

26 Nevertheless, fairness to both parties requires that the defendants not be put to further expense if the plaintiff is not able to marshal a case.

27 The principle upon which the discretion to dismiss proceedings for want of prosecution is to be exercised have been discussed on many occasions and are referred to in Ritchie: Supreme Court Procedure (NSW) in the note to Part 33 rule 6. It is unnecessary to restate them.

28 I have concluded that the evidence given by the plaintiff concerning the fluctuations in his legal representation provides an adequate (though barely so) explanation for the lack of progress since 1999. However, it is plain that this state of affairs cannot be permitted to continue. It is apparent from what I have said that the defendants have put themselves to considerable expense in preparing themselves to deal with the plaintiff’s allegations, and this, no doubt, also encompasses considerable inconvenience, and demands upon the time of their employees. The plaintiff cannot be permitted to maintain a position which causes such expense and inconvenience while making no apparent progress himself.

29 As with the application under Part 14C rule 6(4), I consider that the time is not yet right to exercise the discretion upon which the defendants rely, although, it must be said, that time is not far away.

(iii) SCR Part 13 rule 5: frivolous, vexatious

30 The argument put in relation to this claim was quite different. It is necessary to state some further facts. As I have said, the plaintiff claims to have received blood transfusions between October 1988 and August 1990. However, it seems that the scope of the allegations has been narrowed, and that those now relied upon as the relevant transfusions were administered to him between October 1998 and February 1989. The statement of claim was filed on 22 February 1995.

31 As a result, each defendant pleaded a defence under the Limitation Act 1969.

32 Reliance was placed upon s63 and s18A of that Act.

33 It seems to me that reliance on both of these sections is misplaced. S18A applies a limitation period of three years to claims for damages for personal injury founded on negligence. However, the section specifically excludes causes of action that accrued before 1 September 1990. The limitation period provided by s14 appears to be the relevant limitation period, and is of six years. In fact, the defendants’ submissions were based upon a six year limitation period and I am unable to see the relevance of s18A as pleaded.

34 S63 provides that, on the expiration of a limitation period fixed by the Act, the cause of action is, effectively, extinguished.

35 The argument put on behalf of the defendants was that the plaintiff’s claim is clearly statute barred because the transfusion or transfusions took place more than six years prior to the issue of the statement of claim. In my opinion this proposition is untenable. For example, Division 2 of Part 3 of the Act provides for the postponement of the bar in certain circumstances, including any period in which the person claiming to have the cause of action is under a disability, for the duration of that disability.

36 There was no evidence in the proceedings before me to establish either that the plaintiff was or was not a person under a disability.

37 Counsel for the defendants argued that, having regard to the pleadings, the onus lay on the plaintiff to seek an extension of time, pursuant to Division 3 of Part 3.

38 I reject this proposition. It was always open to the defendants to seek determination of the limitation defence as a separate question pursuant SCR Part 31. Counsel for the defendants frankly acknowledged that the reason this course had not been taken was tactical and contended that it was the plaintiff who should initiate action in relation to the defence. They relied upon the judgment of the NSW Court of Appeal in Sampson v Zucker, unreported, 11 December 1996, as support for the proposition that the summary dismissal provisions were available for use in such a case. As I have indicated, I reject the contention that those rules are appropriate for the present case. The plaintiff’s claim is not frivolous or vexatious by reason of an issue joined between the parties as to the existence of a defence under the Limitation Act 1969.

39 For the reasons I have given I will dismiss the defendants’ notice of motion. It will, however, be necessary for the parties (if possible) to agree upon a timetable for the further prosecution of the plaintiff’s claims. I will therefore direct the parties to bring in short minutes of order to that effect.

40 In doing so, it will be necessary for the defendants, as well as the plaintiff, to have regard to the issues, and the determination, of the second notice of motion.

the second notice of motion: the subpoena

41 Evidence in support of the notice of motion filed on behalf of Slater and Gordon was given in affidavit form by a solicitor in the employ of that firm, Ms Berberian. Ms Berberian deposed to the selection of five cases to proceed to trial as test cases. The plaintiff’s case was not among these. She deposed that, in preparation for those test cases, approximately thirty-three boxes of documentary evidence were assembled. Importantly, she deposed:

“All expert material in relation to liability was directed at the ‘test cases’. These documents consisted of reports and supporting literature for the ‘test cases’.”

42 Accordingly, on behalf of Slater and Gordon it was contended that the plaintiff in these proceedings had no entitlement to access to that material. It was not his material, and was not obtained for the purpose of his claim.

43 In those circumstances, Slater and Gordon relied upon the decision of the NSW Court of Appeal in Woods (trading as Turner Freeman) v Hanoldt, unreported, 9 March 1995. That case involved a claim for personal injury arising out of exposure to asbestos. Litigation of that kind is conducted before the Dust Diseases Tribunal of NSW. Many such claims are filed in the Tribunal. Certain firms of solicitors have developed considerable expertise in the preparation and conduct of such matters. Further, such firms of solicitors have accumulated, as a result of the preparation of cases, a considerable bulk of relevant material, much of it expert material.

44 The appellants were the members of such a firm of solicitors. Mr Hanoldt made a claim for personal injury resulting from exposure to asbestos. He was represented by a solicitor who was entirely inexperienced in the field. Mr Hanoldt’s solicitors served a subpoena on the appellants requiring the production of a large number of the documents that had been accumulated by them for the purpose of conducting the litigation of their own clients. The appellants sought to have the subpoena set aside. The Court of Appeal did so. Clarke JA, with whom Meagher and Handley JJA agreed, said, inter alia:

“In my opinion it is not a proper use of the coercive powers of the Court to seek to obtain in the circumstances of this case the production of documents brought into existence for specific litigation at the cost of the litigant for use in other, unassociated, litigation between different parties and presumably, involving completely different factual issues. The highest that the respondent can put its case is that the material may be of some relevance to the issue concerning the knowledge that the defendant had, or ought to have had, of the dangers of asbestos at varying periods of time. No doubt if the respondent wished to obtain the views of [the experts who had provided reports] on the subject he could have retained them as experts but, as it seems to me, it is not a proper use of Court process to endeavour to obtain access to their views in the manner adopted in this case. The procedure was, in my opinion, quite irregular.”

45 A little later, his Honour referred to an article on “Discovery of Documents” which appeared in 107 Law Quarterly Review 370. His Honour quoted:

“If a party’s solicitor can secure useful material, not by his own efforts, but simply by raiding that secured by the solicitor for the opposing party, then neither will have much incentive to individual diligence in gathering together such material, at least before the trial. As McGuire once said ‘…We must not let the drones sponge upon the busy bees. Otherwise it would not be long before all lawyers became drones.’ (Evidence: Common Sense and Common Law (1947) at 91)”

46 Clarke JA proceeded to say:

“That is entirely apt and while it expresses no principle of law it is good sense. Solicitors should not, as a general rule, be permitted to secure by subpoena the fruits of the labour of other solicitors, thereby avoiding the necessity to undertake for themselves the burden of securing evidence for presentation at a trial, particularly where there is a readily available source which involves the invasion of no-one’s rights.
There is, it seems to me minimal, or no, public interest in requiring that the appellants comply with the subpoena. On the other hand there are strong arguments against compliance based on the invasion of private rights and a public interest that solicitors carry out their work diligently without fear that the products of their endeavours will become available to any other practitioners who seek to secure them. …
‘Historically, a lawyer is an officer of the Court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsels. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways – aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer’. Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trials. The effect on the legal profession would be demoralising. And the interests of the clients and the cause of justice would be poorly served.
We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye towards litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.’ …”. (The last two paragraphs of this extract were themselves quoted from Hickman v Taylor (1946) 329 US 495 at 510.)

47 There are certain distinctions between Hanoldt and the present case. Mr Hanoldt was a complete stranger to the litigation for the purposes of which the material he sought on subpoena had been assembled. He had had no professional relationship with the solicitors who had assembled that material. He had not made the slightest financial contribution to it, nor any commitment to date. His attempt to secure the benefit of the labours of another firm of solicitors, which had been performed, no doubt, at the expense of other litigants could, without exaggeration, be described as cheeky or presumptuous.

48 In the present case, however, the attempt to obtain the material assembled by Slater and Gordon could not, in my opinion, be so described. The plaintiff had been a client of Slater and Gordon from November 1994 until Slater and Gordon terminated the professional relationship in 1999. He had been one of the group on whose collective behalf the proceedings were to be conducted. There is no doubt in my mind that the proposal to venture into the arena by the use of five test cases was intended to benefit all members of the group, including the plaintiff. I do not accept that the material was assembled only for the benefit of the five plaintiffs whose cases had been selected as test cases.

49 Further, the costs agreement between the plaintiff and Slater and Gordon contained quite extensive provisions for the payment of fees, which were divided into individual fees and group fees. The agreement specified that members of the group whose claims were brought to successful conclusion would be required to contribute towards the costs of the preparation and acquisition of evidentiary material.

50 I do not accept that the decision in Hanoldt is determinative of this issue. This is not a case, as was Hanoldt, in which a complete stranger to a firm of solicitors seeks to plunder the fruits of their labours. Here the plaintiff was entitled to regard himself as, and, indeed, was, one of the persons for whose benefit the material was accumulated. Moreover, for five years, from 1994 to 1999, because of his belief that Slater and Gordon had his matter in hand and were undertaking its preparation and accumulating evidentiary material, he took no alternative steps by way of preparation. That fact alone is indicative of considerable prejudice to the plaintiff if he cannot gain access to the material. Indeed, that is highlighted by the evidence of the employed solicitor from Slater and Gordon that the material amounts to 33 boxes. It may be expected that, if the plaintiff does not gain access to the material, his present solicitors will be obliged to replicate the process already undertaken by Slater and Gordon (in part, on the plaintiff’s behalf), and that that process will be as time consuming for them as it was for Slater and Gordon.

51 Accordingly, I will not set the subpoena aside on the authority of Hanoldt.

52 Relying on the authority of the Commissioner for Railways v Small (1938) 38 SR(NSW) 564, counsel for Slater and Gordon also argued that the subpoena should be set aside as being too wide; as, in effect, requiring discovery; and as requiring the recipient to make a judgment about the relevance of documents to the plaintiff’s claims. It was also argued that, particularly in relation to paragraph 3, there was a lack of clarity as to what was actually sought.

53 In Small’s case, the full Court of this Court made some well known observations concerning the particularity with which documents referred to in a subpoena, whether addressed to a party or a stranger, are to be identified. It is unnecessary to dilate upon what was said in that case.

54 The circumstances of this case are unusual. Here, the subpoena is addressed to a firm of solicitors who held instructions to act for the plaintiff in the very claim the subject of the subpoena, for a period of more than five years. It is, in my opinion, disingenuous to suggest that they are unable to be certain of what is meant by the two paragraphs in the schedule to the subpoena. It was not suggested, for example, that the plaintiff’s claim is markedly different to any of the others that constituted the group with which Slater and Gordon dealt, in such a way as to require a judgment about the particular relevance of particular documents. The peculiar position of Slater and Gordon is a relevant and significant factor in assessing the merit of their objection to the production of the documents. A final argument was that the subpoena constitutes a fishing expedition in that the plaintiff does not know whether or not there was any such research. Slater and Gordon’s own evidence puts paid to that argument: the solicitor deposed that there were 33 boxes of documents. But, in any event, it could reasonably be inferred that, over the period of five years during which Slater and Gordon represented the plaintiff, they did engage in relevant research and preparation.

55 I am of the opinion, for the reasons I have given, that the plaintiff is entitled to the production of the material he seeks. The notice of motion filed on behalf of Slater and Gordon will, accordingly, be dismissed with costs.

56 The orders I make are:

(i) the defendants’ notice of motion is dismissed with costs;

(ii) the notice of motion filed on behalf of Slater and Gordon is dismissed with costs;

(iii) the parties are to bring in short minutes of order containing directions for the future progress of the plaintiff’s claim against the defendants.

ADDENDUM

I vacate the order I have made to the extent that I have ordered costs against the defendants, and I grant the parties liberty to file and serve evidence in relation to the costs question.

I will stay the operation of the order in relation to Slater and Gordon’s notice of motion until 28 August 2002.

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Last Modified: 08/15/2002