Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd

REASONS FOR JUDGMENT 1 There are two matters presently before the Court. The first is a Notice of Motion filed in Court at or about 11.30 am today, which was made returnable instanter. That motion is pressed in respect of the first prayer for relief. The first prayer for relief seeks an order that the hearing date of 30 March 2009 be vacated. In relation to that Notice of Motion, an affidavit was filed in Court today of Warren Perry Anderson, sworn 18 March 2009. Paragraph 22 of the affidavit provides as follows: '22. … the Applicant has not been able to put John de Mestre & Co in funds on account of their anticipated costs and disbursements of the hearing in these proceedings, nor has the Applicant been able to pay outstanding counsels' fees of $20,667.74 in these proceedings.' 2 By a Notice to Produce dated 19 March 2009, the respondent required the applicant to produce for inspection at 11.30 am today the following documents: '1. All counsel's fee notes, totalling $20,667.74, referred to in paragraph 22 of the Affidavit of Warren Perry Anderson sworn 19 (sic) March 2009.' 3 During the course of the directions hearing this morning, in respect of the first Notice of Motion to which reference has been made, a further Notice of Motion was filed in Court, which was made returnable instanter, which sought an order that the Notice to Produce served by the respondent on the applicant on 19 March 2009 be set aside. The principles relating to circumstances in which it is appropriate for a Notice to Produce inter partes to be set aside, are to be found in the judgment of Moffitt P in Waind v Hill and National Employers' Mutual General Association Limited (1978) 1 NSWLR 376 at 381-2. 4 The first argument advanced by the respondent in support of the second Notice of Motion is that the documents sought are 'irrelevant to the application'. Relevance is not an issue which arises in relation to the first step in relation to a subpoena. The first step is: should the documents be produced to the court? The second step is should documents which have been produced to the court be the subject of an order for access in favour of another party? And the third step, if one can appropriately call it that, is whether or not, if tendered, documents that have been obtained on subpoena are admissible in evidence. 5 The only basis on which lack of relevance can justify non-production of documents in response to a subpoena or Notice to Produce is if the subpoena or Notice to Produce is oppressive. The illustration provided by Moffitt P was one where a bank was required to produce all cheques received by it in a particular year in order to find, if it exists, a cheque of a party in a false name. This is not such a case where the documents, the production of which are sought, fall into a category such as that illustrated by his Honour. If, indeed, the documents have no relevance, one might question why it was that the applicant saw fit to make reference to the summary effect of the documents, in the affidavit which is to be relied upon. 6 In my opinion, no proper ground for setting aside the Notice to Produce has been advanced. 7 The second question raised is whether or not the documents are privileged from production on the ground of legal professional privilege. This is an issue which arises only in respect of the second step in relation to a subpoena or notice to produce. In any event, privilege is only available in respect of confidential communications, be they in the form of instructions provided to counsel, or advice provided by counsel. I have some difficulty in seeing how fee notes for services rendered can be privileged unless they contain the advice for which the privilege is claimed. 8 The fact that, theoretically, it may be possible that advice is to be found in the fee notes, is not a proper basis for setting aside the notice to produce. Any question of privilege would only arise after the documents had been produced to the Court and before access was afforded to the other party, of the documents in question. 9 In my opinion, there is no proper basis upon which the Notice to Produce, dated 19 March 2009, should be set aside. 10 These proceedings were commenced by an application filed 5 July 2007. The application was accompanied by a Statement of Claim filed on the same day. On 23 August 2007, the applicant filed an Amended Statement of Claim and on 15 November 2007, the respondent filed its Defence to the Amended Statement of Claim. 11 On 11 December 2007, the respondent filed a Notice of Motion seeking orders for security for costs, and on 1 February 2008, the applicant filed a Notice of Motion seeking summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) in respect of part of its claim. The amount for which summary judgment was sought was $309,455. 12 On 4 February 2008, the Notice of Motion filed 11 December 2007 came before the court. That motion was stood over to 10:15am on 6 February 2008. On 6 February 2008, the Court was informed at about 12:10pm that the security for costs issue had been resolved, that an agreement had been reached between the parties and that the agreement had been reduced to writing. 13 On 6 February 2008, the Court ordered that the applicant give security for the payment of the respondent's costs that may be awarded against the applicant in accordance with paragraphs one, two, three and four of short minutes initialled by me and dated 6 February 2008. 14 The Court also noted the agreement of the parties contained in paragraphs five and six of those short minutes, in relation to any default on the part of the applicant. The Short Minutes took the form of a manuscript agreement on a letterhead of the solicitors for the respondent, or more accurately, a document bearing the printed name of the solicitors for the respondent. The agreement was signed by Mr Nicholas Mavrakis, as solicitor for the respondent, and by Fiona Touhill, as solicitor for the applicant. The agreement was dated 6 February 2008. Paragraph 4 of the short minutes provided as follows: '(4) The Applicant to provide a further unconditional bank guarantee in favour of the Respondent in the amount of $125,000 on or before a date being 14 days prior to the date upon which the matter is first listed to commence hearing.' 15 In respect of a possible non-compliance by the applicant with paragraph 4 of the short minutes which was the subject of an order made by the court, the parties agreed as follows: '(6) In respect of order 4, if the Applicant fails to provide to the Respondent the unconditional bank guarantee referred to therein: (1) on the date specified therein, the parties agree that the trial be vacated with an order as to costs thrown away in favour of the Respondent; (2) further if the Applicant continues to be in default of Order 4 for a period of 7 days after the security was due to be provided then the Applicant consents to a verdict being entered in favour of the Respondent with an order for costs in respect of the proceedings' 16 On 7 April 2008 the applicant's Notice of Motion filed 1 February 2008 seeking summary judgment in respect of part of its claim was heard by the Court and on 9 April 2008 an order was made dismissing that Notice of Motion and ordering the applicant to pay the respondent's costs of the motion. On 7 April 2008 an order was made provisionally fixing the matter for hearing on Monday, 30 March 2009 with an estimate of 3 weeks, but on the basis that the hearing would continue until concluded. 17 On 4 November 2008 an order was made that the matter be fixed for hearing commencing on Monday, 30 March 2009 at 10:15am with an estimate of 15 hearing days but on the basis that the hearing would proceed until the matter was concluded. 18 The parties are agreed that the date on or before which the applicant was required to provide a further unconditional bank guarantee in favour of the respondent in the amount of $125,000, referred to in paragraph 4 of the short minutes, was 16 March 2009. 19 By its Notice of Motion filed in Court today the applicant seeks an order that the hearing date of 30 March 2009 be vacated and, amongst other orders, an order that the applicant pay the respondent's costs thrown away as a result of the vacation of the hearing date. This relief was sought on the basis that the applicant failed to provide to the respondent the unconditional bank guarantee referred to in paragraph 4 of the short minutes on or before 16 March 2009 and the agreement of the parties contained in paragraph 6(i) of the short minutes, which was noted by the Court on 6 February 2008. 20 A further basis on which a vacation of the hearing date has been sought relates to a source of funding, referred to in an affidavit of Warren Perry Anderson sworn 18 March 2009, which was said to have been frozen. 21 Whilst it is true that the Court will not necessarily vacate hearing dates by agreement of the parties this is a case where the parties, provided for an agreed vacation of the hearing date in circumstances which have come to pass and which agreement the Court noted as long ago as 6 February 2008. 22 When the Notice of Motion was called for hearing, seeking a vacation of the hearing date, senior counsel for the respondent indicated that whilst the respondent accepted and acknowledged the terms of its agreement with the applicant of 6 February 2008 contained in paragraph 6 of the signed short minutes, nevertheless, it opposed the grant of relief as sought by the applicant. After taking further instructions in relation to the matter the respondent withdrew its opposition to the making of the orders sought. 23 In my opinion it would be quite inappropriate for the Court to act otherwise than in accordance with the agreement of the parties, which it noted as long ago as 6 February 2008. 24 It is unnecessary to consider whether, independently of the agreement, it would be appropriate to vacate the hearing date on the basis of the evidence, such as it is, of the impecuniosity of the applicant and its inability to fund its litigation, even though it has, through to February 2009, actively pursued its case and filed witness statements in support of that case. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.