Attwells v White

Supreme Court of NSW|2021-02-23|Before: Adamson J

Solicitors: L C Muriniti & Associates Solicitors (Plaintiff) Gilchrist Connell (First Defendant) Mills Oakley (Second Defendant) File Number(s): 2017/382284

Introduction

By notice of motion filed on 12 February 2021, Gary White (the first defendant) moved to set aside a notice to produce addressed to the first defendant which was said to have been filed on 18 December 2020 by Noel Attwells (the plaintiff). The plaintiff resisted the order sought in the notice of motion. Although the notice of motion refers to a notice to produce filed on 18 December 2020, the Court record shows that the notice to produce was filed on 22 December 2020. The coversheet of the notice of motion refers to the notice to produce filed on 22 December 2020. It was plain from the parties' submissions that the identity of the notice to produce under challenge was common ground.
The application arises in the context of proceedings brought by the plaintiff against the first defendant, his former solicitor, and the second defendant, his former barrister, for damages for alleged negligence in providing advice to the plaintiff to bring proceedings against his former solicitors, Jackson Lalic Lawyers Pty Ltd (Jackson Lalic).

The procedural background and evidence relevant to the application

The proceedings have a long history. For present purposes, they can be summarised relatively briefly.
On 18 December 2017, the plaintiff filed a statement of claim in the District Court. On 18 June 2018, the District Court ordered that the time for service of the statement of claim be extended to 28 September 2018.
On 25 September 2018 the plaintiff served a notice to produce on the first defendant, which was filed on 26 September 2018. The notice to produce required production of the following documents: "1. Any claim for or documents communicating a claim or circumstances likely to give rise to a claim filed with and/or made on Lawcover by you. 2. Any and all correspondence between the Second Defendant and the First Defendant in connection with the Jackson Lalic matters in connection with Noel Attwells or any proceedings or claim(s) in connection with Noel Attwells during the period from 1 August 2015 to the date of this Notice to Produce. 3. All documents and/or correspondence (whether in electronic or in hard form) passing between Lawcover and the First Defendant (either way) and between Gilchrist Connell and the First Defendant (either way). 4. Your current passport and any other passports held by you in the last 10 years."
By notice of motion filed on 10 October 2018, the first defendant moved to set aside the notice to produce. So far as the evidence reveals, the notice was not called upon. The motion appears not to have been pressed, heard or withdrawn.
By letter dated 17 October 2018, the first defendant's solicitors wrote to the plaintiff's solicitors as follows: "We refer to our letter of 8 October 2018 and our client's Notice of Motion filed on 10 October 2018 (Motion). Our client maintains his objection to your client's Notice to Produce to Court dated 25 September 2018 (Notice), as outlined in our letters of 28 September 2018 and 8 October 2018 and in our client's Motion, on the basis that it is an abuse of process and liable to be set aside. However, without prejudice to that position, please find enclosed by way of informal production, copies of the following: 1. Paragraph 1 of the Notice: (a) Letter from Gary White to Lawcover dated 28 July 2018 (redacted on the basis of confidentiality and relevance); and (b) Email from Tony Reynolds to Gary White dated 30 July 2018 (redacted on the basis of confidentiality and relevance). 2. Paragraph 4 of the Notice: (a) Passport of Gary White dated 24 July 2017 (5 pages). In light of the above, the only paragraphs of the Notice which remain in issue are paragraphs 2 and 3, which are to be addressed by our client's Motion. We are also producing a copy of this letter and its enclosures to the Court."
The unredacted portion of the letter from Gary White to Lawcover dated 28 July 2018, which was said to fall within paragraph 1 of the notice, said: "Dear Sir, RE: GARY ALAN WHITE Trading as WHITES LAWYERS LAW SOCIETY OF NSW ID No 171487 CLAIM BY ATTWELLS I refer to: (a) My telephone call to LawCover on 20 July 2018 which, according to my records, was never returned; (b) My subsequent telephone call to LawCover on 27 July 2018 giving notice of an alleged professional negligence claim made against Whites Lawyers by Noel Bruce Attwells relating to work performed from December 2011 to January 2016. [REDACTED PORTION] Thank you Yours Faithfully [Signed] Gary White"
The unredacted portion of the email from Tony Reynolds to Gary White dated 30 July 2018 said: "Subject: RE: Whites Lawyers/Attwells Claim notification Dear Mr White, thank you for your email providing notification of this claim; I apologise that your call to Lawcover on the 20th of July was not returned. [REDACTED PORTION] Best regards, Tony Reynolds Solicitor, Claims"
On 12 February 2019, the plaintiff filed a further notice to produce on the first defendant. The first defendant subsequently amended his notice of motion (filed on 10 October 2018) by filing an amended notice of motion which sought an additional order that paragraphs 2 and 3 of the notice to produce filed on 12 February 2019 be set aside.
On 11 October 2019, the plaintiff filed an amended statement of claim. By this time the proceedings had been transferred to this Court. The amended statement of claim remains the current pleading. In substance, the plaintiff alleges that the first and second defendants were obliged to advise him that the proceedings against Jackson Lalic had no reasonable prospects of success because there were no reasonable prospects of proving that Jackson Lalic were negligent, or that the alleged negligence had caused loss to Gregory Attwells (the plaintiff's predecessor in title) or Barbara Lord, and that Jackson Lalic would have been entitled to advocate's immunity in any event (paragraph 48 of the amended statement of claim). The plaintiff alleges that the failure by the first and second defendants to give him the advice alleged in paragraph 48 amounted to negligence (paragraph 49 of the amended statement of claim). The plaintiff further alleges that the first and second defendants represented to him that he had reasonable prospects of obtaining substantial damages from Jackson Lalic (paragraph 50 of the amended statement of claim).
On 2 December 2020, the plaintiff served a notice to produce on the first defendant in similar terms to the subsequent version filed on 22 December 2020. By email of that date, the first defendant's solicitors enquired as to the relevance of the documents sought in the notice to produce. By letter dated 10 December 2020, the plaintiff's solicitor purported to identify the forensic purpose of the notice to produce as follows: "Claims documentation The claims documentation is sought for the reason that it customarily and as a matter of obligation sets out the circumstances bringing about the claim, which as you are aware, would a priori include inter alia: 1. (a) What are the basic facts informing the claim and how did it come about according to the First Defendant. (b) Whether the First Defendant or the Second Defendant were in possession of facts which would allow them to conclude that damages could be recovered. (c) Whether the First Defendant indicated what instructions he gave to the Second Defendant and (d) What those instructions were so as to justify reliance upon the Second Defendant's consequent advice. 2. The documents would likely, if not inevitably, contain assertions shedding light as to: (a) What propositions of law or fact the First Defendant relied upon to give the advice which he did to the Plaintiff. It is material whether those propositions accord with, or are inconsistent with those alleged by the Second Defendant in his affidavit sworn August 2020 - (The First Defendant's evidence is silent on what propositions he relied upon and how those propositions, if any, affected his conduct of the Jackson Lalic claim/proceedings). (b) Whether the First Defendant's explanation for the claim shows, or tends to show, that such propositions as the Second Defendant claimed justified his advice (or failures to warn), were conveyed to the First Defendant. The First Defendant claims to have relied upon the Second Defendant entirely - it is material to verify whether he did in fact rely and: (i) What propositions were conveyed to the First Defendant by the Second Defendant for the purpose of that reliance. (ii) Whether the First Defendant ever sought to know the basis of the advice from the Second Defendant that the basis for recoverable damages were $1,500,000, or whether he failed or omitted to make that elementary enquiry.) (c) Whether the First Defendant agreed, or acknowledged to his insurer, that there was a valid claim based on his alleged negligence. If he did not agree, then on what basis did he consider that there was no negligence on his part if he disputed negligence. (d) When in point of time the First Defendant first notified his insurer of circumstances likely to give rise to a claim. (e) Whether and when the First Defendant asserts that he first anticipated a claim arising out of the Jackson Lalic matter, and on what basis, or by reference to what facts or events, he anticipated that claim. (f) Whether the explanation for the claim provided to his insurer indicates, or contraindicates, that the First Defendant had discharged his basic duty to properly consider the basis of the claim against Jackson Lalic and further, or accordingly, whether he was entitled to rely on the advice of the Second Defendant. (g) Whether the First Defendant claimed to his insurer to have in fact relied entirely upon the Second Defendant as he now asserts in his affidavit sworn September 2020. (h) What instructions the First Defendant gave to the Second Defendant concerning Greg Attwells' bankruptcy, and the financial circumstances leading to that bankruptcy, and what impact those matters had on the advice offered or not offered by the First Defendant. (i) Whether the Second Defendant was properly briefed so as to justify the First Defendant's claim to rely upon the Second Defendant's advice. (j) Whether or not the Second Defendant sought instructions from the First Defendant concerning the expected bankruptcy of Greg Attwells or as to the financial circumstances in which that bankruptcy occurred. (It is pleaded that the Second Defendant ought to have contended that he ought to have sought instructions)."
Subsequently, on 22 December 2020, the plaintiff filed a further notice to produce, which is the subject of the present notice of motion. It sought the following documents: "1. Any claim form or other document or documents (whether in hard or electronic form) notifying a claim, or circumstances likely to give rise to a claim against you to your professional indemnity insurer, in connection with: (a) A claim by Noel Attwells or Gregory Attwells against Jackson Lalic Lawyers. (b) The proceedings taken against Jackson Lalic Lawyers in the Supreme Court of NSW. (c)\ Your retainer in connection with the claims by Noel Attwells and/or Gregory Attwells against Jackson Lalic lawyers. 2.\ Any and all correspondence (whether in hard or electronic form) between you and the First Defendant touching and concerning: (a) A claim by Noel Attwells or Gregory Attwells against Jackson Lalic Lawyers. (b) The proceedings taken against Jackson Lalic Lawyers in the Supreme Court of NSW. (c) A claim or expected or possible claim against either or both of the First and Second Defendants arising out of their retainers in connection with the claims by Noel Attwells and/or Gregory Attwells against Jackson Lalic lawyers. such correspondence coming into existence during the period from 1 October 2015 to 30 November 2020."

Consideration

Rules 34.1 and 34.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) entitle the requesting party to require another party to produce to the court "any specified document or thing" in the possession of the other party. The entitlement is qualified by the requirement of a legitimate forensic purpose which is satisfied if there is a reasonable basis to infer that the documents sought will materially assist on an identified issue: see Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [24] (Brereton J). In Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [64] Beazley JA said: "The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: 'The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.'"
Further, if there is a defect in a notice to produce, it is not for the court to redraft it, since the appropriate course is to set aside the notice in full: Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [25] (Basten JA).
Ms Petch, who appeared on behalf of the first defendant, identified two bases on which she contended that the notice to produce ought be set aside. First, she submitted that the notice to produce, in so far as it sought documents in the first category, amounted to an abuse of process on the basis that the first defendant confirmed to the plaintiff some time ago (when it produced certain documents informally in answer to the notice to produce called on in October 2018) that he notified his claim to his insurer orally in July 2018. Secondly, she submitted that the second category was nonsensical because it sought correspondence between the first defendant and himself.
Further, she argued that neither category revealed any legitimate forensic purpose because the documents sought, at best, would evidence the first defendant's state of mind years after the event and could not shed light on the issues in the proceedings. Ms Petch contended that each of the documents sought in the notice to produce bore on the first defendant's state of mind from 2018 when the claim was first made against his insurer. She argued that the first defendant's state of mind at that time "is incapable of rationally affecting the Court's determination of the facts in issue on the plaintiff's pleaded case."
Further, Ms Petch argued that the plaintiff was, in effect, reagitating a notice to produce which had earlier been abandoned or not pressed and that this amounted to an abuse of process.
Mr Newell submitted that it was almost "inevitable" that the documents in paragraphs 1 and 2 of the notice to produce filed on 22 December 2020 would evidence admissions by the first or second defendants which could be used forensically by the plaintiff, either as admissions or as a basis to cross-examine either or both defendants. He submitted that as the insured was required to disclose all material matters to his insurer, what the first defendant said to his insurer and to the second defendant would necessarily be relevant to the issues in the proceedings and would be of forensic benefit to the plaintiff. He submitted that the inference ought be drawn that the documents covered by the notice would be relevant on this basis.
As to paragraph 2 of the notice to produce, Mr Newell submitted that it was plain that the plaintiff intended to refer to correspondence between the first and second defendants and not to correspondence between the first defendant and himself, since the latter was plainly nonsense. He contended that the Court ought not entertain such a technical point when it had not been foreshadowed in correspondence by the first defendant and that it would be inimical to the principles in Part 6 of the Civil Procedure Act 2005 (NSW) for the Court to allow the first defendant to "ambush" the plaintiff in this way. Further, he foreshadowed that, if I were to hold the plaintiff to the actual wording of paragraph 2 of the notice to produce, the plaintiff would immediately issue a further notice to produce which corrected the error and sought correspondence between the first and second defendants. He contended that it could reasonably be inferred that the first and second defendants would communicate, including in writing, about their views of the plaintiff's claim and what advice was in fact given and whether it had a proper legal basis. Mr Newell said that although it had been asserted by the first defendant that he had notified his claim orally, the plaintiff was not bound to accept the assertion but was entitled to test it by requiring production in accordance with the notice to produce.
Mr Newell submitted that it was "inescapable" that the contents of the documents falling within the notice would be relevant to the proceedings since it could be inferred that they would contain "an explanation for the circumstances giving rise to or explaining the claim which would touch upon exculpatory circumstances, other circumstances, who is to blame, what happened, what advice was given, [and] who was relied upon." He also reminded me that, at the time of the communications the subject of the notice to produce, the first defendant was no longer entitled to practise as a solicitor and therefore could not have been briefing the second defendant in other matters.
I regard myself as bound by the principle articulated by Basten JA in Lowery v Insurance Australia Ltd at [24]. Accordingly, I do not propose to amend the notice to produce such that it seeks, in paragraph 2, correspondence between the first and second defendants. However, in order to facilitate the determination of the real issues in dispute, I propose to assume, for the purposes of argument, that the notice to produce said what Mr Newell said that it ought to have said. I note that Ms Petch's submissions took account of this possibility in that she addressed on paragraph 2 as if it was worded as Mr Newell accepted it should have been.
I do not regard the evidence establishing the history of the matter to be sufficiently clear to enable any reliable conclusions to be drawn as to what occurred with earlier, similar, notices to produce. Although offers were made by the parties to resolve the issues raised in relation to such notices, it does not appear from the evidence that these disputes were actually resolved. Accordingly, I am not satisfied that the notice to produce ought be set aside on that basis.
I do not accept Ms Petch's submission that the documents sought in the notice to produce are not capable of being relevant to any issue in the proceedings. Although negligence is to be assessed objectively, it does not follow that the first defendant's subjective view as to his own conduct is irrelevant to the issues in the trial. It is possible that an expression of such a subjective view will amount to an admission, being a statement against interest, and that the documents sought might contain such admissions. Although any such admissions made to the insurer would not be determinative, they could nonetheless be relevant to the question of whether the plaintiff has established that the first defendant was negligent. On this basis, I am satisfied that there is, or could be, a legitimate forensic purpose for the notice to produce. Thus, the first limb of the test in Attorney-General (NSW) v Chidgey has been established (that the requesting party identifies a legitimate forensic purpose).
However, there are substantial obstacles in the path of the second limb: namely that it is "on the cards" that the documents sought would materially assist the plaintiff's case. I regard the possibility that the documents covered by the notice to produce will contain admissions by the first and/or second defendants as to their past negligence as no more than speculative. In substance, the plaintiff would like to see the documents passing between the first defendant and his insurer and the first and second defendants (accepting the correction for which Mr Newell contended) to ascertain whether he can find anything incriminating in them, without any real basis for inferring that there will be anything of that nature in the documents. Both paragraphs 1 and 2 of the notice to produce amount, to adopt a cliché used in the authorities, to a "fishing expedition" in circumstances where the plaintiff has no idea whether there are any fish in the pond.
The process of obtaining documents by the mechanism of a notice to produce is to be contrasted with that of discovery. Although some latitude is given where the recipient of a subpoena (which is relevantly analogous to a notice to produce) is a party, the latitude does not extend to requiring production of documents where there is no more than a speculative basis for considering that they might be of forensic benefit to the requesting party.
For these reasons, the notice to produce filed by the plaintiff on 22 December 2020 addressed to the first defendant ought be set aside.

Costs

It was common ground that costs ought follow the event in accordance with the general rule: UCPR, r 42.1.

Orders

For the reasons given above, I make the following orders: 1. Set aside the notice to produce filed by the plaintiff on 22 December 2020 seeking production from the first defendant. 2. Order the plaintiff to pay the first defendant's costs of the notice of motion filed on 12 February 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2021

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