Solicitors:
In person (Plaintiff)
Kennedys (Australasia) Pty Ltd (Defendant)
File Number(s): 2014/331658
[2]
Judgment
The Defendant, by Motion, seeks leave pursuant to s 31(1) of the Trans-Tasman Proceedings Act 2010 (Cth) that it be granted leave to file and serve a subpoena, said there to be in the form of Annexure A to the Notice of Motion.
An ex parte application was made in this regard to me yesterday. At the time I pointed out to the Defendant's legal representative that the form of the subpoena did not comply with the regulation made under the Trans-Tasman Proceedings Act 2010 (Cth). I had also formed the view that the time available for the service of this subpoena would be insufficient under s 34 of the Act because the hearing of the proceedings was fixed for the 4 February 2015. The matter has come back before me today and the correct form of the subpoena is now put forward and leave is sought to issue that.
On this occasion the Plaintiff, who acts for himself, has appeared to oppose the issue of the subpoena and has sought to file a Notice of Opposition for leave to be granted in the subpoena application of the Defendant. The Plaintiff should be permitted to file that Notice of Opposition. I also permitted the Plaintiff to argue that leave should not be given to issue the subpoena, although I had expressed doubt about his standing to do so when the matter concerned only the issue of the subpoena and not access to it. However, I accept that it was open to the Plaintiff at least to argue that the subpoena should not be issued because if it was issued and served it would be liable to be set aside for one reason or another.
The documents that are sought in the subpoena are relevantly these:
2 Copies of records of the matter or matters that led to the fines and costs of $8,200 by the Standards Committees, as referred to in the Certificate of Standing of Christopher Patrick Comeskey dated 8 August 2014.
3 Copies of records of any disciplinary complaints, charges and/or findings of misconduct made about Christopher Patrick Comeskey (not including the records pertaining to the matters dealt with by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in its decision dated 23 July 2010).
The reference to the matters in paragraph 2 derives from a Certificate of Standing that was provided by the New Zealand Law Society to the Defendant. It should be said that the Plaintiff was admitted as a barrister and solicitor of the High Court of New Zealand on 8 June 1996 and that Certificate of Standing discloses that, apart from a period of suspension for reasons given, he remains admitted in New Zealand as a barrister and solicitor.
That Certificate of Standing makes reference to the fact that the Plaintiff pleaded guilty to a charge of negligence and two charges of misconduct before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. It was that which led to his suspension from practice. The Certificate went on to say that he was ordered to pay costs and a reimbursement of tribunal costs and that the costs remained outstanding. The Certificate went on to say:
In addition Mr Comeskey owes the sum of $8,200 in fines and costs in relation to orders of Standards Committees.
Correspondence then ensued between the Bar Association and the New Zealand Law Society that focused particularly on matters which had come to the attention of the Bar Association, including the reference to the $8,200 in fines and costs.
In an email of 4 September 2013 from the Bar Association to the New Zealand Law Society reference was made to the fact that the Bar Association had obtained a copy of the decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in the matter of Auckland Standards Committee v Comeskey [2010] NZLCDT 19, and reference was made to certain paragraphs of that decision of an investigation undertaken by the Legal Services Agency. Questions were asked about the outcome of that investigation.
The Bar Association attempted to obtain the consent of the Plaintiff to the Law Society of New Zealand providing documents relating to the fine and costs of $8,200 and other records of disciplinary complaints, charges and findings of misconduct. The Plaintiff declined to agree to that, it would seem because of the particular view that he took about the nature of the appeal which he had instituted against the Bar Association under s 108 of the Legal Profession Act 2004 (NSW). The Plaintiff's position is that the appeal is one stricto sensu and not an appeal by way of rehearing. Because the material that is now sought to be obtained from the Law Society was not before the Bar Association when it refused him a practising certificate, the view he took, and which he will argue at the final hearing on the 4 February, is that the Court should not look at that material and that it is irrelevant, given the nature of the appeal.
When his consent was not forthcoming the Bar Association endeavoured to obtain the agreement of the Law Society to provide the material, but they were informed only as late as 19 January 2015 that a subpoena would be necessary. It was that which led to yesterday's ex parte application.
The Plaintiff opposes the issue of the subpoena for the reasons which are set out in his Notice of Opposition. He says in particular that it is not demonstrated under s 31(3)(a) of the Trans-Tasman Proceedings Act that the material sought in paras 2 and 3 of the schedule to the subpoena has been shown to be significant. He points to what is said in the affidavit of the solicitor for the Bar Association where she says in para 10 that the records "may provide significant information as to the nature of findings made against Mr Comeskey and any further disciplinary complaints and charges made about Mr Comeskey".
He opposes it also because of what is said to be the width of the documents sought in para 2. He says that it is necessary for those documents to be properly particularised. I took him to be suggesting that what was really being sought in para 2 and possibly para 3 of the schedules amounted to a fishing expedition.
He also opposed it on the basis of his motion, which will also be heard on the 4 February, that the appeal is an appeal in the strict sense making these documents unnecessary.
Finally, he draws attention to the confidentiality provisions that the Law Society has referred to and says that this Court should not interfere with those confidentiality provisions which may be dictated by New Zealand legislation.
Section 31(3)(a) does not provide any particular test of significance. It simply says that without limiting the matters that the Court may take into account in deciding whether to give leave to issue a subpoena under the Trans-Tasman Proceedings Act the Court must take into account the significance of the evidence to be given or the document or thing to be produced.
I do not think that Ms Bicknell's statement that they "may" be significant is a statement of any particular standard or test. She could not have said otherwise because, until the documents are seen she cannot know if they will have any significance or what that significance might be.
One of the tests, at least in terms of the apparent relevance of documents sought under a subpoena, is that the documents have the capacity to throw light on the issues in the main case; see Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 103.
It seems to me that where the Bar Association must concern itself with fitness and propriety, while also noting that the onus is on the Plaintiff under s 48(3) of the Legal Profession Act, documents associated with matters that led to the fine and costs of $8,200 by the Standards Committee in New Zealand would have the capacity to throw light on that issue of fitness and propriety. Similarly, copies of records of disciplinary complaints, charges or findings would also be relevant in that sense.
It does not seem to me that the fact that particular documents have not been particularised results in these matters being a fishing expedition. The issues of the fines and costs and the disciplinary complaints have been identified from the judgment which, as the Plaintiff rightly points out, the Defendant already has. But the Defendant does not have the documents of the other matters referred to in that judgment of the disciplinary tribunal, nor does it have documents relating to the $8,200 in fines.
The weight of authority suggests that an appeal under s 108 of the Legal Profession Act is an appeal de novo. I do not make any finding in that regard, because that is an issue for the judge at the final hearing on the Plaintiff's motion. However, decisions such as Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669, especially at 673-674, and Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110 at [18] ff certainly suggests that it cannot be regarded as a hopeless position that the appeal is one by way of rehearing.
The appeal falls under s 75A of the Supreme Court Act 1970 (NSW) and subs (5) of that section refers to the appeal being by way of rehearing. Whilst accepting that there is a degree of ambiguity in the term 'rehearing', the cases to which I have referred and others demonstrate that the argument that such an appeal to this Court is by way of rehearing de novo is not a hopeless one. In those circumstances the Defendant should not be precluded from having this material available in the event that the Plaintiff is unsuccessful in that regard in his motion.
22 As far as issues of confidentiality are concerned there is nothing in the material emanating from the New Zealand Law Society suggesting that any legislative provisions would forbid it complying with the subpoena. Indeed, the contrary is suggested in that correspondence.
Section 34 of the Trans-Tasman Proceedings Act provides:
If the subpoena only requires production of a document or thing, it must permit the person named to comply by producing the document or thing at any registry of the High Court of New Zealand not later than 10 days before the date specified in the subpoena as the date on which the document or thing is required for production in the court or tribunal that issued the subpoena.
I am satisfied that s 34 does not require the documents to be produced to the High Court of New Zealand, but requires that the subpoeana must, by the timing available, permit the addressee of the subpoena to be able to produce them to the High Court of New Zealand not later than 10 days before the date specified in the subpoena for production to this court. The Law Society of New Zealand is prepared to produce the documents directly to this Court by the return date and it is possible by the dates which have been selected for it to comply as s 34 requires.
Both parties may have access to the material when produced. Although it was suggested that there might be privileged documents amongst the material, it is not easy to see how that may be the case when it is material in the possession of the Law Society. Service of the subpoena may be effected electronically by email or by facsimile. The electronic transmission of the subpoena is to be addressed to Mary Ollivier of the New Zealand Law Society.
I will reserve the question of costs to the final hearing of the matter.
[3]
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Decision last updated: 27 January 2015