Cosgrove & Anor, R.J. v Hooker Rex (Administrator)(Vic) Pty Ltd & ors [1988] FCA 399

NEW SOUTH WALES DISTRICT REGISTRY ) No. G 51 of 1986 )

First Applicant KERRI MARGARET COSGROVE Second Applicant

Third Respondent TURTON & McINNES, Solicitors Frederick William Henry, Gregory Arthur Innes, Herbert David William Ross and Christopher Michael O'Hehir

The Court has before it two applications. The first is a motion on notice by Richard John Cosgrove and Kerri

Margaret Cosgrove ("the applicants") for an order pursuant' to

The applicants pay the fourth respondents' costs of the motion.

Upon the motion of the Law Society of New South Wales, notice of which was filed on 12 July 1988, the subpoena addressed to that Society and dated 9 March 1988 be set aside.

The applicant pay the Law Society's costs of the motion.

The documents lodged in the Registry by the Society be returned to the Society.

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Order 16, rules 5 and 8 of the Federal Court Rules that the fourth respondents, Turton & McInnes, Solicitors (Frederick

William Henry, Gregory Arthur Innes, Herbert David William Ross

and Christopher Michael O'Hehir), make a further answer, verified by affidavit in accordance with Order 40, rule 7, to certain interrogatories administered to them by the applicants. The second is a motion by the Law Society of New South Wales, pursuant to Order 27, rule 9 of the Federal Court Rules, to set aside a subpoena issued at the instance of the applicants

The notice to answer interrogatories, which bears date 29 July 1987, was given in proceedings between the applicants and Hooker Rex Administration (Vic) Pty Limited ("the first respondent"), Hooker Homes Pty Limited ("the second respondent"), Harry Robinson ("the third respondent") and the fourth respondents. Those proceedings, which were commenced on 4 March 1986, relate to the purchase on or about 31 May 1982 by the applicants from the first respondent through the agency of the second and third respondents of a property known as 27 Kembla Street, Wakeley. The fourth respondents acted, in respect of the sale, as solicitors for the first respondent and, also, as

delivered on behalf of the applicants seeks relief under the

Trade Practices Act 1974 (Cth) ("the Trade Practices Act")

against each of the respondents. It is alleged that, in connection with the sale of the property, the repondents

engaged in conduct, namely the making of representations,

that was misleading or deceptive or likely to mislead or deceive and that, by reason of that conduct, the applicants were induced to purchase the property by means of a loan of $60,000 for a term of two years from Alliance Acceptance Co. Limited secured by a mortgage over the property. Alternatively to the relief which is sought against the fourth respondents under the Trade Practices Act, relief is sought against them (pars 23 - 26) on the basis that they were retained and employed by the applicants to act as their solicitors in respect of the purchase of the property and that they acted negligently and in breach of their duty to exercise all reasonable care, skill, diligence and competence in the conduct of the business they undertook to perform for the applicants. Particulars of the negligence

"(1) Failing to advise the Applicants not to enter into the contract for purchase.

(2) Failing to advise the Applicants not to enter into the contract upon the basis of the mortgage.

(3) Failing to explain the contract of sale to the Applicants.

(4) Failing to question whether the mortgage from the Applicants' point of view contained adequate provisions to protect the Applicants against contingencies which might reasonably have been foreseen as likely to arise namely:

(a) the cessation of paid employment by the Second Applicant because

(6) Failing to explain the mortgage to the Applicants.

(7) Failing to advise the Applicants to seek mortgage indemnity insurance.

(8) Advising the Applicants that the property would be worth no less' than $90,000.00 by the time the Applicants were ready to refinance.

(9) Advising the Applicants that refinancing would present no difficulties.

(10) Advising the Applicants that Alliance Acceptance Co. Ltd. would refinance the

In the further alternative, relief is sought against the fourth respondents (pars 27 - 29) for breach of the fiduciary obligation which it is alleged they owed to the applicants, the only breach alleged being that the fourth

respondents "acted for both parties to the transactions".

It appears that the applicants now accept that the claim, in so far as it has its foundation in the alleged contravention by the respondents of provisions of the Trade Practices Act, was not brought within the time (within three years after the date on which the cause of action accrued) prescribed by s.82 of that Act and that they, therefore, do

not propose to proceed with that claim. They do, however,

propose to continue the proceedings against the fourth respondents in so far as they are based on other causes of

By their defence, the fourth respondents admit that, at all material times, the first and second named fourth respondents were solicitors of the Supreme Court of New South Wales conducting practice in partnership under the name and style "Turton & McInnes" and the third and fourth named fourth respondents were employees in that practice. They further admit that the first and second named fourth respondents acted as solicitors for the first respondent as vendor and the applicants as purchasers in respect of the sale and purchase of the property. They also admit that it was an implied term of the retainer of the first and second named fourth respondents by the applicants that the first and second named fourth respondents would exercise all reasonable skill, care and diligence in and about their acting as solicitors for the applicants. The fourth respondents deny that they acted negligently and do not admit the other allegations made against them. In further answer to the claims against them based on alleged breach of the fiduciary obligation said to have been owed by them to the applicants, they say (par.21) that, at all material times, the applicants "were aware and consented to the first and second named fourth respondents acting as solicitors for the first respondent as vendor and the applicants as purchasers in respect of the sale and purchase" of the

anformed consent to the fourth respondents acting as

solicitors for the first respondent as vendor and _ the applicants as purchasers. In the alternative, they assert that, if there was such fully informed consent, the fourth respondents were in breach of their fiduciary obligations to the applicants by failing to advise the applicants to seek independent legal advice or by continuing to act for both parties after an actual conflict of duties arose or, alternatively, exceeded the authority conferred by such

The motion at present before the Court seeks an order requiring the fourth respondents to make a further

answer to the interrogatories identified in the notice dated

29 July 1987 by the numbers 4, 5, 11 and 14 (part only). In the verified statement filed on behalf of the fourth respondents on 18 December 1987, objection was taken to answering those interrogatories on the ground that they do not relate to any matter in question between them and the

Interrogatories 4 and 5 are in the following terms:

(i) what, if any, qualifications did John Hannelly possess?

(ii) What, if any, legal experience did John Hannelly have?

(ili) How many conveyances had John Hannelly performed?

(iv) What, if any, instructions had John Hannelly received concerning his obligations as solicitor when acting for both vendor and purchaser?

5. (i) During the conveyance and mortgage the subject of these proceedings, was John Hannelly supervised?

It appears from the answer given to an earlier interrogatory that John Hannelly was employed by Turton & McInnes between

April 1981 and 30 September 1983 and that, in the course of that employment, he carried out work in relation to the

conveyance and mortgage the subject of these proceedings.

In my opinion, the objection to answering these interrogatories was well taken. It is not alleged in the amended statement of claim that the fourth respondents were negligent in employing on the work relating to the conveyance and mortgage in question a person who was not, or was not sufficiently, qualified or experienced or that they were negligent in failing to supervise, or supervise adequately, the work on which Mr Hannelly was employed on behalf of the applicants. Thus, the interrogatories do not relate to any question that, on the pleadings, arises

"11. (i) What total value in profit costs did matters of the first and second

respondents and any companies related to the first and second respondents represent for the period 1 July, 1981 to

(ii) What proportion of the fourth respondents' total taxable income for that period does that figure represent?

(iii) In how many conveyances or other matters did the fourth respondents act for the first and second respondents and companies related to the first and second respondents during the said period?

(iv) Apart from the said profit costs did the fourth respondents or John Hannelly receive any other form of remuneration from the first or second respondents or companies related to the first and second respondents or from such companies servants or agents?

(v) If the answer to (iv) is yes, specify the remuneration and its source."

The references to the first and second respondents are references to Hooker Rex Administration (Vic) Pty Limited

Whether one applies the stringent requirement espoused by Blackburn C.J. in Kupresak v. Clifton Bricks

(Canberra) Pty Ltd (1984) 75 F.L.R. 172 at p.174 or takes

the approach adopted by Woodward J. in Aspar Autobarn

Co-operative Society v. Dovala Pty Ltd (1987) 74 A.L.R. 550,

this interrogatory has not, in my opinion, been drawn with

the requisite degree of care and precision. Although par.(i) refers to the period 1 duly 1981 to 30 March 1982, it is unclear whether what is required is the amount of profit costs received in that period or the amount of profit costs referable to matters commenced, or to matters

completed, or to work done, during that period. Paragraph

(iv) is not limited as to time and I was informed during the hearing that it was not intended to relate to the period specified in par.(i) but to the period 30 March to 30 May

Paragraph (ii) is objectionable in that it would appear to require the fourth respondents to reconstruct the accounts of the practice so as to determine what would have been the taxable income for the period in question

It may be assumed that what was intended by pars (i) and (ii) was to seek information as to the value in profit costs to the fourth respondents of the work carried out by them during the period 1 July 1981 to 30 March 1982 for the first and second respondents and any companies related to those respondents and the proportion which the value those profit costs bore to the value in profit costs

to the fourth respondent of all the work carried out by them during that period. Paragraph (iii) seeks information as to the number of matters in which the fourth respondents acted

for the first and second respondents and related companies

during the specified period and pars (iv) and (v) are

concerned with the remuneration, apart from profit costs,

received by the fourth respondents or John Hannelly from the

first or second respondents or any related company.

For the applicants it was submitted that information of that kind is relevant to the fifth particular of negligence, namely that the fourth respondents were negligent in failing to advise the applicants to seek independent legal advice, and to the issue whether' the applicants gave a fully informed consent to the fourth

Iam unable to accept that submission. In my opinion no proper basis for the interrogatory has been demonstrated. The information sought has not been shown to be relevant to any fact directly in issue or to any fact the existence or non-existence of which is relevant to the

existence or non-existence of any fact directly in issue.

The objection to answering this interrogatory is, therefore,

"14. (i) During the period March, 1982 to May, 1982 were the fourth respondents aware

between the first and second respondents and Alliance Acceptance Co Limited?

(ii) If the answer to (i) is yes, what was the fourth respondents' knowledge?

The references to the first and second respondents are, again, references to Hooker Rex Administration (Vic) Pty

For the applicants it was submitted that the interrogatory is relevant to the issue whether the fourth respondents were guilty of negligence in failing to advise the applicants to seek independent legal advice. The relevance of the interrogatory to that issue is said to be this - if the fourth respondents were aware of any such association or arrangement, they would have been under a

duty to disclose their knowledge to the applicants.

The applicants, however, make no allegation in the pleadings that the fourth respondents were aware of any such association or arrangement or that, if they were so aware, they were bound to disclose it to the applicants. Interrogatory 14 is clearly designed, not to elicit information relevant to the applicants' case as disclosed by the pleadings, but to ascertain whether there are facts which will enable the applicants to mount a different case. In my opinion, the fourth respondents are not obliged to

applicants, notice of which was filed on 20 June 1988, he

dismissed. The applicants must pay the fourth respondents'

MOTION CONCERNING SUBPOENA The subpoena issued at the instance of the applicants requires the Law Society of New South Wales ("the

Law Society") to produce documents described as follows:

"ALL files, memoranda, notes, reports, correspondence and other documents in relation

to any complaint, or the investigation of any complaint, made against Messrs. Turton & McInnes, Solicitors in respect of their acting for vendors or purchasers or both of land during the period 1981 to 1984."

If the motion to set aside the subpoena is unsuccessful, the Law Society seeks to be excused from the obligation to produce any documents in its possession which answer the description set out in the subpoena on the ground that to require their disclosure would be injurious to the public

In support of the contention that the subpoena should be set aside as oppressive, counsel for the Law Society submitted that the subpoena is expressed in such a way as to require the Law Society "to ransack its documents to ascertain whether it has in its possession any document relevant to the issues" arising between the parties, resulting in the Law Society, although not a party to the proceeding, being subjected to a process of discovery.

Counsel also submitted that the description of the documents

to be produced is too wide, referring in this connection to the use of the expressions "in relation to" and "in respect of" in the description of the documents sought. It was further submitted that the subpoena should be set aside as amounting to "fishing". Counsel referred to The

Commissioner for Railways v. Small (1938) 38 S.R. (N.S.W.) 564 at pp.573-5; Waind v. Hill £19781 1 N.S.W.L.R. 372 at

pp.378-382; and Finnie v. Dalglish (19823 1 N.S.W.L.R. 401

",... the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that 1t was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. Such a case is where the subpoena is used for the purpose of discovery. The essential feature of discovery in this connection, as appears from Burchard's case £18913 2 Q.B. 241, at pp.247, 248 and Small's case (1938) 38 S.R. (N.S.W.) 564, at p.574; 55 W.N. 215 is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it 1s an abuse to use any subpoena, i.e. even to a party to obtain discovery. This was the reasoning in Small's case (1938) 38 S.R. (N.S.W.) 564, at p.575; 55 W.N. 215, at p.218. Of course, discovery as such is otherwise available to a party. It follows that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment. It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the

possession of the witness, or even whether it exists, or is unaware of its contents, that the

subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the

involve a misconception of the different functions of discovery and of a subpoena for

production. Of course, it may be that the terms of a subpoena are so wide that it is oppressive, but this is not because it is used for 'discovery' in the sense used in Small's case (1938) 38 S.R. (N.S.W.) 564; 55 W.N. 215 and Burchard's case £18913 2 9.B. 241, but because it imposes an onerous task ona stranger to collect and produce documents many of which can have no relevance to the litigation. To require the branch of a bank to produce all cheques received by it in a particular year in order to find, if it exists, a cheque of the opponent in a false name would be oppressive, whereas, to require a hopsital to produce its file in respect of the medical treatment of the opposing party would not. It is a misuse of terms to say the person who inspects the latter is using it for the purposes of discovery, because he is unaware of the contents of the documents or some of them."

In my opinion, the subpoena does not impose upon the Law Society an obligation to form a judgment whether the documents in its possession include documents that relate to the issues between the parties. It does not, in terms, do so. What the subpoena does is to require the Law Society to ascertain whether it has in its possession documents relating to any complaint, or the investigation of any complaint, made against the fourth respondents during the period 1981 to 1984 and to examine such documents as are in its possession and answer that description to ascertain whether the complaint to which they relate was a complaint against the solicitors "in respect of their acting for Vendors or Purchasers or both of land". The subpoena thus

requires the production of such documents as relate to a

particular subject matter. This, as was said in Lucas Industries Ltd v. Hewitt (1978) 18 A.L.R. 555 at p.569, describes "a different task from that of ascertaining issues

and identifying the relationship of documents thereto".

Turning to the width of the subpoena, it is clearly established that, if it be addressed to a stranger, a subpoena must specify with reasonable particularity the

documents which are required to be produced: Lane v.

Registrar of Supreme Court of New South Wales (1981) 148 C.L.R. 245 at p.259. In my opinion, that requirement has

been sufficiently satisfied. The description of the documents is, in my view, sufficiently specific to enable the Law Society to identify, without random search, the

Nor do I consider that the subpoena should be set aside as amounting to "fishing" in the sense that the applicants are endeavouring, not to obtain evidence to support their case, but to obtain material which might enable them to make a different case. As appears from the passage already cited from Waind v. Hill (supra), the circumstance that the applicants are not aware whether particular documents of the kind sought exist or of the contents of any such documents does not, of itself, mean that the subpoena should be set aside. However, the difficulty for the applicants in this case lies in demonstrating that the documents sought are relevant to any

issue that arises on the pleadings, noting, in this regard,

that the causes of action pleaded under the Trade Practices

Act are not being pursued. The only issues now arising

between the applicants and the fourth respondents concern the existence of the duties, professional and fiduciary, which the applicants allege the fourth respondents owed to

Counsel for the applicants frankly stated that the purpose of the subpoena was to ascertain whether any complaints of the kind referred to had been made against the fourth respondents during the specified period and, if so, to seek inspection of the documents relating to such complaints and any investigation of them by the Law Society with a view to determining whether any of the complaints were "strikingly similar" to the complaint made against them

by the applicants in the present proceeding. Counsel

submitted that, if there be in existence documents of that description, they may provide the basis for the applicants to adduce similar fact material on the hearing of the substantive application, or provide material for cross-examination, particularly of Mr Hannelly should he

give evidence, or provide a basis for further enquiry.

The applicants have failed to demonstrate to my satisfaction that the documents requested relate to the issues as I have identified them. I am unable to see how they could assist the applicants' case that, in the particular circumstances of this case, the fourth

respondents were in breach of any duty to the applicants

such as is alleged. Further, it is pure speculation that there may be in the material sought any statements by Mr Hannelly which could be used in an attack on his credit. The absence of any proper basis for thinking that the production of the documents might well provide material related to those issues leads me to the conclusion that the

unnecessary to consider the alternative argument that,

assuming the subpoena to have been validly issued, the Law Society should be excused from production of the documents requested on the ground of public interest immunity.

However, as the matter was argued at some length, it is

The task which confronts the Court is made clear in

what was said in Alister v. The Queen (1984) by Gibbs C.J.

...». When one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether' the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be

documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation."

Under the Legal Practitioners Act, 1898 (N.S.W.) as amended, the legislation in force at the material time, no person was to act or practise as a solicitor unless he was the holder of a current practising certificate and complied with the conditions, if any, placed thereon (s.67). The Council of the Law Society was empowered to issue practising certificates to those entitled to them (s.66). Section 70 provided for the Council to entertain applications for the issue of practising certificates. Section 71 empowered the Council to cancel a certificate if the holder, when called upon by the Council so to do, failed to give a satisfactory explanation touching any matter relating to his conduct as a

solicitor or if he were in any way in default under any of the provisions of the Act or of the regulations made thereunder. The Council might, of its own motion, refer to The Solicitors' Statutory Committee constituted by the Act for enquiry any question as to the professional misconduct of any solicitor which appeared to the Council to require investigation (s.76(1)). Any person feeling aggrieved by reason of the alleged professional misconduct of a solicitor might, by himself or his agent, make a charge thereof in writing to the Council and the Council might refer any such charge to The Solicitors' Statutory Committee for enquiry

(s.76(2)). It is clear from the uncontradicted evidence

before the Court that the Council, in the exercise of its powers and duties under the Act, from time to time received and investigated complaints concerning solicitors submitted to the Society by the Courts, the Attorney-General of New South Wales or members of the public. It further appears that from time to time the Council publicised its role as an investigator of complaints against solicitors and the matter published included statements to the effect that any complaint would be received in strict confidence and that any investigation of the complaint would be conducted on a

I am satisfied that there is a substantial public interest to be served in the non-disclosure of confidential material obtained by the Law Society in the exercise of its disciplinary functions in relation to solicitors. The question is whether that public interest is, in the particular circumstances of this case, outweighed by the public interest in the administration of justice. This raises the issue whether the documents of which the subpoena requires production are or are likely to be documents which contain material evidence. In the light of what I have said above when considering the relevance of the documents to the issues that now remain between the parties, the administration of justice will not be impaired by the non-disclosure of the documents. It follows that, had I not been of opinion that the subpoena should be set aside, I would have excused the Law Society from the obligation to

produce the documents in accordance with the subpoena's

command. I should add that I have not found it necessary to

inspect the documents which have been produced by the Law

Upon the motion of the Law Society, I order that the subpoena dated 9 March 1988 addressed to the Society he set aside and that the applicants pay the Law Society's costs of the motion. I further order that the documents lodged in the Registry by the Law Society be returned to the

I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Associate

Counsel for the applicants Solicitors for the applicants

Counsel for the fourth respondents : Mr A.J. Meagher Solicitors for the fourth respondents: Phillips Fox

Counsel for the Law Society of New South Wales : Mr D.B. McGovern Solicitor for the Law Society of