Davron v Teys

PARTIES : Davron Investments Pty Ltd & Ors v Teys Property Funds Limited & Ors

COUNSEL : Mr D Lloyd for plaintiff Mr EC Muston for Ace Insurance

SOLICITORS : HWL Ebsworth for plaintiff Gilchrist Connell for Ace Insurance

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

6009/2007 Davron Investments Pty Ltd & Ors v Teys Property Funds Limited & Ors. JUDGMENT 1 His Honour: This is the hearing of a notice of motion filed on 28 October 2008 by Ace Insurance Limited in which they seek a review of a decision of Senior Deputy Registrar Flaskas given on 2 October 2008, pursuant to the provisions of Part 49 Rule 19 of the Uniform Civil Procedure Rules 2005 (UCPR). 2 The Registrar dismissed an application to set aside a subpoena, dated 29 May 2008, to produce documents issued by the first defendant to the applicant. The Registrar ordered the subpoena not be set aside and the applicant pay the first defendant's costs.

3 The applicant seeks an order that the subpoena to produce documents be set aside and that the first defendant, Teys Property Funds Ltd pay the costs of this and the earlier proceeding before the Registrar. Background facts. 4 Before the Registrar, the applicant Ace Insurance Limited, who is not a party to the proceedings, sought to have the subpoena set aside in accordance with r 33.4 of the UCPR. The applicant asserted no legitimate forensic purpose regarding the subpoena had been demonstrated. 5 Registrar Flaskas decided that the motion should fail for the reasons he expressed, namely: "I am of the view that the motion being considered in court should fail for the following reasons today. I am satisfied that the first defendant has successfully argued its case. I am also satisfied that the document sought to relate to the very valuation the subject of the principal proceedings in this matter. "

6 The parties' submissions helpfully set out the facts and I will incorporate them with amendments. 7 The substantive case relevantly includes a claim against the fifth defendant, Tony Sergiacomi, regarding an allegation of negligence in the preparation of a valuation. 8 The documents called for in the subpoena were all documents relating to any claims received by Ace Insurance in respect of valuations of property in Geles Road, Upper Burringbar, New South Wales. The valuations were made by the fifth defendant who held himself out as a valuer of properties in and around Burringbar. 9 The fifth defendant provided a valuation of the Geles Road property of $6,800,000. This valuation sits at the centre of the main proceedings against the first defendant. The valuation and the methodology used to achieve it, is contained in a report prepared by the fifth defendant under the banner of 'SB Group Property Valuers and Consultants Pty Ltd' (SB Valuers), dated 22 August 2005. Ace Insurance was the insurer of SB Valuers and SB Valuers is not a party to the litigation. 10 The plaintiffs had advanced approximately $2.2 million to the first defendant and in July/August 2005 the first defendant advanced an amount of approximately $2.85 million to an entity called Jerusalem Valley Estate to secure a mortgage over the Geles Road property. Jerusalem Valley Estate defaulted on the loan and it is now alleged that the Geles Road property is worth between $675,000 to $700,000. 11 In the main proceedings, the plaintiff claims damages against the defendants under the Trade Practices Act 1974 (Cth) and the Fair Trading Act. As against the first defendant they assert that the first defendant failed to obtain the services of an independent and qualified valuer experienced in valuing property in the area in which security if offered. 12 If the first defendant is to be found liable, they seek to assert that the fifth defendant was a concurrent wrong doer and proportionately liable. 13 The plaintiff directly brings a claim for damages against the fifth defendant, alleging negligence in connection with the valuation. 14 On 4 June 2008 the first defendant served a subpoena on the applicant to produce the complete file they possessed in relation to insurance cover provided by them to SB Valuers. The schedule to the subpoena included items such as telephone discussions, file notes and so forth.

15 Paul Kozub, Partner for Thomson Playford solicitors, who were at the time acting for the applicant, ACE Insurance, signed a letter sent to the HWL Ebsworth and dated 12 June 2008, requesting the schedule to the subpoena be revised and limited to the documents relevant to the valuation the subject of proceedings. This was on the grounds that the schedule to the subpoena was very wide and its terms were unduly onerous and oppressive. An extension of four weeks to produce the documents was also requested. 16 Mr Matthew Harding of HWL Ebsworth Lawyers responded, in a letter dated 2 July 2008, to Mr Paul Kozub at Gilchrist Connell, in the following way: "Whilst we do not necessarily agree that the request for production of the documents listed in the schedule to the subpoena is unduly onerous and oppressive, in the interests of ensuring we obtain the relevant documents in a timely fashion, we advise that our client is prepared to limit its request for documents for production to the following: 1. The placing and underwriting information in respect of the policy of insurance provided to SB Group Property Valuers and Consultants Pty Limited (in liquidation) ACN 098 704 011 ( SB Group ) by ACE Insurance Limited; 2. All documents relating to any claims received by ACE un respect of the valuations conducted by SB Group of property at 108 Geles Road, Upper Burringbar in the State of New South Wales, dated 25 May 2005 and 22 August 2005, including claims by third parties and/or SB Group, and all correspondence between ACE, the insured and/or other third parties including liquidators in respect of any claims made in relation to these valuations, including but not limited to all file notes, letters, emails and telephone discussions." 17 Since that time the parties have conducted the matter on the basis of this substituted description in the subpoena. In a letter 16 July, Mr Nicholas Maley, Principal of Gilchrist Connell lawyers, who were then acting for ACE in place of Thomason Playford, followed up a telephone conversation he had had with Tracy Sawtell of HWL Ebsworth. He wrote confirming that a copy of the originating process would be sent to him from HWL Ebsworth and confirming that the subpoena would be stood over for two weeks to 28 July 2008. 18 A response from HWL Ebsworth was sent on 31 July 2008 in which they agreed to the time extension to 28 July and they stated: "Having regard to the provisions of Supreme Court of NSW Practice Note No. SC Gen 2, our client is unable to accede to your request in circumstances in which proceedings have yet to be concluded. We note that paragraphs 6 and 7 of the Practice Note provide as follows: '6. Access to material in any proceedings is restricted to parties, expect with the leave of the Court.

7. Access will normally be granted to non-parties in respect of: Pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; Documents that record what was said or done in open court; Material that was admitted into evidence; and Information that would have been heard or seen by any person present in open court, Unless the judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.' Similarly, there is no common law right of third parties to obtain access to documents filed in proceedings and held as part of a court record: John Fairfax Publlications Pty Ltd v Ryde Local Court [2005] NSWCA 101. Should you wish to obtain access to the pleadings in this matter as a non-party to the proceedings, an application must be made to court." 19 Gilchrist Connell wrote to HWL Ebsworth on 11 August on the applicant's behalf and stated that a notice of motion would be served. They had formed a different view of the Supreme Court of NSW practice note. The letter stated that being unable to access the pleadings made it impossible for them to determine which documents were relevant and whether there was a legitimate forensic purpose in the request. 20 Prior to proceedings before the Registrar on 2 October 2008, the applicant had not had access to a copy of the pleadings and was only given access to them during the hearing. However, Mr Muston appearing for the first defendant, stated that the applicant had been told before the proceeding that an application to access the document would not be opposed (Transcript page 2, from line 21).

The nature of the review of a decision of a Registrar 21 What should a court take into consideration when reviewing a Registrar's decision? A useful starting point is found in the authority of House v The King [1936] HCA 40; (1936) 55 CLR 499. While that case was concerned with an appeal against sentencing under the Bankruptcy Act 1924 (Cth), it provides guidance in terms of the policy considerations that should be exercised when reviewing the process of discretionary decision-making. At page 504, Dixon, Evatt and McTiernan JJ said: "But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the Court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 22 In Tomko v Palasty (No 2) [2007] NSWCA 369 the Court of Appeal recently dealt with the nature of review with which I am concerned and that case has indicated the Court's powers of review are wider than would be found when hearing an appeal. Justice Basten, after an extensive examination of the authorities, concluded at [52] in these terms: "[52] It follows that the proper approach to an application in relation to a decision of the Registrar is as follows:

(1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19;

(2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker;

(3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King , do not in terms apply to a review;

(4) nevertheless, similar policy considerations may arise in relation to a review, including: (a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement; (b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and (c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review." 23 The other members of the court were Hodgson JA and Ipp JA. Ipp JA agreed with what was said by Basten JA, subject to the adoption of the additional remarks of Hodgson JA. Those additional remarks appear in paragraphs 6 to 10 of the decision which is as follows: "[6] I agree that a review of a decision of a Registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion. [7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a Registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so. [8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v. The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. [9] In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the Registrar, even though no House v. The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing. [10] In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In Re the Will of Gilbert (1946) 46 SR(NSW) 318 at 323. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence." 24 Hodgson JA recently reaffirmed those views in Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11. His Honour said the following at paragraphs 16 - 19: "[16] As I have said, the matter comes before me on an application to review the Registrar's decision. [17] As regards the nature of such a review and the grounds on which such decisions can be reviewed, I adhere to what I said in Tomko v Palasty (No 2) [2007] NSWCA 369 at paras [4] to [10]. [18] Thus in my view a review of a decision of a Registrar is not an appeal, and in such a review a court must exercise its own discretion. This discretion extends to a discretion as to whether and if so how to intervene, and there is an onus on a person seeking to have a court set aside or vary a Registrar's decision to make out a case that the court in the interests of justice should exercise its discretion to do so. [19] In a case of a decision on practice or procedure, this will normally require at least a demonstration of error of law or an error of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499, or a material change of circumstances or evidence satisfying the requirements of fresh evidence." 25 Plainly this is a matter which is concerned with practice and procedure and the limitations referred to by Hodgson JA will apply. The Registrar's Decision 26 The Registrar decided that the documents sought related to the valuation that was the subject of the main proceedings. 27 The applicant argues that this finding was an error. The documents do not relate to the valuation for the following reasons,

(a) the documents sought in the subpoena must be limited to the fifth defendant's alleged negligence and liability to the plaintiff.

(b) the Court has a duty to require the issuer of a subpoena to identify the legitimate forensic purpose of the subpoena and the party which issued the subpoena must identify that purpose before production will be ordered.

(c) a subpoena will have a legitimate forensic purpose if the documents produced will throw light on issues in the case.

(d) a subpoena is not to be used as a substitute for discovery. 28 Reasons (b) to (d) are well-established principles as set out in NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [19] to [22]. 29 With reference to the two categories of documents set out in the letter from HWL Ebsworth of 2 July 2008, the applicant claims that the first defendant now identifies the legitimate forensic purpose as being, respectively:

(1) the representations made to ACE when SB Valuers obtained insurance cover with them, might be relevant to whether SB Valuers was appropriately experience or qualified.;

(2) correspondence between ACE and third parties might have some relevance as to whether the fifth defendant's valuation was negligently prepared. The proceedings 30 The applicant does not suggest they suffered from a material change in circumstances or that there was an error of law or a House v The King kind of error. However their submissions state that they were placed at a disadvantage in proceedings before the Registrar because they did not have access to the pleadings before the hearing. As a consequence, the applicant argues they had no proper opportunity to make submissions about the forensic purpose of the subpoena. They submitted that the first defendant was under an obligation to identify what was the legitimate forensic purpose before the hearing. 31 The first defendant noted that the letter of dated 12 June 2008, referred to above, requested the schedule to the subpoena be revised and limited to the documents relevant to the valuation the subject of proceedings. According to the first defendant, this is an indication that the applicant had some awareness of the issues raised in the substantive proceedings. 32 Further the first defendant points out that the applicant did not make an application to the Court to access the pleadings prior to the hearing and that Mr Phillips, for the applicant, stated in proceedings before the Registrar that simply providing the pleadings was not in itself sufficient, thus the disagreement between the parties regarding the reliance upon Practice Note 2 was perhaps not relevant (transcript page 1, lines 36-38). 33 Furthermore, the first defendant argues that the pleadings were made available to Mr Phillips during the hearing and he could have sought an adjournment for as long as was required to consider the pleadings.

Error of law 34 It is Suggested that at page 2 line 42 of the transcript that Mr Muston, appearing for the first defendant, had misstated the law by saying that it was: "not the position that a party issuing a subpoena must prove to the satisfaction of the recipient that there is a legitimate forensic purpose. " 35 The fist defendant claims that this complaint suggests that the applicant is arguing the Registrar may have determined the notice of motion on the basis of a misstatement of the law. This is not what the applicant's submissions actually say. The full exchange was as follows: "I have no difficulty myself with my friend having access to a copy of the pleadings from the court file. It was suggested to someone from my friend's firm on 9 September 2008 that if they wished to make an application to have access to the document it wouldn't be opposed. That was confirmed in correspondence. I think, as my friend quite properly puts, it's really not an issue on this application but I think my friend might be assisted by seeing a copy of the pleadings and I should say that my copy has been annotated but - I don't know whether my friend wants to make an application to see the pleadings or not.

PHILLIPS: I guess I have a couple of things to say about that, Registrar. First of all I don't think it is really sufficient for a party to say in relation to their obligation to prove a legitimate forensic purpose, "Here's a copy of the pleadings. You go through them. You work out what it is". I think the onus is much more specific than that and they have to actually point to particular allegations or issues that are raised in those pleadings and say, "This is the issue to which we think those documents may relate".

MUSTON: I'm content to do that, Registrar, but what we do seem to be missing here is that my friend is a moving party. He's come to the court today to establish that the subpoena has no forensic purpose. I'm quite content to establish or to demonstrate what I say the forensic purpose is but it's not the position that a party issuing a subpoena must prove to the satisfaction of the recipient that there is a forensic purpose. It's assumed consistent with their obligations parties issue subpoenas for a forensic purpose. This is such a case and I'm quite happy to demonstrate that it is but I think we need to move away from this suggestion that it was incumbent upon my client to prove, to use my friend's term, that there is a forensic purpose before the subpoena is to be responded to." Forensic purpose 36 Counsel for the first defendant then took the Registrar to the pleadings to demonstrate the forensic purpose. Nicholas J in ICAP Pty Ltd v Moebes & Anor [2009] NSWSC 306 at [25] to [33] provides an analysis of the principles to be applied in circumstances where there is a challenge to a subpoena on this ground. He said: "[31] In Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Hunt CJ at CL (p 681) summed up this way: 'The concept of legitimate forensic purpose … arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (1989) 16 NSWLR 14 p 17-18. He is not entitled to conduct a fishing expedition.' [32] The application of the test requires consideration of the issues in the principal proceedings. These issues are usually those identified in the pleadings and the particulars of the facts and matters relied upon in support of the pleaded allegations. They must be expressed with specificity (UCPR Pt 14, Pt 15). Interlocutory procedures of discovery and interrogatories facilitate the resolution of the issues, the scope of which is limited by relevance to them. [33] So too, is the scope of the demand upon an opponent or third party under a subpoena. Demonstration of the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case for which it is likely the documentation will assist. It is, therefore, necessary that the issue be clearly identified in the pleadings or particulars as it is the point of reference by which the legitimacy of the subpoena is to be determined. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleading or particulars, or the terms in which it has been expressed are obscure and imprecise." 37 Plainly it is only where there is an objection that the party seeking access has to demonstrate that there is a legitimate forensic purpose. That would have to be done before the court determining the matter. There is no obligation to demonstrate it beforehand although a failure to give an indication might well sound in costs. See NSW Commissioner of Police v Tuxford [2003] NSWCA 139 at 21 - 23. 38 Applying this test to the facts, was it open to the Registrar to accept the subpoena had a legitimate forensic purpose because the issue was clearly identified in the pleadings? 39 It is common ground that the valuation was prepared under the banner of SB Valuers. The statement of claim at 44 and 50, alleges the first and second defendants beached section 52 of the Trade Practices Act and section 42 of the Fair Trading Act and it alleges negligence and breach of fiduciary duty against the defendants for engaging in conduct which is purported to include failing to obtain the services of an independent and qualified valuer experienced in valuing property in the area in which security is offered. However, it should be noted that it appears from the transcript (page 5 lines 18 to 24) that the applicant was not aware that the fifth defendant was a party to proceedings until the hearing before the Registrar, although the correspondence prior to the hearing would imply the fifth defendant's involvement. 40 It is because of these facts that the first defendant states there is a clearly identified legitimate forensic purpose. The allegations call into question the independence, qualifications and experience of SB Valuers and the fifth defendant. The first defendant's submissions state that the documents sought in category one of the letter from HWL Ebsworth dated 2 July 2008 (reproduced above) are likely to include a proposal form and correspondence from SB Valuers or its brokers and internal underwriting documents may record details of conversations an underwriter had with the fifth defendant or relevant broker at the time. These documents may contain representations made by or on behalf of SB Valuers as to the nature or its business, the manner in which that business was conducted, the qualifications of the fifth defendants and possibly the experience and claims history of SB Valuers. 41 The applicant argues that the underwriting information bears no relevance to the issues in dispute and the material sought would thus be inadmissible. The information required would not indicate whether SB Valuers, or the fifth defendant, were suitably qualified and experienced, or whether SB Valuers had a proper basis for believing the fifth defendant was qualified and experienced. This information should be adduced from other evidence, such as whether the fifth defendant was licensed - an objective fact to be established in proceedings.

42 The first defendant is seeking to reduce any potential liability through apportioning that liability to the fifth defendant pursuant to s 35 Civil Liability Act 2002. They therefore argue it is likely that the documents referred to in category two of the letter of 2 July 2008 will contain or refer to communications to ACE made by SB Valuers, the fifth defendant or third parties, regarding the basis for conducting the valuation, the circumstances in which it was made and these communications may contain admissions. The extent to which the business was conducted may have a more general relevance to the question of whether the valuation was conducted negligently. 43 In relation to category two, the applicant argues that the question of whether ACE has received a claim for indemnity from SB Valuers or by a third party cannot rationally affect the question of whether the fifth defendant's valuations were negligently prepared. This is a question of fact to be decided by the trial judge presumably on the basis of expert evidence. Therefore, the evidence sought by ACE would be inadmissible. Additionally, any correspondence between ACE and third parties about whether any claims had been made has no probative value on the question of whether the fifth defendant negligently prepared the valuations. This evidence would also be inadmissible. 44 Questions of relevance and admissibility of evidence adduced from the production of documents ordered by subpoena served on third parties has been analysed by Brereton J in Portal Software v Bodsworth [2005] NSWS 1115 at [23] to [25] and cited with approval in a number of cases. His Honour states: "It is necessary, then, to appreciate what is the test of "relevance" in the context of a subpoena. In many of the cases, it had been described as "apparent relevance", in the sense that the documents, production of which is sought, must bear some apparent relevance to an issue in the proceedings. In Waind and Hill , Moffitt P described the concept in these terms: 'Production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence in the case.'

In White v Tulloch (1995) 127 FLR 105 ; (1995) 19 Fam LR 696; (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection". But perhaps the most instructive description is that of Beaumont J in Arnotts , in which his Honour said that the test of adjectival relevance was satisfied if the material had apparent relevance and was established if the documentation called for "could possibly throw light on the issues in the main case". In a slightly different but related context, the test has been put in terms that a subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in a criminal proceeding [ Alister v R (1984) 154 CLR 404 at 414 (Gibbs CJ), R v Saleam (1989) 16 NSWLR 14 at 18]. Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings." 45 Given the description of the documents sought, in my view it is clear that they may well throw light on the question of the valuer's expertise and may also contain admissions on the question of the valuations and matters concerning its preparation. In my view the Registrar was correct to accept that there was a legitimate forensic purpose. 46 Although the ground was not expressed as a denial of natural justice it is as well to consider whether the solicitor for Ace Insurance Limited was denied an opportunity to put his case. The first thing to note is that in reference to what was said in the transcript I have set out earlier, there was no taking up of the offer to see the pleadings. There was also no application for an adjournment based upon the inability to have seen the pleadings before the hearing. 47 What seems to have happened is that the solicitor for Ace Insurance Limited decided to argue the matter on the run and make complaints about the late identification of the forensic purpose. He was given an appropriate opportunity to respond to the arguments and did so. He did not suggest that the subpoena was oppressive. Given the lack of opportunity to see the pleadings before the hearing in my view he would have had a good case to look at them if he had wished. He could well have obtained an adjournment to enable him to do so. 48 No breach of natural justice has occurred. The subpoena is oppressive 49 Having had a chance to review the pleadings and the first defendant's response as to the forensic purpose of the pleadings, the applicant's current submissions differ to the submissions made to the Registrar. 50 They argue that the documents sought in category 1 and 2 are very broad and they are not limited by time, so production in that sense would be oppressive. The first part of category two seeks "all documents relating to" claims received by ACE, which might apply to a significant number of documents. However, the applicant has put no evidence forward in this regard and the issue was not raised before the Registrar. 51 At the hearing the following was stated (transcript page 4, lines 24 to 35): "DEPUTY REGISTRAR: Is your argument that there is a legitimate forensic purpose? MUSTON: Yes. DEPUTY REGISTRAR: It's not oppressive? It's not a fishing expedition? Is that what you say? MUSTON: No, there's no suggestion, as I understand it, that it's oppressive. I think the suggestion is that it simply lacks forensic purpose and what might be characterised as a fishing expedition. My submission is that it has a plain forensic purpose." 52 Mr Muston appeared for the first defendant and there was no demur to what he suggested. It was consistent with what occurred before the Registrar. 53 It is fundamental to the administration of justice that substantive issues and facts are not raised for the first time at the level of an appeal, if that evidence could have been heard in the trial proceedings. There is an extensive line of authority explaining this axiom of the law. 54 In University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481 (at 483) Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said: "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to reuse a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had the opportunity to do so."

55 Mason CJ, Wilson, Brennan and Dawson JJ in Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, considered the correctness of the Court of Appeal's view that that upon the facts of the case as found by the trial judge and with regard to the plaintiff's submission at trial, a particular in a case of negligence "emerged" against the Water Board, which the plaintiff had not appeared to rely on at trial. Their Honours stated: "The course taken by the Court of Appeal immediately casts doubt upon whether it was correct in concluding that, upon the facts as found by the trial judge, the plaintiff had made out a case of negligence against his employer. The only case which he could have made out was one which he sought to put, for a trial is not at large but is of the issues joined by the parties. If the case which the Court of Appeal thought was made out was one which the plaintiff had sought to put on trial, then it may not have been unfair, as the Court of Appeal appears to have thought it would have been, for judgment to have been entered for the plaintiff on the appeal and for any question of contributory negligence to have been dealt with then and there. Any element of unfairness can only have arisen from the fact that the case against the employer which the Court of Appeal discerned, was not a case which the plaintiff sought to make at trial and was not, for that reason, a case which the employer had been required to meet. It was not a case which could be met upon appeal because the possibility of calling evidence to meet it was denied to the employer at that stage. More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; ; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; ; 65 ALR 656; O'Brien v Komesaroff (1982) 150 CLR 310 at 319; ; 41 ALR 255. In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged: see Dare v Pulham (1982) 148 CLR 658 ; 44 ALR 117. In Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 at 668; ; 9 ALR 437 at 446, a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 ; 18 ALR 147. Jacobs J, with whom the other members of the court agreed, pointed out (ALJR at 294; ALR at 151-2) that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularising the existing issue had emerged at the trial and had been litigated. " 56 In Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Latham C.J., Williams and Fullagar JJ, referred to a Privy Council decision from 1897: "The difficulty is that this defence is now raised for the first time on the hearing of this appeal. It does not even form one of the grounds of appeal. It is true that it would not naturally occur to the defendant to raise the defence before his Honour delivered judgment, because it is grounded on his Honour's findings …But it was open to the defendant to ask his Honour to restore the suit to the list and hear argument upon the effect of these findings and if necessary to re-open the case and hear further evidence. The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. … In Grey v. Manitoba and North Western Railway Co. of Canada (1897) A.C. 254 , Lord Hobhouse, delivering the judgment of the Privy Council, made the following appropriate remarks: "The questions now raised ought to have been raised on the pleadings and evidence so that they might be properly thrashed out in the courts below. As the matter stands they have not been touched by the courts below ... they (their Lordships) confine themselves to deciding the issues which the court below were invited by the plaintiffs to decide." " 57 Even if it were appropriate to consider this submission which was not raised below I do not think it has substance. The categories, although not date limited, are appropriately limited by particular events or description. 58 I do not think that the documents sought are so wide that the subpoena would be oppressive. The subpoena is issued for an improper purpose 59 The first defendant's defence filed on 27 March 2008 states at [4] that there was a custodial agreement between the first and second defendant, where the second defendant was custodian of the Elway Bridging Fund. At 36 and (n) the defence states: "(m) … on 26 October 2007, the Second Defendant as custodian of the Elway Bridging Fund and at the express direction of the First Defendant as responsible entity of the Teys Trust issued a letter of demand on the insuraers of SB Property Valuers for payment of the default judgment;

(n)… at the time of lodging this defence the insurer of SB Property Valuers has denied indemnity to SB Property Valuers in respect of the letter of demand." 60 The applicant argues now that on the above grounds it appears that the true purpose of the subpoena "might well be" the indemnity claim set out at [36] (m) and (n). They state that the claim is not an issue in proceedings and if documents are sought for that purpose the subpoena is issued for an improper purpose. 61 No further evidence to support this allegation has been provided by the applicant. Given the evident forensic purpose I am not satisfied that there is any such improper purpose. Conclusion 62 I dismiss the motion filed 28 October 2008 with costs.

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