Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd - [2020] NSWSC 320 - NSWSC 2020 case summary — Zoe

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Omega Plumbing Pty Ltd v Harbour Radio Pty Ltd

[2020] NSWSC 320

Supreme Court of NSW|2020-03-16|Before: Mr J, Davies J, Gummow J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-03-16

Before

Mr J, Davies J, Gummow J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Judgment

The issue for determination is whether two subpoenas issued by the defendants should be set aside.
By notice of motion filed 21 February 2020, the plaintiff seeks the following orders: firstly, that the subpoena to produce documents filed and served by the defendants on the Proper Officer of the Master Plumbers Association of New South Wales be set aside; and secondly, that the subpoena to produce documents filed and served by the defendants on the Commissioner of the New South Wales Department of Fair Trading be set aside, both pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The defendants oppose the orders sought.
The plaintiff is Omega Plumbing Pty Ltd ("Omega Plumbing"). The first defendant is Harbour Radio Pty Ltd ("Harbour Radio"). The second defendant is Raymond Morris Hadley. The plaintiff relied upon the affidavit of Matthew Bryan dated 21 February 2020. The defendants relied upon the affidavit of Bruce Norman Burke dated 28 February 2020.

[2]

The pleading framework

By statement of claim filed 16 December 2019, the plaintiff sues for publication of injurious falsehoods in broadcasts made by Mr Hadley on 2GB, a commercial radio station, from 29 October 2019 to 4 November 2019.
The representations upon which the plaintiff sues are that the plaintiff: 1. overcharges its customers (para [6]); 2. rips off its customers ([7]); 3. engages in unethical and dishonest business practices ([8]); 4. steals from its customers ([9]); 5. charges its customers for services it does not provide ([10]); 6. targets vulnerable clients ([11]); and 7. has been excluded from the Master Plumbers Association ([12]).

[12]

Consideration

At the hearing, counsel for the plaintiff conceded that if there have been consumer complaints, they may concern an issue in the proceedings. However, he submitted that they cannot have any legitimate forensic purpose if there are going to be de-identified complaints (T 15.35-42). The alleged representations made against the defendants are very broad. There are approximately 140 pages of documents, and only two or three instances where the complainant's name has been de-identified for privacy reasons (T 9.41-44). It is my view that the documents identified in paras [2]-[4] of the subpoena identify a legitimate forensic purpose, and it is on the cards that the documents will materially assist the defendants' case. If it is intended that the de-identified witnesses need to be called to give evidence at trial, whether to reveal their names may need to be reconsidered.
That leaves the document which is subject of item (1) of the schedule, namely the Omega trader profile. It contains a record of each of the "complaints" and each of the "enquiries" made against Omega and/or Allan Ferguson, including a description of the complaint as input by the consumer. For privacy reasons, the NSW Department of Fair Trading has redacted the following details from the document: the consumer name, telephone number, address, and any other identifying details.
Allan Ferguson is the sole director of Omega. It is not clear what role Mr Berg plays, but it may be that he is an officer of Omega. Counsel for the plaintiff conceded that if the addressees are read conjunctively and not disjunctively, that gets rid of part of the objections (T 13.48-50; 14.1-3). He points out that another shortcoming of the plaintiff's request for the documents sought in item (1) of the schedule is that the plaintiff has not demonstrated that the notice to show cause has anything to do with any issue in the proceeding.
It is the defendants' opinion that the documents in the Omega trader profile are highly relevant to the matters in these proceedings, and are likely to save a considerable amount of time in any final hearing because they could alleviate the need to call a number of witnesses.
An ASIC search of Omega Plumbers shows that between 26 November 2018 and 12 June 2019, the company has been issued 7 infringement notices.
It is my view that the defendants have demonstrated that these documents relate to issues in the proceedings, namely that the representations are not false. The subpoena has been issued for a legitimate forensic purpose. It is "on the cards" that the documents would assist the defendants' case. The subpoena addressed should not be set aside.

[13]

(2) The Master Plumbers Association of NSW

The schedule in the subpoena directed to the Master Plumbers Association of NSW is as follows: 1. all documents being or relating to complaints regarding Omega and/or Allan Ferguson made between January 2010 and the present; 2. all documents being or relating to any investigation undertaken in relation to Omega and/or Allan Ferguson between January 2010 and the present; 3. all documents being or evincing disciplinary action taken against Omega and/or Allan Ferguson between January 2010 and present; 4. all documents being or relating to any NCAT proceeding involving Omega and/or Allan Ferguson, including any referrals made to NCAT; 5. all documents being or evincing the reasons for the cancellation of Omega's membership with the Master Plumbers Association of NSW in 2013; and 6. all documents evincing Omega's continuation of use of Master Plumbers Association of NSW logos (or any other identifying mark, including trademarks) following the termination of Omega's membership with the Master Plumbers Association of NSW.
At the hearing of these proceedings, the time period in the schedule was limited to between January 2010 and December 2013.
The Master Plumbers Association of NSW did not object to the subpoena in this form, and has already produced documents in accordance with the subpoena.
So far as the subpoena addressed to the Commissioner of the NSW Department of Fair Trading is concerned, the defendants accepted at the hearing of the interlocutory application before Davies J that the statement that the plaintiff had been excluded from the Master Plumbers Association was wrong (at [42]). Notwithstanding that acceptance, the defendants issued a subpoena addressed to the Master Plumbers Association of NSW.
So far as the subpoena directed to the Master Plumbers Association of NSW is concerned, on 28 October 2019, Ms Joo of Macquarie Media made a call on behalf of Mr Hadley. She spoke with Paul Naylor, the CEO of the Master Plumbers Association of NSW, about the plaintiff. Mr Naylor stated, "five years ago, we refused to renew their membership." A file note of that conversation further reveals that Mr Naylor described the plaintiff as having a "long track record" and that the plaintiff was the type to "go in with couple hundred dollar quote, walk out with thousands of dollars in contract."
Although at the hearing of the interlocutory application there was evidence that the plaintiff was a member of the Master Plumbers Association of Australia as of 2019, the defendants argue that that is not relevant to determining whether the plaintiff was excluded from the NSW association in or about 2013/2014.

[14]

The plaintiff's submissions

The plaintiff submitted that the defendants are fishing for a case. It submitted that the documents sought in paras [1]-[4] of the subpoena demand third party discovery of all documents relating to the plaintiff and to a stranger to the litigation, Allan Ferguson. They are not confined to documents going to the statements complained of, in relative proximity to the publication. The defendants seek, during a three year period, all documents being or relating to complaints, investigations, disciplinary action and proceedings, even where those documents might have no bearing upon the truth or falsity of the statements.
Further, the plaintiff questioned how the fact that a complaint has been received or investigated is relevant to the truth or falsity of any of the statements of which the plaintiff complains. The fact or content of a complaint does not constitute evidence of the truth of the allegation made by the complainant, even if the complaint touches upon one of the statements where truth or falsity is in issue. The same may be said of any investigation. As such, the plaintiff submitted that the decision to investigate and the steps taken to investigate are not probative of any fact in issue.
The plaintiff made a similar submission in respect of disciplinary action and referrals to NCAT. Disciplinary action is evidence of nothing more than the opinion of a third-party association body. A referral to NCAT is nothing more than a request for NCAT to make a conclusion about a dispute.
For these reasons, the plaintiff submitted that it is clear that what the defendants are seeking to do is to uncover instances of alleged misconduct on the part of the plaintiff so that they can then commence their own enquiries and seek to elicit evidence going to the truth or falsity of any such allegations. They are using the subpoena process to find out whether there is anything to investigate.
As to the documents sought in para [5] of the subpoena, the plaintiff submitted that the only relevant issue in the proceedings concerning the Master Plumbers Association is whether the plaintiff was, or was not, excluded from that association as at the date that the statement was made by the defendants in late 2019. The plaintiff established, to the satisfaction of the Court and the defendants, that it is a member of the Master Plumbers Association. That controversy has been resolved.
The plaintiff submitted that the impropriety of the subpoena can be tested as follows. Even if the plaintiff had been excluded from the NSW branch of the Master Plumbers Association at some earlier time, which the plaintiff denies, they had renewed their membership with the national association at the time of the relevant broadcasts and publications. As such, the defendants' statements were false. Documents going to the plaintiff's former exclusion from the NSW branch would not be relevant to a fact in issue.
The defendants seek documents evidencing the reasons for the cancellation of the plaintiff's membership with the Master Plumbers Association of NSW in 2013. Those documents could not be relevant to statements made seven years later, particularly in circumstances where the defendants have accepted the currency of the plaintiff's membership of the national association.
The documents sought in paragraph [5] are not confined in time, and the subpoena suffers from the defect identified above. The plaintiff questioned how the fact of referral to NCAT, or the commencement of proceedings in NCAT, could be probative, adjectivally or otherwise, of the truth or falsity of the statements of which the plaintiff complains.
The plaintiff submitted that the insufficiencies of para [6] are patent. The defendants seek documents "relating to any consideration and/or attempt to cancel" the plaintiff's licences. Such documents could never be relevant to a fact in issue in the proceedings. The views of the NSW Department of Fair Trading and any attempts made by the department to cancel a licence would not be relevant to the truth of falsity of the statements of which the plaintiff complains. Further, the documents sought are not confined by the subject matter of the proceedings, being the truth or falsity of certain statements.
In the present case, the documents sought that the defendants are seeking to use the coercive powers of a subpoena to obtain the documents in order to see whether they may assist it in its case.
It cannot be submitted by the defendants that it is "on the cards" that the documents will materially assist the defendants' case. It cannot be submitted by the defendants that the documents sought could possibly throw light on the issues in the proceeding. That is because many of the documents sought simply do not bear upon the truth or falsity of the statements of which the plaintiff complains, which were made by the defendants in late 2019.
The defendants' case, put at its highest, can only be that they are hopeful that material will be produced that will materially assist their case, although how it will do so cannot be known to the defendants until they have had a chance to obtain the material.

[15]

The defendants' submissions

The defendants submitted that this subpoena is directed to obtaining documents that will be relevant to the issue of the falsity of the representations. That is a legitimate forensic purpose. Furthermore, it is "on the cards" that the documents held by the Master Plumbers Association of NSW will assist the defendants' case.
The CEO of the Master Plumbers Association of NSW has advised that the plaintiff's membership with that organisation was not renewed five years ago, and that in his view, the plaintiff had a systemic problem with contract prices exceeding quotes. Furthermore, the defendants submitted that they had already spoken with a significant number of complainants, and were aware of the existence of infringements. The schedule negotiated with the NSW Department of Fair Trading reveals the nature of the documents available.
In these circumstances, the defendants submitted that they are perfectly entitled to issue subpoenas which will have the effect of uncovering multiple instances of misconduct, the precise details of which are as yet unknown to them. The defendants know there are complaints and misconduct which the NSW Department of Fair Trading has deemed worthy of investigation, and they know that documents exist which will throw light on these issues.
As to the plaintiff's submission that "the fact or content of a complaint does not evidence the truth of any allegation made by the complainant", the defendants submitted that the plaintiff has completely misunderstood the test. If, for instance, an issue in a proceedings involves a business overcharging, where there is evidence of an ongoing investigation by a government agency into the business overcharging, the legitimate forensic purpose of a subpoena seeking those investigation documents is self-evident, and it is "on the cards" that the documents sought would assist the case of the party seeking to establish overcharging. The party issuing the subpoena would not have to establish that the complaints forming part of the investigation are true or reliable.
Similarly, the defendants submitted that it does not matter whether disciplinary action (including letters, penalty infringement notices, notices to show cause and proceedings involving a license suspension) is justified, or that such documents may disclose "the opinion of a third party association body". The point is that it is on the cards that such documents (recording the underlying facts leading to the disciplinary action) will assist the defendants' case.
As to the plaintiff's submissions concerning the Master Plumbers Association of NSW subpoena, the defendants submitted that the records of complaints, investigation, and/or disciplinary action in relation to the overcharging and unethical behaviour retained by the Master Plumbers Association of NSW would satisfy the legitimate forensic purpose and "on the cards" tests on the same basis as the documents sought from the NSW Department of Fair Trading.
The fact that the plaintiff, after having been excluded from the Master Plumbers Association of NSW, subsequently joined another state or national organisation does not render the circumstances of the earlier exclusion by the NSW association irrelevant to the truth or falsity of the representations. Indeed, the defendants submitted that it is "on the cards" if not outright likely that those circumstances involved serious misconduct on the part of the plaintiff.
For these reasons, the defendants submitted that the subpoena has a legitimate forensic purpose, namely to obtain documents relevant to the falsity of the representations. It is "on the cards" that the documents produced will relate to the issues in the proceedings. There is no fishing, because the defendants already know for a fact that both the NSW Department of Fair Trading and the Master Plumbers Association of NSW must have relevant documents. There is no evidence the subpoena is oppressive or otherwise unduly burdensome.