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[2012] NSWSC 600
Supreme Court of NSW
2012-05-08
Brereton J
Original judgment source is linked above.
Judgment (ex tempore) 1HIS HONOUR: By originating process filed on 4 November 2011, the plaintiff Jian Sheng Chen claims an order pursuant to (Cth) Corporations Act 2001, s 237, granting leave to commence proceedings in the name of the third defendant Wan Jia (Australia) International Development Pty Limited against the first defendant Jian Ying Chen (a brother of the plaintiff) and the second defendant Runa Chen (an employee of the company and daughter of the first defendant). The present application, brought by interlocutory process amended by leave granted at the outset of the hearing today, is essentially to set aside various notices to produce and subpoenas issued by or at the request of the defendants.
Background 2On 7 March 2012, the defendants served on the plaintiff's solicitor a Notice to Produce for Inspection under (NSW) Uniform Civil Procedure Rules 2005 (UCPR), r 21.10, which required production by 23 March 2012 of the following: 1The MYOB file for the period 1 July 2009 to date in respect of the business conducted by Wan Jia (Australia) International Development Pty Ltd. 2All invoices generated by by Wan Jia (Australia) International Development Pty Ltd on and from 6 May 2011. 3All order confirmation documents and sketches relating to orders made by customers of Wan Jia (Australia) International Development Pty Ltd on and from 6 May 2011. 4All packing slip documents relating to orders made by customers of Wan Jia (Australia) International Development Pty Ltd on and from 6 May 2011. 5All delivery slip documents relating to orders made by customers of Wan Jia (Australia) International Development Pty Ltd on and from 6 May 2011. 6All documents relating to: a.Your prior application (or applications) for a subclass 163 State/Territory Sponsored Business Owners Visa, including: (i)your preceding application for sponsorship from the Northern Territory Government (Department of Business and Employment or its relevant predecessor) together with all documents, notes and other writings in support of that application; and (ii)your actual application (or applications) for the said Subclass 163 Visa together with all documents, notes and other writings in support of that application. b.Your prior application (or applications) for a Subclass 892 State/Territory Sponsored Business Owner Visa, including: (i)your preceding application for sponsorship from New South Wales Government (Department of Trade and Investment or its relevant predecessor) together with all documents, notes and other writings in support of that application; and/or (ii)Your preceding application (or applications) for sponsorship from any other State or Territory government together with all documents, notes and other writings in support of that application; and (iii)your actual application (or applications) for the said Subclass 892 Visa together with all documents, notes and other writings in support of that application. 3On 19 March 2012, the defendants caused to be issued six subpoenas for production returnable on 27 March 2012, addressed respectively to Brett Slater trading as Brett Slater Solicitors; Brett Slater Migration Services Pty Ltd; Johninfo Lawyers Pty Ltd; Johninfo Group Pty Ltd; Director-General of the Department of Trade & Investment, Regional Infrastructure and Services; and, the Minister for Immigration and Citizenship. 4The subpoenas are not identical, but are substantially similar, and will be sufficiently represented for the purposes of the present application by that addressed to Brett Slater Migration Services Pty Ltd, the schedule to which is as follows: 1.All documents relating to any application (or applications) made to: (a)the Department of Business and Employment of the Northern Territory (or its predecessor); (b)the Department of Trade and Investment of New South Wales (or its predecessor); and/or (c)the Department of any other State or Territory, for and on behalf of Jian Sheng Chen for State/Territory Sponsorship for a Subclass 163 State/Territory Sponsored Business Owner (Provisional) Visa, including but not limited to any: (d)application forms; (e)supporting documents; and/or (f)submissions in support of any such application. 2.All documents relating to any application (or applications) made to: (a)the Department of Business and Employment of the Northern Territory (or its predecessor); (b)the Department of Trade and Investment of New South Wales (or its predecessor); and/or (c)the Department of any other State or Territory, for and on behalf of Jian Sheng Chen for State/Territory Sponsorship for a Subclass 892 State/Territory Sponsored Business Owner Visa, including but not limited to any: (d)application forms; (e)supporting documents; and/or (f)submissions in support of any such application. 3.All documents relating to any application (or applications) made to the Department of Immigration and Citizenship (or its predecessor) for a Subclass 163 State/Territory Sponsored Business Owner (Provisional) Visa for and on behalf of Jian Sheng Chen, including but not limited to any: (a)application forms; (b)supporting documents; and/or (c)submissions in support of any such application. 4.All documents relating to any application (or applications) made to the Department of Immigration and Citizenship (or its predecessor) for a Subclass 892 State/Territory Sponsored Business Owner Visa for and on behalf of Jian Sheng Chen, including but not limited to: (a)application forms; (b)supporting documents; and/or (c)submissions in support of any such application. 5.All correspondence passing between any representative of Brett Slater Migration Services Pty Ltd and/or Jian Sheng Chen and: (a)Department of Business and Employment of the Northern Territory (or its predecessor); (b)the Department of Trade and Investment of New South Wales (or its predecessor); (c)the Department of any other State or Territory; or (d)the Department of Immigration and Citizenship (or its predecessors), relating to any application (or applications) for and on behalf of Jian Sheng Chen for a Subclass 163 State/Territory Sponsored Business Owner (Provisional) Visa and/or a Subclass 892 State/Territory Sponsored Business Owner Visa. 6.All correspondence, notes, advices and memoranda relating to: (a) Brett Slater Migration Services Pty Ltd's engagement as a migration agent for Jian Sheng Chen; and/or (b)any application (or applications) for and on behalf of Jian Sheng Chen for a Subclass 163 State/Territory Sponsored Business Owner (Provisional) Visa and/or a Subclass 892 State/Territory Sponsored Business Owner Visa. 5By letter dated 20 March 2012, the defendants' solicitors informed the plaintiff's solicitor, enclosing copies by way of service, of each of the subpoenas issued, and observed that they were returnable on 27 March 2012. As required by the rules, each of the subpoenas contained a proposed access order, the consequence being that in the absence of opposition that order would be made. 6On 23 March 2012, the date for compliance by the plaintiff with the Notice to Produce for Inspection passed without any objection having been taken to it. 7On 27 March 2012, the subpoenas were returnable before the Court. There was no appearance on behalf of the plaintiff. Brett Slater produced documents to the Court, and an order for access was made. The other subpoenas were adjourned to 17 April 2012. On 28 March 2012, the defendants' solicitors sent to the plaintiff's solicitors a letter noting that they had appeared before the Registrar at the return of subpoenas the previous day, and that there was no appearance on behalf of the plaintiff, advising that general access orders were made in relation to materials produced under the subpoena issued to Brett Slater Solicitors, and noting that the subpoenas issued to New South Wales Trade and Investment and the Department of Immigration and Citizenship had been stood over until 17 April 2012. 8On 29 March 2012, the plaintiff's solicitor wrote to the defendants' solicitors taking objection to the Notice to Produce for Inspection on the ground that it did not comply with UCPR r 21.10(1)(b), that the documents sought were not relevant and that the Notice amounted to a fishing expedition. 9On 13 April 2012, the plaintiff's solicitors wrote to the defendants' solicitors pressing for the defendants to file any further affidavits on which they proposed to rely. 10On 17 April 2012, the date to which the subpoenas had been adjourned, there was no appearance on behalf of the plaintiff. General access was granted to documents produced by Johninfo Group Pty Ltd and by the Minister for Immigration and Citizenship. Subpoenas to the Minister for Immigration and Citizenship and to the Director General of the Department of Trade and Industry were stood over to 1 May 2012. On this occasion, the defendants' solicitors did not give notice of the adjournment to 1 May 2012 to the plaintiff's solicitors. 11On 18 April 2012, the defendants' solicitors responded to the plaintiff's solicitors' letter of 13 April 2012, confirming that a further affidavit was to be filed, but asserting that they were not in a position to do so until documents called for by the notices to produce and subpoenas had been produced. Contemporaneously, the defendants served a further Notice to Produce, dated 18 April 2012, seeking, relevantly: 1All documents relating to your prior application (or applications) for a Subclass 845 Established Business in Australia Visa, including: a.Your actual application (or applications) for the said Subclass 845 Established Business in Australia Visa together with all documents, notes and other writings in support of that application; and b.All correspondence and/or other documents relating to your prior application (or applications) for a Subclass 845 Established Business in Australia Visa: (i)sent by you (or any solicitor or migration agent acting on your behalf) to the Department of Immigration and Citizenship or any other Department of the government of the Commonwealth of Australia; (ii) received by you (or any solicitor or migration agent acting on your behalf) from the Department of Immigration and Citizenship or any other Department of the government of the Commonwealth of Australia; (iii)sent by you to any solicitor or migration agent acting on your behalf; or (iv)received by you from any solicitor or migration agent acting on your behalf. 12The matter was before the Court for directions on 23 April 2012, when the Court made directions that the plaintiff, by 27 April 2012, either file and serve a notice of motion and supporting affidavits seeking to set aside paragraphs 1 to 5 inclusive of the defendants' Notice to Produce dated 7 March 2012 (paragraph 6 apparently no longer being pressed) - any such motion to be returnable on 30 April 2012 in the Corporation Judge's list - or otherwise produce the documents called for in those paragraphs of the Notice to Produce. Also on 23 April 2012, the defendants exercised access to the documents that had been produced by the Minister pursuant to the leave that had been granted on 17 April 2012. 13By letter of 24 April 2012, the plaintiff's solicitors first asserted that the subpoenas were an abuse of process and not for a legitimate forensic purpose. That day, they filed the interlocutory process claiming, relevantly, orders setting aside the notices to produce and the subpoenas. 14On 26 April 2012, the defendants exercised access to the documents produced by Brett Slater and by Johninfo pursuant to the leave that had been granted respectively on 27 March 2012 and on 17 April 2012. 15The Motion came before Hammerschlag J, sitting as Corporations Judge, on 30 April 2012. In the course of the proceedings that day, the defendants' counsel informed the Court that instructing solicitors had inspected the documents, and in response to a question from his Honour, to the effect "So you say the horse has bolted?", responded "Yes, the horse has bolted." 16On the defendants' application, the Motion was adjourned to today for hearing of claims 1 (which sought an early hearing of the originating process), and claims 4 to 7 (which concerned the notices to produce and subpoenas). Directions were made for the service of affidavits, and the originating process was provisionally fixed for hearing on 21 June 2012. No application was made for any interlocutory relief or undertakings in connection with the subpoenas. 17When the remaining subpoenas were next returnable on 1 May 2012, there was - on this occasion understandably, because no notice of the adjournment was given - no appearance on behalf of the plaintiff. The Minister produced further documents, to which access was granted, and inspection occurred the following day, a matter which was advised to the plaintiffs only subsequently. Nonetheless, it is worthy of note that this was a further production by the Minister who had already produced documents on a previous occasion, to which access had been granted.
The Notices to produce 18UCPR r 21.10 provides as follows: (1)Party A may, by notice served on party B, require party B to produce for inspection by party A: (a)any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b)any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2)A notice to produce may specify a time for production of all or any of the documents or things required to be produced. 19It is not suggested that subrule (1)(a) applies. If the notices to produce are supportable it must be by reference to subrule (1)(b), namely, "any other specific document or thing that is clearly identified in the notice and relevant to a fact in issue". 20The purpose of r 21.10 is to ensure that a notice to produce under the rule does not subject the parties to a general discovery obligation. Any notice given under the rule must identify the documents to which it refers with reasonable precision. In Kursell v Timber Operators & Contractors Ltd [1927] 1 KB 298, Sargant LJ said (at 313-14) that the word "specific" conjures up the idea of something that is identified and not merely identifiable. In Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182, Young CJ in Eq said that there must be an indication in a distinct manner free from confusion of the documents required. In Douglas Corporation Pty Ltd v Currico Nominees Pty Ltd [2007] NSWSC 113, Harrison AsJ (as his Honour then was) said (at [29]) that reference to documents required "strict specificity in order to identify the individual document sought". In Norris v Kandiah [2007] NSWSC 1296, I said that, as a general rule, a notice to produce would not clearly identify documents, nor bring satisfaction that they are relevant to a fact in issue, if it merely identified subject matters by relation, particularly if the subject matter is stated broadly and without temporal restriction. 21It seems to me that paragraph 1 of the Notice identifies, with sufficient specificity, a specific identifiable document. Paragraphs 2, 3, 4 and 5 call for "all invoices", "all order confirmation documents", "all packing slip documents" and "all delivery slip documents" from a particular date. Even if some of the documents called for by that notice are relevant, it is practically inevitable that the notice will catch numerous documents that are not relevant. As I apprehend it, it is said that these documents are relevant because they might concern the sale of bronze products; but even if some of them do, it is most improbable that all of them do. In any event, a requirement for "all invoices," et cetera, after a specific date, is not a sufficient identification of "a specific document clearly identified" in the notice relevant to a fact in issue so as to comply with the rules. 22I will therefore set aside paragraphs 2 to 4 of the Notice to Produce dated 7 March 2012. 23So far as paragraph 1 is concerned, its relevance is supported on the basis that it may show drawings by the plaintiff from the company, and may show the state of the first defendant's loan account. It is not by any means clear to me that, ultimately, those will be relevant issues on the application for leave under s 237, but I am not prepared at this stage to say that they are plainly irrelevant, and, balancing that against the slight burden imposed by the single remaining paragraph of the notice to produce, I will not set aside paragraph 1.
The subpoenas 24So far as the subpoenas are concerned, although argument has been addressed to many issues pertaining to their relevance and purpose, it seems to me that the short answer is that they are spent: they have been served; their service has been notified; they have been answered; documents have been produced in answer to them; access has been granted to those documents; and, they have been inspected in accordance with the access granted. 25All this was done almost entirely without objection on the part of the plaintiff's solicitors, who were on notice. I say almost entirely, because it can fairly be said that the inspection on 2 May 2012 took place in circumstances after objection had been taken, but even then an interlocutory restraint had not been sought, let alone imposed. 26While sometimes a lawyer, recognizing that there may well have been a mistake in, or oversight on, the part of a party producing documents without a claim for privilege or an objection, runs the risk that, subsequently, a claim or objection will successfully be advanced and use of the documents restrained, generally speaking, where documents have been produced in an orthodox manner, a party to litigation who sees a document produced without objection and without privilege being claimed, and is subsequently permitted inspection of the document, is fully entitled to assume that any privilege (or other restriction on access) that might have otherwise been claimed for it has been waived: see Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1044 (Slade LJ, with whom Wolff LJ and Sir George Waller agreed). Although this was said in the context of discovery, I think it applies equally in the present context. 27In Guinness Peat, Slade LJ went on to summarise (at 1045) the principles applicable in such situations as including that, where solicitors for a party had, on discovery, mistakenly included a document for which they could properly claim privilege, at any time before inspection had taken place the court would permit them to amend their discovery list; but once the other party had inspected the document, the general rule is that it is too late for the party who seeks to claim privilege to attempt to correct the mistake by applying for injunctive relief - unless the other party or its solicitor had procured inspection by fraud, or on inspection realised that he or she had been permitted to see the document only by reason of an obvious mistake. 28In Biseja Pty Limited v NSI Group Pty Limited [2006] NSWSC 1497, I endeavoured to summarise the position, albeit in the context of discovery (at [14]): In the context of formal discovery, in the absence of obvious mistake apparent to an inspecting party, or fraud, the position is that, once inspection has been allowed of a document listed in that part of an affidavit or list, in which privilege from inspection is not claimed, then any privilege attaching to that document is to be regarded as waived by being included in that part of the affidavit or list, and by being made available for inspection. See also Grace v Grace [2010] NSWSC 1514. 29In Adelaide Bank Ltd v Abdelkodous [2011] NSWSC 32, Hoeben J, as his Honour then was, distinguished Grace v Grace from the circumstances that confronted his Honour, on the basis that there had not been an "orderly discovery process but documents were produced in answer to a subpoena." But fundamental to that distinction was his Honour's additional observation (at [58]) that, "it must have been obvious when the subpoena was drafted that the documents, which were the subject of the subpoena, were potentially subject to a claim for privilege. Any doubts on that issue would have been removed when the documents were actually produced." Moreover, within four or five days of the documents having been uplifted, the solicitor then acting for the defendants had ceased to act, which of itself suggests that full attention might not have been paid by the defendants' then legal adviser to the subject matter of the subpoena. 30Not only are none of those mitigating circumstances present in the current case, but no explanation whatsoever is offered for why no objection was taken prior to 24 April 2012, why there was no appearance on the first or the second return of subpoenas, and why the matter was allowed to go without objection for as long as it did. If, indeed, there were a mistake, which is the touchstone of the Court's ability or willingness to grant a remedy in such circumstances, then one would at least expect to see some evidence from those involved to indicate that there had been some oversight or mistake. But, there is not even any evidence in this case that what happened was not in accordance with instructions. 31In those circumstances, I do not see that the plaintiff has laid the slightest basis for the favourable exercise of such discretion as the Court has. It is simply not established that there was a mistake, let alone that the mistake was one that would have been obvious to the defendants. 32In those circumstances, it is somewhat extraordinary that the unexplained omissions of the plaintiff's solicitor to act earlier are converted into a vigorous attack on the honesty and propriety of the defendants' solicitor - an attack that was not made good - although, as I have observed, it is unfortunate, to say the least, that the adjournment of the subpoenas to 1 May 2012 was, by oversight, not notified. 33What I have said so far should not be taken to conclude that the documents sought in the subpoenas in question are necessarily relevant to an issue properly arising on the s 237 application. However, the time for any application to set aside those subpoenas has long since past. 34In fairness to the solicitor for the defendants, I should add, that while there may be occasions on which prudence suggests that a lawyer might not take precipitate action when his or her client is faced with an application for an order that if granted may prohibit that action, it cannot be said that it is wrong, let alone dishonest, for a lawyer diligently to prosecute his or her client's rights in accordance with liberty or leave that has been granted by the court, merely because there is notice of an application to revoke that leave, or even to stay the order unless and until such a stay has been granted.
Orders 35I order that paragraphs 2, 3, 4 and 5 of the Notice to Produce dated 7 March 2012 be set aside. I order that the Notice to Produce dated 18 April 2012 be set aside. I otherwise refuse the relief claimed in paragraphs 4, 5, 6, 7, 13 and 14 of the Amended Interlocutory Process. 36I confirm the provisional fixture for hearing on 21 June 2012 of the originating process. 37I order that the plaintiff produce to the defendants the documents described in paragraph 1 of the Notice to Produce dated 7 March 2012 by 11 May 2012. 38I direct that the defendants be not entitled to rely at the hearing on any evidence not served by 25 May 2012, without the further leave of the Court. 39I order that the plaintiff pay the defendants' costs of the Application.
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Penrith Rugby League Club Ltd
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