Shields v Australian and New Zealand Banking Group

e notes, minutes, memoranda of conversation, journals, balance sheets and trust and office account ledgers, memoranda of fees (both paid and unpaid), and shall include computer discs, computer tapes or any other form of electronic storage of information." It is this subpoena that has given rise to this interlocutory application. On 17 September 1996, Pollack made application for, relevantly, two orders. The first was that the subpoena for production be set aside. The second was that leave be given to amend the statement of claim. I will deal first with the application to amend. The amendment is intended to plead that the issue of this subpoena is itself an actionable abuse of process in substantially the same way as the abuse of process was initially pleaded. However the answer to the application to amend raised by counsel for Retravision is both simple and decisive. The Federal Court Rules permit amendments to pleadings and the relevant rules are cast in wide language. O13 r2 provides: "(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. ... (7) An amendment may be made notwithstanding that the effect of the amendment will be to add or substitute a new claim for relief or another foundation in law for a claim for relief if the new claim for relief or foundation in law for that claim arises out of the same facts of substantially the same facts as those already pleaded to support existing claims for relief by the party applying for leave to make the amendment." Reference should also be made to O11 r7 which provides: 7. A party may plead a new matter which has arisen since the commencement of the proceeding. It can be seen that the cause of action alleged to have arisen from the service of the subpoena was founded on conduct on or about 18 June 1986. It was then that the cause of action arose which was many months after the time at which the statement of claim was filed. The applicable principle was discussed by Lockhart J in Shields v Australian and New Zealand Banking Group, (unreported, Federal Court of Australia, 1 August 1995). His Honour said: "A plaintiff must establish his cause of action at the date of the commencement of the proceeding; and an amendment dates back to the original filing of the initiating process. Hence a plaintiff cannot in the absence of statutory authority amend the proceeding without the defendant's consent by adding a cause of action which has accrued to him since the commencement of the action: Eshelby v Federated European Bank Limited [1932] 1 KB 254 and Wigan v Edwards (1973) 1 ALR 497 per Mason J. at 515 with whose reasons for judgment Walsh J. and Gibbs J. agreed on this matter at 501 and 508-509 respectively." See also Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274. Thus, in the present case, the cause of action arose after the proceedings had been commenced. Thus, and in the absence of consent, the amendment should not be allowed unless it is authorised by, relevantly, the Federal Court Rules. The only basis on which it might is O11 r7. The application of that rule depends upon what is comprehended by the word "matter". That word in O11 r7 appears, in the same context, in Part 15 Rule 16 of the Supreme Court Rules 1970 of the Supreme Court of New South Wales. There is a minor difference in the language but it is not, in my opinion, material. In Baldry v Jackson (1976) 2 NSWLR 415 the Court of Appeal determined that the word "matter" did not include a cause of action. That conclusion was based, in part, on an analysis of the Supreme Court Rules as a whole. It appears in the judgment of Samuels JA, with whose reasons Moffit P and Glass JA agreed. While the language of the rules of the Federal Court Rules differ, in some respects, with the rules analysed by Samuels JA, much of it is, for relevant purposes, the same. The decision of the Court of Appeal remains persuasive authority that O11 r7 of the Federal Court Rules does not permit an amendment that pleads a cause of action which arose after the original statement of claim and application was filed. The scope of O11 r7 was adverted to but not dealt with exhaustively by a Full Court of this Court in King v Milpurrurru (1996) 136 ALR 327 at 332.7 per Jenkinson J and 334.1 per Lee J. In the absence of a compelling argument to the contrary, I should follow Shields (supra). I refuse leave to amend the statement of claim. I now deal with the question of whether the subpoena should be set aside. I earlier set out the terms of the subpoena of 18 June 1996 directed to the Manager of the Law Society of New South Wales. On 23 July 1996 the matter was before Davies J. On that occasion, Brown indicated that the subpoena addressed to him concerned files filling eight archived boxes which he characterised as "client's files". In relation to those files the following statement was made by Mr Brown: "The files obviously did contain things like briefs to counsel and what have you and I have now had that opportunity and all the clients have without exception stated they wish to claim legal professional privilege on those files."