CATCHWORDS
PRACTICE and PROCEDURE - Whether statement of claim can be amended to plead cause of action arising after proceedings commenced - Subpoena - Legal Professional Privilege - Whether waiver by client
Legal Profession Act 1987
Shields v Australian and New Zealand Banking Group (unreported, Federal Court of Australia, 15 August 1995)
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274
Baldry v Jackson (1976) 2 NSWLR 415
King v Milpurrurru (1996) 136 ALR 327
Re Stanhill Consolidated Ltd [1967] VR 749
Trades Practices Commission v Sterling (1978) 36 FLR 244
No. NG 442 of 1995
PHILIP JOHN POLLACK v RETRAVISION (NSW) LIMITED
MOORE J
SYDNEY
23 December 1996
IN THE FEDERAL COURT OF AUSTRALIA)
)
NEW SOUTH WALES DISTRICT REGISTRY) No. NG 442 of 1995
)
GENERAL DIVISION )
BETWEEN: Philip John Pollack
Applicant
AND: Retravision (NSW) Limited
(A.C.N. 000 384 565)
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 23 December 1996
ORDER OF THE COURT
THE COURT ORDERS THAT:
1. The application to further amend the statement of claim is dismissed.
2. The subpoena to Andrew Stuart Brown of 18 June 1996 is set aside.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
)
NEW SOUTH WALES DISTRICT REGISTRY) No. NG 442 of 1995
)
GENERAL DIVISION )
BETWEEN: Philip John Pollack
Applicant
AND: Retravision (NSW) Limited
(A.C.N. 000 384 565)
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 23 December 1996
REASONS FOR JUDGMENT
On 22 June 1995, Philip John Pollack filed an application in this Court accompanied by a statement of claim alleging that Retravision (NSW) Limited ("Retravision") had conducted itself in proceedings in this Court and the Supreme Court of New South Wales in a way that constituted an abuse of process. Pollack claimed damages.
Pollack is a solicitor and in 1994 and 1995 had been acting for several individuals engaged in litigation with Retravision both in the Supreme Court of New South Wales and this Court. The cause of action is said to arise from the conduct of that litigation by Retravision. The statement of claim has been amended on several occasions though the essence of the cause of action remains as originally pleaded. An application to strike out the statement of claim was, in substance, dismissed by Einfeld J on 8 March 1996.
The practice of Pollack is now being managed by a manager appointed under Part 8A of the Legal Profession Act 1987 (NSW). The manager is Mr Andrew Stuart Brown. On 18 June 1996 the solicitors acting for Retravision in these proceedings, JR Gibb & Co, caused a subpoena for production to issue from the New South Wales District Registry. It was directed to Andrew Stuart Brown, Manager of the Law Society of New South Wales. It required the production in this Court on 26 June 1996 of documents listed in a schedule to the subpoena which provided:
" All documents which, at the date of appointment of Andrew Stuart Brown as manager to the practice of Philip Pollack, were in the possession, custody or power of Philip John Pollack and relate to one or all of the following:-
a) Stanley Street;
b) June Sheila Street;
c) Francis Terence Halls;
d) Colleen May Halls;
e) Simone Alicia Halls;
f) Jason Terence Halls;
g) Janice June Street;
h) Warren Street;
i) Lynette Ann Luff;
j) Andrew McMahon;
k) Ashley Briggs;
l) Bruce Rossiter;
m) John Raymond Copeland;
n) Leah Maree Simpson;
o) Michael Edward Howarth;
p) James Warren Herbert Byrnes;
q) Terry's Sound Lounge Pty Limited;
r) Jancollyn (1980) Pty Limited;
s) Terry's Pty Limited;
t) ACC Australian Credit Corporation Limited; and
u) Rancham Pty Limited.
and including specifically the file known as "Street & Halls v Retravision (N.S.W.) Limited: (your ref AB754).
"Documents" where used herein includes, without limiting the generality of the foregoing, the originals, or where the originals are not available, copies of all correspondence, diary notes, reports, audit reports, file 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."
Subject to any legislative provision constraining him from doing so, Brown was under a duty to claim the privilege if he had been so instructed: see Re Stanhill Consolidated Ltd [1967] VR 749 at 755.
Notwithstanding that intimation by Brown, Davies J directed that, if the subpoena was to be pursued by Retravision, it was necessary for notice to be given by it to the clients concerned by no later than Friday 9 August 1996. His Honour indicated that the notice should advise them that the matter was coming on for hearing on 30 August 1996 and indicate that if they wished to claim legal professional privilege they should attend on that day either personally or by their legal representative.
The matter came before me on 30 August 1996 and I was then informed that no letters had been sent to the clients. The matter was then adjourned to 17 September 1996. On that day I was informed that letters had been sent by J.R. Gibb & Co to the former clients of Pollack whose files had been produced by Brown in response to the contentious subpoena. The application to set aside the subpoena did not proceed that day. It was heard on 16 October 1996. Affidavit evidence was read on behalf of Pollack in support of the Notice of Motion to set aside the subpoena. The first was an affidavit of Colleen May Halls. There is annexed to it correspondence, including a letter dated 13 September 1996 signed by Colleen Halls. That letter is said to be written on behalf of both Colleen Halls, F.T. Halls, S Street, J.S. Halls, S.A. Halls, J.J. Street, J.T. Halls and L Luff. The authority of Colleen Halls to write on behalf of those individuals was not put in issue.
The letter makes plain that legal professional privilege was claimed by Colleen Halls on her behalf and on behalf of those for whom she wrote in relation to all files which the subject of the subpoena served on Brown. Notwithstanding that letter, a further letter was written by J.R. Gibb & Co to Colleen Halls asking her to "identify the relevant legal professional privilege". In the body of her affidavit she repeated that "on behalf of my relatives and myself I object to Retravision inspecting our legal files which were in the possession of my former solicitor, Mr Pollack".
A similar affidavit was sworn by James Burns. He had written to J.R. Gibb & Co on 9 September 1996 and indicated that legal professional privilege was claimed in respect of documents sought to be produced in relation to Australian Credit Corporation, Ranchcam Pty Limited and Burns personally. In the text of the affidavit he said he "object(ed) to Retravision inspecting our files which were in the possession of our former solicitor, Mr Pollack which relate to us".
The evidence led by Retravision was limited to a notice of motion filed by Pollack on 28 June 1996 seeking to set aside a subpoena to David Lombe, an order dismissing that notice of motion and transcript recording the circumstances in which that order was made.
It is plain from the statement made by Brown on 23 July 1996 that he had instructions to claim such legal professional privilege as might attach to the documents he produced in response to the subpoena. That such a claim is made is reinforced by the evidence of Halls and Burns. Prima facie a file of a solicitor would be constituted either in its entirety or in substantial part, by documents which were privileged: see Trade Practices Commission v Sterling (1978) 36 FLR 244 at 245 - 246. In appropriate circumstances a Court will undertake the task of examining the documents to see whether or not a claim is well founded, though on other occasions it will not: see Sterling (supra) at 246 - 247.
In the present case Retravision has not endeavoured to identify any document or class of documents that it seeks to obtain by the subpoena to Brown by reference to the forensic purpose to which the document or documents will be put. The only suggestion of the use that might be made of the documents was a vague reference to damages and cross examination of Pollack. Having regard to the cause of action relied on by Pollack, it would presently appear that the only documents that would be likely to be relevant are those that concern the litigation between Retravision and the former clients of Pollack. That being so, there is a high probability that those documents are ones in respect of which a claim for privilege could properly be made. I propose to set aside the subpoena.
Given the partial success of both Pollack and Retravision, I propose to order that the costs of the notice of motion be the costs in the cause.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Alexandra George
Dated:
23 December 1996
APPEARANCES
Counsel for the Applicant: Mr C.A. Evatt
Solicitor for the Applicant:Michael Maher, Solicitor
Counsel for the Respondent: Mr R.A. Vincent and Mr R.W. Tregenza
Solicitor for the Respondent: J.R. Gibb & Co
Dates of Hearing: 17 September 1996
