Attwells v White (No 3)

By notice of motion filed on 12 February 2021, Gary White (the first defendant) moved to set aside a notice to produce addressed to the first defendant which was said to have been filed on 18 December 2020 by Noel Attwells (the plaintiff). The plaintiff resisted the order sought in the notice of motion. Although the notice of motion refers to a notice to produce filed on 18 December 2020, the Court record shows that the notice to produce was filed on 22 December 2020. The coversheet of the notice of motion refers to the notice to produce filed on 22 December 2020. It was plain from the parties’ submissions that the identity of the notice to produce under challenge was common ground.

The application arises in the context of proceedings brought by the plaintiff against the first defendant, his former solicitor, and the second defendant, his former barrister, for damages for alleged negligence in providing advice to the plaintiff to bring proceedings against his former solicitors, Jackson Lalic Lawyers Pty Ltd (Jackson Lalic).

The proceedings have a long history. For present purposes, they can be summarised relatively briefly.

On 18 December 2017, the plaintiff filed a statement of claim in the District Court. On 18 June 2018, the District Court ordered that the time for service of the statement of claim be extended to 28 September 2018.

On 25 September 2018 the plaintiff served a notice to produce on the first defendant, which was filed on 26 September 2018. The notice to produce required production of the following documents:

By notice of motion filed on 10 October 2018, the first defendant moved to set aside the notice to produce. So far as the evidence reveals, the notice was not called upon. The motion appears not to have been pressed, heard or withdrawn.

By letter dated 17 October 2018, the first defendant’s solicitors wrote to the plaintiff’s solicitors as follows:

The unredacted portion of the letter from Gary White to Lawcover dated 28 July 2018, which was said to fall within paragraph 1 of the notice, said:

The unredacted portion of the email from Tony Reynolds to Gary White dated 30 July 2018 said:

On 12 February 2019, the plaintiff filed a further notice to produce on the first defendant. The first defendant subsequently amended his notice of motion (filed on 10 October 2018) by filing an amended notice of motion which sought an additional order that paragraphs 2 and 3 of the notice to produce filed on 12 February 2019 be set aside.

On 11 October 2019, the plaintiff filed an amended statement of claim. By this time the proceedings had been transferred to this Court. The amended statement of claim remains the current pleading. In substance, the plaintiff alleges that the first and second defendants were obliged to advise him that the proceedings against Jackson Lalic had no reasonable prospects of success because there were no reasonable prospects of proving that Jackson Lalic were negligent, or that the alleged negligence had caused loss to Gregory Attwells (the plaintiff’s predecessor in title) or Barbara Lord, and that Jackson Lalic would have been entitled to advocate’s immunity in any event (paragraph 48 of the amended statement of claim). The plaintiff alleges that the failure by the first and second defendants to give him the advice alleged in paragraph 48 amounted to negligence (paragraph 49 of the amended statement of claim). The plaintiff further alleges that the first and second defendants represented to him that he had reasonable prospects of obtaining substantial damages from Jackson Lalic (paragraph 50 of the amended statement of claim).

On 2 December 2020, the plaintiff served a notice to produce on the first defendant in similar terms to the subsequent version filed on 22 December 2020. By email of that date, the first defendant’s solicitors enquired as to the relevance of the documents sought in the notice to produce. By letter dated 10 December 2020, the plaintiff’s solicitor purported to identify the forensic purpose of the notice to produce as follows:

Subsequently, on 22 December 2020, the plaintiff filed a further notice to produce, which is the subject of the present notice of motion. It sought the following documents:

Rules 34.1 and 34.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) entitle the requesting party to require another party to produce to the court “any specified document or thing” in the possession of the other party. The entitlement is qualified by the requirement of a legitimate forensic purpose which is satisfied if there is a reasonable basis to infer that the documents sought will materially assist on an identified issue: see Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [24] (Brereton J). In Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [64] Beazley JA said:

Further, if there is a defect in a notice to produce, it is not for the court to redraft it, since the appropriate course is to set aside the notice in full: Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [25] (Basten JA).

Ms Petch, who appeared on behalf of the first defendant, identified two bases on which she contended that the notice to produce ought be set aside. First, she submitted that the notice to produce, in so far as it sought documents in the first category, amounted to an abuse of process on the basis that the first defendant confirmed to the plaintiff some time ago (when it produced certain documents informally in answer to the notice to produce called on in October 2018) that he notified his claim to his insurer orally in July 2018. Secondly, she submitted that the second category was nonsensical because it sought correspondence between the first defendant and himself.

Further, she argued that neither category revealed any legitimate forensic purpose because the documents sought, at best, would evidence the first defendant’s state of mind years after the event and could not shed light on the issues in the proceedings. Ms Petch contended that each of the documents sought in the notice to produce bore on the first defendant’s state of mind from 2018 when the claim was first made against his insurer. She argued that the first defendant’s state of mind at that time “is incapable of rationally affecting the Court’s determination of the facts in issue on the plaintiff’s pleaded case.”

Further, Ms Petch argued that the plaintiff was, in effect, reagitating a notice to produce which had earlier been abandoned or not pressed and that this amounted to an abuse of process.

Mr Newell submitted that it was almost “inevitable” that the documents in paragraphs 1 and 2 of the notice to produce filed on 22 December 2020 would evidence admissions by the first or second defendants which could be used forensically by the plaintiff, either as admissions or as a basis to cross-examine either or both defendants. He submitted that as the insured was required to disclose all material matters to his insurer, what the first defendant said to his insurer and to the second defendant would necessarily be relevant to the issues in the proceedings and would be of forensic benefit to the plaintiff. He submitted that the inference ought be drawn that the documents covered by the notice would be relevant on this basis.

As to paragraph 2 of the notice to produce, Mr Newell submitted that it was plain that the plaintiff intended to refer to correspondence between the first and second defendants and not to correspondence between the first defendant and himself, since the latter was plainly nonsense. He contended that the Court ought not entertain such a technical point when it had not been foreshadowed in correspondence by the first defendant and that it would be inimical to the principles in Part 6 of the Civil Procedure Act 2005 (NSW) for the Court to allow the first defendant to “ambush” the plaintiff in this way. Further, he foreshadowed that, if I were to hold the plaintiff to the actual wording of paragraph 2 of the notice to produce, the plaintiff would immediately issue a further notice to produce which corrected the error and sought correspondence between the first and second defendants. He contended that it could reasonably be inferred that the first and second defendants would communicate, including in writing, about their views of the plaintiff’s claim and what advice was in fact given and whether it had a proper legal basis. Mr Newell said that although it had been asserted by the first defendant that he had notified his claim orally, the plaintiff was not bound to accept the assertion but was entitled to test it by requiring production in accordance with the notice to produce.

Mr Newell submitted that it was “inescapable” that the contents of the documents falling within the notice would be relevant to the proceedings since it could be inferred that they would contain “an explanation for the circumstances giving rise to or explaining the claim which would touch upon exculpatory circumstances, other circumstances, who is to blame, what happened, what advice was given, [and] who was relied upon.” He also reminded me that, at the time of the communications the subject of the notice to produce, the first defendant was no longer entitled to practise as a solicitor and therefore could not have been briefing the second defendant in other matters.

I regard myself as bound by the principle articulated by Basten JA in Lowery v Insurance Australia Ltd at [24]. Accordingly, I do not propose to amend the notice to produce such that it seeks, in paragraph 2, correspondence between the first and second defendants. However, in order to facilitate the determination of the real issues in dispute, I propose to assume, for the purposes of argument, that the notice to produce said what Mr Newell said that it ought to have said. I note that Ms Petch’s submissions took account of this possibility in that she addressed on paragraph 2 as if it was worded as Mr Newell accepted it should have been.

I do not regard the evidence establishing the history of the matter to be sufficiently clear to enable any reliable conclusions to be drawn as to what occurred with earlier, similar, notices to produce. Although offers were made by the parties to resolve the issues raised in relation to such notices, it does not appear from the evidence that these disputes were actually resolved. Accordingly, I am not satisfied that the notice to produce ought be set aside on that basis.

I do not accept Ms Petch’s submission that the documents sought in the notice to produce are not capable of being relevant to any issue in the proceedings. Although negligence is to be assessed objectively, it does not follow that the first defendant’s subjective view as to his own conduct is irrelevant to the issues in the trial. It is possible that an expression of such a subjective view will amount to an admission, being a statement against interest, and that the documents sought might contain such admissions. Although any such admissions made to the insurer would not be determinative, they could nonetheless be relevant to the question of whether the plaintiff has established that the first defendant was negligent. On this basis, I am satisfied that there is, or could be, a legitimate forensic purpose for the notice to produce. Thus, the first limb of the test in Attorney-General (NSW) v Chidgey has been established (that the requesting party identifies a legitimate forensic purpose).

However, there are substantial obstacles in the path of the second limb: namely that it is “on the cards” that the documents sought would materially assist the plaintiff’s case. I regard the possibility that the documents covered by the notice to produce will contain admissions by the first and/or second defendants as to their past negligence as no more than speculative. In substance, the plaintiff would like to see the documents passing between the first defendant and his insurer and the first and second defendants (accepting the correction for which Mr Newell contended) to ascertain whether he can find anything incriminating in them, without any real basis for inferring that there will be anything of that nature in the documents. Both paragraphs 1 and 2 of the notice to produce amount, to adopt a cliché used in the authorities, to a “fishing expedition” in circumstances where the plaintiff has no idea whether there are any fish in the pond.

The process of obtaining documents by the mechanism of a notice to produce is to be contrasted with that of discovery. Although some latitude is given where the recipient of a subpoena (which is relevantly analogous to a notice to produce) is a party, the latitude does not extend to requiring production of documents where there is no more than a speculative basis for considering that they might be of forensic benefit to the requesting party.

For these reasons, the notice to produce filed by the plaintiff on 22 December 2020 addressed to the first defendant ought be set aside.

It was common ground that costs ought follow the event in accordance with the general rule: UCPR, r 42.1.

For the reasons given above, I make the following orders: