Lawrence v Sammut (No. 2)

1. [1]

   These proceedings concern an appeal under s 89 of the Legal Professional Uniform Law Application Act 2014 (NSW) from a determination of a Costs Review PaneI in February 2021.

2. [2]

   The background and relevant history to the proceedings is set out in [1] to [14] of Lawrence v Sammut [2022] NSWSC 344. That judgment concerned the setting aside of notices to produce issued by the plaintiff, and should be read together with this judgment.

3. [3]

   The problems with the notices to produce the subject of that judgment are similar to the problems that apply to the subpoenas now sought to be issued, namely, that the material sought is irrelevant to the issues that remain live before the Court in these proceedings. Those issues are confined to argument regarding the action the Court should take in response to a referee’s report on costs.

4. [4]

   By notice of motion filed 18 March 2022, the plaintiff seeks leave to issue subpoenas to the defendant’s solicitor Karen McLean and Associates, the MWL Financial Group, and Harrison and Gill Chartered Accountants.

5. [5]

   Because he does not have a solicitor acting for him, the plaintiff requires the Court’s leave to issue the subpoenas: Uniform Civil Procedure Rules 2005 (NSW), (UCPR) r 7.3.

6. [6]

   For the reasons that follow, leave is refused.

The Application Material

1. [7]

   The plaintiff’s application is supported by an affidavit affirmed by him on 16 March 2022 appending the proposed subpoenas and a one-page annexure to the Court’s application form for leave to issue subpoenas. This single page appears to comprise his submissions in support of the leave sought, together with two and a half pages of submissions forwarded by email to Chambers on 1 April 2022.

2. [8]

   The Schedule to each subpoena is reproduced exactly as it appears in the subpoena, including numbering, typographical, drafting and punctuation errors, to illustrate the problematic nature of the subpoenas sought to be issued.

3. [9]

   The subpoena to McLean and Associates is difficult to follow and is prolix. The Schedule is as follows:

4. [10]

   The Schedule to the subpoena directed to MWL Financial Group is as follows:

5. [11]

   The Schedule to the subpoena directed to Harrison and Gill, Chartered Accountants is as follows:

6. [12]

   The text of the affidavit does not contain any submission or explanation as to the relevance of the documents sought by the three proposed subpoenas.

Decision

1. [13]

   Without any disrespect to the plaintiff, the submissions contained in the single page document referred to in [7] and the two and a half pages of written submissions dated 1 April 2022, are incomprehensible. To the extent that they can be understood or interpreted, they appear to reflect a fixation on issues long ago dealt with and determined, and possibly an intention to obtain and use certain documents to reopen proceedings in the Federal Court.

2. [14]

   Nothing at all explains or even refers to the potential relevance of any of the material sought to the issues that remain in the proceedings, which are, as explained in Lawrence v Sammut, limited to the end stages of costs review proceedings, dealing with the referee’s report on the costs assessment of the Costs Review Panel that had been ordered by this Court last year in an effort to move this matter to finality.

3. [15]

   This Court should not allow its processes to be deployed to require production of documents that have no relevance at all – apparent or otherwise – to the current proceedings.

4. [16]

   Adopting the most generous interpretation possible of “apparent relevance” to an issue in the proceedings, (see the discussion of Bell P (as he then was) at [33] to [80], and in particular at [59] to [61] in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 [1] ) - and this must of course be, in context, the remaining issues in the proceedings - none of the documents sought in the schedules to the subpoenas satisfy that base level requirement.

5. [17]

   Accordingly, the plaintiff’s application must be dismissed with costs.

Orders

1. [18]

   The orders I make are as follows:

   1. (1)

      The application by the plaintiff for leave to issue subpoenas to Karen McLean and Associates, MWL Financial Group, and Harrison and Gill Chartered Accountants is refused.

   2. (2)

      The plaintiff is to pay the defendant’s costs of the application.