Cosgrove & Anor, R.J. v Hooker Rex (Administrator)(Vic) Pty Ltd & ors [1988] FCA 399

Cosgrove & Anor, R.J. v Hooker Rex (Administrator)(Vic) Pty Ltd & ors [1988] FCA 399

The interrogatories in question were irrelevant to issues arising on the pleadings as they did not relate to any pleaded case of negligence or breach of duty; thus, fourth respondents were not obliged to answer them. The subpoena to the Law Society was set aside as the documents sought did not relate to any live issue between the parties and production was speculative and not shown to assist the applicants’ case; public interest in non-disclosure would in any event outweigh the minimal relevance to justice in this instance.

Parties
First Applicant: Richard John Cosgrove; Second Applicant: Kerri Margaret Cosgrove; First Respondent: Hooker Rex (Administration) (Vic) Pty Limited; Second Respondent: Hooker Homes Pty Limited; Third Respondent: Harry Robinson; Fourth Respondents: Turton & McInnes, Solicitors (Frederick William Henry, Gregory Arthur Innes, Herbert David William Ross and Christopher Michael O'Hehir); Non Party Intervener (subpoenaed): Law Society of New South Wales
Jurisdiction
Australia
Judgment Date
28 July 1988
Procedural Posture
Motion/interlocutory Applications in Civil Proceedings / Interlocutory Applications Concerning Interrogatories and Subpoena
Outcome
Applications dismissed; subpoenas set aside; costs awarded to fourth respondents and Law Society.
Legal Topics
Interrogatories, Objection to Interrogatories, Subpoena Duces Tecum, Oppression of Subpoena, Relevance of Evidence, Legal Professional Privilege, Public Interest Immunity
Civil Procedure Interrogatories Objection to Interrogatories Subpoena Duces Tecum Oppression of Subpoena Relevance of Evidence Legal Professional Privilege Public Interest Immunity

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Parties

Richard John Cosgrove

First Applicant

Kerri Margaret Cosgrove

Second Applicant

Hooker Rex (Administration) (Vic) Pty Limited

First Respondent

Hooker Homes Pty Limited

Second Respondent

Harry Robinson

Third Respondent

Turton & McInnes, Solicitors (Frederick William Henry, Gregory Arthur Innes, Herbert David William Ross and Christopher Michael O'Hehir)

Fourth Respondents

Law Society of New South Wales

Non Party Intervener (subpoenaed)

Procedural Posture

Motion/interlocutory Applications in Civil Proceedings / Interlocutory Applications Concerning Interrogatories and Subpoena

Legal Issues

  1. 1 Whether specific interrogatories administered to the fourth respondents should be answered on the grounds of relevance to the issues disclosed on the pleadings.
  2. 2 Whether subpoena duces tecum addressed to the Law Society of New South Wales should be set aside as oppressive, too wide or constituting a fishing expedition.
  3. 3 Whether the Law Society should be excused from production of the documents on grounds of public interest immunity and whether non-disclosure would impair administration of justice.

Ratio Decidendi

The interrogatories in question were irrelevant to issues arising on the pleadings as they did not relate to any pleaded case of negligence or breach of duty; thus, fourth respondents were not obliged to answer them. The subpoena to the Law Society was set aside as the documents sought did not relate to any live issue between the parties and production was speculative and not shown to assist the applicants’ case; public interest in non-disclosure would in any event outweigh the minimal relevance to justice in this instance.

Court Disposition

Applications dismissed; subpoenas set aside; costs awarded to fourth respondents and Law Society.

Orders

  • The motion of the applicants filed 20 June 1988 is dismissed.
  • Applicants to pay the fourth respondents' costs of the motion.