Ballard v Brookfield Australia Investments Limited

In *Ballard v Brookfield Australia Investments Limited*, the Supreme Court of New South Wales was asked to consider a subpoena issued in relation to an application for security for costs of an appeal. The subpoena sought documents relating to the legal fees incurred by the appellant for the hearing below.

The primary legal issue before the Court was whether the documents sought by the subpoena were relevant and properly discoverable in the context of an application for security for costs. Specifically, the Court had to determine if information relating to legal fees alone could establish the impecuniosity of the appellant, thereby justifying the subpoena.

Campbell JA reasoned that information relating to fees charged by legal representatives, without further information about the appellant's overall financial position, was insufficient to establish impecuniosity. The Court found that the subpoena was an attempt to embark on a "fishing expedition" for documents that were outside the proper scope of discovery for the purpose of a security for costs application. Consequently, the subpoena was set aside.

The Court ordered that the subpoena be set aside and that the issuer of the subpoena pay the applicant's costs of the notice of motion to set aside.