Giles Payne and Co v Penson

District Court

New South Wales

Medium Neutral Citation:

Giles Payne & Co v Penson [2016] NSWDC 72

Hearing dates:

18 March 2016

Date of orders:

18 March 2016

Decision date:

18 March 2016

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Clause (3) to the schedule of the subpoena for production, sealed on 16 February 2016, issued at the request of the appellant and addressed to the first and second respondents in these proceedings set aside

 

Appellant to pay the respondents' costs of the motion

 

Costs thrown away on 11 March 2016 are the respondents' costs in the notice of motion

 Stood over for directions on Friday 13 May 2016

Catchwords:

PRACTICE AND PROCEDURE – Motion to set aside, in part, subpoena issued by Appellant – Principal proceedings appeal against decision of costs review panel – Appellant wishes to view electronic documents which record each piece of work done by each practitioner or employee in the respondent firm – Relief sought in appeal is remitter for fresh determination, therefore appellant cannot agitate, on appeal, the quantum of charges made or whether the services were provided – Category of documents which the appellant seeks is irrelevant and extraneous to the appeal

  COSTS – Costs of motion to set aside, in part, subpoena issued by appellant – Appellant sought costs of preparation of meeting whole of subpoena – Limiting of issues would have be anticipated by any reasonable person upon reading affidavit supporting motion – Litigant in person must act reasonably, must act rationally, must act coherently and must read carefully the material presented – Costs ought to follow event

Legislation Cited:

Legal Profession Act 2004
Legal Professional Uniform Law Application Act 2014
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Penson v Joseph John Gilles trading as Giles Payne & Co [2013] NSWSC 1796

Category:

Procedural and other rulings

Parties:

Joseph John Gilles trading as Giles Payne & Co (Applicant/Respondent)
Shirely Penson (Respondent/Appellant)

Representation:

Mr L Fermanis (Applicant/Respondent)
In person (Respondent/Appellant)

File Number(s):

2015/00274066

Publication restriction:

No

Judgment

1. HIS HONOUR: Before me is notice of motion filed on 23 February 2006. The first prayer in the notice of motion is this:

"Pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW), the subpoena filed by the appellant on 16 February 2015 be set aside."

Prior to the luncheon adjournment, I granted leave to the respondent to amend that prayer so that it now reads thus:

"Pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) cl (3) of the schedule to the subpoena filed by the appellant on 16 February 2016 be set aside."

2. To understand the nature of the dispute currently before me it is important to bear in mind the background to the current proceedings. These proceedings were commenced by a summons commencing an appeal filed on 18 September 2015. Under the heading "Details of Appeal" are cited the following matters:

"(1) this appeal is brought under the Legal Professional Act 2004,

(2) the appellant has filed…