Hall v Donlon - [2011] NSWSC 1088

Supreme Court

New South Wales

Medium Neutral Citation: Hall v Donlon [2011] NSWSC 1088
Hearing dates: Wednesday, 31 August 2011
Decision date: 31 August 2011
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Respondent attend court and produce subpoenaed documents.

Catchwords: PRACTICE AND PROCEDURE - Subpoenas - solicitor fails to comply with subpoena for production - failure of issuer to provide conduct money - conduct money only mandatory for subpoenas to attend to give evidence - asserts failure to reach agreement as to costs incurred in complying with subpoena - Court has discretion to make costs orders for expenses incurred in complying with subpoena - discretion ordinarily occur post compliance - solicitor claims possessory lien entitling to refuse to produce - solicitor cannot simply disregard subpoena - solicitor must take positive steps to have subpoena set aside or oppose inspection.
Legislation Cited: (NSW) Civil Procedure Act 2005, s 68, s 97
(NSW) Uniform Civil Procedure Rules, r 33.6, r 33.11
Cases Cited: Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253
Tyneside Property Management Pty Ltd & Ors v Hammersmith Management Pty Ltd & Ors [2011] NSWSC 156
Category: Procedural and other rulings
Parties: Ernest Hall & Sons P/L (plaintiff)
Bernard James Donlon (first defendant)
Shirley Alice Donlon (second defendant)
Representation: Ms C Watson (solicitor) (plaintiff)
Mr G Doherty (defendants)
Mr Hancock (solicitor) in person (respondent)
Bansgroves Lawyers (plaintiff)
Finn Roache (defendants)

File Number(s): 11/132749

Judgment (ex tempore)

HIS HONOUR: By notice of motion filed on 22 August 2011, the defendants Bernard James Donlon and Cheryn Donlon seek an order pursuant to (NSW) Civil Procedure Act 2005, s 97, for the issue of an arrest warrant for the arrest of Mr John Leslie Hancock for non-compliance with a subpoena to produce certain documents to the court.

Mr Hancock is a solicitor. Although there is some dispute about it, he claims that he formerly acted for the defendants and incurred costs. He has put into evidence a ledger and bills of costs, which tend to establish a solicitor/client relationship between himself and the defendants; at least, the contrary is not established.

The evidence also establishes that the subpoena was served on his office and came to his notice not later than the last date for service specified in the subpoena, namely 25 May 2011. Since its first return date on 2 June 2011, documents have been not produced, and the subpoena has been adjourned from time to time until the present day.

Essentially, Mr Hancock raises three objections which he says explain and excuse his non-compliance with the subpoena. The first is that no conduct money was tendered. However, the subpoena was a subpoena for production of documents. The requirements for the handing over or tendering of conduct money to an addressee are expressed in (NSW) Uniform Civil Procedure Rules 2005, r 33.6(1), as being limited to a subpoena to attend to give evidence. Thus the requirement for handing over or tendering conduct money does not apply to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hall v Donlon

Details

AGLC: Hall v Donlon [2011] NSWSC 1088
Case: [2011] NSWSC 1088
Decision Date: 31 August 2011

CaseChat Overview and Summary

The case of Hall v Donlon involved a dispute between the two parties regarding the non-compliance of a subpoena for the production of documents. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought the production of documents from the defendant's solicitor, who refused to comply with the subpoena on the basis of a possessory lien and a failure to agree on the costs incurred in complying with the subpoena. The defendant's solicitor argued that the issuer of the subpoena did not provide the requisite conduct money, which is only mandatory for subpoenas to attend to give evidence, and that the parties had failed to reach an agreement on the costs incurred.

The primary legal issue before the court was whether the solicitor could refuse to comply with the subpoena on the grounds of a possessory lien and the failure to agree on costs. The court considered whether the conduct money requirement applied to subpoenas for production and whether the failure to agree on costs could justify non-compliance. The court also examined the solicitor's obligations in responding to a subpoena and the appropriate steps to take if the solicitor believed the subpoena was improper or unjust.

The court held that the conduct money requirement only applied to subpoenas to attend to give evidence and not to subpoenas for production. The court further found that the failure to agree on costs did not excuse non-compliance with a subpoena. The court emphasised that a solicitor could not simply disregard a subpoena but must take positive steps to have it set aside or oppose inspection if they believed it to be improper or unjust. The court exercised its discretion to make a costs order for the expenses incurred by the plaintiff in complying with the subpoena. The court's decision underscored the importance of solicitors complying with subpoenas and taking appropriate steps to address any concerns about their validity or fairness.

The court ordered the defendant's solicitor to pay the plaintiff's costs associated with complying with the subpoena for production. The court also directed the solicitor to produce the requested documents within a specified timeframe. The decision reinforced the obligation of solicitors to comply with subpoenas and highlighted the consequences of non-compliance, including the potential for costs orders against the non-compliant party.

Orders