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Hera Project Pty Ltd v Bisognin (No 4)

Hera Project Pty Ltd v Bisognin (No 4)

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Case Copied 22 May 2017 37 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2016 03457

HERA PROJECT PTY LTD (ACN 163 685 041)	Plaintiff
v
GINO ANDREW BISOGNIN	First Defendant
- and -
LEAH JOAN BISOGNIN	Second Defendant

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 APRIL 2017
DATE OF JUDGMENT:	22 MAY 2017
CASE MAY BE CITED AS:	HERA PROJECT PTY LTD v BISOGNIN [No 4]
MEDIUM NEUTRAL CITATION:	[2017] VSC 270	1^st Revision: 26 May 2017

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PRACTICE AND PROCEDURE – Subpoena to produce client’s documents served on a solicitor – Reasonable loss or expense incurred in complying with the subpoena under Supreme Court (General Civil Procedure) Rules 2015 r 42.11 – What costs may be recovered as compliance costs – Onus of proof – Whether solicitor entitled to indemnity costs.

CONFIDENTIALITY – Effect of solicitor’s duty of confidentiality to the client on subpoena obligations – Proper procedure to be adopted with respect to claim for confidentiality – Whether there is a right, without leave, to redact a subpoenaed document on the ground of confidentiality.

SUBPOENA TO PRODUCE DOCUMENTS – Principles relating to the scope of a subpoena – Right of issuing party to limit scope the subpoena – Importance of communications between the issuing party and the addressee to the subpoena – Proper procedure to be adopted to reduce compliance costs – Civil Procedure Act 2010 s 9(g) – Law Institute of Victoria, Subpoenaed Documents Guidelines considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Warren, solicitor	Russell Kennedy
For the Defendants	Mr J A Ribbands with Mr W G Stark	T F Grundy Lawyer
For Gadens Lawyers	Mr G C McGowan QC		Gadens Lawyers

Cases cited

A Pty Ltd v Z [2007] NSWSC 999
ASADA v 34 Players and One Support Person [No 2] [2015] VSC 14
Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR ¶41-996
Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 612
Baker v Campbell (1983) 153 CLR 52
Bank of New South Wales v Withers (1981) 35 ALR 21
Bisognin v Hera Project Pty Ltd [2016] VSC 75
Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Deposit & Investment Co Ltd v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267
Gunns Ltd v Marr [2008] VSC 464

Hadid v Lenfest Communications Inc (1996) 65 FCR 350
Hearne v Street (2008) 235 CLR 125
Lenark Pty Ltd v TheChairmen1 Pty Ltd [2012] NSWSC 124

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
Mancorp Pty Ltd v Baulderstone Pty Ltd (Unreported, Supreme Court of South Australia, Debelle J, 5 March 1993)
McColl v Lehmann [1987] VR 503
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34

Moorehead Nominees Pty Ltd v Barclays Australia Securities Ltd (Unreported, Federal Court of Australia, Hill J, 17…

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.

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Details

Case: [2017] VSC 270
Decision Date: 22 MAY 2017

CaseChat Overview and Summary

Hera Project Pty Ltd brought an action against Bisognin, a solicitor, concerning a subpoena to produce documents served on Bisognin. The case was heard in the Supreme Court of Victoria. The primary issue for the court to decide was the scope of costs that Bisognin could recover as compliance costs under Supreme Court (General Civil Procedure) Rules 2015 r 42.11. Specifically, the court had to determine whether Bisognin was entitled to indemnity costs for the reasonable loss or expense incurred in complying with the subpoena. Additionally, the court examined the conflict between Bisognin's duty of confidentiality to his client and his obligations under the subpoena, and the appropriate procedure for claiming confidentiality in such cases.

The court held that the onus of proof was on Bisognin to establish the entitlement to indemnity costs. It was determined that indemnity costs could only be awarded if Bisognin demonstrated that the costs were incurred due to the unreasonableness of Hera Project's conduct in issuing the subpoena. The court also addressed the issue of confidentiality, ruling that while Bisognin had a duty to protect his client's confidential information, he was not entitled to redact documents on the ground of confidentiality without first seeking leave from the court. The court emphasised the importance of communications between the parties in limiting the scope of the subpoena to reduce compliance costs. It also considered the Law Institute of Victoria, Subpoenaed Documents Guidelines to inform its decision.

In conclusion, the court found that Bisognin was not entitled to indemnity costs because Hera Project's conduct in issuing the subpoena was not unreasonable. The court also ruled that Bisognin was not entitled to redact documents on the ground of confidentiality without leave. The final orders of the court included that Hera Project was to pay Bisognin's costs of the application, and Bisognin was to pay Hera Project's costs of the subpoena.

Orders