NMFM Property Pty Ltd v Citibank Ltd (No 9) - [1999] FCA 638

FEDERAL COURT OF AUSTRALIA
NMFM Property Pty Ltd v Citibank Ltd (No 9) [1999] FCA 638
PRACTICE AND PROCEDURE – subpoena to non-party in Melbourne to produce documents in Sydney – third party’s claim of lawyer-client privilege – as a result of “guideline” reasons for judgment, claim of lawyer-client privilege no longer pressed – appropriate order for costs.
Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284
Hadid v Lenfest Communications Inc (1997) 144 ALR 73
Deposit & Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Gribbles v Health Insurance Commission (1997) 80 FCR 284
`
NMFM PROPERTY PTY LIMITED (formerly called “National Mutual Property Services (Australia) Pty Ltd”) v CITIBANK LIMITED (formerly called “Citibank Savings Limited”)
NG 765 of 1994
LINDGREN J
7 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 765 OF 1994

BETWEEN:

NMFM PROPERTY PTY LIMITED (formerly called “National Mutual Property Services (Australia) Pty Ltd”)
First Applicant

NATIONAL MUTUAL ASSETS MANAGEMENT LIMITED
Second Applicant

THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED
Third Applicant

AND:

CITIBANK LIMITED (formerly called “Citibank Savings Limited”)

Respondent

FIRST CROSS-CLAIM
CITIBANK LIMITED (formerly called “Citibank Savings Limited”)
Cross-Claimant

[Lance Kelly Financial Management Pty Ltd, removed as a party]
First Cross-Respondent

LANCE KELLY
Second Cross-Respondent

[Dennis Jones & Company Pty Limited, removed as a party]
Third Cross-Respondent

DENNIS JONES
Fourth Cross-Respondent

TONY BAHR
Fifth Cross-Respondent

ALAN J BLEE
Sixth Cross-Respondent

[Wayne Fitcher, removed as a party]
Seventh Cross-Respondent

NORMAN KIRBY
Eighth Cross-Respondent

PAUL KENNEDY
Ninth Cross-Respondent

PETER KINROSS
Tenth Cross-Respondent

JAMES NAUGHTON
Eleventh Cross-Respondent

[D Rodstead, removed as a party]
Twelfth Cross-Respondent

[G Blaiklock, removed as a party]
Thirteenth Cross-Respondent

ERIK JAMES BUTTARS
Fourteenth Cross-Respondent

ROMMEL HACOPIAN
Fifteenth Cross-Respondent

CRAIG BYRON ROBERTS
Sixteenth Cross-Respondent

ANNA WASS
Seventeenth Cross-Respondent

ALLAN STEWART CRAWFORD
Eighteenth Cross-Respondent

PERMANENT TRUSTEE COMPANY LIMITED
Nineteenth Cross-Respondent

AMERICAN HOME ASSURANCE COMPANY
Twentieth Cross-Respondent

LAWRENCE C GRIMA

Twenty-first Cross-Respondent

SECOND CROSS-CLAIM
LANCE KELLY
Cross-Claimant

CITIBANK LIMITED (formerly called “Citibank Savings Limited”)

Cross-Respondent

THIRD CROSS-CLAIM
DENNIS JONES
Cross-Claimant

CITIBANK LIMITED (formerly called “Citibank Savings Limited”)
Cross-Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

7 MAY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The respondent (“Citibank”) pay to Arthur Robinson & Hedderwicks (“ARH”) an amount to compensate them for such expense or loss as was reasonably incurred or sustained by them in complying with the subpoena issued by Citibank on 27 July 1998, including legal costs on a solicitor client basis of appearing on 19 August and, if the facts make it appropriate, 31 August (but not travel from and to Melbourne) and of considering and deciding whether a claim of lawyer-client privilege should be made including, but only if the taxing officer considers it was necessary, the taking of counsel’s advice.

2.ARH pay Citibank’s costs arising from the making and pressing of the claim of lawyer-client privilege, including Citibank’s costs of resisting that claim…

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: [1999] FCA 638
Decision Date: 7 MAY 1999

CaseChat Overview and Summary

NMFM Property Pty Ltd was a party in dispute with Citibank Ltd over an issue related to a subpoena. The matter was brought before the court where Arthur Robinson & Hedderwicks, legal representatives for NMFM Property, contested the subpoena issued by Citibank. The legal issues before the court included the admissibility of certain documents, the applicability of lawyer-client privilege, and the costs associated with the subpoena and the subsequent legal proceedings. The court needed to decide whether the subpoenaed documents were subject to privilege, and if so, whether those documents should be disclosed despite the privilege.

The court ruled that the subpoenaed documents were indeed protected by lawyer-client privilege and should not be disclosed. However, the court also found that Arthur Robinson & Hedderwicks were entitled to compensation for the expenses they incurred in complying with the subpoena, including legal costs related to appearing in court and considering whether to claim privilege. The court held that Citibank should bear the costs of the claim of privilege, but Arthur Robinson & Hedderwicks were responsible for their own costs, except for two-thirds of the costs associated with the present motion, which Citibank was to bear.

In conclusion, the court ordered Citibank to compensate Arthur Robinson & Hedderwicks for the expenses reasonably incurred in complying with the subpoena, including legal costs. The court also directed Arthur Robinson & Hedderwicks to pay Citibank’s costs associated with the claim of privilege. The order specified that the parties should bear their own costs, except for the specified sharing of the costs of the present motion. The motion was dismissed in all other respects.

Orders

Orders of the court

1. The respondent (“Citibank”) pay to Arthur Robinson & Hedderwicks (“ARH”) an amount to compensate them for such expense or loss as was reasonably incurred or sustained by them in complying with the subpoena issued by Citibank on 27 July 1998, including legal costs on a solicitor client basis of appearing on 19 August and, if the facts make it appropriate, 31 August (but not travel from and to Melbourne) and of considering and deciding whether a claim of lawyer-client privilege should be made including, but only if the taxing officer considers it was necessary, the taking of counsel’s advice.

2. ARH pay Citibank’s costs arising from the making and pressing of the claim of lawyer-client privilege, including Citibank’s costs of resisting that claim and of the hearing of argument on the claim.

3. Otherwise there be no order as to costs to the intent that Citibank and ARH bear their own costs.

4. ARH pay two thirds of Citibank’s costs of the present motion.

5. Otherwise the motion be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NG 765 OF 1994
BETWEEN:	NMFM PROPERTY PTY LIMITED (formerly called “National Mutual Property Services (Australia) Pty Ltd”) First Applicant NATIONAL MUTUAL ASSETS MANAGEMENT LIMITED Second Applicant THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED Third Applicant
AND:	CITIBANK LIMITED (formerly called “Citibank Savings Limited”) Respondent FIRST CROSS-CLAIM CITIBANK LIMITED (formerly called “Citibank Savings Limited”) Cross-Claimant [Lance Kelly Financial Management Pty Ltd, removed as a party] First Cross-Respondent LANCE KELLY Second Cross-Respondent [Dennis Jones & Company Pty Limited, removed as a party] Third Cross-Respondent DENNIS JONES Fourth Cross-Respondent TONY BAHR Fifth Cross-Respondent ALAN J BLEE Sixth Cross-Respondent [Wayne Fitcher, removed as a party] Seventh Cross-Respondent NORMAN KIRBY Eighth Cross-Respondent PAUL KENNEDY Ninth Cross-Respondent PETER KINROSS Tenth Cross-Respondent JAMES NAUGHTON Eleventh Cross-Respondent [D Rodstead, removed as a party] Twelfth Cross-Respondent [G Blaiklock, removed as a party] Thirteenth Cross-Respondent ERIK JAMES BUTTARS Fourteenth Cross-Respondent ROMMEL HACOPIAN Fifteenth Cross-Respondent CRAIG BYRON ROBERTS Sixteenth Cross-Respondent ANNA WASS Seventeenth Cross-Respondent ALLAN STEWART CRAWFORD Eighteenth Cross-Respondent PERMANENT TRUSTEE COMPANY LIMITED Nineteenth Cross-Respondent AMERICAN HOME ASSURANCE COMPANY Twentieth Cross-Respondent LAWRENCE C GRIMA Twenty-first Cross-Respondent SECOND CROSS-CLAIM LANCE KELLY Cross-Claimant CITIBANK LIMITED (formerly called “Citibank Savings Limited”) Cross-Respondent THIRD CROSS-CLAIM DENNIS JONES Cross-Claimant CITIBANK LIMITED (formerly called “Citibank Savings Limited”) Cross-Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	7 MAY 1999
WHERE MADE:	SYDNEY