District Court
New South Wales
Medium Neutral Citation: O’Shanassy v Turland [2021] NSWDC 642 Hearing dates: 4,11, 16 and 25 November 2021 Date of orders: 25 November 2021 Decision date: 25 November 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Order:
(1) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and UCPR r 42.7, the plaintiff is to pay the costs of the Council and of the defendant of and incidental to the application by the Council and the defendant to set aside the plaintiff’s subpoena to the Council, such costs to be assessed forthwith.
(2) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and UCPR r 42.7, the plaintiff and Sagacious Holdings Pty Ltd are jointly and severally liable to pay the costs of the defendant of and incidental to the application by the plaintiff and Sagacious Holdings Pty Ltd to set aside the subpoena to Sagacious Holdings Pty Ltd, Mercedes-Benz Financial Services Australia Pty Ltd, Nissan Financial Services Pty Ltd and Latitude Financial Services Australia Holdings Pty Ltd, such costs to be assessed forthwith.
Catchwords: SUBPOENA – applications by third parties as well as by the parties to set aside subpoenae – documents sought in relation to litigation involving the plaintiff and a third party - claim for legal professional privilege made by third party upheld - costs – application for costs to be paid forthwith – whether position of third parties in applications to set aside subpoenae should be viewed differently to that of the parties to the litigation
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98
Uniform Civil Procedure Rules (NSW) 2005 rr 33.11 and 42.7
Cases Cited: All Services Australia Pty Ltd v Telstra Corporation Ltd (2000) 171 ALR 330
Ashfield Municipal Council v Roads and Traffic Authority of NSW [2004] NSWSC 917
Butcher v Balog [2017] NSWSC 1409
Commonwealth of Australia v Gretton [2008] NSWCA 117
Della Bosca v Arena [1999] NSWSC 1057
Hani Property Investors Pty Ltd v Taouk [2015] NSWSC 614
Health v Greenacre Business Park Pty Ltd [2016] NSWCA 34
In the matter of Eastmark Holdings Pty Limited (receivers and managers appointed) and 1 Denison Street Holdings Pty Ltd (receivers and managers appointed; In the matter of Eastmark Holdings Pty Limited (receivers and managers appointed) (subject to a deed of company arrangement) & ors [2015] NSWSC 2071
In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
Kazal v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1422
Kazal v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1422
Lam v Rolls Royce PLC (No 2) [2014] NSWSC 204
Margaret Lesley Marshall and Kim Neil Marshall v Michael Prescott (No 4) [2012] NSWSC 992
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77
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- Case
- [2021] NSWDC 642
- Decision Date
CaseChat Overview and Summary
The primary legal issue in the case was whether the subpoenas were properly issued and enforceable against the third parties, and if so, whether the third parties had a valid claim of legal professional privilege over the documents sought. The court had to consider the scope of the subpoenas, the relevance of the documents sought to the litigation, and the applicability of legal professional privilege to the documents in question.
In its decision, the court found that the subpoenas were properly issued and enforceable against the third parties, but that some of the documents sought were protected by legal professional privilege. The court held that the third parties were entitled to set aside the subpoenas as to those privileged documents. The court also found that the plaintiff and the third parties were jointly and severally liable for the costs of the application to set aside the subpoenas, and ordered that those costs be assessed forthwith. This decision highlights the importance of carefully considering the scope and enforceability of subpoenas against third parties, as well as the applicability of legal professional privilege to the documents sought.
Orders
Orders of the court
Order:
(1) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and UCPR r 42.7, the plaintiff is to pay the costs of the Council and of the defendant of and incidental to the application by the Council and the defendant to set aside the plaintiff’s subpoena to the Council, such costs to be assessed forthwith.
(2) Pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and UCPR r 42.7, the plaintiff and Sagacious Holdings Pty Ltd are jointly and severally liable to pay the costs of the defendant of and incidental to the application by the plaintiff and Sagacious Holdings Pty Ltd to set aside the subpoena to Sagacious Holdings Pty Ltd, Mercedes-Benz Financial Services Australia Pty Ltd, Nissan Financial Services Pty Ltd and Latitude Financial Services Australia Holdings Pty Ltd, such costs to be assessed forthwith.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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