O'Shanassy v Turland

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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

Global Medical Imaging Management Ltd (in liq) v Australian Mezzanine Investments Pty Ltd [2003] NSWSC 430

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

Marshall v Prescott (No 2) [2013] NSWCA 292

Metlife Insurance Ltd v Visy Board Pty Ltd & 25 Ors (Costs)

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Details
Case
[2021] NSWDC 642
Decision Date

CaseChat Overview and Summary

O'Shanassy v Turland was a case in which the plaintiff, O'Shanassy, sought to enforce subpoenas against several third parties in relation to a dispute involving O'Shanassy and a third party. The defendant, Turland, opposed these subpoenas and sought to set them aside, arguing that they were not relevant to the case at hand. The third parties also sought to set aside the subpoenas, claiming that the documents they were seeking were privileged.

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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