Queanbeyan Leagues Club Ltd v Poldune Pty Ltd

[2001] NSWSC 831

CITATION:	Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2001] NSWSC 831
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3418/96
HEARING DATE(S):	21 September 2001
JUDGMENT DATE:	21 September 2001
PARTIES :	Queanbeyan Leagues Club Limited (P) GIO Australia Holdings Limited (D2) M J Armstrong (D14) GIO Personal Investment Services Limited (D15) Marshall Marks Kennedy (XD1)
JUDGMENT OF:	Hamilton J

COUNSEL :	A Radojev (P) No appearances (Ds & XD1) Mr Hahn, Solicitor, as city agent for subpoenaed party
SOLICITORS:	Collaery & Colquhoun (P) Barker Gosling (D2 & 15) Tress Cocks & Maddox (D14) Phillips Fox (XD1)
CATCHWORDS:	PROFESSIONS AND TRADES [170] - Lawyers - Liens - Possessory lien - Incidents of lien - Preservation of lien - Change of solicitors - Documents required for continued conduct of proceedings.
CASES CITED:	Bennett & Co v CLC Corporation (2001) 37 ACSR 96 Bolster v McCallum (1966) 85 WN (Pt 1) (NSW) 281 Gamlen Chemical Co (UK) Ltd [1980] 1 WLR 614 In the Marriage of Rhode; Borthwick, Butler and Yee intervening (1983) 9 Fam LR 159 Jankowski v Mastoris SCNSW Hodgson J 19 September 1995 unreported Major Projects Pty Ltd v Sibmark Pty Ltd SCNSW McLelland J 19 February 1992 unreported Cordery on Solicitors (8th ed, 1988) 245 - 247 Riley's New South Wales Solicitors Manual [10,520]
DECISION:	Access granted to documents subpoenaed from solicitor on basis that they and all copies will be returned to solicitor when litigation determined.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY 21 SEPTEMBER 2001

3418/96 QUEANBEYAN LEAGUES CLUB LIMITED v POLDUNE PTY LIMITED & ORS

JUDGMENT (On return of subpoena)

1    HIS HONOUR: This afternoon before me a call is made on behalf of the plaintiff on a subpoena to produce documents served pursuant to short notice granted by me. The subpoena is directed to Eric Anthony Lucas and Karen Narelle Fogarty practising as Colquhoun Murphy Solicitors. It requires the production to the Court of documents in and relating to these proceedings held by Colquhoun Murphy, who immediately before the plaintiff's present solicitors acted for the plaintiff in the proceedings.

2    Mr Hahn, solicitor, appears as city agent for Colquhoun Murphy in answer to the subpoena. He produces to the Court a copy of the subpoena and that will be received and placed in an envelope among the subpoenaed documents in these proceedings. The documents which are numerous have not been brought to Court. They have not previously been made available to the plaintiff's present solicitor because a lien is claimed over them by Colquhoun Murphy for unpaid costs. Despite that claim of a lien, Colquhoun Murphy make no objection to the production to the Court of the documents specified in the subpoena or to the plaintiff and its present representatives having access to those documents, copying them, or using them and the copies in the conduct of these proceedings, provided that their lien is maintained.

3 It seems to me that this is best done by the documents being received by the Court as produced on subpoena and access being granted to the plaintiff, including leave to photocopy, but on the basis that the plaintiff will at the conclusion of the proceedings return to this Court all the documents and all copies made of them that are in its possession. They may then be returned by the Court to Colquhoun Murphy still subject to that firm's lien. This is in accordance with both old and modern authority as to the way that documents may be used in a case by new solicitors when a lien is claimed over them for unpaid costs by former solicitors: see Riley’s New South Wales Solicitors Manual [10520]; Cordery on Solicitors (8th ed, 1988) 245 - 247; Bolster v McCallum (1966) 85 WN (Pt 1) (NSW) 281; Gamlen Chemical Co (UK) Ltd [1980] 1 WLR 614; In the Marriage of Rhode; Borthwick, Butler and Yee intervening (1983) 9 Fam LR 159; Major Projects Pty Ltd v Sibmark Pty Ltd SCNSW McLelland J 19 February 1992 unreported; Jankowski v Mastoris SCNSW Hodgson J 19 September 1995 unreported; and see Bennett & Co v CLC Corporation (2001) 37 ACSR 96 at [23] – [25].

4    It will not assist the preparation for the second trial in these complex proceedings, the commencement of which is only a fortnight away, for the large volume of documents to be brought to this Court. For the sake of convenience, in the circumstances, what arrangements can be made should be made between Colquhoun Murphy and the plaintiff for the plaintiff to have access to the documents. Any delivery of the documents to the plaintiff pursuant to these arrangements will be taken to be a delivery of the documents into the custody of the Court in answer to the subpoena. The documents must all be brought to the Court at the commencement of the trial. The plaintiff by its counsel undertakes to the Court that it will at the determination of the proceedings ensure that there are returned to the Court, not only all the documents made available by Colquhoun Murphy but all copies of the same, which they have made, and which are in their possession. The documents may then be returned in due course to Colquhoun Murphy, who have produced them, still subject to their lien. The plaintiff by its counsel also undertakes to the Court that it will pay promptly to Colquhoun Murphy all costs reasonably incurred by them in answering this subpoena and dealing with the documents pursuant to its terms. Upon those undertakings I direct that the arrangements set out above as to the production of the documents be implemented.

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Last Modified: 10/26/2001