VISCARIELLO v MACKS (No 8) - [2012] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
VISCARIELLO v MACKS (No 8)
[2012] SASC 68
Reasons of Judge Lunn a Master of the Supreme Court
27 April 2012
PROCEDURE
Application by plaintiff under 6R 146 for disclosure by non-party dismissed.
Held: Norm that such costs should be on solicitor and client scale - no factor to displace the norm.

VISCARIELLO v MACKS (No 8)
[2012] SASC 68
JUDGE LUNN:
Reasons on application by Iles Selley for costs to be as between solicitor and client

Iles Selley are a legal firm which acted for the defendant in relation to a subpoena issued to him in proceedings in the Federal Magistrates Court between Tanya Hamilton-Smith and Heidi George. Those proceedings had some potential relevance to the matters in issue in this action. The defendant made discovery in this action of the file of Iles Selley in relation to it acting for him in relation to the subpoena, but claimed legal professional privilege for its contents.
On 13 October 2009 the plaintiff issued an interlocutory application in this action against Iles Selley under 6R 146 seeking disclosure of documents relating to that firm having acted for the defendant.[1] Iles Selley maintained all relevant documents had been given back to the defendant and had already been disclosed by him. The plaintiff nevertheless pursued his application that Iles Selley make formal disclosure under 6R 146 of the relevant documents which it either had, or had had, in its possession. On 27 October 2010 I dismissed the application.[2] I ordered that the plaintiff pay to Iles Selley its costs of the application as adjudicated or agreed and gave liberty to it to apply that the costs be as between solicitor and client.
[1] There were five other similar applications made by the plaintiff which I dealt with at the same time, but the present application only concerns the application against Iles Selley.
[2] See my reasons (No 6), [2010] SASC 303.
By an application of 21 October 2011 (FDN125) Iles Selley has applied that its costs be on a solicitor and own client basis.[3] The only issue which I need to determine is whether the costs ordered should be on a solicitor and client or on a party and party scale. It was agreed that the application would be dealt with solely on written submissions.
[3] In their written submission Iles Selley only seek an order on a solicitor and client basis and I deal with the application on that basis.
The issue is whether the Court should exercise its discretion under 6R 264(5)(a) to order costs as between solicitor and client as defined in sub‑paragraph (5)(a). The relevant parts of that Rule provide:
264—Basis for awarding costs
(1)The Court may, in the exercise of its discretion as to costs, award costs on any basis the Court considers appropriate.
(2)As a general rule, however, costs are awarded as between party and party (that is, on the basis that the party entitled to the costs will…

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.

Continue reading VISCARIELLO v MACKS (No 8)

Details

AGLC: VISCARIELLO v MACKS (No 8) [2012] SASC 68
Case: [2012] SASC 68
Decision Date: 27 April 2012

CaseChat Overview and Summary

The case of Viscariello v Macks (No 8) involved an application by the plaintiff under Rule 146 for disclosure by a non-party, which was dismissed by the Supreme Court of South Australia. The defendant had sought legal representation from Iles Selley, a legal firm, in relation to a subpoena issued to him in Federal Magistrates Court proceedings between Tanya Hamilton-Smith and Heidi George. The plaintiff later sought to obtain documents relating to Iles Selley's representation of the defendant, but the defendant claimed legal professional privilege over the contents of the file. The plaintiff pursued the application for disclosure, but the application was dismissed, and the plaintiff was ordered to pay the defendant's costs. Iles Selley subsequently applied for its costs to be on a solicitor and client basis.

The primary legal issue was whether the court should exercise its discretion to order costs as between solicitor and client, as defined in Rule 264(5)(a), or on a party and party scale. The court considered the relevant parts of Rule 264 and found that, as a general rule, costs are awarded as between party and party. However, the court also recognised that, in exercising its general discretion, it may award costs as between solicitor and client. The court relied on the decision in Mancorp Pty Ltd v Baulderstone Hornibrook, which held that legal costs properly incurred in complying with a subpoena should be awarded on a solicitor and client basis.

The court held that, in principle, there should be no difference in the costs consequences where a non-party successfully resists either a subpoena for documents or an application for non-party disclosure under Rule 146. Therefore, the norm should be that the successful non-party should be awarded its costs as between solicitor and client. The court found that there was nothing in the facts of this matter to justify exercising the discretion of the court on costs other than in accordance with the norm that they should be as between solicitor and client.

The court made several orders, including that the costs ordered on 27 October 2010 in favour of Iles Selley were to be paid by the defendant on a solicitor and client basis. The costs of the application were to be paid by the plaintiff to Iles Selley. Iles Selley was to file an itemised schedule of their costs by 18 May 2012, and the plaintiff was to file his notice of dispute to that schedule within 28 days of service. A further directions hearing about the adjudication of the costs of Iles Selley was set for Tuesday 3 July 2012 at 9.50am.

Orders