Riva NSW Pty Limited v Mark A Fraser; Fraser v Riva (NSW) (No. 2) [2020] NSWSC 1162

Riva NSW Pty Limited v Mark A Fraser; Fraser v Riva (NSW) (No. 2) [2020] NSWSC 1162

The Court held that the 11 February 2020 production orders were not shown to have been made irregularly or in denial of procedural fairness. Because the solicitors had relied on the costs agreements, Riva was entitled to test their authenticity and creation dates for the remaining costs issues. However, proportionality and case management justified varying the orders: if the solicitors withdrew reliance on the costs agreements, Orders 5 to 10 would be permanently stayed; if not, production under Order 5 would proceed, while Orders 6 to 10 concerning wider expert inspection and related steps would be stayed unless Riva persuaded the Court otherwise.

Jurisdiction
Australia
Judgment Date
31 August 2020
Procedural Posture
Consequential Orders; Civil Procedure Costs Dispute / Notice of Motion Dated 13 March 2020 Seeking to Set Aside Orders 5 to 10 of Orders Made on 11 February 2020
Outcome
Orders of 11 February 2020 varied; solicitors' motion otherwise dismissed; further case management directions made.
Legal Topics
['indemnity Costs' 'specified Gross Sum Costs Orders' 'production of Electronic Documents and Metadata' 'procedural Fairness' 'case Management Directions' 'costs Agreements']
['civil Procedure' 'costs' 'legal Profession'] ['indemnity Costs' 'specified Gross Sum Costs Orders' 'production of Electronic Documents and Metadata' 'procedural Fairness' 'case Management Directions' 'costs Agreements']

Case Brief

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Procedural Posture

Consequential Orders; Civil Procedure Costs Dispute / Notice of Motion Dated 13 March 2020 Seeking to Set Aside Orders 5 to 10 of Orders Made on 11 February 2020

Legal Issues

  1. 1 ['Whether Orders 5 to 10 made on 11 February 2020 should be set aside as irregular under UCPR r 36.15(1).' 'Whether the solicitors were denied procedural fairness because Riva sought the production orders orally and at short notice.' 'Whether Riva had a relevant and legitimate forensic purpose for seeking electronic copies of the costs agreements with metadata.' 'Whether the costs agreements should be produced if the solicitors continue to rely on them for the remaining costs issues.' "Whether expert examination of the solicitors' computer systems was necessary or proportionate."]

Ratio Decidendi

The Court held that the 11 February 2020 production orders were not shown to have been made irregularly or in denial of procedural fairness. Because the solicitors had relied on the costs agreements, Riva was entitled to test their authenticity and creation dates for the remaining costs issues. However, proportionality and case management justified varying the orders: if the solicitors withdrew reliance on the costs agreements, Orders 5 to 10 would be permanently stayed; if not, production under Order 5 would proceed, while Orders 6 to 10 concerning wider expert inspection and related steps would be stayed unless Riva persuaded the Court otherwise.

Court Disposition

Orders of 11 February 2020 varied; solicitors' motion otherwise dismissed; further case management directions made.

Orders

  • ['The Court will permanently stay Orders 5 to 10 of the orders made on 11 February 2020 if the defendant solicitors communicate to Riva by 5pm on Thursday, 3 September 2020 that they no longer seek to rely upon the costs agreements referred to in those orders.' 'If that communication is not sent, the time for...