ACP v Motion [2000] NSWSC 1169

ACP v Motion [2000] NSWSC 1169

By appearing and seeking to maintain its claim for client professional privilege, and by opposing the defendants' application for access to documents produced on subpoena, CPH Property Pty Limited participated in the proceedings to protect its own independent interest and sought a determination favourable to it. It was therefore a party for the purposes of the Supreme Court Act and Rules and was amenable to a costs order. Because the defendants' Motion resulted in access to documents over which privilege was initially claimed but later not maintained, the proper exercise of discretion required CPH Property Pty Limited to pay the defendants' costs, including the costs of the costs argument.

Jurisdiction
Australia
Judgment Date
13 December 2000
Procedural Posture
Civil Costs Application Arising From Subpoena Access Dispute / Determination of Costs of Defendants' Notice of Motion Filed 9 November 2000
Outcome
Costs ordered against CPH Property Pty Limited.
Legal Topics
['subpoenas' 'client Professional Privilege' 'access to Subpoenaed Documents' 'costs Against a Person Alleged Not to Be a Party' 'supreme Court Rules']
['civil Procedure' 'costs' 'evidence'] ['subpoenas' 'client Professional Privilege' 'access to Subpoenaed Documents' 'costs Against a Person Alleged Not to Be a Party' 'supreme Court Rules']

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Procedural Posture

Civil Costs Application Arising From Subpoena Access Dispute / Determination of Costs of Defendants' Notice of Motion Filed 9 November 2000

Legal Issues

  1. 1 ['Whether CPH Property Pty Limited became a party for the purposes of a costs order by appearing to maintain a claim of client professional privilege or opposing access to subpoenaed documents.' 'Whether Part 52A rule 4 of the Supreme Court Rules prevented a costs order against CPH Property Pty Limited.' "Whether, as a matter of discretion, CPH Property Pty Limited should pay the defendants' costs of the Notice of Motion."]

Ratio Decidendi

By appearing and seeking to maintain its claim for client professional privilege, and by opposing the defendants' application for access to documents produced on subpoena, CPH Property Pty Limited participated in the proceedings to protect its own independent interest and sought a determination favourable to it. It was therefore a party for the purposes of the Supreme Court Act and Rules and was amenable to a costs order. Because the defendants' Motion resulted in access to documents over which privilege was initially claimed but later not maintained, the proper exercise of discretion required CPH Property Pty Limited to pay the defendants' costs, including the costs of the costs argument.

Court Disposition

Costs ordered against CPH Property Pty Limited.

Orders

  • ["CPH Property Pty Limited pay the defendants/applicants' costs of the Notice of Motion of 9 November 2000, including the costs of the argument in relation to the payment of costs." 'The parties were invited to bring in Short Minutes of Order on Friday, 15 December 2000 to give effect to the reasons and for any...