Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 187

Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 187

UCPR 33.11 extends to recovery of reasonable loss and expense incurred by a third party such as Mr Wavish as a result of a subpoena issued to his former solicitors for production of his documents. The subpoena was directed substantially to documents referable to Mr Wavish and legally in his control, his involvement in responding to the subpoena and protecting privilege and confidentiality was reasonable, and it would be artificial to deny recovery merely because he was not the named addressee. In any event, the Court's inherent power would extend to compensating a person who reasonably incurred loss or expense to assist an addressee to comply with a subpoena to produce documents in that...

Jurisdiction
Australia
Judgment Date
22 March 2011
Procedural Posture
Procedural and Other Ruling Concerning Subpoenas and Costs and Expenses of Compliance / Notice of Motion and Amended Notice of Motion After Subpoena Set Aside by Consent; Costs Issue Remaining
Outcome
Parties to bring in short minutes of order to reflect the reasons.
Legal Topics
['subpoenas' 'ucpr 33.11' 'costs and Expenses of Compliance With Subpoena' 'third Party Claim for Loss or Expense' 'client Legal Privilege and Confidentiality']
['practice and Procedure' 'costs'] ['subpoenas' 'ucpr 33.11' 'costs and Expenses of Compliance With Subpoena' 'third Party Claim for Loss or Expense' 'client Legal Privilege and Confidentiality']

Case Brief

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Procedural Posture

Procedural and Other Ruling Concerning Subpoenas and Costs and Expenses of Compliance / Notice of Motion and Amended Notice of Motion After Subpoena Set Aside by Consent; Costs Issue Remaining

Legal Issues

  1. 1 ['Whether UCPR 33.11 permits a person other than the named addressee of a subpoena to recover reasonable loss or expense incurred in complying with the subpoena.' "Whether the Court's inherent jurisdiction would permit compensation to a third party who reasonably incurred loss or expense to assist an addressee to comply with a subpoena for documents in that third party's legal control." 'Whether Mr Wavish could recover costs associated with compliance with a subpoena issued to his former solicitors, Djekovic Hearne Walker.']

Ratio Decidendi

UCPR 33.11 extends to recovery of reasonable loss and expense incurred by a third party such as Mr Wavish as a result of a subpoena issued to his former solicitors for production of his documents. The subpoena was directed substantially to documents referable to Mr Wavish and legally in his control, his involvement in responding to the subpoena and protecting privilege and confidentiality was reasonable, and it would be artificial to deny recovery merely because he was not the named addressee. In any event, the Court's inherent power would extend to compensating a person who reasonably incurred loss or expense to assist an addressee to comply with a subpoena to produce documents in that...

Court Disposition

Parties to bring in short minutes of order to reflect the reasons.

Orders

  • ['Parties to bring in short minutes to reflect these reasons.']