Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77

Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77

The applicant, as a non-party subpoena recipient, was entitled under SCR Pt 37 r 9 to recover from the defendant the reasonable costs of obtaining legal advice, including senior counsel's opinion, concerning compliance with the subpoena and confidentiality and privilege issues, and the costs of compiling, preparing...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
27 February 2001
Procedural Posture
Notice of Motion Under SCR Pt 37 R 9 Concerning Costs and Expenses of Compliance With a Subpoena to a Third Party / Judgment on the Applicant's Motion for Costs Arising From Subpoena Compliance and Opposition to Inspection
Outcome
Motion allowed in part.
Legal Topics
['subpoena to Third Party' 'costs of Compliance With Subpoena' 'inspection of Subpoenaed Documents' 'legal Professional Privilege' 'client Legal Privilege' 'confidentiality' 'indemnity Costs']
['civil Procedure' 'evidence' 'costs' 'defamation'] ['subpoena to Third Party' 'costs of Compliance With Subpoena' 'inspection of Subpoenaed Documents' 'legal Professional Privilege' 'client Legal Privilege' 'confidentiality' 'indemnity Costs']

Source-derived case record

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Procedural Posture

Notice of Motion Under SCR Pt 37 R 9 Concerning Costs and Expenses of Compliance With a Subpoena to a Third Party / Judgment on the Applicant's Motion for Costs Arising From Subpoena Compliance and Opposition to Inspection

Legal Issues

  1. 1 ['Whether the third-party subpoena recipient reasonably incurred expense or loss substantially exceeding conduct money in consequence of service of the subpoena within SCR Pt 37 r 9.' 'Whether recoverable subpoena compliance expenses included obtaining legal advice from senior counsel about confidentiality and privilege and the compilation, preparation and production of documents to the Court.' "Whether the defendant should pay the applicant's costs of the unsuccessful arguments advanced to preclude inspection of the subpoenaed documents." 'Whether any recoverable costs should be assessed on an indemnity basis and paid forthwith.']

Ratio Decidendi

The applicant, as a non-party subpoena recipient, was entitled under SCR Pt 37 r 9 to recover from the defendant the reasonable costs of obtaining legal advice, including senior counsel's opinion, concerning compliance with the subpoena and confidentiality and privilege issues, and the costs of compiling, preparing and producing the subpoenaed material to the Court. However, the applicant was not entitled to recover the costs of the unsuccessful litigation of its own grounds opposing inspection, because those arguments were not part of subpoena compliance in the strict sense and the applicant succeeded only by adopting the plaintiff's discretionary submissions. The recoverable costs were...

Court Disposition

Motion allowed in part.

Orders

  • ["The defendant is to pay the applicant's costs of obtaining legal advice including the opinion of senior counsel concerning compliance with the subpoena served on the applicant on 16 April 1999 and costs of and incidental to the compilation of and preparation of the production to the Court of the materials called...