Balzola v Federal Capital Press of Australia Pty Ltd (No. 3) [2016] NSWDC 258

Balzola v Federal Capital Press of Australia Pty Ltd (No. 3) [2016] NSWDC 258

Access to documents produced under subpoenas should be granted to the defendants where the producing party has not objected to production; lawyers cannot claim privilege on behalf of clients if the clients themselves have not objected. Substituted service of a subpoena by email is valid under UCPR r 10.14 if personal service cannot be effected and the document has been brought to the person's notice.

Parties
Plaintiff: Robert Balzola; First Defendant: Federal Capital Press of Australia Pty Ltd; Second Defendant: Lisa Cox
Jurisdiction
Australia
Judgment Date
20 October 2016
Procedural Posture
Defamation (civil) / Interlocutory Application Before Trial Regarding Subpoenas and Access to Documents
Outcome
Interlocutory orders made regarding access to subpoenaed documents; application stood over in part; privilege and access objections dismissed or reserved.
Legal Topics
Subpoena, Legal Professional Privilege, Parliamentary Privilege, Service of Documents, Access to Subpoenaed Documents
Civil Procedure Defamation Subpoena Legal Professional Privilege Parliamentary Privilege Service of Documents Access to Subpoenaed Documents

Case Brief

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Parties

Robert Balzola

Plaintiff

Federal Capital Press of Australia Pty Ltd

First Defendant

Lisa Cox

Second Defendant

Procedural Posture

Defamation (civil) / Interlocutory Application Before Trial Regarding Subpoenas and Access to Documents

Legal Issues

  1. 1 Whether the defendants should be granted access to documents produced under subpoenas where objections are raised by the plaintiff or third parties
  2. 2 Whether a solicitor can object to production of documents where his client has not done so
  3. 3 Whether legal professional privilege applies to costs agreements and memoranda of fees

Ratio Decidendi

Access to documents produced under subpoenas should be granted to the defendants where the producing party has not objected to production; lawyers cannot claim privilege on behalf of clients if the clients themselves have not objected. Substituted service of a subpoena by email is valid under UCPR r 10.14 if personal service cannot be effected and the document has been brought to the person's notice.

Court Disposition

Interlocutory orders made regarding access to subpoenaed documents; application stood over in part; privilege and access objections dismissed or reserved.

Orders

  • Stand over part heard application to Monday 24 October 2016 at 9:00am.
  • Any producing party objecting to access to already produced documents to file application and affidavit/statement by 4:00pm 21 October 2016 and appear on 24 October 2016.