Land and Environment Court of New South Wales CITATION : Hutchins Pastoral Company Pty Ltd v Minister Administering the Water Management Act 2000 and Anor [2010] NSWLEC 30 APPLICANT PARTIES : Hutchins Pastoral Company Pty Ltd RESPONDENT ON APPLICANT'S NOTICE OF MOTION Taylor & Whitty Pty Ltd FILE NUMBER(S) : 41292 of 2010 CORAM: Pain J KEY ISSUES: PRACTICE AND PROCEDURE :- whether subpoena should be set aside because requires production of privileged documents LEGISLATION CITED: Civil Procedure Act 2005 s 99 Evidence Act 1995 s 124 DATES OF HEARING: 19 February 2010 EX TEMPORE JUDGMENT DATE : 19 February 2010 APPLICANT Mr O'Donnell LEGAL REPRESENTATIVES: SOLICITOR Kell Moore Solicitors RESPONDENT ON APPLICANT'S NOTICE OF MOTION Mr T Faulkner for Taylor & Whitty Pty Ltd (solicitors) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 19 February 2010 41292 of 2006 Hutchins Pastoral Company Pty Ltd v Minister Administering the Water Management Act 2000 and Anor EX TEMPORE JUDGMENT 1 Her Honour: The Applicant has filed a Notice of Motion seeking its costs of these proceedings from its former solicitors Taylor & Whitty Pty Ltd and the barrister Mr Peter King who acted for it when it was a party to the proceedings. The Applicant is no longer a party pursuant to short minutes of order dated 6 November 2009 in which its discontinuance is noted. The claim for costs is made pursuant to s 99 of the Civil Procedure Act 2005 (the CP Act). Section 99(1) and (2) provide: (1) This section applies if it appears to the court that costs have been incurred: (a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or (b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible. (2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following: (a) it may, by order, disallow the whole or any part of the costs in the proceedings: (i) in the case of a barrister, as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case requires, or (ii) in the case of a solicitor, as between the solicitor and the client, (b) it may, by order, direct the legal practitioner: (i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or (ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs, (c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party. 2 The Applicant's solicitors issued a subpoena to the former solicitors, Taylor & Whitty Pty Ltd, which sought at par 2-4: 2. File held for Hutchins Applicants by Taylor & Whitty Pty Ltd and/or John Alexander Taylor previously trading as Taylor & Whitty Pty Ltd; 3. Any documents relating to representation of the Hutchins Applicants not on the file referred to in paragraph 2 but under the power, custody or control of you or John Alexander Taylor; 4. Any records of any conversations between Taylor & Whitty Pty and/or John Alexander Taylor with Peter King regarding the representation of the Hutchins Applicants not covered under the documents referred to in paragraphs 2 and 3 above. 3 The Notice of Motion filed by Taylor & Whitty Pty Ltd on 11 February 2010 comes before me as duty judge and seeks an order to set aside the subpoena issued to it. The Applicant in these proceedings is the Respondent on this motion. Taylor & Whitty Pty Ltd continues to act for about 30 applicants in the substantive proceedings. It has only one file for the substantive proceedings. Counsel for Taylor & Whitty Pty Ltd usefully identified that there are three categories of documents that are sought from that file under the subpoena. Category A are documents which are common to all clients, and privilege is claimed over these on behalf of the other clients/applicants in the substantive proceedings. Category B documents relate solely to the Applicant on the costs motion and can be obtained by it. Category C documents relate solely to other clients and privilege clearly attaches to these. 4 Counsel for the Applicant sought to rely on s 124 of the Evidence Act 1995 which states: (1) This section only applies to a civil proceeding in connection with which 2 or more parties have, before the commencement of the proceeding, jointly retained a lawyer in relation to the same matter. (2) This Division does not prevent one of those parties from adducing evidence of: (a) a communication made by any one of them to the lawyer, or (b) the contents of a confidential document prepared by or at the direction or request of any one of them, in connection with that matter. 5 Section 124 was argued to be a basis on which documents which also related to other clients of Taylor & Whitty Pty Ltd for which there is a single file could be subject to the subpoena. I reject that argument on the basis that the Notice of Motion seeking costs now before the Court is a different proceedings to the ongoing substantive proceedings in which the other clients of Taylor & Whitty Pty Ltd continue as parties. It is not therefore within the description in s 124 of "a civil proceeding in connection with which 2 or more parties have … jointly retained a lawyer in relation to the same matter". 6 As s 124 does not apply, the subpoena is too broadly worded and captures documents in all three categories A, B and C. As some of these are clearly privileged documents I consider the subpoena should be set aside. Order 7 The Court makes the following orders in relation to the Notice of Motion filed 11 February 2010: 1. The subpoena issued by the Applicant (Hutchins Pastoral Company Pty Ltd) to Taylor & Whitty Pty Ltd filed on the 18 January 2010 and returnable on 29 January 2010 be set aside. 2. The Applicant (Hutchins Pastoral Company Pty Ltd) pay the costs of Taylor & Whitty Pty Ltd in respect of the subpoena. 3. The Respondents on the motion (Hutchins Pastoral Co Pty Ltd) pay the costs of the Applicant on the motion (Taylor & Whitty Pty Ltd) of the motion filed 11 February 2010. 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