ACP v Motion [2000] NSWSC 1169

New South Wales Supreme Court

CITATION : ACP v Motion [2000] NSWSC 1169 revised - 14/12/2000 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 50160/1999 HEARING DATE(S) : 08/12/00 JUDGMENT DATE : 13 December 2000

ACP Magazines Pty Limited - Plaintiff/Respondent PARTIES : John Motion - First Defendant/Applicant Southdown Publications Pty Limited - Second Defendant/Applicant JUDGMENT OF : Rolfe J

COUNSEL : Mr S.J. Gageler SC - Defendants/Applicants Mr K.L. Andronos - Plaintiff/Respondent SOLICITORS : Blake Dawson Waldron - Defendants/Applicants Gilbert & Tobin - Plaintiff/Respondent CATCHWORDS : Costs - refer attached for details. Supreme Court Rules LEGISLATION CITED : Evidence Act 1995 Supreme Court Act 1970 Law Society of New South Wales v Jackson [1981] 1 NSWLR 730 CASES CITED : Darcey v Pre-Term Foundation Clinic & Anor [1983] 2 NSWLR 497 Danieletto v Khera (1995) 35 NSWLR 684 Leicester v Walton (Court of Appeal - 22 November 1995 - unreported) DECISION : CPH Property Pty Limited pay defendants/applicants' costs of Notice of Motion of 9 November 2000 incuding costs of the argument in relation to the payment of costs.

COSTS Documents were produced to the Court by the solicitors, who had formerly acted for a company, pursuant to a subpoena. The company opposed the granting of access to the documents to the party subpoenaing them on the basis of client professional privilege.

A Notice of Motion was taken out to obtain access to the documents and was opposed initially. When further evidence was obtained a number of documents in respect of which access had been denied were voluntarily furnished, the claim for privilege not being pursued. This satisfied the Notice of Motion and the applicants sought that it be dismissed with costs. The company opposed an order that it pay the costs on the bases that it was not a party to the proceedings and hence not amenable to an order for costs by virtue of Part 52A rule 4.