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

District Court New South Wales

Medium Neutral Citation: Balzola v Federal Capital Press of Australia Pty Ltd (No. 3) [2016] NSWDC 258 Hearing dates: 20 October 2016 Date of orders: 20 October 2016 Decision date: 20 October 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Stand over part heard this application to Monday 24 October 2016 at 9:00am. (2) Any producing party objecting to access to the documents already produced is to file any application together with an affidavit or statement in support by 4:00pm 21 October 2016, setting out why the subpoena addressed to them (which has already been answered by them) should be set aside and appear in person on Monday 24 October 2016 at 9:00am before Gibson DCJ in Court 13D, John Maddison Tower, 86 Goulburn Street, Sydney NSW 2000, for the purpose of making such an application. Plaintiff to provide the court with email addresses for each of these persons so that the court can notify them of these orders today, and advise them that if they do not appear orders for access may be made in their absence. (3) An order for general and uplift access to documents in the following subpoena packets: subpoena packets 14, 15 and 17. (4) Note the concession of the plaintiff that legal professional privilege for retainer documents, including costs agreement and memoranda of fees. (5) Dismiss the plaintiff's objection to production of the documents from the Penrith City Council (subpoena packet 8) and grant the defendants immediate uplift access to those documents. (6) Grant the defendants uplift access to subpoena packets 10, 11, 12 and 13, such documents to be made available to the plaintiff by making them available for collection by the plaintiff after 4:00pm today. (7) Noting the plaintiff's concession in relation to retainer documents, Gibson DCJ will remove from packets 5, 6, 7, 9 and 16 the relevant documents so that any of these parties when appearing before the court on Monday 24 October 2016 will have an opportunity to make any further submissions in relation to these documents. (8) As to the defendants' application for an order for substituted service on the Honourable Rev. Fred Nile MLC: (a) Grant leave to the defendants to rely upon the affidavit of Mr Doctor filed in court today; (b) An order, pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW), that the subpoena to produce dated 15 September 2016 issued the Honourable Rev. Fred Nile MLC (the subpoena) is taken to have been served on the Honourable Rev. Fred Nile MLC on 21 September 2016 by it having been sent by email to the Honourable Rev. Fred Nile MLC at the addresses F.Nile@parliament.nsw.gov.au and fred.nile@parliament.nsw.gov.au. (c) Stand the subpoena over to Thursday 27 October 2016 before Gibson DCJ. (d) Direct that a copy of these orders be served on the Honourable Rev. Fred Nile MLC by email to the addresses F.Nile@parliament.nsw.gov.au and fred.nile@parliament.nsw.gov.au. (e) Liberty to apply to the Defamation List Judge in relation to the subpoena and/or these orders on 3 days' notice. (9) Costs reserved. Catchwords: SUBPOENA – defendant issues subpoenae to parties who then produce documents to the Subpoena Registry – plaintiff objects to inspection of the documents on the bases of legal professional privilege, parliamentary privilege, Hearne v Street and the Chorley principle – whether solicitor can object to production of documents where his client has not done so – whether legal professional privilege applies to costs agreements and memoranda of costs - access granted to documents where no objection to production made by, or likely to be made by, the producing parties – application for access stood over to enable producing parties to consider whether to oppose production – defendants' application under UCPR r 10.14 for an order that a subpoena to a third party should be taken to have been served by reason of the document having been brought to his notice in circumstances where he was evading service – order made that service on the third party by his email addresses amounted to sufficient service for the subpoena Legislation Cited: Evidence Act 1995 (NSW), ss 117 and 118 Uniform Civil Procedure Rules 2005 (NSW), r 10.14 Cases Cited: Baker v Campbell (1983) 153 CLR 52 Boyd v Bunce [2015] NSWSC 1924 Commissioner of Australian Federal Police v Propend Finance (1997) 188 CLR 501 CSR Limited v Eddy [2008] NSWCA 83 Elcham v Darling Island Sydney [2005] NSWSC 448 Hearne v Street (2008) 235 CLR 125 Huang v Abayawickrama [2012] FCA 1504 Kennedy v Wallace (2004) 213 ALR 108 Lake Cumbeline Pty Ltd & Ors v Effem Foods Pty Ltd (1994) 13 ACLC 55; 126 ALR 58 London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 Pentelow v Bell Lawyers Pty Ltd [2016] NSWDC 186 R v Zdravkovic [2015] ACTSC 154 Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083 Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 Texts Cited: Legislative Council of New South Wales Practice Category: Procedural and other rulings Parties: Plaintiff: Robert Balzola First Defendant: Federal Capital Press of Australia Pty Ltd Second Defendant: Lisa Cox Representation: Counsel: Plaintiff: Mr R Rasmussen Defendants: Mrs L Barnett