Firth v Firth (Deceased) [2016] NSWDC 282

District Court New South Wales

Medium Neutral Citation: Firth v Firth (Deceased) [2016] NSWDC 282 Hearing dates: 17 June 2016 Date of orders: 17 June 2016 Decision date: 17 June 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Costs of the notice of motion are cost in the cause Catchwords: PRACTICE AND PROCEDURE – Costs – Subpoena set aside – Who should pay costs of the notice of motion to set aside the subpoena Category: Costs Parties: Dylan Craig James Firth (Plaintiff/Respondent) Joshua Newby Firth (Deceased) (Defendant Applicant) Representation: Mr M McAuley (Plaintiff/Respondent) Mr B Wilson (Defendant Applicant) File Number(s): 2009/339560 Publication restriction: No

Judgment 1. HIS HONOUR: Yet again, with monotonous regularity, do I intone the observation that nothing excites the zeal, the ardour and the passion of the legal profession more than an argument about costs. There is before me this morning a notice of motion which was formally passed under the seal of the Court on 13 April 2016. The notice of motion concerns a subpoena for production sealed by the Court on 25 February 2016. The parties have settled the substance of the notice of motion but there is no agreement as to costs. 2. The substantive proceedings concern a motor vehicle accident which occurred at Wilberforce on 10 June 2006. The plaintiff was then ten years old. Proceedings were commenced at Penrith on 5 June 2009 by the filing of a statement of claim. The defendant formally appeared on 16 July 2009. On 14 August 2009 the defendant's solicitor filed a defence admitting breach of duty of care. The only issue tendered by the defence was the quantum of the plaintiff's damages. It can be seen therefore that since 14 April 2009 the matter has only been an assessment of the plaintiff's damages. 3. For a long time the matter was not dealt with at Penrith. However, it was mentioned at Parramatta on 18 December 2015 when it was transferred to Sydney. The matter came before the list judge, Elkaim DCJ (as he now is) on 11 February 2016 when his Honour set the matter down for hearing on 29 August 2016 with an estimate of ten days. 4. The plaintiff's solicitors filed a subpoena for production addressed to NRMA Insurance Australia Limited. That subpoena passed under the seal of the Court on 25 February 2016. The entity to whom the subpoena was addressed does not exist. The correct title of the person whom the plaintiff's solicitor sought to serve with a subpoena was Insurance Group Australia Limited trading as NRMA Insurance. The subpoena was in the form that was once colloquially described as a "Grant v Downs" subpoena, calling for the production by the insurer of its complete file concerning the plaintiff's claim. The number of the claim was provided in the subpoena and then there was a large list of documents which included factual investigations, statements, claim forms, injury reports, observations reports, medicolegal reports, memoranda, notes, correspondence, lists of payments, but excluding any communications between the insurer and its lawyers acting on behalf of the insurer in respect of the plaintiff's claim that was before the Court for which there was a proper claim for legal professional privilege. This is a standard grab-bag subpoena which is completely inappropriate to a case in which liability had been admitted. Furthermore, it is well known and accepted that everything in an insurance company's file is not strictly relevant to a plaintiff's claim for damages. For example, internal memoranda and documents related to, for example, the provision of an estimate and the like are irrelevant. 5. The parties then exchanged correspondence concerning the subpoena and by parties, I mean the solicitors for the defendant and the solicitors for the plaintiff. In a letter of 7 March 2016 the defendant's solicitor said in the third paragraph: "The schedule to the subpoena calls for our client's 'complete file' in relation to the plaintiff. Although he acknowledges that documents protected by legal professional privilege are excluded, we are of the view that the subpoena is too broad, onerous and oppressive in that to require compliance would be tantamount for discovery." In the penultimate paragraph they invited the plaintiff's solicitor to narrow the schedule to the subpoena and indicate specifically what documents were being sought but then also to "outline what legitimate forensic purpose those documents would serve." The plaintiff's solicitors replied on 17 March making no acknowledgment of the extensive width of the subpoena and essentially insisting that the subpoena as filed be complied with. The antepenultimate paragraph of this letter is this: "In the event that you persist with your allegation that the subpoena should be set aside, the proper approach is for you to file a Notice of Motion, with supporting affidavits outlining the basis on which you say the subpoena [is] defective. The fact that you have not done so and that you make assertions in such broad terms without supporting particulars suggests that there is no proper basis for the allegations you make." That drew a response from the defendant's solicitors at 18 March 2016 in which the penultimate paragraph is this: "Your letter places great weight on section 56 of the Civil Procedure Act 2005 to the extent that it appears to suggest that it absolves the plaintiff of defects in the subpoena purportedly issued against our client. We do not agree with that interpretation. In any event we note that section 56 aims to 'facilitate the just, quick and cheap resolution of the real issues' in the proceedings (emphasis added). The plaintiff has failed to demonstrate how calling for the insurer's 'complete file' is relevant to the facts in issue in this case." In a letter of 21 March 2016 the plaintiff's solicitors protested that the legitimate forensic purpose was "to obtain access to documents which relate to both causation and damage." That, in essence, is an acknowledgment that they needed no documents concerning liability. 1. Counsel were briefed on the motion. Counsel have been sensible enough to settle the substance of the motion but there of course remains the question of costs. Costs follow the event theoretically. The defendant has been successful. Initially it was submitted by the plaintiff that the defendant had been intransigent but it appears to me that that plaintiff was more intransigent than the defendant. Equally, neither party particularly sought to assist the other. 2. Clearly, what the plaintiff was looking for were documents relevant to quantum that did not attract legal professional privilege. The plaintiff did not know what was in the defendant's file but the defendant's solicitors would have known and would have easily been able to provide such relevant documents that were not privileged with, I suspect, little difficulty, albeit that it may have taken some time. 3. The parties should try to assist each other in getting the case on and determined. Each party standing opposite each other taking an adversarial role does not assist in the question of the assessment of damages. True it is that our litigation system is an adversarial one but there are some matters in which skirmishing is quite unnecessary and where cooperation will lead to a swift response and where lawyers should be prepared to trust each other as once was the case. 4. Having considered the matter, it appears to me that the costs of the notice of motion should be costs in the cause.