Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (No 2) [2018] NSWSC 1641

Supreme Court New South Wales

Medium Neutral Citation: Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (No 2) [2018] NSWSC 1641 Hearing dates: 26 October 2018 Decision date: 26 October 2018 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Third party to pay costs of notice of motion to set aside subpoena; defendant to pay 75 per cent of amended notice of motion seeking to be excused from compliance with the subpoena; defendant to pay $79,221.95 for third party's reasonable costs of compliance with subpoena Catchwords: COSTS – Party/Party – costs orders in interlocutory proceedings – subpoena served on third party – costs of motion to set aside subpoena and alternatively be excused from compliance with subpoena - costs of compliance with subpoena Legislation Cited: Federal Court Rules Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A Pty Ltd v Z [2007] NSWSC 999 Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647 Category: Procedural and other rulings Parties: Secretary of the Department of Planning and Environment (Applicant) Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (Respondent) Representation: Counsel: A Harding (Applicant) J C Lee (Respondent)

Solicitors: McCullough Robertson (Applicant) Minter Ellison (Respondent) File Number(s): SC 2018/208684

EX TEMPORE Judgment (REVISED) 1. On 17 August 2018 the defendant, Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement), served a subpoena on the Department of Planning and Environment. The subpoena sought production of one identified letter and seven broadly expressed categories of documents. 2. Between 7 and 12 September 2018, 15 lawyers from the Department conducted a review of some 2,600 documents that were caught by the subpoena. 3. On 12 September 2018 the Department filed and served a Notice of Motion seeking to set aside the subpoena on the grounds that it had no legitimate forensic purpose and was oppressive. 4. Alternatively, the Department sought to be excused from complying with the subpoena on the basis that some 2,000 of the 2,600 documents caught by the subpoena were the subject of client legal privilege. 5. I dealt with that motion on 14 September 2018. 6. The matter was then said to be urgent because of the then imminence of the hearing date. The hearing date has now been postponed to 3 December 2018. 7. After debate, the Department did not press its application that the subpoena be set aside and accepted that further evidence was required to justify its contentions concerning privilege. 8. On 17 September 2018 the Department filed an Amended Notice of Motion abandoning its claim that the subpoena be set aside, but maintaining its claim that it should be excused from producing the 2,000 documents on the basis of legal client privilege. 9. Also on 17 September 2018 the Department produced 600 odd documents that were not said to be privileged. 10. On 24 September 2018 Pasminco's solicitors wrote to the Department's solicitors, confining Pasminco's challenge to the Department's claim for privilege to some 220 of the 2,000 documents. In effect, Pasminco accepted the Department's claim of privilege for some 1,800 of the 2,000 documents. 11. On 5 October 2018 I noted those documents remained in dispute and made directions to have the dispute ready for determination today. 12. On 17 October 2018 the Department served a further affidavit. It set out in more detail the evidence upon which the Department relied to justify the claim for privilege in respect of the 220 documents. 13. On 24 October 2018 Pasminco's solicitors refined their dispute to some 26 documents. Overnight the dispute was reduced to some 22 documents. I heard argument earlier today about those documents. 14. For the reasons I gave this morning, I upheld the Department's claim for all but two of those documents. 15. Two questions arise. 16. The first is what order for costs should be made in respect of the Department's notice of motion and amended notice of motion. 17. The second is whether an order should be made under Uniform Civil Procedure Rules 2005 (NSW) r 33.11 for the Department's reasonable expenses of complying with the subpoena. 18. The distinction between the costs incurred in challenging a subpoena and the costs incurred in complying with the subpoena is not always easy to identify. 19. Unlike the circumstances that were before Brereton J, as his Honour then was, in A Pty Ltd v Z [2007] NSWSC 999, I do not see this is a case where that distinction can be drawn by reference only to the date upon which the Department moved to set aside the subpoena (cf [49] in Brereton J's judgment). 20. The question is complicated here by the fact that, because of the then imminence of the hearing date, the Department was obliged to search and assemble the documents called for and to seek advice and make a decision about any basis upon which production should be resisted in a very tight timeframe. 21. The costs incurred by the Department in reviewing the documents, considering whether a claim for privilege should be made, and seeking advice as to whether that claim would be justified, fall within the costs of compliance with the subpoena: see Mansfield J in Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647 at 649 (dealing with the corresponding provision in the Federal Court Rules).