Moustapha v Nelson [2019] NSWSC 1573

Supreme Court New South Wales

Medium Neutral Citation: Moustapha v Nelson [2019] NSWSC 1573 Hearing dates: 4 November 2019 Date of orders: 04 November 2019 Decision date: 04 November 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Allow the notice to produce in its entirety. 2. Allow the subpoena, however, limiting the documents to which the defendant should be permitted access to: (a) all letters of instruction or variations thereof issued to Mr Barry Morris concerning a report to be prepared by him for use in these proceedings; (b) all communications between Mr Morris and the plaintiffs' solicitors or other persons on behalf of the plaintiffs and the plaintiffs' solicitors attaching any draft report prepared Mr Morris; and any correspondence in relation to that draft report including any correspondence in relation to a dispute as to costs or as to the performance of the proposed expert's report. 3. Direct that the plaintiffs have first access to the documents produced under subpoena in order to put into a separate bundle those documents responding to category 3 of the subpoena and any responding to category 2 but not forwarded to the plaintiffs' solicitors. 4. Direct that after seven days from today's date, the defendant is to have access to documents in categories 1 and 2 of the subpoena as read down. 5. Order that the defendant have access to documents produced under the notice to produce without further limitation 6. Note that the purpose for which the documents have been sought is for the challenge that is anticipated to the application for leave to adduce expert evidence which will before Slattery J on 14 November 2019 and any application to limit use of the documents to which the defendants will now have access to beyond that use for the purposes of that application is an application that can be made to Slattery J on that occasion. 7. Order that costs of notice of motion filed 16 October 2019 be the defendant's costs in the cause. Catchwords: CIVIL PROCEDURE — Subpoenas — Application to set aside and a notice to produce – whether or not there has been an implied waiver of legal professional privilege in the documents sought to be produced under the subpoena and the notice to produce – notice to produce allowed in its entirety – access to subpoena documents allowed but limited Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), ss 118, 122(2) Cases Cited: ASIC v Rich [2004] NSWSC 923 Banksia Mortgages Ltd v Croker [2010] NSWSC 535 Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as trustee for the Thornleigh Trading Trust) [2018] NSWSC 136 Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305 Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 6 New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 Rinehart v Rinehart [2018] NSWSC 1102 Traderight (NSW) Pty Ltd (ACN 108 880 968) v Bank of Queensland Limited (ACN 009 656 740) (No 14) and 13 related matters [2013] NSWSC 211 Category: Procedural and other rulings Parties: Fouad Ahmad Moustapha (First Plaintiff) Overlook Tiles Pty Ltd (Second Plaintiff) Katie Nelson (Third Defendant) Representation: Counsel: N Obrart (Plaintiffs) S Hartford Davis (Defendant)