Background
Amin Homes sued Nadeem Anwar and Rabiya Zagham to recover deposits and other amounts paid under an uncompleted contract for the sale of land at Leppington. The defendants subpoenaed the plaintiff’s former solicitors, Birchgrove Legal, seeking conveyancing files and documents concerning dealings with the property.
Birchgrove reviewed more than 2,000 documents and produced non-privileged or partly redacted material in packet S-4, with documents said to be privileged in packet S-5. The defendants then moved for unredacted documents and general access to S-5. The plaintiff ultimately consented to general access, leaving disputes over Birchgrove’s reasonable subpoena-compliance expenses and the costs of the motion.
The Court’s Holding
Pike J held that Birchgrove was entitled to reasonable compliance costs under r 33.11 of the Uniform Civil Procedure Rules 2005 (NSW), but not the $21,700 claimed. Its handling of potentially privileged material did not amount to disentitling conduct: Birchgrove could redact material pending testing of privilege and was entitled to preserve its former client’s potential privilege claim.
On a broad-brush assessment, the Court allowed $6,110 for reviewing and producing the documents and $3,000 for other reasonable work, fixing the defendants’ liability at $9,110 inclusive of GST. The Court made no costs order on the access motion: Birchgrove should have filed a submitting appearance earlier, but the defendants were not unjustified in naming it because the prior correspondence left uncertainty about the asserted privilege claims.
Key Takeaways
- A subpoena recipient may recover reasonable compliance expenses, but extensive correspondence and unclear privilege work may be substantially reduced.
- A former solicitor may protect a former client’s potential privilege claim when producing subpoenaed documents.
- Obtaining access to documents does not automatically make the issuing party successful against every respondent for costs purposes.
Why It Matters
The decision stresses proportionality in subpoena-cost disputes and the need for precise privilege schedules. Where privilege principally belongs to a client, parties seeking access should ensure that the client is properly joined or engaged in the dispute.