Background
The plaintiff had served a notice of non-party disclosure on Gilchrist Connell Pty Ltd, the law firm acting for the defendant. The firm accepted service as at 23 February 2026 and objected to production, principally on legal professional privilege grounds. The plaintiff then applied under r 247 of the Uniform Civil Procedure Rules 1999 (Qld) to lift the resulting stay.
In the substantive application, the Court partially upheld the privilege objection after examining documents. Of 411 documents over which privilege had been claimed, 93 were ordered to be disclosed; the firm had also voluntarily disclosed 64 documents after the application was filed. The parties then made written submissions on costs.
The Court’s Holding
McCafferty J held that r 247(3), which ordinarily requires each party to bear its own costs on an application concerning a non-party objection, applied. The plaintiff’s argument that the firm’s objection was out of time was rejected: the parties’ correspondence showed that they had treated service as occurring on 23 February 2026, making the objections timely.
The Court found that the parties had achieved mixed success and that the firm’s privilege objection had real merit. Its conduct was not generally unreasonable or intransigent, and there was no basis to displace the ordinary costs position merely because some documents were ordered to be produced. However, the firm had provided inadequate affidavit evidence to support parts of its privilege claim, requiring judicial inspection of documents and a further hearing. It was ordered to pay the plaintiff’s standard costs of that hearing and the further written submissions; otherwise, each party was to bear its own costs.
Key Takeaways
- A non-party disclosure objection accepted as timely by both sides will be treated as an objection under r 245 for the purposes of r 247.
- Partial success in challenging privilege does not itself justify a general costs order against a non-party.
- Insufficient evidence supporting a privilege claim can warrant a targeted costs order where it causes avoidable further hearings and judicial work.
Why It Matters
The decision reinforces the protective costs regime for non-parties served with disclosure notices, particularly solicitors asserting privilege for clients. A party seeking broad non-party disclosure should expect to bear its own costs unless the objector’s conduct warrants a departure.
At the same time, privilege claims must be supported by facts, not bare assertions. Where deficient evidence forces the Court to inspect documents and prolongs the proceeding, costs may be awarded for that additional work even though the general r 247(3) rule remains intact.