HIS HONOUR:
Nature of proceedings
The defendant moves on an Amended Notice of Motion filed 2 June 2017.
The orders sought in the motion were as follows:
1. These proceedings be stayed for 14 days and stand dismissed thereafter unless the first plaintiff and the second plaintiff are represented by the same solicitor or each of the first plaintiff and second plaintiff acts in person.
2. The Subpoena to Produce to bdp Retail Leasing Pty Limited filed on 10 May 2017 be set aside pursuant to Part 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).
3. The Subpoena to Produce to Duane Location IQ Pty Limited filed on 10 May 2017 be set aside pursuant to Part 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).
4. The Subpoena to Produce to RGL Forensic Accountants (Australia) Pty Limited filed on 10 May 2017 be set aside pursuant to Part 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).
5. The Notice to Produce to Court filed on 12 May 2017 be set aside pursuant to Part 34.2(1) of the Uniform Civil Procedure Rules 2005 (NSW).
6. The first plaintiff pay the defendant's costs of, and incidental to, this Notice of Motion
Factual background
Campbelltown Factory Outlet Pty Limited (CFO) and Pacific Street Properties Pty Limited (PSP) (both in their capacity as a trustee of different unit trusts) formed a joint venture on or about 27 November 2007 for the construction and development of a factory outlet centre in Campbelltown, New South Wales (the Centre). PSP had a 60 per cent interest in the joint venture and CFO had a 40 per cent interest.
The plaintiffs controlled CFO and were responsible for the CFO side of the joint venture until it was placed into receivership.
The development of the Centre was financed by Suncorp-Metway Ltd. The joint venture retained the defendant during 2008 to act as the leasing agent for the Centre. The Centre was built during 2008 and 2009 and opened on 10 December 2009.
On or about 25 November 2010 Suncorp appointed receivers and managers to CFO and PSP.
These proceedings were commenced by the filing of a Statement of Claim on 30 August 2011 with CFO as the plaintiff. In July 2012 receivers and managers appointed to CFO and PSP purportedly assigned the causes of action, the subject of these proceedings, to those plaintiffs. The validity of this assignment is one of the issues in dispute in the proceedings.
On 2 August 2012 orders were made by the Court including an order that CFO be removed as plaintiff in the proceedings and that Messrs Albert and Terry Bassal be substituted as plaintiffs in the proceedings.
The claim against the defendant is in tort and contract and asserts breaches in how it went about obtaining tenants for the Centre.
On 6 August 2012 the plaintiffs filed an Amended Statement of Claim (ASOC). At the time Mr Peter Antoniou of CMC Lawyers was the solicitor on the record for the plaintiffs.
In mid 2012, the parties to the proceedings completed discovery. At the time DLA Piper was acting for the defendant.
In or about mid 2013, Messrs Wotton + Kearney (W+K) were retained by the defendant.
On 30 April 2015, the plaintiffs filed a Notice of Change of Solicitor and appointed Mr Richard Mitry of Mitry Lawyers in place of Mr Antoniou of CMC Lawyers.
On 15 May 2015 W+K received a letter from CMC Lawyers asserting that there were unpaid costs and disbursements owing to them by the plaintiffs. CMC Lawyers confirmed that they had a possessory lien over the documents that they held in the matter.
On 9 September 2015 W+K received an email from Mitry Lawyers requesting copies of documents discovered by the defendant in the proceedings.
On 16 September 2015 W+K responded to Mitry Lawyers' as follows:
"… As previously explained, in circumstances where the plaintiffs' former lawyers (CMC Lawyers) are asserting a lien over the file, we do not propose to provide you with documents contained in the file held by CMC Lawyers. As you will note, UCPR rule 21.5 is subject to the requirements of any Act or law, which may include preventing us from providing you with documents to circumvent the lien (such as the discovered documents).
In the circumstances, we propose to forward a copy of your email to CMC Lawyers and to provide them with 3 days to let us know if they have any objection to us providing you with the discovered documents. If they do not have any objection, we agree to allowing the plaintiffs access to the discovered documents."
On 17 September 2015 CMC Lawyers responded to W+K as follows:
"I refer to your email of the 15th instant and confirm that we refuse to consent to the Plaintiffs' Solicitor's request for access to documents discovered in the aforementioned proceedings.
The question of our former client's access to those and other documents is presently before the Court, and any disclosure of the discovered documents may well constitute a contempt of Court.
In our view any attempt by the Plaintiff to circumvent the status quo deprives the Court of its ability to effectively decide whether the Plaintiffs obtain access to the documents (and if so on what terms) and, accordingly, is a contempt of Court or alternatively an attempt to interfere with the administration of justice."
By email dated 18 September 2015 W+K responded to Mitry Lawyers as follows:
"As foreshadowed, we have sought CMC Lawyers' consent to the provision of the discovered documents. Attached is CMC's response.
In these circumstances, Savills is clearly justified in not providing the discovered documents to your firm. As repeatedly explained, this is a matter for the plaintiffs to sort out with CMC."
On 1 December 2015 W+K wrote to Mitry Lawyers as follows:
"2 Our client's position on this issue is clear:
a. on the one hand, it is on express notice from CMC Lawyers that it should not provide copies of the discovered documents sought by the Plaintiffs on the basis that to do so will undermine the lien asserted by CMC Lawyers in respect of the Plaintiffs' file;
b. on the other hand, the Plaintiffs point to the discovery provisions in the Uniform Civil Procedure Rules 2005 (NSW) and say that copies of these documents should be provided regardless of the lien asserted by CMC Lawyers; and
c. in the circumstances, our client has adopted a position whereby it will not provide copies of the discovered documents unless and until the related proceedings between the Plaintiffs and CMC Lawyers about the Plaintiffs' file have been resolved one way or the other. We note these related proceedings have been dragging on since the middle of this year and there does not appear to be any desire on the part of the Plaintiffs to expeditiously progress what should be a straight forward application.
3 The Plaintiffs now threaten a motion in these proceedings seeking production of the discovered documents in question, notwithstanding the circumstances described above. Whether the foreshadowed application is properly brought in such circumstances is a matter for your client.
4 Should the Plaintiffs decide to bring such application, our client's position is as follows:
a. CMC Lawyers should be joined on the Plaintiffs' motion as an affected party;
b. save as to issues of costs, our client will adopt a neutral stance on the application and do no more than inform the Court of the circumstances set out above to the extent either the Plaintiffs or CMC Lawyers fail to do so. Our client will leave the substantive argument to the Plaintiffs and CMC Lawyers and abide the outcome of the application;
c. to save costs, our client does not wish to appear on the application and there should be no need for it to do so. If forced to appear due to the stance taken by the Plaintiffs, our client will seek its costs;
d. there is simply no basis for the Plaintiffs to seek a costs order against our client in respect of such an application, much less on an indemnity basis. The position taken by our client is both prudent and reasonable in the circumstances described above; and
e. if necessary, it will rely on this letter on issues of costs should the Plaintiffs proceed with the application foreshadowed in your email."
On 29 January 2016 CMC wrote to W+K as follows:
"As your office is aware, the plaintiffs have terminated this firm's retainer. The plaintiffs are now represented by Mitry Lawyers. The plaintiffs owe this firm a substantial amount in unpaid fees and disbursements incurred in connection with the Supreme Court proceedings brought by them against your client. The unpaid costs and disbursements are approximately $456,000.
In the event you client becomes liable to pay any monies to the plaintiffs, whether by way of settlement or verdict, such monies will be subject to a "fruits of litigation" lien in favour of this firm, to the extent of $456,000. The fruits of litigation lien is well established. The relevant principles were summarised by Hamilton J in Patterson v Cohen [2005] NSWSC 635 (28 June 2005) at [4]:
…"
Nothing further happened in relation to the discovered documents. In particular, the plaintiffs did not bring a motion as suggested by W+K, nor were there any negotiations between the plaintiffs and CMC Lawyers.
On 7 March 2016 W+K received an email from Mitry Lawyers serving a Notice of Ceasing to Act. On 31 March 2016 W+K were contacted by Mr Badarne of Good Legal Lawyers, who had received instructions to act on behalf of the plaintiffs. By email dated 31 August 2016 Mr Badarne wrote to W+K as follows:
"We are instructed that amongst the documents which were provided by the Defendant under discovery, there were 2 CD's.
We are further instructed that one such CD was not capable of being read.
We understand that our clients' former solicitors had requested you to provide such CD but so far, such request has not been satisfied.
Therefore, we request that you provide us with both of the discovery CD's and we undertake to pay the costs of providing such CD's. …"
Correspondence between Good Legal Lawyers and W+K on that subject ensued. On 19 October 2016 W+K wrote to Good Legal Lawyers as follows:
"…
2 This is at least the third time this issue has been traversed either by you or the plaintiffs' former solicitors.
3 We will explain the position again. It is as follows:
3.1 The CDs to which you refer could only have been provided by the defendant's former solicitors to the plaintiffs' former solicitors. We were not retained until after the discovery process had been completed. There is nothing in our files which suggests that we have ever sent CDs containing discovery to CMC Legal or Mitry Lawyers.
3.2 Paragraph 4 seeks to "refresh [our] memory". Our memory requires no refreshment. Our client holds both hard copies and an electronic record of its own discovery and always has done. We have never suggested otherwise.
3.3 The position is that even if these CDs are found, they will not be provided to your clients for so long as CMC Lawyers continues to assert a lien over the plaintiffs' file and in the absence of a Court order which overrides this lien.
3.4 As we have explained previously, our client does not wish to be criticised for subverting the lien asserted by CMC Lawyers by providing documents which form part of the file over which that lien is claimed.
3.5 For that reason, the defendant will not, in the absence of a Court order, be providing its discovery to you in any form.
3.6 However, if the Court considers that the provision of the defendant's discovery in response to your request takes priority over this lien, the relevant material will obviously be provided forthwith.
3.7 As such, we await any Notice of Motion which the plaintiffs may wish to file. Please ensure that CMC Lawyers and Mitry Lawyers are named in the application as affected parties and served with the Notice of Motion and any evidence in support.
3.8 Alternatively, we will provide the material sought once we receive written confirmation from:
(a) CMC Lawyers that they consent to such a course or they no longer assert a lien over the plaintiffs' file; and
(b) Mitry Lawyers that they also have no objection to the provision of the defendant's discovery."
On 29 March 2017 the first plaintiff, Terry Bassal, filed a Notice of Change of Solicitor appointing Mr Johnson of Marsdens Law Group (Marsdens) in place of Mr Badarne. Mr Badarne remained as the solicitor on record for the second plaintiff, Mr Albert Bassal. It was not until 19 April 2017 that Mr Badarne filed a notice with the court removing himself as the legal representative of the second plaintiff.
On 30 March 2017 W+K received a letter from Marsdens requesting, inter alia, a complete copy of all discovery provided by the defendant in the proceeding. On 31 March 2017 W+K responded as follows:
"…
2 Your firm is now the fourth set of solicitors that we have received correspondence from in relation to the above proceedings since they were commenced some 6 years ago. Indeed, you are the third set of solicitors that we have dealt with in the last 18 months.
3 As you know, there are 2 plaintiffs to these proceedings, Terry and Albert Bassal. It appears from paragraphs 1 and 2 of your letter that you purport to act only for the first plaintiff, Terry Bassal. Please let us know if that is correct.
4 If so, please explain the reasons why the plaintiff interests are now separately represented and in particular, how the first and second plaintiffs intend to progress the matter if there is in fact separate representation.
5 Once we hear from you, we will provide a substantive response to the other matters raised in your letter dated 30 March 2017."
On 27 April 2017 W+K responded to Marsdens as follows:
"2 As a starting point, we reject any assertion that your client's preparation of his evidence is being frustrated by a decision to withhold critical material.
3 Whatever frustration your client may be experiencing has been caused by his dispute with at least 2, possibly 3, of the plaintiffs' former solicitors, presumably because the plaintiffs refuse to pay the tax invoices issued by those firms.
4 We also reject any suggestion that you have not been given "the courtesy of a proper response".
5 We wrote to you on 5 April 2017 responding to your client's request for discovery. The position outlined in that letter was clear. It has been explained to your client's former solicitors on numerous occasions. The fact that it has taken 3 weeks for you to respond with the threat of an application does not excuse your client's foreshadowed delay regarding the service of his evidence.
6 Your client (and his father, Mr Albert Bassal) commenced these proceedings in 2011 (originally in the name of Campbelltown Factory Outlets Pty Limited (receivers & managers appointed)). Discovery was completed in around 2012, many years prior to your firm's involvement. Our client complied with its discovery obligations at the time. Your client has since retained numerous lawyers over the years. On each occasion that new lawyers became involved, he has cited the new retainer as his reason for repeated breaches of the Court orders. It seems that our client is now faced with precisely the same situation. It is wholly unacceptable.
7 As outlined in our letter dated 5 April 2017, we first wrote to your client's most recent solicitor (Mr Badarne) almost one year ago, on 4 May 2016, regarding his request for discovery discs. Nothing in the intervening period has changed our client's position. Again, and to avoid any misunderstanding, our client is on notice of liens asserted over the plaintiffs' files by 2 of their former solicitors. It will not do anything that exposes itself to any criticism that it has acted in a way which subverts the security which those liens were intended to provide to the plaintiffs' former solicitors.
8 In the face of these competing obligations, our client will comply with whichever obligation the Court considers has priority.
9 We have previously informed your client that he is free to seek an order from the Court compelling the defendant to provide certain documents. Again, that suggestion was made almost one year ago in our letter to Good Legal Lawyers dated 4 May 2016. No application has been filed since, and there has been no explanation of the reason why your client chose not file an application at the time. If he had, presumably your firm would not find itself in the position it now faces.
10 If your client decides to pursue that course, then please name his former solicitors, CMC Lawyers and Mitry Lawyers, as affected parties in any application. To the extent that Mr Badarne is also holding any documents, Good Legal should also be named in the application.
…
12 Finally, we understand that Mr Badarne no longer acts for Mr Albert Bassal. Please confirm whether your firm is also retained by him."
On 1 May 2017 W+K wrote to Marsdens as follows:
"2 There is an outstanding issue which needs to be resolved before any issues relating to the timetable can be considered by our client; namely the plaintiffs' representation in these proceedings. Your client filed a Notice of Change of Solicitor on 29 March 2017, which was served on 30 March 2017. We have previously asked you to explain on at least 2 occasions (see our letters dated 31 March 2017 and 5 April 2017):
2.1 why the plaintiff interests are now separately represented; and
2.2 how the first and second plaintiffs intend to progress the matter if there is separate representation moving forward.
3 You have failed to respond. …"
On 17 May 2017 W+K wrote to Marsdens as follows:
"1 We refer to:
1.1 our letter dated 4 May 2017 to both plaintiffs concerning the separate representation of each plaintiff;
1.2 the Subpoenas to Produce filed on 10 May 2017 issued by the first plaintiff to Messrs Duane and Carruth and Ms Cunningham; and
1.3 the Notice to Produce to Court filed on 12 May 2017.
2 We will deal with each of these items in turn.
Our letter dated 4 May 2017
3 We note that we have received no response to this letter nor has any action been taken so that both plaintiffs are represented in these proceedings by the same legal representatives or are each acting in person.
4 We are instructed to file a Notice of Motion which seeks an order that these proceedings be stayed, pending the plaintiffs either acting in person, instructing the same legal representatives or seeking leave from the Court to be separately represented within 14 days and, failing any of those steps being taken:
4.1 the proceedings stand dismissed with costs; and
4.2 the plaintiffs (or either of them) be prevented from commencing further proceedings unless and until all outstanding costs orders in favour of the defendant in these proceedings are satisfied.
5 Subject to the inclusion of additional orders in respect of the matters referred to below, the defendant will now proceed to file and serve this Notice of Motion without further notice.
Subpoenas to Produce
6 We note that you have issued Subpoenas to Produce to each of Messrs Duane and Carruth and Ms Cunningham, all of whom are experts retained by the defendant in these proceedings.
7 Save in respect of paragraph 5 of the subpoena issued to Ms Cunningham, the documents sought are those created as a result of the experts being involved in these proceedings.
8 As you know, the defendant has standing to set aside these subpoenas under rule 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) and will seek to do so (other than in respect paragraph 5 of the subpoena issued to Ms Cunningham) unless we receive satisfactory explanations as to the following:
8.1 What is the forensic purpose of these subpoenas? Subject to those referred to in paragraph 8.2 below, the documents sought will be subject to client legal privilege under section 119 of the Evidence Act 1995 (NSW) as they are concerned exclusively with documents produced as part of these proceedings. …
8.2 The only documents sought by the relevant paragraphs of the subpoenas that would not be the subject of a successful claim for client legal privilege by the defendant are those provided to each expert as part of their instruction by the defendant in these proceedings. Had these documents been sought by way of correspondence, they would have been provided. Why was this course not taken by the first plaintiff instead of issuing the subpoenas?
8.3 To the extent that production of the material referred to in paragraph 8.2 sees the provision of discovered documents not currently held by the first plaintiff due to the liens asserted by his former solicitors, we also have concerns that these liens would be subverted for the reasons explained in previous correspondence. What does the first plaintiff say about this issue?
…
Notice to Produce
10 We have written to you previously concerning the liens asserted by the plaintiffs' former solicitors over the plaintiffs' files and that the defendant was cognisant of taking no step which would subvert these liens, such as by acceding to the first plaintiff's recent request to provide him with a copy of the defendant's discovery in the absence of a Court order to that effect made with an appreciation of the assertion of these liens.
11 To resolve this issue, we invited the first plaintiff to file a Notice of Motion seeking whatever documents he required but, in doing so, naming CMC Lawyers and Mitry Lawyers as persons affected by the orders sought.
12 Rather than take this course, the first plaintiff has served a Notice to Produce seeking copies of documents referred to in a Notice to Admit Facts previously served by the defendant. That notice referred to numerous documents that have been discovered by the parties.
13 The obvious inference is that the first plaintiff is seeking discovered documents which he presently lacks by way of side wind and in a way which seeks to subvert the liens asserted by CMC Lawyers and Mitry Lawyers.
14 If this is not the purpose of the Notice to Produce, can you please explain what its purpose is? …"
On 22 May 2017 Marsdens responded to the W+K letter of 17 May as follows:
"One reason that you have not to date received a response to your letter dated 4 May 2017 is that the issues that you raise have no bearing whatever on our client, Mr Terry Bassal.
In our view, these are generalised assertions made as to the representation of the second defendant [sic plaintiff] which ought to be raised with him and not us. As recently as 2 May 2017, when the matter was last before Hoeben CJ in the Common Law List we informed the Court that we were instructed only to act for the first defendant [sic plaintiff], Mr Terry Bassal. It remains unclear to us - because you have failed to articulate the basis for your complaint by reference to any relevant rule, statute, or authority - the basis on which you claim that it is necessary for any order to be made as against the second defendant [sic plaintiff].
As you would be aware, in circumstances where a notice ceasing to act was filed, from that point in time and if and until new legal representatives are appointed to act for the second defendant [sic plaintiff], Mr Albert Bassal, presumably, Mr Bassal will act for himself. That Mr Terry Bassal and Mr Albert Bassal are related, as you know, has nothing to do with their formal representation in these proceedings.
Again, we invite you to take this matter up with the Mr Albert Bassal directly and to desist from continuing to agitate the issue of the second defendant any further with us.
Assuming, as we do, that you will not be satisfied with that response, again, we invite you to please articulate with precision and by reference to statute, authority and/or any rules, the basis on which you say that any orders are required and further, the basis on which you say that any stay in the proceedings is justified.
We look forward to your response.
Subpoenas to produce
We do not intend to respond to the matters that you raise in paragraphs 3 to 9 of your correspondence unless and until you confirm that you are instructed to appear for each of Messrs Duane, Carruth and Ms Cunningham, save to make the following observations.
It is obvious that there is a legitimate forensic purpose in the subpoenas. They seek the production of documents, for example, that will assist in the preparation of the cross examination of these expert witnesses at hearing.
That is to say nothing of the right of a party in the position of the first defendant [sic plaintiff] to make a forensic decision on any and all documents that were used by each one of these experts in the preparation of their reports. This is undoubtedly the case and is quite beyond any controversy. To refer, as you do, to section 56, in a generalised fashion, to suggest that unnecessary delay is being caused by reason of the request is rejected. The reverse is in fact true. Insofar as there is (or might be) any delay to the proceedings arising from these matters, that could only be sheeted home to the recipients of those subpoenas not being forthcoming with production of what we consider uncontroversial material.
Further, at paragraph 8.2, the complaint is made that we did not first ask for the documents in correspondence. There is no rule to this effect in the UCPR but in any event, given that you are now in a position (assuming that you will be instructed to act) we invite you to take instructions to provide those documents to our Office within 7 days.
As to paragraph 8.3, where it is asserted that the subpoenas seek to "subvert the liens", that proposition is rejected. Again, we are seeking documents which, whether or not they once formed part of discovery, that we have a legitimate forensic purpose to call on. They should be produced without issue.
Notice to produce
You agitate the same issue of 'subversion' in respect of the notice to produce issued to your client, Savills. Whether or not your client considers that these documents were once part of the discovery is not a basis to fail to comply."
The subpoenas to which reference was made in the correspondence were issued to the three experts on 10 May 2017. The Notice to Produce was filed on 12 May 2017 and referred to a Notice to Admit Facts, dated 25 August 2014, served by the defendant on the plaintiffs in the course of these proceedings.
The Notice of Motion was filed on 26 May 2017 and the Amended Notice of Motion was filed on 2 June 2017.
On 26 June 2017 Marsdens wrote to W+K advising that Mr Albert Bassal was now represented by a solicitor from Marsdens. They also advised that documents were provided by W+K on 9 and 13 June 2017, being the documents with which the experts were instructed to enable them to prepare their reports and that the plaintiffs regarded those documents as sufficient compliance with the subpoenas. This left as the only outstanding issue, the Notice to Produce.
At the hearing of the matter, a letter from CMC Lawyers dated 3 July 2017 addressed to W+K was placed before the Court (MFI 1). Relevantly, that letter provided:
"Please be advised that CMC Lawyers still maintains a lien over the fruits of litigation.
CMC Lawyers have recently come into possession of a certificate from a Costs Assessor confirming our costs and disbursements owing in this matter.
On this basis, CMC Lawyers neither consents nor opposes the relief sought in the Notice of Motion.
CMC Lawyers are not in a position to have someone attend at the Motion tomorrow and request that you simply inform the Court as to our position contained in this correspondence, and advise us of the orders made."
In the circumstances, I ordered that the documents sought by the plaintiffs in their Notice to Produce be provided by the defendant and that this occur within seven days.
Submissions
The only issue between the parties was the question of costs. The defendant wished its costs of the motion to be paid on an indemnity basis. The plaintiffs wished their costs to be paid on the ordinary basis.
The plaintiffs submitted that the Notice of Motion was premature and misconceived. By reference to their letter of 22 May 2017, which predated the filing of the motion, they submitted that much of the area in dispute had already been resolved.
The plaintiffs submitted that there was no statutory provision, regulation or authority which precluded two separate legal representatives from representing two separate plaintiffs in proceedings. In any event, that issue did not arise because it was always the case that Marsdens would, in due course, act for the second plaintiff.
The plaintiffs submitted that the issue of the subpoenas to the third party experts was justified given the lack of co-operation on the part of the defendant in relation to its discovery documents and although some of the material may have been privileged, other documents sought in the subpoenas were not and that this was an appropriate application by the plaintiffs.
The plaintiffs submitted that the questions concerning the existence of a possessory lien and the production of discovered documents were quite different and should not be dealt with as though they were related. The plaintiffs submitted that there was a clear obligation under the rules for discovery documents to be produced on request. The plaintiffs submitted that if contrary to their primary position the two issues were related, CMC Lawyers should have been joined as respondents to the motion.
In those circumstances, the plaintiffs submitted the motion was unnecessary and they should have their costs.
The defendant relied upon s 23 of the Supreme Court Act 1970 (NSW) or the Court's inherent power as providing a basis for the Court ruling on the plaintiffs' legal representation. It seems to me beyond doubt that the Court can give directions in relation to representation, particularly in circumstances such as these where there were two plaintiffs whose interests were identical.
It is, of course, theoretically possible for two separate solicitors to act for plaintiffs in those circumstances but this could create significant difficulties as was pointed out by Stephenson J in Bettergrow Pty Ltd v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid [2017] NSWSC 658 at [16]:
"It is easy to see why. Numerous practical and likely unforeseeable difficulties may well arise if one party is represented by two sets of legal representatives. Such difficulties could arise in relation to the question of which counsel cross-examines which witness and in what order, and in relation to the question of orders of addresses and subject matters of addresses. Obviously to permit one party to be represented by two sets of legal representatives would also increase the cost of proceedings."
While acknowledging the difference between the situation where one party is simultaneously represented by two solicitors and the present case, I am of the opinion that the correct approach is as described by Adamson J in Buses + 4WD Hire Pty Limited v Oz Snow Adventures Pty Limited [2016] NSWSC 1017 at [28]:
"The starting position is that each party to proceedings is entitled only to be represented by one firm of solicitors and a barrister or barristers (in the case of lead and junior counsel) instructed by that firm. There are obvious reasons for this: a party is bound by the conduct of its counsel. Where there are two counsel appearing for a party, who are separately instructed, there is the potential for the party to be putting propositions which are inconsistent. This, in turn, has a substantial potential to create confusion, increased cost and prejudice to the administration of justice and, accordingly, is only warranted when the interests of justice require it. The authorities cited are redolent with references to the deleterious consequences of allowing separate representation such that the present application must be approached with a high degree of caution."
In my opinion, the defendant was entitled to require that the representation of the plaintiffs be clarified sooner rather than later, particularly if as eventuated, Marsdens were going to act for both plaintiffs.
The subpoenas served on the three experts, in effect, sought every document passing between the defendant and each of them and every document created by them in respect of the proceedings. Much of that material was clearly privileged and was not subject to production. The material which was not privileged was that which was instructed to the experts to enable them to express an opinion. The usual method of obtaining such information was to request it from the solicitors who retained the expert. Depending on when those documents came into existence, they may or may not have been affected by the lien relied upon by CMC Lawyers. Given the privileged nature of much of the material sought, however, the defendant was justified in having the subpoenas set aside.
In relation to the possessory lien claimed by CMC, the defendant submitted that its position had been consistent over the years. It acknowledged the right of CMC to claim a possessory lien over the documents and also acknowledged the right of the plaintiffs to request the production of discovery documents. There was an obvious tension between those obligations. Clearly, W+K could not comply with one requirement without running the risk of being in breach of the other.
The resolution was either to approach the Court for a ruling or for CMC and the plaintiffs to sort out their differences so as to enable the litigation to proceed. Having been frustrated in their attempts over the years to explain the difficulty of their position to the plaintiffs, it is not surprising that the defendant decided to have its position clarified by bringing the matter before the Court. In my opinion, that approach given the background as disclosed by the correspondence was a reasonable one on the part of the defendant. The rationale behind the filing of the motion was appropriately explained in the W+K letter of 17 May 2017.
The reason the motion did not proceed on its allocated date was because steps were taken by the plaintiffs to regularise their representation and to accept in answer to the subpoenas that they were only entitled to those documents provided to the experts and on which the experts based their opinion. The question of whether the defendant should provide the discovery documents in spite of the possessory lien was resolved by my order. I was only in a position to make that order because of the motion.
As W+K had repeatedly pointed out in correspondence, the impasse created by the notification of the possessory lien by CMC was, in the absence of a negotiated resolution, only capable of being resolved by an order of the Court. The party in the best position to make that application, again as repeatedly suggested by W+K, was the plaintiffs. Against that background, the issuing of subpoenas to the defendant's experts and the service of the Notice to Produce by Marsdens invited the filing of the motion for the reasons set out in the W+K letter of 17 May 2017.
In those circumstances, I am of the opinion that the defendant is entitled to its costs of the motion. The only other issue is whether those costs should be on an indemnity basis. On that issue, I have concluded that indemnity costs in favour of the defendant are not justified.
There is nothing in the conduct of the plaintiffs which would justify an order for indemnity costs. It is true that matters would have proceeded more expeditiously had they done what they threatened to do when represented by Mitry Lawyers and brought their own motion for the production of the discovered material. This would have had brought the matter more quickly before the Court. Obviously that course of action was not assisted by the frequent change of solicitors. Since I do not know the reason for these changes, they can play no part in my reasoning other than to provide an explanation for why the plaintiffs did not bring their own motion to clarify the situation.
Accordingly, the orders which I make are as follows:
1. The defendant's Amended Notice of Motion of 2 June 2017 is dismissed.
2. Within seven days the defendant is to provide the documents requested by the plaintiffs, being the discovered documents and those referred to in the Notice to Admit Facts and Documents of the defendant.
3. The plaintiffs are to pay the defendant's costs of the Notice of Motion.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 July 2017