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[2026] NSWSC 620
Supreme Court of NSW
2026-05-21
Cavanagh J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kovac v CJM Lawyers Pty Ltd t/as CJM Lawyers [2026] NSWSC 620
Hearing dates: 21 May 2026
Decision date: 21 May 2026
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) Pursuant to rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW), the first defendant give discovery to the plaintiff of the documents described in Schedule A to the Summons, being all documents that are or have been in its possession, custody or power and that relate to the question whether the plaintiff is entitled to make a claim for relief against it arising out of:
(a) Tweed Shire Council v Cooke [2023] NSWLEC 73; and
(b) Tweed Shire Council v Cooke (No 2) [2023] NSWLEC 98.
(2) Discovery be given by means of the first defendant permitting the solicitors and counsel for the plaintiff to attend at the offices of the first defendant and inspect the file (the documents referred to in Schedule A) without being permitted to copy or photograph the documents (they may make notes of the contents). This is to establish whether the plaintiff has a valid cause of action.
(3) The plaintiff pay the first defendant’s reasonable costs and expenses of giving discovery, in accordance with order 1.
(4) The plaintiff pay the first defendant’s costs of the application, subject to the right of the plaintiff to seek orders from the Court should proceedings for negligence be commenced against the defendant, by approaching the Professional Negligence List Judge seeking a variation of those costs orders (such as the costs of this application be costs in the proceedings), noting that the costs order in favour of the first defendant will not be enforceable for period of six months.
(5) Grant liberty to apply.
Catchwords: CIVIL PROCEDURE – application for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) – plaintiff seeks access to file held by firm of solicitors to consider whether he may have a cause of action against that firm – solicitors claim lien over file on the basis of unpaid legal costs – unpaid legal costs subject of judgment debt in favour of solicitors against person who is with the plaintiff a co-trustee of a trust – where defendant seeks to enforce lien against plaintiff on the basis of joint and several liability – whether grant of preliminary discovery would have effect of circumventing solicitor’s lien
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 5.2, 5.3, 5.8
Environmental Planning and Assessment Act 1979 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Cases Cited: Australia and New Zealand Banking Group v Meilak [2016] NSWSC 1448
Bechara v Atie [2005] NSWCA 268
Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69
In the Estate of William Just, deceased [No. 1] (1973) 7 SASR 508
Muscat v Qin [2024] NSWSC 113
O'Connor v O’Connor [2018] NSWCA 214
Psevdos v Commonwealth Bank of Australia (No 2) [2017] FCA 19
Tweed Shire Council v Cooke [2023] NSWLEC 73
Category: Procedural rulings
Parties: Darko Kovac (Plaintiff)
CJM Lawyers Pty Ltd trading as CJM Lawyers (First Defendant)
Ellis & Baxter Solicitors & Attorneys Pty Ltd (Second Defendant)
Representation: Counsel:
G Taylor (Plaintiff)
A Hopkins (First Defendant)
Solicitors:
Aditum Lawyers (Plaintiff)
CJM Lawyers (First Defendant)
Gilchrist Connell (Second Defendant)
File Number(s): 2025/468420
HIS HONOUR: By summons filed on 3 December 2025, the plaintiff, Darko Kovac, seeks an order pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the defendants give discovery to the plaintiff of the documents described in sch A to the summons.
Although the summons names two defendants, at the commencement of the hearing, the plaintiff filed a notice of discontinuance in respect of the second defendant. I will thus refer to the first defendant as “the defendant” in this judgment.
The defendant is a firm of solicitors who (it is alleged) purported to act for the plaintiff in proceedings pursued by the Tweed Shire Council in the Land and Environment Court in 2023. The plaintiff seeks access to the documents held by the defendant in that capacity, that is, the solicitor’s file in those proceedings.
As identified in the summons, the plaintiff seeks orders pursuant to r 5.3 of the UCPR which is in the following terms:
“5.3 Discovery of documents from prospective defendant
(1) If it appears to the court that—
(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned,
the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
(2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.
(3) Unless the court orders otherwise, an application for an order under this rule—
(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and
(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.
(4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings.”
As set out in r 5.3 of the UCPR, if it appears to the Court that the applicant may be entitled to make a claim for relief against a prospective defendant, but having made reasonable enquiries, is unable to obtain sufficient information to decide whether to commence proceedings, and the defendant may have documents in its possession which might assist the plaintiff in determining whether to make such a claim, and an inspection of such documents would assist the plaintiff to make the decision, the Court may order that the prospective defendant give discovery of certain documents.
Rule 5.3 is an addition to what might be described as the old rule limiting preliminary discovery to circumstances in which a prospective plaintiff was unaware of the identity of a prospective defendant. That is covered in r 5.2 of the UCPR.
The purpose of r 5.3 of the UCPR is to allow a prospective plaintiff to approach the Court for orders that a prospective defendant provide documents so that the prospective plaintiff might ascertain whether he or she has a valid cause of action against that prospective defendant.
The background to the application is the conduct and result of the Land and Environment Court proceedings. As set out in Tweed Shire Council v Cooke [2023] NSWLEC 73, the Tweed Shire Council commenced proceedings against a number of defendants including Mr Kovac, alleging breaches of the Environmental Planning and Assessment Act 1979 (NSW) concerning the use of two blocks of land in Kunghur in northern New South Wales.
The plaintiff was said to be the co-owner of one lot with a Mr Cooke. Mr Cooke and a company were said to be the owners of another lot. The basis on which the plaintiff was said to be an owner of one lot in conjunction with Mr Cooke is that they were said to be co-trustees of the “Trust Trust”. The trust entity is not of itself a legal entity. It is the trustees who were sued personally in their capacity as co-trustees of that trust. Indeed, it is the trustees who are specified as the registered proprietors on the certificate of title.
As I understand it, the original firm of solicitors who purported to act for the defendants in those proceedings was the second defendant, Ellis & Baxter Solicitors and Attorneys Pty Ltd (“Ellis & Baxter”). At some stage, the defendant took over the practice or took over the conduct of the file from Ellis & Baxter. The reason that the plaintiff discontinued proceedings against Ellis & Baxter is presumably because the file which the plaintiff seeks is in the possession of the defendant.
For the purposes of this application, the plaintiff maintains that he did not provide any instructions to the defendant to conduct the proceedings on his behalf, did not enter into a costs agreement with the defendant for the purposes of them acting for him and was not kept appraised of and indeed was unaware of what happened in the proceedings.
However, despite that (on the plaintiff's case), he is now said to be liable for two costs judgments being a judgment in the sum of approximately $500,000 in favour of Tweed Shire Council (being the costs order in the Land and Environment Court proceedings), and a judgment in favour of the defendant (being their costs of acting in the proceedings) made by the District Court. He says that he did not instruct anyone and should not be liable to pay any costs in respect of either proceeding.
The circumstances in which he finds himself in this position are somewhat unusual, and perhaps arise because of his position as a co-trustee of a trust on whose behalf he is said to be a co-owner of the property the subject of the orders in the Land and Environment Court.
Specifically, Mr Hopkins, who appeared for the defendant on this application, says that the nature of the obligations of a trustee is such that, having obtained a judgment against Mr Cooke, his fellow trustee, in the sum of approximately $290,000 in respect of outstanding legal costs, the defendant may enforce either against Mr Cooke or the plaintiff irrespective of any instructions, or lack thereof, that might have been provided by the plaintiff, during the course of the litigation.
The plaintiff says that being completely unaware of the nature of the proceedings and any matters relating to the proceedings, or indeed, how or why the costs were incurred, he requires preliminary discovery from the defendant for the purposes of examining documents that may assist in determining whether he is entitled to pursue a claim in negligence against the defendant with the loss said to be the costs payable to the Tweed Shire Council, and perhaps any costs payable to the defendant having regard to the judgment already obtained by the defendant in respect of the costs.
The defendant opposes the application, submitting that:
the plaintiff has not established all of the matters necessary for the plaintiff to obtain such an order, specifically asserting that the plaintiff has not established that he has been unable to obtain sufficient information to decide whether or not to commence proceedings against the defendant; and
further, that the plaintiff has not identified how an inspection of documents in the defendant's file would assist the plaintiff to determine whether or not to commence proceedings.
The simple point made by the defendant is that having regard to the case which was articulated by the plaintiff today, the issues between the parties are relatively straightforward and depend very much on whether instructions were given by the plaintiff in the earlier Land and Environment Court proceedings. Nothing contained in the defendant's file would assist the plaintiff in determining whether he has a valid cause of action.
Further, the defendant submits that it holds a lien over the file, and that I should be cautious in making orders, the effect of which would be to circumvent the lien. The defendant submits that, if the plaintiff obtains the orders he seeks, the lien will be of no effect, and the ordinary principle that a valid solicitor's lien is a complete answer to a claim for delivery up of the documents would be contravened.
In the alternative, the defendant submits that if an order for preliminary discovery is to be made, it should only be made on the condition that the plaintiff pay sums into court by way of security. Those sums are said by the defendant to be:
the amount of the unpaid judgment debt securing the lien, being $289,860.92; and
the estimated costs and expenses which would be incurred by the defendant in producing the documents which are said to be around $14,640.
The parties relied on O*’Connor v O’*Connor [2018] NSWCA 214 at [21] (Simpson AJA, with whom McColl and Macfarlan JJA agreed) (“O’Connor”), and Muscat v Qin [2024] NSWSC 113 at [21] (McGrath J), in identifying that the plaintiff must demonstrate five elements to obtain an order for preliminary discovery under r 5.3, being:
the applicant may be entitled to make a claim for relief from the court against the prospective defendant;
that the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;
that, having made those enquiries, the applicant is unable to obtain sufficient information to make that decision;
that the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; and
that inspection of such a document would assist the applicant to make the decision (that is, the decision whether or not to commence proceedings).
See also Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 at [47]-[51] (McColl JA).
There is no dispute that the plaintiff has established the first two elements referred to in O’Connor.
Firstly, the plaintiff says that he wishes to pursue a claim for negligence against the defendant. There is no obvious bar to such an action subject to the action having any substantive merit.
Secondly, the plaintiff has sought documents from the defendant but the defendant has refused to provide the documents. On 29 July 2025, the solicitors for the plaintiff wrote to the defendant providing an authority from the plaintiff to obtain the documents sought. The defendant wrote back on 2 September 2025, setting out in some detail why the defendant would not be providing the documents, and misconceptions in the plaintiff's request. In particular, the defendant asserted a lien over the file subject to satisfaction of outstanding legal costs. The defendant has continued to refuse to provide the documents sought to the plaintiff.
The issue in these proceedings is thus whether the elements 3, 4, and 5 are satisfied.
The plaintiff says that being unaware of what happened in the proceedings, what instructions might have been obtained, and how the costs were incurred (being the loss complained of), means he needs access to the documents which are, in effect, the whole solicitor’s file or at least so much of it that is relevant to the case pursued against the plaintiff in the Land and Environment Court, so as to understand and determine whether he might have a valid cause of action against the defendant.
The plaintiff submits that without such documents, he is left to speculate about what documents may be in the solicitor’s file, and how it came about that the solicitor purported to act for him without any instructions.
The defendant answers this submission by suggesting that the plaintiff has not identified how access to any documents in the defendant's file would assist the plaintiff in determining whether to pursue a cause of action against the defendant. This is because the plaintiff’s action is said to be relatively straightforward.
It is submitted that the plaintiff’s prospective claim is binary and entirely within his own knowledge. He either gave instructions in the proceedings, in which case, his prospective claim fails at the threshold, or he did not, in which case, the prospective claim is established without any need for documents in the defendant's position. It is submitted that on either view, the plaintiff has all the information necessary to decide whether to sue.
There is some merit in this submission. As I understand it, the claim which the plaintiff wishes to pursue is that:
the solicitors never obtained instructions from him;
the plaintiff never agreed to pay their costs; and
he should not be liable for those costs.
To the extent that they purported to act for him in defending the Land and Environment Court proceedings, on the plaintiff's case, the defendant must have been negligent because they never obtained his instructions as to the conduct of the proceedings.
However, in my view, the issue is not quite as clear as that. This is because the matter is complicated by the very unusual circumstances in which the defendant came to be acting for the plaintiff, and the unusual circumstances in which the plaintiff comes to be liable (on the defendant’s case) for the costs.
It is not my function in this judgment to make any determination as to anyone’s liability for costs or even the extent to which one trustee might be liable for all the costs incurred in proceedings seemingly conducted by another trustee.
As the defendant has explained in these proceedings, the principles governing the liability of trustees to pay the debts of the trust are well settled: Psevdos v Commonwealth Bank of Australia (No 2) [2017] FCA 19 at [53] (Charlesworth J).
The trust is not a separate legal entity, and as the legal owner of trustee property, a trustee is personally liable for debts he or she incurs in performing the trust. Further, an individual trustee may be subject to bankruptcy in respect of a debt incurred in the performance of a trust, although a trustee may have recourse to trust property to satisfy debts properly incurred on the trust’s behalf.
Further, the defendant submits that a trustee who shares the joint office of trustee with others has a joint and several liability as all trustees form one collective trustee: In the Estate of William Just, deceased [No. 1] (1973) 7 SASR 508. The liability of co-trustees is thus joint and several.
The defendant thus submits that the judgment debt against the other trustee, Mr Cooke, in respect of legal costs in the sum of approximately $290,000 is, in reality, a debt to which the plaintiff is jointly and severally liable, and as the plaintiff remains a trustee of the Trust Trust, he is prima facie liable to pay the debts of the Trust Trust.
On the defendant’s case, the plaintiff thus finds himself in the position where he has a liability to pay, firstly, $500,000 in respect of the costs owing to the Tweed Shire Council, and secondly, nearly $290,000 in respect of the costs owing to the defendant.
Sure it is that the liability arises on the part of the plaintiff in his capacity as trustee of the Trust Trust, and he may use trust property to pay those debts, but the fact remains that, on the defendant’s case, he has that liability to pay, even in circumstances in which he played no active part in the proceedings.
The importance of these matters, that is, these matters relating to the relationship between the plaintiff and his co-trustee and the nature of his obligations for the purposes of this application, is that the matter is not so simple as being an ordinary client alleging that he never provided instructions to his solicitor.
Without meaning to make any statement of principle which might impact upon the outcome of any later negligence proceedings, one issue which might arise in any prospective proceedings is whether Mr Cooke purported to provide instructions to the defendant on behalf of the plaintiff, Mr Kovac. Another issue which might arise is whether there is any correspondence or documentation which tends to support that.
In my view, such documents would be relevant to any determination of whether the plaintiff might have a prospective claim against the defendant. Whilst it is important that applications for preliminary discovery are not used as some sort of fishing exercise or to determine whether there might be any matters of credit which might impact upon a case which might be pursued by the plaintiff, preliminary discovery may be given in circumstances in which there may be what I will describe as an absolute defence.
In other words, preliminary discovery may be given if it will assist a prospective plaintiff to understand whether there may be an obvious or strong basis on which the plaintiff could not possibly succeed.
I do not suggest that anything I have said might provide a defence, but it does seem to me that in order to determine whether the plaintiff has a valid cause of action, there may be documents in the defendant's possession which relate to the circumstances in which the defendant came to be acting for not only Mr Cooke but on the defendant's case, also the plaintiff. Those documents might shed some light on whether the defendant would have a valid defence to any claim which might be pursued by the plaintiff.
In all those circumstances, I am satisfied that the defendant may have possession of documents that could assist in determining whether the plaintiff is entitled to make the claim he wishes to pursue, and that inspection of such documents would assist the plaintiff to make the decision whether or not to commence the proceedings.
I am thus satisfied that the plaintiff has established the five elements set out in O*’*Connor.
However, that is not the end of the matter. As set out in r 5.3 of the UCPR, if the matters set out in pars 5.3(1)(a), 5.3(1)(b) and 5.3(1)(c) are satisfied, the court “may order” that the prospective defendant give discovery to the applicant. The decision is discretionary.
In this regard, the defendant places significant weight on the existence of the solicitor’s lien. The defendant submits that the plaintiff misunderstands the nature of the lien in characterising the unpaid fees as being owed by Mr Cooke in his personal capacity. The defendant again emphasises that the judgment against Mr Cooke is in his capacity as a trustee of the Trust Trust and that in those circumstances, the plaintiff, as co-trustee, has a joint and several liability for that judgment debt. The defendant submits that it would be an abuse of process to allow the plaintiff to sidestep the solicitor’s lien by simply characterising that liability as Mr Cooke’s.
In Bechara v Atie [2005] NSWCA 268 at [47]-[50], McColl JA (with whom Ipp and Tobias JJA agreed) observed that the right to retain documents existed for the protection of the solicitor’s claim for costs and disbursements and for no other purpose, and it operated only until the solicitor is satisfied or is shown that the claim is unfounded.
The defendant submits that it has a valid lien not only in respect of Mr Cooke but also in respect of the plaintiff. As such, the lien is said to be a complete answer to a claim by the client for delivery up of documents except in respect of the statutory procedure contained in the Legal Profession Uniform Law Application Act 2014 (NSW) or where equitable relief is given on terms.
In particular, the defendant relies on the observations of Davies J in Australia and Australia and New Zealand Banking Group v Meilak [2016] NSWSC 1448 (“Meilak”). In that matter, his Honour was dealing with a motion in a possession matter. The defendant in the proceedings served a subpoena on his former solicitors. The defendant submitted that the solicitors did not have a lien over the file because the defendant asserted he was not a client of the solicitors and no tax invoices were rendered to him. After considering the arguments, his Honour said, at [17], that he was satisfied that the defendant was the client of the solicitors, and that by reason of the relationship between the defendant and the solicitors, a solicitor's lien arose. In those circumstances, his Honour was satisfied that the lien continued to exist and set aside the subpoena.
The circumstances in Meilak are quite different from the circumstances in which production of the file is sought in these proceedings.
Mr Hopkins raised a concern that it is possible that Mr Cooke might be behind this application and it may be Mr Cooke who has an interest in seeking access to the solicitor's file. Mr Hopkins raised another concern that there may be other purposes for which the plaintiff seeks access to the documents.
I have difficulty understanding or even anticipating any basis on which any other person would be seeking access to the file at this time. The Land and Environment Court proceedings are over. It seems that Mr Cooke has not paid the fees and must have determined not to resist the judgment sought by the solicitors in respect of their fees. There is no evidence that this application is being pursued for any alternative purpose other than determining whether there may be a valid claim in negligence against the defendant, and I am unable to anticipate any other reason why the file might be sought.
I accept that I should be cautious in making any order which would have the effect of circumventing or overcoming a solicitor's lien in circumstances in which costs remain unpaid. Having said that, there are perhaps three matters which might suggest that this matter is of such a nature that it should provide an exception to the principle that the solicitor should not be required to provide access to the file. Those matters are:
The defendant has not adduced any evidence on this application to the effect that the plaintiff ever signed a costs agreement, played any role in the proceedings, or even provided instructions to the defendant in respect of the conduct of the proceedings. The defendant points to one letter between the defendant and the plaintiff dealing with a notice to produce, but without more I am unable to understand the circumstances in which that correspondence arose. I hasten to add that, of course, there is no obligation on the defendant to adduce such material on this application, and my comments are not intended to be a criticism of the defendant. The point is that the circumstances in which the liability of the plaintiff to pay legal fees arises are somewhat unusual; that is, he is a co-trustee of a trust;
The action which the plaintiff wishes to pursue is an action in negligence against his former solicitors. This is not a situation where the plaintiff has changed solicitors and is seeking access to the former solicitor’s file for some other purpose. Just as I must be cautious in not making any orders which would circumvent a lien, I must be cautious in making orders which would have the effect of protecting a solicitor from an action arising out of the conduct of a file because the fees have not been paid. I do not know how the fees came to be incurred, and neither does the plaintiff (on the plaintiff's case); and
If the plaintiff simply commenced proceedings, it would be inevitable that the plaintiff would obtain access to the defendant’s file. Whether that occurred immediately after filing of a statement of claim, after filing of a defence, or whether the file was disclosed to the plaintiff as part of the defendant's evidence does not matter.
Whilst Mr Hopkins endeavoured to persuade me that that is not necessarily so, and his submissions were comprehensive and thorough in that regard, in my view, it must be that the defendant will need to disclose at least parts of its file for the purpose of defending any prospective claim.
It seems somewhat incongruous that the defendant could resist an application for preliminary discovery by maintaining the solicitor’s lien yet be required to produce the file a short time later if the plaintiff commenced proceedings. In making an order which might impact upon the solicitor’s lien, the nature of the proceedings is important.
The defendant’s alternative position is that if the existence of the lien is not such as to warrant refusal of the orders sought, I would only make the orders sought on the basis that the plaintiff provide security. The defendant submits that the security would be, firstly, the amount of unpaid solicitor’s fees of approximately $290,000; and, secondly, the amount of the costs and expenses which are likely to be incurred in complying with the order for preliminary discovery, estimated to be $14,640.
The problem with the first submission, that is, that the plaintiff should lodge security of approximately $290,000, is that, at least on the evidence before me, the plaintiff would have no capacity to do so. The defendant commenced its submissions by referring to the fact that the plaintiff was facing bankruptcy having regard to the costs payable to the Tweed Shire Council. The defendant ended its submissions by referring to the possibility that the plaintiff could have other funds, perhaps a bank account or, as I understand it, the plaintiff could sell trust property, that is, the land, to lodge the security.
I raised with Mr Hopkins that that latter suggestion might be a rather draconian step. It may be that the plaintiff is liable to pay the fees as the defendant asserts and it may be that the defendant will be seeking to enforce the judgment, but I have some concern that the plaintiff should be required to sell trust property to lodge security.
On the evidence before me, the plaintiff would not have the capacity to lodge the security of approximately $290,000 and I do not consider that the plaintiff should be precluded from pursuing a valid cause of action because of the inability to pay the legal fees which the plaintiff says he is not liable to pay. That, no doubt, will be a matter determined in any future proceedings. If the future proceedings do not go ahead then, according to the defendant, there can be no doubt as to the plaintiff’s liability to pay the fees.
In the circumstances, I am not prepared to make the order sought by the defendant for security in the sum of approximately $290,000.
As for the other security, that is, the amount of costs and expenses which the defendant may incur in producing the documents, I can only say that I am somewhat troubled by the idea that it would cost about $14,000 in legal fees for a solicitor to retrieve and review a file for the purposes of producing it to a person said to be the former client. No doubt the earlier Land and Environment Court litigation was complex, but it is difficult to understand how it would take anyone 20 hours to look at their own file to determine whether to produce documents, particularly in circumstances in which the schedule really seeks access to all the documents in the file. Further, in circumstances in which the defendant maintains that the defendant was acting for the plaintiff in those proceedings, it is difficult to understand what privilege may exist vis-à-vis the plaintiff.
The UCPR provides (see r 5.8) that the Court may make orders for the costs of the applicant and of the person against whom the order is sought, and those costs may include payment of expenses or loss associated with production of the documents. It seems to me that it is that rule which applies to the expenses of the defendant in producing the documents.
Finally, in dealing with the solicitor’s lien, and despite the suggestion of Mr Hopkins that I would not adopt a compromise position, I consider that, at least to a certain extent, the lien can be preserved by means of fashioning orders which would allow the plaintiff to review the documents but not take them away and not copy them.
The order I would contemplate is that the solicitor and, if required, counsel for the plaintiff be permitted to attend at the offices of the defendant and inspect the file for the purposes of giving advice to the plaintiff as to his prospects of success, in other words, satisfying themselves that there is a prospective claim. Other than that, the plaintiff would not be permitted to have access to the documents; that is, no photocopying and no taking the documents away. In my view, that would satisfy the plaintiff’s needs whilst, at least in part, preserving the interests of the defendant.
Therefore, I make the following orders:
Pursuant to rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW), the first defendant give discovery to the plaintiff of the documents described in Schedule A to the Summons, being all documents that are or have been in its possession, custody or power and that relate to the question whether the plaintiff is entitled to make a claim for relief against it arising out of:
(a) Tweed Shire Council v Cooke [2023] NSWLEC 73; and (b) Tweed Shire Council v Cooke (No 2) [2023] NSWLEC 98.
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Typographical error at [51] corrected.
Kovac
CJM Lawyers Pty Ltd t/as CJM Lawyers
(2010) 77 NSWLR 506
(1973) 7 SASR 508