R.H Anicich & A.J Deegan & Ors t/as Sparke Helmore v Nick Scali Ltd

Judgment

1. This judgment concerns a motion which seeks orders setting aside subpoenas issued to the defendant's lawyers, in an unusual case concerned with a firm of solicitors pursuing costs against a former client who became dissatisfied with the services it had been provided and with the costs it was being charged.
2. The client did not, however, initially terminate the firm's services. First, the client not only sought advice from a second firm of solicitors about its dispute with the first firm about costs and the ongoing conduct of Federal court proceedings, but it then engaged a third firm, before it finally terminated the retainer of the first.
3. When later pursued for costs by the first firm, the client not only denied that they were owed, it also brought a cross claim seeking extensive damages. They comprise not only all of the costs the client incurred by engaging the two other firms, but also all that it had paid to settle the proceedings in which it had retained the first firm. The cross claim is defended, amongst other things, by a claim that the client had provided the first firm with knowingly false instructions.
4. It was in 2017 that Sparke Helmore was retained to provide legal services to Nick Scali Ltd, including representing it in proceedings brought against it in the Federal Court by King Furniture Australia Pty Ltd, which claimed that NSL had infringed its registered designs. NSL also brought proceedings against King, to have the registration set aside. The proceedings were not settled in a February 2018 mediation and were listed for hearing in October.
5. In June 2018 NSL retained Dimarco Lawyers to act in relation to its dispute with Sparke Helmore and the ongoing conduct of the proceedings. Dimarco then identified Allens, who NSL retained in July. But it did not terminate Sparke Helmore's retainer until October, after the hearing was adjourned and Allens then entered an appearance. The proceedings settled in 2019, after a second mediation in December 2018.
6. It was also in December 2018 that Sparke Helmore brought proceedings in the District Court to recover over $500,000 unpaid costs and disbursements from NSL, which NSL denied that it was liable to pay.
7. By its August 2019 cross claim, NSL contended that it had retained Dimarco Lawyers to act for it because of its increasing concerns about both escalating legal costs, to which Sparke Helmore did not respond adequately and Sparke Helmore's conduct of the proceedings. The eventual result was that NSL terminated Sparke Helmore's retainer.
8. Amongst other things, NSL claimed that it had suffered loss and damage as the result of Sparke Helmore's breach of its contractual and fiduciary duties; its failure to exercise reasonable care, skill and diligence in the work carried out; misleading and deceptive conduct; and breach of s 18 of the Australian Consumer Law, Sch 2, Competition and Consumer Act 2010 (Cth).
9. The damages were later particularised to include not only all of the costs which NSL had paid Dimarco Lawyers and Allens, but also what it paid King Furniture as part of the confidential settlement of those proceedings agreed in 2019.
10. By its defence Sparke Helmore not only denied NSL's claims, but pleaded amongst other things that: 1. NSL was bound to pay the costs it sought because it had entered a partly oral and partly written "capped fee agreement" in July 2018, while represented by Dimarco Lawyers; 2. it had acted in accordance with instructions given on behalf of NSL by Mr Scali, its CEO, which were knowingly false and material to the conduct of the proceedings and the question of whether settlement offers should be accepted; 3. in the result any loss that NSL had suffered was caused and contributed to by its own conduct, for which Mr Scali, who is not a party to the proceedings, was entirely responsible; and 4. Mr Scali should be found to be a concurrent wrongdoer.
11. The proceedings were transferred to this Court in 2020, given the amount of costs and damages in issue.
12. The motion was supported by affidavits made by the parties' solicitors and by Mr Scali, who were not required for cross examination. Numerous relevant documents were annexed to those affidavits, including file notes and emails on which Spark Helmore will rely, to establish that Mr Scali gave it false instructions.

The subpoenas

1. The subpoenas are in wide, but not entirely identical terms.
2. That directed to Allens requires production of: "2. All documents including but not limited to all correspondence, file notes, invoices, retainers (draft and final), memoranda, briefs to counsel, written advice and/or opinions from counsel, timesheets/record of time, agreements and any associated documents held in hard copy and/or electronic format relating to your file(s) kept for Nick Scali Limited in connection with the Proceedings. 3. All communications between Allens (including its employees, servants and/or agents) and Nick Scali Limited (including its employees, servants and/or agents) sent or received between 1 June 2018 and 5 June 2019 in relation to the Proceedings including but not limited to: 3.1 Any proposed settlement offer by Nick Scali Limited to King Furniture Australia Pty Ltd (whether made or not); and/or 3.2 Any advice provided by Allens to Nick Scali Limited including advice on settlement, prospects, merits and/or strategy in the Proceedings. 4. All documents created or received between 1 June 2018 and 5 June 2019 recording or referring to: 4.1 The mediation of the Proceedings on 20 December 2018; 4.2 The Heads of Agreement; 4.3 The mediation of the Proceedings on 4 June 2019; 4.4 The Deed; 4.5 Settlement offers made by Nick Scali Limited in connection with the Proceedings; and/or 4.6 Settlement offers made by King Furniture Australia Pty Ltd in connection with the Proceedings."
3. "Document" is defined in both subpoenas to mean as "provided in the Evidence Act 1995 (NSW) and includes all originals and drafts, letters, notes, files (including file covers), file notes, memoranda, accounts, diary entries, accounting records, facsimiles, electronic mail and computer records (whether stored on a computer disk or otherwise), computer printouts, agendas, minutes of meetings, reports, payments and other written communications in your possession, custody or control."
4. The Dimarco subpoena is in similar terms to paragraphs 3 and 4 of the Allens' subpoena, but paragraph 2 seeks production of: "2. All documents including but not limited to all correspondence, file notes, invoices, retainers (draft and final), memoranda, briefs to counsel, written advice and/or opinions from counsel, timesheets/record of time, agreements and any associated documents held in hard copy and/or electronic format relating to your file(s) kept for Nick Scali Limited: 2.1 in connection with the Proceedings; 2.2 in connection with the legal costs incurred by Sparke Helmore in the Proceedings; and/or 2.3 including but not limited to your file reference 31496."
5. File reference 31496 is to the file Dimarco kept for what NSL had retained it to act on.
6. It was common ground that given the breadth of what was sought in paragraph 2 of each subpoena, the documents sought in paragraphs 3 and 4 were already encompassed.
7. During the course of submissions for Sparke Helmore it was accepted, however, that the words which are quoted in bold above would not be pressed. It clarified that it was not intending to seek the production of documents: 1. brought into existence for Allens' current representation of NSL in these proceedings; or 2. which belong to either firm of solicitors, rather than NSL, other than file notes.
8. That clarified and reduced the production pressed, but it did not resolve what lay in issue between the parties.

The stage the proceedings have reached

1. In resolving what remains in issue, the stage that the proceedings have reached is relevant.
2. Sparke Helmore's pleadings do not state, as r 14.9 of the Uniform Civil Procedure Rules 2005 (NSW) requires, the effect of the material spoken words on which Sparke Helmore relies to establish that NSL is bound by the capped costs agreement on which it advances its case. No issue has been taken about this, but it will obviously be necessary for Sparke Helmore to call evidence about the conversation relied on, to establish this claim.
3. Sparke Helmore issued its subpoenas before it put on its evidence. Thus it has not yet served an affidavit sworn by Ms Platt, who it appears will give evidence of that conversation, on which the subpoenaed documents may also shed light.
4. There is thus a concern that even if the subpoenas are not set aside, premature access to the documents produced could give rise to problems of the kind considered by Adamson J in Commonwealth Bank of Australia v Goater [2016] NSWSC 710 at [33], there in the context of discovery. That is relevant in this case, because of the nature and breadth of the documents subpoenaed.
5. Those concerns are an understandable tendency to reconstruct the past by reference to contemporaneous documents, which can undermine a witness's credibility; depriving the Court of his or her actual recollection, unaffected by a process of reconstruction; and not permitting what is in issue to be narrowed by the service of evidence which may obviate the need for production of documents.
6. This is here relevant because, for example, NSL may finally take no issue with Ms Platt's recollection of her conversation with Mr Dimarco about the capped costs agreement.
7. It is also relevant that NSL has had access to the files of all three firms in preparing the evidence it has served, Sparke Helmore having given discovery of its file.
8. Mr Scali was not required for cross examination on his affidavit, which refers extensively to documents kept in those files. Given his evidence that he gave Mr Dimarco no instructions to enter the capped costs agreement, if he also gives evidence at the hearing, as he seemingly must if NSL is to establish the case it has pleaded, Mr Scali will then no doubt be cross examined about instructions which he did give Mr Dimarco.
9. Mr Scali will also no doubt be questioned about the instructions he gave Sparke Helmore, which it claims were knowingly false. That may give rise to questions arising under s 128 of the Evidence Act, about which Mr Scali would have to be given independent advice, given that his interests and those of NSL do not appear entirely to accord, given what is pleaded in the cross claim.
10. It is also pertinent that Mr Scali is not a party to the proceedings and that all three firms were retained by NSL, not him. Nevertheless, it was common ground that if the subpoenas are not set aside, any right which Mr Scali may have in relation to any document produced should be preserved.

ISSUES

1. It was not in issue that: 1. Sparke Helmore acted for NSL from about 5 October 2017 to 19 October 2018; 2. NSL engaged Dimarco Lawyers to act for it from at least June 2018, including in relation to what Sparke Helmore claims resulted in the "capped fee agreement", by which NSL was bound, but which it denies; 3. Allens was retained by NSL from at least July 2018; and 4. NSL thus had all three firms acting for it at the time that Mr Dimarco swore his August 2018 affidavit in the Federal Court proceedings.
2. It is Sparke Helmore's case that the original emails and those which it claims had been "doctored", will help establish its claim that the initial instructions it received from Mr Scali were false, came to its attention only shortly before Mr Scali swore that affidavit.
3. What is in issue includes whether: 1. by its cross claim and the evidence it has led on this application from Mr Scali, NSL has waived any privilege which it may have over the documents; 2. the subpoenas remain impermissibly broad, despite what is no longer pressed; 3. the effect of the subpoenas is to require production of the entirety of the Dimarco and Allens files and other records, irrespective of whether the documents can shed any light on what is in issue; 4. the subpoenas involve an impermissible requirement to give discovery; 5. the documents have any relevance to the determination of the issues, including whether: 1. NSL is estopped from claiming it has no liability to pay the disputed costs, because of the capped fee agreement; 2. Sparke Helmore undertook its work on the basis of the disputed false instructions allegedly given by Mr Scali, that NSL had not seen King Furniture's product, on which its claims turned, before the commencement of the Federal Court proceedings; 3. any loss NSL suffered, was caused or contributed to by its own conduct; 4. NSL's claim is apportionable under Part 4 of the Civil Liability Act 2002 (NSW); and 5. Mr Scali is a concurrent wrongdoer.

Applicable principles

1. There was no issue about the applicable legal principles, which are frequently discussed in the authorities.
2. In short, they begin with that a subpoena for the production of documents may be set aside: r 33.4 of the Uniform Civil Procedure Rules. The power will be exercised bearing in mind the requirements of the Civil Procedure Act 2005 (NSW), especially those imposed by s 56 on the Court, the parties and their legal representatives, to facilitate the overriding purpose there specified, the just quick and cheap resolution of the real issues in the proceedings.
3. A subpoena will be set aside when it is shown that it: 1. involves an abuse of process: 1. being used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 and National Employers Mutual General Insurance Assn Ltd v Waind and Hill [1978] 1 NSWLR 372 at 382; or 2. imposing an obligation to form a judgment as to what is relevant to an issue in the proceedings: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd; Kirby v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 at 718A. But a subpoena which does not precisely describe the required documents, or describes them only in general terms, will not necessarily be improper: Waind. 1. has no legitimate forensic purpose: 1. the issuing party bearing the onus of establishing that legitimate forensic purpose; and 2. it not being able to be concluded that the documents sought could "possibly throw light" on the issues in the case. That is, it is likely that they will materially assist on an identified issue; or 3. there not being a reasonable basis, beyond speculation, that it is likely that they will materially assist: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [26]; 1. is being used as part of a "fishing expedition": Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254; 2. is oppressive, which was not here raised: Southern Pacific Hotel Services Inc at 719; or 3. seeks production of privileged documents when objection to their production is taken by the privilege holder, although that privilege may be waived or lost: ss 118, 122 and 131A Evidence Act and r 1.9 of the Uniform Civil Procedure Rules.
4. Where a subpoena is drafted in a manner which is objectionable, it is ordinarily not for the Court to redraft it: Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [25].

Has privilege been waived?

1. Ordinarily a privilege claim is not determined without the identification and consideration of any particular document required to be produced to the Court under a subpoena, to which a party such as NSL takes the objection provided for in r 1.9(4).
2. Here it is the entirety of the Dimarco and Allens' files, the file notes and costs records which are sought, to which objection is taken by NSL.
3. Given, however, not only its cross claim, by which NSL seeks to recover as damages not only the entirety of the costs it paid both Dimarco Lawyers and Allens, but also what it paid King Furniture in the settlement that it agreed to, but also the evidence which it has already led from Mr Scali, the conclusion that NSL has waived the privilege which it undoubtedly had in the documents subpoenaed, seems to me to be inescapable.
4. What Mr Scali explained included: 1. that NSL does not have an internal legal team; that it outsources that responsibility to external law firms; and that he thus relies on "the experience and expertise of these external law firms to bring material information to my attention": at [9]; 2. how NSL came to seek advice from Sparke Helmore in October 2017 about the dispute with King Furniture; advice which it gave and resulting communications in which he was involved in relation to both proceedings in which it represented NSL; 3. the costs estimate which Sparke Helmore provided, his concerns about costs and Ms Platt's advice in October 2017 that NSL's costs would be about $250,000 up to a hearing, but less if resolved at mediation; 4. his recollection that he was not given advice to remove the disputed products from NSL's stores, which could have reduced its exposure to damages and was important to his response to the dispute with King; 5. the concerns which arose over Sparke Helmore's fees and how he later pursued them; 6. advice Ms Platt gave him not to attend the first mediation in February 2018; that as a result Ms Scali, NSL's general manager, merchandise attended on its behalf and that he had no recollection of having received a document produced at that mediation, which indicated not only NSL's actual costs to that point, but an estimate of costs more than double those earlier estimated, if the matter went trial; 7. the offer King Furniture made at the mediation, which Ms Platt advised she had rejected, an offer which he would have sought to negotiate, or accept, had he been informed of the revised costs estimate; 8. the increasing costs Sparke Helmore charged; that he told Ms Platt that he considered them to be excessive; the revised cost estimates Sparke Helmore provided in March 2018, as well as an advice about NSL's prospects of success; that in April a further costs estimate indicated likely costs of more than three times the initial estimate; 9. how he sought advice from Dimarco lawyers in June 2018 about his concerns about the conduct of the matter and Sparke Helmore's fees, after Ms Platt raised with him the prospect of further exploring settlement and changing NSL's design of the disputed product; 10. his attendance in June 2018 at a meeting with representatives of Sparke Helmore and Dimarco lawyers, at which costs were discussed, a revised costs agreement was provided and later, a written proposal to cap its professional fees; 11. Mr Dimarco thereafter on NSL's behalf responding to correspondence sent by Ms Platt, even when she wrote direct to Mr Scali, in terms attached to his affidavit; 12. that he did not, however, instruct Mr Dimarco to accept any capped fee agreement with Sparke Helmore, given his then belief that what was proposed was outrageous and that he needed to find another firm to represent NSL in the dispute, despite what Ms Platt wrote to Mr Dimarco in June 2018, about an agreement on costs having been reached; 13. instructing Mr Dimarco in July 2018 to contact Allens about replacing Sparke Helmore, which he finally concluded would not be appropriate, given the scheduled trial in October; 14. the steps then pursued in relation to the conduct of the hearing, which included the provision of the emails on which Sparke Helmore relies and affirming his August affidavit; 15. seeking advice in September from junior and senior counsel on NSL's prospects in the proceedings, at a conference attended by Mr Scali, Ms Platt and Mr Dimarco, when he was advised to settle the matter, advice which he said he was surprised to receive, given Sparke Helmore's repeated earlier advice that NSL had strong prospects of success; 16. that he did not accept Ms Platt's advice to seek an opinion from other counsel but decided to try to negotiate directly with Mr King of King Furniture. How the offer NSL made was rejected and a counteroffer was received, which was also not accepted and negotiations continued; 17. that Mr Dimarco sought advice from Sparke Helmore about settlement offers and disclosure of an expert's report, which resulted in advice being given in October about NSL's options and possible outcomes and a recommendation about terms on which it should offer to settle, at a time when he had not reviewed expert opinions which had been obtained, on Sparke Helmore's advice; 18. on 12 October 2018 Mr Scali instructed Sparke Helmore not to do any further work; 19. on 19 October Allens entered an appearance for NSL in the Federal Court proceedings; and 20. there being a second mediation in December 2018 when an in-principle agreement was reached and the proceedings were settled on confidential terms in June 2019.
5. Any privilege which NSL had in the matters about which Mr Scali deposed was thereby undoubtedly lost.
6. That would not have resulted in a waiver of privilege in relation to all of the documents subpoenaed. But that waiver was put beyond argument by NSL's claim that it is entitled to recover as damages from Sparke Helmore not only all of the fees it paid Dimarco Lawyers and Allens, but also what it paid King Furniture in the settlement it agreed to in 2019.
7. Maintenance of the privilege in any of those matters would be inconsistent with NSL's claims and Mr Scali's disclosures: Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29].
8. There is no issue that NSL retained Dimarco Lawyers, not only to advise it on its dispute with Sparke Helmore over costs, but also to: 1. oversee and participate in the ongoing conduct of the proceedings; 2. give NSL's instructions to Sparke Helmore; and 3. identify Allens as the firm which NSL should instruct to appear in the proceedings, instead of Sparke Helmore.
9. There is no suggestion that Dimarco's retainer was terminated even after Allens entered its appearance.
10. It follows that Mr Scali may not only be cross examined about his instructions to Sparke Helmore and what he has disclosed in his affidavit, but also about what NSL pursues by way of the damages it claims it has suffered, as the result of retaining Dimarco Lawyers and Allens and reaching a settlement.
11. On the issue about Mr Scali's instructions, it is settled that communications which are intended to facilitate a crime, renders a person liable to a civil penalty, or involves a fraud, will result in the loss of any privilege, even when a legal adviser acts innocently: s 125 Evidence Act and Attorney-General (N.T.) v. Kearney (1985) 158 CLR 500; [1985] HCA 60.
12. Given what is in issue on the damages NSL seeks, it is impossible to conclude that any privilege can remain in the subpoenaed documents, evidencing as they do how the costs claimed were incurred and the settlement agreed.
13. The documents will shed light, for example, on the issue of whether the costs which NSL incurred after it retained Dimarco Lawyers and Allens and what it paid when it settled the proceedings were the result of any wrongdoing on the part of Sparke Helmore, rather than of commercial decisions which NSL made for its own purposes, or potentially, as the result of Mr Scali's alleged wrongdoing, as Sparke Helmore contends.
14. That the reasonableness of NSL's claimed damages for the costs it incurred and the settlement it entered is also in issue, confirms the inevitable conclusion that any privilege which it had in the documents in issue has been waived. That the reasonableness of costs could be referred for determination by a cost's assessor, I am satisfied is also not an available course, given the other issues which the Court will have to resolve, on which the documents can shed light.

Should the subpoenas still be set aside?

1. Undoubtedly modern technology would allow these two law firms easily to produce the documents in issue, but that does not provide a basis for the conclusion that the subpoenas do not involve an abuse of process.
2. NSL's case is that the subpoenas seek discovery, involve a fishing expedition and have no legitimate forensic purpose, given that any advice given by Dimarco Lawyers or Allens about what is now in issue in these proceedings, can have no relevance to: 1. whether Sparke Helmore made or breached representations about the likely costs of the Federal Court proceedings to NSL; 2. what a prudent and competent solicitor in Sparke Helmore's position, would have done; 3. whether Sparke Helmore breached its retainer or fiduciary duties, including by: 1. providing deficient and over-optimistic advice on NSL's prospect of defending King Furniture's claims; 2. failing to provide cost estimates covering a realistic range of possible outcomes; 3. failing to advise NSL about the risk of continuing to sell the products the subject of the proceedings; and 4. failing to provide NSL with reasonable timeframes in which to provide considered instructions on important matters in the proceedings.
3. Sparke Helmore's case was that the involvement of Dimarco Lawyers and Allens at the time that it was acting for NSL will be relevant to the Court's determination of issues relating to causation, reliance, damages and quantum, as well as to the existence of the capped fee agreement and to questions of contributory negligence and proportionate liability.
4. I am not persuaded that the documents pressed involve an abuse of process. I consider that it must be accepted that they do have a legitimate forensic purpose, possibly throwing light as they do on various of the issues which will have to be resolved by the Court and not simply being a fishing exercise.
5. While the Rules do not permit general discovery, undoubtedly Sparke Helmore could have sought discovery of the documents it has subpoenaed. Rule 21.2 provides for orders for discovery of specified classes of documents relevant to specified facts in issue, by reference to a description of the nature of the documents and the period within which they were brought into existence.
6. Here there is finally no issue about what classes of documents are still being pressed and no suggestion that there is any problem with giving it. But given what is involved, it is apparent that the discovery process would be a more costly way to produce these documents.
7. That is because the Rules require the producing party to serve lists of documents in their possession which include a description of the documents, who has possession of them and whether privilege is claimed: r 21.3. The list must be supported by affidavit and a solicitor's certificate: r 21.4. A regime for inspection is also specified: r 21.5. Claims for privilege are also provided for.
8. Given all that the disputed documents will be relevant to, I have concluded that the obligations imposed by s 56 do not permit the subpoenas to be set aside, in order that discovery can be pursued.
9. Sparke Helmore's conduct before Dimarco Lawyers and Allens were retained is in issue. Opinions or advices which Dimarco Lawyers and Allens may have later given NSL about that conduct, will not establish that Sparke Helmore breached any duty which it owed NSL, or was negligent.
10. That will turn both on questions of fact and law which will require consideration both of what Sparke Helmore did and of what a reasonable solicitor in its position would have done, matters about which expert evidence is to be led.
11. But such documents will be relevant to the damages claim.
12. There is also a factual issue about what Sparke Helmore's position actually was. That turns on the question of what instructions NSL gave Sparke Helmore about its knowledge of the King Furniture product, over which the litigation turned. Its resolution will depend on the evidence led by Sparke Helmore and that which Mr Scali gives. But given the circumstances in which Mr Scali's August 2018 affidavit was sworn and the emails on which Sparke Helmore relies came to light, it must be accepted that documents in the Allens and Dimarco files may also possibly shed light on what instructions he earlier gave.
13. Mr Scali's evidence about Sparke Helmore's claim that NSL entered the capped agreement was simply that he did not instruct Dimarco Lawyers to enter that agreement. At trial he will undoubtedly be cross examined about what instructions he did give and if called, Mr Dimarco about what instructions he received.
14. Documents which evidence those instructions and the resulting steps which Mr Dimarco took, will also undoubtedly cast light on whether the result was the making of the disputed agreement. Such documents may also shed light on the damages claim.
15. That is because NSL claims that it mitigated the damages it suffered by seeking the advice and representation of both Dimarco Lawyers and Allens in relation to the Federal Court proceedings. That, it must be accepted, necessarily gives rise to a consideration of the work these firms were engaged to undertake, the instructions they were given and the necessity and reasonableness of the resulting costs which NSL incurred.
16. The claim that NSL is entitled to recover from Sparke Helmore what it paid by way of settlement of the Federal Court proceedings, will also require an assessment of the reasonableness of the settlement it entered. That will not only require consideration of instructions which NSL had earlier given Sparke Helmore, but also those which it later gave Dimarco Lawyers and Allens, advice which they gave, whether it was accepted and steps which NSL pursued.
17. They are also all matters on which the subpoenaed documents can shed light.
18. In the result I am satisfied that justice does not permit the subpoenas to be set aside.

Further conduct of the proceedings

1. No orders have yet been made in relation to the service of Sparke Helmore's evidence, for reasons which are not apparent. It follows that this complex matter should now be referred to a judge for case management.
2. I have already directed the parties to confer about whether an agreed basis for the production of documents can be arrived at and whether steps should be pursued to arrange an early mediation of their differences.
3. They also need to confer about further orders for the preparation of the matter for hearing, which should be provided for the next directions hearing. That should take into account the order I will make as to the timing of the production of the subpoenaed documents, after service of Ms Platt's evidence.

Costs

1. The usual order under the Uniform Civil Procedure Rules is that costs follow the event. In this case that is an order that NSL bear the costs of the motion, as agreed or assessed.

Orders

1. For these reasons I order that: 1. The motion is dismissed. 2. Production of the documents be deferred until after Sparke Helmore has served Ms Platt's evidence. 3. The parties confer about further orders for the preparation of the matter for hearing. 4. Nick Scali Ltd is to bear the costs of the motion, as agreed or assessed. 5. The matter be listed in the Professional Negligence List before Harrison J at 9.30am on Friday 2 July 2021 for further directions.

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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: 02 June 2021