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[2025] NSWSC 1340
General information, not legal advice.
Supreme Court of NSW
2025-11-14
McNaughton J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Rizzo [2025] NSWSC 1340
Hearing dates: 16 September 2025
Date of orders: 14 November 2025
Decision date: 14 November 2025
Jurisdiction: Common Law
Before: McNaughton J
Decision: As to the subpoena to produce issued to Aussie Lawyers Pty Ltd:
(1) Except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025 and/or over which privilege is not claimed as set out in the Privilege Log annexed to the affidavit of Adam Canceri sworn on 9 September 2025 the subpoena be set aside.
As to the subpoena to produce issued to The Legal Costs Consultants Pty Ltd:
(1) Except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025 and/or over which privilege is not claimed as set out in the Privilege Log annexed to the affidavit of Adam Canceri sworn on 9 September 2025 the subpoena be set aside.
Catchwords: CIVIL PROCEDURE — subpoenas — objection to production of documents or things — client legal privilege — privileged documents not to be produced CIVIL PROCEDURE — subpoenas — objection to production of documents or things — compliance burden
Legislation Cited: Evidence Act 1995 (NSW), ss 118, 119, 122, 131A
Legal Profession Uniform Law (NSW), s 172
Legal Profession Uniform Law Application Act 2014 (NSW), ss 76, 89
Legal Profession Uniform Law Application Regulation 2015 (NSW), r 35
Uniform Civil Procedure Rules 2005 (NSW), r 33.4
Cases Cited: Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
Racing New South Wales v Racing Victoria Ltd (No 2) [2024] NSWSC 312
Hancock v Rinehart (Privilege) [2016] NSWSC 12
McLure v Lam [2025] NSWSC 1272
Sweeten v Haggerty [2025] NSWSC 673
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Texts Cited: Nil
Category: Procedural rulings
Parties: State of New South Wales (Plaintiff) (Respondent)
Christopher Rizzo (Defendant)
Aussie Lawyers Pty Ltd (Applicant)
Representation: Counsel:
M Green SC, M Castle (Plaintiff) (Respondent)
E Chrysostomou (Applicant)
Solicitors:
Norton Rose Fulbright (Plaintiff) (Respondent)
Aussie Lawyers (Applicant)
File Number(s): 2024/00190108
Publication restriction: Nil
By way of Notice of Motion filed on 20 May 2025, the applicants seek to set aside two subpoenas issued on 10 April 2025 at the request of the S****tate of New South Wales (the plaintiff/respondent).
To be more precise, the orders sought are:
In relation to the subpoena to produce addressed to Aussie Lawyers dated 10 April 2025:
(1) Order that the Court set aside categories 2, 3, 4, 5, 6 and 7 pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and order that Aussie Lawyers only be required to produce those documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025 in respect of the said categories.
In relation to the subpoena to produce addressed to The Legal Costs Consultants dated 10 April 2025:
(2) Order that the Court set aside categories 2 to 4 pursuant to rule 33.4 of the UCPR, and order that The Legal Costs Consultants only be required to produce those documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025 in respect of the said categories.
The applications arise in the context of an appeal against a costs assessment, yet to be heard, brought by the State by way of summons against the defendant Mr Rizzo arising from his successful action against the State for malicious prosecution (the substantive matter). This action arose from Mr Rizzo’s encounter with the New South Wales police on 18 December 2021 and is referred to as the second proceedings because it is the second of two such actions taken by Mr Rizzo against the police. The earlier proceedings (the first proceedings) related to an encounter with the police on 30 December 2021, which were finalised in favour of Mr Rizzo prior to hearing. The relevance of these matters becomes apparent below.
The applicants are respectively Mr Rizzo’s solicitors Aussie Lawyers Pty Ltd, and Aussie Lawyers’ costs consultants, The Legal Costs Consultants Pty Ltd. Mr Canceri is Mr Rizzo’s solicitor and is the principal of Aussie Lawyers.
By way of overview, the subpoena to Aussie Lawyers seeks all file notes of conversations with counsel relating to Mr Rizzo’s proceedings, all time sheets of Mr Canceri regarding all his matters over the periods 4 - 10 October 2022 and 3 - 14 March 2023 with the names of clients redacted, and all communications with the Costs Consultants over periods covering some days relating to Mr Rizzo’s proceedings. The subpoena to the Costs Consultants seeks in essence all communications with Aussie Lawyers and documents regarding the second proceedings.
The second proceedings were settled in favour of Mr Rizzo on the first day of hearing on 14 March 2023 (following a failed mediation on 10 October 2022) at the District Court of New South Wales for $35,000 (following evidence from Mr Rizzo in chief and in cross-examination), with Mr Rizzo’s costs to be paid by the State as agreed or assessed. The costs were not agreed. Ultimately, Aussie Lawyers issued an invoice for $401,083.10. That was subject to an assessment by a costs assessor, Mr Mansfield, who determined Mr Rizzo’s fair and reasonable costs were $171,225.93 and issued Certificates of Determination. The State was not content with that assessment and on 1 December 2023, sought a review of that determination before a Review Panel. On 24 April 2024, the Review Panel assessed costs for the increased amount of $236,915.68 (including interest and filing fee).
On 22 May 2024, the State appealed the Review Panel’s determination by way of summons filed in the District Court of New South Wales under s 89(1)(a) of the Legal Profession Uniform Law Application Act (2014) NSW (LPULAA) alleging error including as to proportionality, procedural fairness and adequacy of reasons. The appeal was transferred, by consent, to this Court on 18 September 2024 on the plaintiff’s application.
Mr Condon, solicitor and the Director of Tort and Compensation Law at the office of the General Counsel, NSW Police Force (OGC), filed an affidavit in support of the transfer to this Court dated 31 July 2024. Included in that affidavit was information in relation to the high volume and value of intentional tort claims made against the NSW Police Force and the assertion that a large portion of the State’s expenses were on account of legal costs paid to the plaintiffs upon settlement. Mr Condon also stated:
“Aussie Lawyers has become a firm that represents a large portion of the total intentional tort claims that are brought against the State of New South Wales involving conduct by officers of the NSW Police Force. Given their growing presence as a plaintiff firm, the issues arising in this Proceeding are likely to have an impact across a number of claims in which Aussie Lawyers act for plaintiffs, as well as have a significant impact across the portfolio generally.”
On 31 January 2025, the State filed another affidavit of Mr Condon, which asserted numerous errors made by the Review Panel, and also included, amongst other things, allegations of overcharging on the part of Mr Rizzo’s solicitors on three particular days: 3 March, 8 March and 13 March 2023. It can be noted that there is no allegation of fraud made against the applicants, and this was confirmed with Senior Counsel at the hearing.
Mr Canceri filed an affidavit on 4 April 2025 in response to Mr Condon’s affidavit conceding some overstatements of time and annexing his file notes for 3 March and 8 March 2023. It is conceded that privilege has been waived in respect of these file notes.
The following affidavits were read without objection on the Notice of Motion:
For the applicants: three affidavits of Adam Canceri dated respectively 4 April 2025, 24 June 2025 and 9 September 2025;
For the State: two affidavits of Christopher Condon dated respectively 31 July 2024 and 31 January 2025.
Also tendered for the State were:
A letter dated 30 July 2025 from the State’s firm of solicitors, Norton Rose Fulbright, setting out its contentions as to the legitimate forensic purpose of the subpoenas (Exhibit 1); and
A summary document setting out times claimed by Adam Canceri for 4–10 October 2022 and 3–14 March 2023 (Exhibit 2).
Also provided to the Court, and marked for identification, was a one page “Concessions Schedule” prepared by the State indicating the adjusted costs figure of $231,092.08 following allowance for errors conceded by Mr Canceri of $5,823.60 deducted from the Review Panel figure of $236,915.68.
As stated above, the substantive matter in relation to which the subpoenas have been issued is the State’s appeal against the Review Panel’s decision. Pursuant to s 89(4) of the LPULAA, “an appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal”. It is not a de novo hearing: Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [7]-[8] cited by Payne JA in at Sweeten v Haggerty [2025] NSWSC 673 at [19].
An argument was faintly put on behalf of the applicants that leave to file further evidence should have been obtained prior to the issuance of the subpoenas. They conceded there was no authority to support that proposition, and I can see no persuasive reason why that course should be followed. I note the second order sought in the Summons is in the following terms: “to the extent necessary, leave to adduce fresh evidence or evidence in addition to or in substitution for the evidence before the review panel”. Whether this order is made will be a matter ultimately for the judge hearing the summons. That does not need determination prior to the issuance of a subpoena.
In order to consider the application in context, it is necessary to set out the appeal grounds of the summons which are:
The Review Panel failed to properly apply s 172 of the Legal Profession Uniform Law 2004 (NSW) (LPUL), and s 76 of the LPULAA and in doing so failed to determine a quantum of costs which was fair and reasonable and, in particular, proportionate.
The Review Panel misapplied s 172 LPUL and s 76 LPULAA by allowing costs which were not within the scope of the order for costs, and related to different matters.
The Review Panel failed in its duty to inform itself of relevant matters.
The Review Panel denied procedural fairness to the plaintiff.
The Review Panel failed to have proper regard to the evidence and to the submissions made on behalf of the plaintiff.
The Review Panel gave inadequate reasons for its determination.
As noted, neither of the deponents were required for cross-examination. In that light, I note the following relevant facts.
Mr Canceri is the principal solicitor of Aussie Lawyers, who act for Mr Rizzo. The second Rizzo proceedings were set down for a four day hearing to commence on 14 March 2023, which (as noted above) settled on the first day, with costs as agreed or assessed.
Shortly prior to the 14 March 2023 hearing (that is, on 3 and 10 March 2023) the State provided Aussie Lawyers with two notices of motion claiming privilege and public interest immunity over certain documents subpoenaed from the Commissioner of Police at the request of Mr Rizzo. These notices of motion required an extensive amount of work to be undertaken over a relatively short period of time and on an urgent basis. Both notices of motion were dismissed with costs ordered as “costs in the cause” and the material sought by Mr Rizzo was required to be produced.
Mr Canceri stated that Ms Morson from the Costs Consultants was given the legal file for Mr Rizzo’s matter to prepare the bill of costs. This was consistent with Mr Canceri’s usual practice to outsource costs dispute work as he does not have the necessary time or requisite costs experience to run a costs assessment himself.
Mr Canceri did not recall reviewing the draft bill of costs before it was served on the State.
Mr Canceri sent a draft Costs Assessment Application and Bill of Costs (application for assessment) to Ms Panos, (solicitor from Norton Rose Fulbright, the firm instructed by the OGC), in accordance with reg 35 of the Legal Profession Uniform Law Application Regulation 2015 (NSW), on 22 June 2023. The plaintiff was required to serve any objections to the application for assessment within 21 days. No reply was received within the required time. A follow-up email was sent to Ms Panos on 7 August 2023.
Mr Canceri stated that Ms Morson signed the certification on the Costs Assessment Application. On 4 September 2023, Mr Canceri received an email from Ms Morson advising about a filing fee incurred when Ms Morson had filed the Costs Assessment Application with the Supreme Court on or about 4 August 2023. Mr Canceri paid the filing fee.
On 14 September 2023, the costs assessor, Mr Paul Mansfield, sent a letter to the parties requesting further particulars and submissions on certain matters including calling for submissions on proportionality. Mr Canceri complied with this request by way of letter dated 26 September 2023 and provided a copy to Ms Panos (minus enclosures already included, except for the Aussie Lawyers Costs Agreement).
On 27 September 2023, Mr Canceri was copied into an email to Ms Panos from the costs assessor. That same day, Mr Canceri was copied into an email sent by Ms Panos to the costs assessor stating she had not received the 14 September 2023 letter and that she would seek instructions regarding the 14 day time frame.
Between 4 October 2023 and 9 October 2023 further correspondence was exchanged between the costs assessor and the parties. One of the matters clarified by Mr Canceri at the request of the costs assessor was the existence of the first proceeding. On 9 October 2023, the costs assessor sent an urgent letter to Ms Panos to the effect he had received no submissions from the State and was allowing the State until 12 October 2023 to provide objections or submissions.
At 4:49pm on 12 October 2023, Aussie Lawyers received the State’s Notice of Objections via email. No further submissions were made by Aussie Lawyers. Mr Canceri stated that at the time the Notice of Objections were received he did not read them and left it with the Costs Consultants to attend to. No further timetable was provided by the costs assessor for Aussie Lawyers to reply to the State’s objections.
On 23 October 2023, the costs assessor advised the parties that the costs assessment was complete. Mr Canceri stated he was surprised given Mr Rizzo had not been afforded a right of reply but did not think there was much he could do about it.
On 1 December 2023, the State filed an application for review of the costs assessor’s assessment. Mr Terence Stern and Mr Gordon Salier constituted the Review Panel. The Review Panel set a timetable for evidence and submissions from the parties. Mr Canceri was again assisted by Ms Morson. Mr Canceri emailed Ms Morson on 6 December 2023, requesting her to draft a response to the review application within the required timeframe. On 15 February 2024, Mr Canceri sent a further email to Ms Morson asking her to advise if there were any further steps they needed to take in relation to the review. Mr Canceri does not recall receiving a response from Ms Morson. Mr Canceri stated that Ms Morson did not prepare a response to the review application and due to his workload, he did not realise that until after the review was completed.
Mr Canceri was notified that the review panel had completed its review on 10 April 2024, and the Certificate of Determination was issued on 24 April 2024 specifying the total amount payable by the State to Mr Rizzo is $236,915.68.
In relation to some claimed duplication of costs entries between the first and second proceedings allegedly identified by Mr Condon in his affidavit of 31 January 2025, Mr Canceri conceded there was a mix up in some entries made by Ms Morson. This included some entries incorrectly claimed in relation to the second proceedings when they in fact related to the first proceedings. He denied any duplication as alleged by Mr Condon.
As to the alleged excessive costs claimed by the defendant, Mr Canceri stated that he had undertaken a “complete review of the disputed items in detail” identified in paragraphs 43 and 44 of Mr Condon’s affidavit. Amongst other things he stated:
“I am informed by Ms Morson that the items of work claimed under my name on 3 March 2023, was an error on her part as a result of misreading my handwritten file notes as to time spent on tasks.
I have now also reviewed my file notes and records, and it appears that the costs consultant has incorrectly claimed 32.9 hours for work carried out on 3 March 2023 (see items 217, 218, 221–222, 224–231, 235–246 of the Bill of Costs).
I have now undertaken a review of the items in relation to 3 March 2023 and having refreshed my collection [sic] based on a review of the file, I estimate that about 17.5 hours of the time claimed by my costs consultant should not have been claimed. So only 15.4 hours should have been claimed on that day.
I have set out my analysis and the results of my review of the items in the bill of costs on 3 March 2023 in the table at pages 245–248 of Exhibit AC-1. The relevant material and/or file notes that pertain to those relevant items of work carried out by me on 3 March 2023 are at pages 249–272 of Exhibit AC-1.
I accept that 15.7 hours on one day is a large amount of time. However, on that day I was preparing for the substantive proceedings but then our office was served with the First Notice of Motion and affidavit in support at approximately 3:30pm on 3 March 2023 which required me to continue preparing for the substantive hearing whilst at the same time also attending to all necessary attendances in relation to the First Notice of Motion […].”
[Emphasis in italics added]
Mr Canceri also undertook a review of the items in the bill of costs claimed on 8 March 2023 and concedes that 8.4 hours of the time claimed by the Costs Consultants should not have been claimed. Rather, only 11.6 hours should have been claimed. He also produced “the relevant material and/or files notes that pertain to those relevant items of work carried out by [him] on 8 March 2023”.
Mr Canceri disagreed with Mr Condon’s opinion in relation to the amount claimed for work undertaken on 13 March 2023.
Annexed to his affidavit of 24 June 2025 is a letter from Mr Canceri to the Registrar of this Court dated 13 May 2025 formally objecting to the production of documents sought in paragraphs 2–7 of the Subpoena to Aussie Lawyers (noting paragraph 1 simply seeks a copy of the subpoena itself). It sets out detailed submissions including that there has been no waiver of client legal privilege, advice privilege or litigation privilege. In addition, Mr Canceri sets out his general objection on the grounds that the subpoena is oppressive, lacking any legitimate forensic purpose and disproportionate to the issues in the proceeding. In particular, Categories 2 and 3 which seek “all timesheets for all work performed by fee earner Adam Canceri on all matters” over multi-day periods, with redactions to be made only for client names is claimed to be not only overbroad, but fundamentally improper, as it demands that the firm manually inspect and review every matter across the practice, estimated in excess of 1,500 files to locate potentially responsive records.
In Mr Canceri’s affidavit of 9 September 2025 he set out a more detailed response in relation to the various categories of the subpoena, including the compliance burden involved with complying with each category. As an example, as to Categories 2 and 3 (timesheets), he stated:
“The timesheets requested include entries for multiple client matters across specified date ranges. They contain confidential descriptions of work performed, much of which records legal advice to, and communications with, clients. Any entries pertaining to Mr Rizzo’s matter were created and maintained for the dominant purpose of providing legal advice or conducting litigation. Compliance would require inspection of more than 1,500 client files and redaction of unrelated privileged material. Compliance with a time frame narrowed down to one day would require the physical inspection of each and every single file to ascertain all work performed on a particular day/days and this would also require going through approximately 200 hundred [sic] files involving similar civil claims against the State for intentional torts. This is because we keep both handwritten and electronic work records in relation to all work performed on each matter that the firm handles. […] The compliance burden is extremely onerous, involving more than 1,500 files and would consume an inordinate amount of time, resources and costs. This is especially so given the practice employs two other solicitors and four casual administrative assistants, making it difficult to divert sufficient resources to the task without serious disruption to client services.”
As to Category 5 (timesheets for costs assessment/bill of costs), to Mr Canceri’s knowledge there are no time sheets in relation to the specific work performed in the course of reviewing the costs assessment application and the bill of costs.
Mr Canceri otherwise maintains the claim of privilege and also claims privilege in relation to the material sought by the other subpoena to the Costs Consultants.
Mr Canceri also annexed to his affidavit of 9 September 2025 a Privilege Log which identifies, by reference to date, author, recipient, general description, subpoena category and grounds of claim, the documents responsive to the Subpoenas that are withheld on the basis of client legal privilege, confidential communications with Counsel and, where applicable, on the grounds of oppression due to overbreadth or intrusion into other clients’ confidential affairs. He further stated that the descriptions provided have been framed in general terms so as not to reveal the substance of any privileged communications, and that he prepared the Privilege Log after reviewing the Rizzo file, with assistance from his team at Aussie Lawyers.
I also note that included in the material before me as an annexure to Mr Condon’s affidavit of 31 January 2025 is the ‘Costs Respondent’s Notice of Objection to Costs Applicant’s Bill of Costs in Respect of Proceedings in the District Court of New South Wales at Sydney’ filed in relation to the substantive proceedings. This document sets out in some detail the submissions made by the State as to why Mr Rizzo’s claimed costs are excessive and unreasonable and particularises the basis for this contention with some granularity. Detailed submissions are made supporting allegations that the costs claimed involved unreasonable hourly rates, unreasonable time claimed for work concerned, unnecessary involvement of three solicitors, excessive preparation and administrative work.
The Court has a broad discretion to set aside a subpoena, in whole or in part, or to grant other appropriate relief: UCPR r 33.4.
A subpoena must be issued for a legitimate forensic purpose. Such a purpose may be presumed if the documents called for by a subpoena have “apparent relevance”, which must be assessed by reference to the issues in the proceedings. It must not be a mere “fishing expedition”, nor should it be oppressive to the subpoenaed party by placing an excessive burden on that party: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [33]-[73]. In considering the question of oppression, it is appropriate to take into account the proportionality of the task to be undertaken as compared to the apparent relevance and forensic need for the documents: McLure v Lam [2025] NSWSC 1272 at [23] per Garling J.
Section 131A of the Evidence Act 1995 (NSW) provides, relevantly, that the privilege and waiver provisions, including ss 118, 119 and 122 apply to subpoenas to produce documents.
Section 118 of the Evidence Act is headed “Legal Advice” and provides:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a) a confidential communication made between the client and a lawyer; or
(b) a confidential communication made between 2 or more lawyers acting for the client; or
(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person—
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared—
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
…
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
(3) Without limiting subsection (2), a client or party is taken to have so acted if—
(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party.
(4) The reference in subsection (3)(a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party or of a lawyer of the client or party unless the employee or agent was authorised by the client, party or lawyer to make the disclosure.
“1. The test is one of inconsistency between the privilege holder’s conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.
- Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore “laid open the communications to scrutiny”, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.
- On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency – something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.
- The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.
- Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder’s conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.”
“The onus to establish the facts upon which claims for privilege are based is on the party claiming privilege: Grant v Downs (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). That onus may be discharged by direct evidence, “by reference to the nature of the documents supported by argument and submissions” and by inferences drawn from other proven facts: AWB Ltd v Cole (No 5) (2006) 155 FCR 30, [44(1)] (per Young J); Hastie Group Ltd (in liq) v Moore (2016) 339 ALR 635 at [33]-[34] (per Beazley P and Macfarlan JA).”
“In respect of s 118(c), a document has not been “prepared” for the dominant purpose of obtaining legal advice where it has simply been “collected or collated” for that purpose; the document must be brought into existence for the relevant purpose: Guirina v Director of Public Prosecutions (Vic) [2020] VSC 1 at [82] (per Daly AsJ). As the learned authors of Stephen Odgers, Uniform Evidence Law (18th ed, 2022, Thomson Reuters) observe, “It is the purpose in existence at the time of the making of the communication or the preparation of the document which is determinative. Thus, a document will not be privileged merely because it was handed to a lawyer for the purpose of obtaining legal advice”: at 1057, [EA.118.360] (citations omitted).”
The State contends that there is a legitimate forensic purpose to both subpoenas, that oppression is not made out, that any claim for privilege has not been made out or, alternatively any privilege has been waived. Accordingly, the Notice of Motion to set aside the subpoenas should be dismissed with costs.
In its written submissions, the State asserts that the source of Ms Morson’s claimed misunderstanding which led to the errors conceded by Mr Canceri, could only have arisen by reference to the materials provided by Mr Canceri to Ms Morson in drawing the bill. To test whether that constituted a misunderstanding “or something else” the State submits that reference to other materials sought in the subpoena is also required. I note that given there is no allegation of fraud made, the cryptic reference to “or something else” remains unexplained.
As to the issue of oppression, the State observes that documents have already been produced by both subpoenaed parties, and while the fact of production does not preclude an objection on the basis of oppression, it is a relevant matter for the Court to consider.
It can be noted that the State’s written submissions were submitted prior to Mr Canceri’s affidavit of 9 September 2025. Accordingly, the written submission that there is no evidence of oppression is no longer accurate.
As to the claim for privilege, the State relied upon Hancock v Rinehart (Privilege) [2016] NSWSC 12, for the proposition that the applicants are required to adduce sworn evidence in relation to the precise documents which have been produced and to establish that the documents are privileged. Again, this submission was made prior to Mr Canceri’s affidavit of 9 September 2025 which annexed a privilege log. Further, in my view, the factual situation in Hancock is distinguishable and provides little guidance in the circumstances of this case.
As to the State’s contention that privilege has been waived, the State points to the “essence” of Mr Canceri’s evidence which is claimed to be to the following effect: by reference to the file, I can now say there were some errors. They were not my fault, they were the fault of Ms Morson.
The State thus asserts that Mr Rizzo’s defence of the substantive matter rests on the basis of documents consulted and referred to but in respect of which privilege is sought to be maintained. It is contended that these positions are clearly inconsistent and the unfairness is that the State cannot test the veracity of the evidence which Mr Canceri gives about the documents which he contends provide the basis for his identification of the mistakes made in the bill.
In response, the applicants submit that the subpoenas are an abuse of process, especially in light of the State’s model litigant obligations. On any view, it is submitted, some costs are payable, and the litigation of the matter of costs is now very expensive itself. The applicants further submit that the subpoenas are overly broad and include documents which lack apparent relevance, constitute a fishing expedition “par excellence”; and in any event call for documents which are privileged and that privilege has not been relevantly waived either by Mr Rizzo or, via ostensible authority, by Aussie Lawyers. To the extent that a limited number of file notes have been produced they have been specifically and “surgically” nominated.
The Court has been informed that Mr Rizzo has offered to settle the matter for $125,000, but that offer has not been accepted by the State. As I understand the position, the State only concedes costs in the realm of $41,000.
The applicants contend that the State seeks broad categories of documents, many of which are not apparently relevant to any issue in the substantive matter, are protected by legal professional privilege, and are unduly burdensome and oppressive. It is submitted that despite the assertion that the subpoenas are justified by the need to test the affidavit evidence of Mr Canceri, the scope and intrusiveness of the categories far exceed what is permissible and constitute an improper fishing expedition. In particular, the attempt to obtain all time records for unrelated work over wide-ranging periods merely to check for consistency or error is fishing par excellence.
Categories 2 and 3:
[2] All timesheets for all work performed by fee earner Adam Canceri on all matters in the period 4 October 2022 to 10 October 2022, with redactions made for client names other than the Defendant;
[3] All timesheets for all work performed by fee earner Adam Canceri on all matters in the period 3 March 2023 to 14 March 2023 with redactions made for client names of clients other than the Defendant.
The first period (category [2]) is a period immediately preceding the mediation which took place on 10 October 2022 and the second period (category [3]) is a period immediately preceding the hearing and ultimate settlement.
As noted, the State seeks to justify this category on the basis that it wishes to “test” Mr Canceri’s explanation of the conceded error of 3 March 2023.
I accept the material has apparent relevance. However, I agree with the applicant’s contention that this category of documents is oppressive. The file note relating to 3 March 2023 has been produced. The uncontested evidence is that in order to produce the documents sought would require manual inspection and then redaction of over 1500 files, most unrelated to Mr Rizzo’s matter. Further, in circumstances where the State has already been able to make detailed submissions as to the lack of a fair and reasonable basis for many of the items claimed by Mr Rizzo, it is disproportionate to the forensic value of the material to require the recipient of the subpoena to undertake this work: McClure at [23]. That Mr Canceri has conceded certain errors but not others does not alter the position. That Ms Morson has not come forward as a witness is a matter for the judge in the substantive matter to deal with as that judge thinks fit.
Accordingly, I set aside Categories 2 and 3 of the Aussie Lawyers subpoena (except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025).
Categories 4 and 5:
[4] All file notes by fee earner Adam Canceri of conversations with Adrian Canceri of Counsel relating to Christopher Rizzo v State of New South Wales – District Court of NSW proceeding number 2022/00159828;
[5] All time sheets for all work performed by fee earner Adam Canceri reviewing the costs assessment application and the bill of costs relating to Christopher Rizzo v State of New South Wales – District Court of NSW proceeding number 2022/00159828
As to Category 4, these documents are apparently relevant. However, in my opinion this category is subject to client legal privilege and/or litigation privilege and privilege has not been waived (except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025). As to privilege, such an assessment can be made in this instance on the basis of the description of the documents themselves. As to the issue of waiver, whilst the State pointed to Mr Canceri’s account set out in [32] above (especially what was stated by him at his paragraph [76]), I am not of the view that it amounts to conduct inconsistent with the maintenance of the privilege in accordance with the principles in G R Capital at [57], set out at [47] above. The concessions Mr Canceri made were narrow and he produced the related file notes. In the circumstances of this case I do not accept that Mr Canceri’s narrow concession waived privilege.
As to Category 5, I note that it was indicated in the course of the hearing that it was initially not included in the Notice of Motion as subject to challenge because there was nothing to produce. However, I permitted (without objection) the Notice of Motion to be amended to include this paragraph.
In any event, Aussie Lawyers have confirmed to the Court through their barrister that there is nothing to produce. I will therefore not deal further with this category.
In light of the above, I set aside Categories 4 and 5 of the Aussie Lawyers subpoena (except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025).
Categories 6 and 7:
[6] All documents and material provided to Charlotte Morson or any other staff member of The Legal Costs Consultants Pty Ltd in relation to the matter of Christopher Rizzo v State of New South Wales – District Court of NSW proceeding number 2022/00159828;
[7] All correspondence exchanged between Aussie Lawyers Pty Ltd and The Legal Costs Consultants Pty Ltd in respect of Christopher Rizzo v State of New South Wales – District Court of NSW proceeding number 2022/00159828 in the period 13 March 2023 to 24 April 2024 in relation to:
a. the preparation of the bill of costs;
b. the review of the bill of costs;
c. the process of submitting the bill of costs;
d. response to submissions on the bill of costs; and
e. preparation of submissions to the review panel on appeal of the bill of costs.
The Category 6 documents comprise the legal file and supporting documents given to the Costs Consultants to prepare the bill. I accept that the material has apparent relevance. I further accept that the purpose of Aussie Lawyers providing this material to Ms Morson was for Ms Morson (a solicitor and costs expert) to provide expert legal advice as to the appropriate costs in the context of a costs dispute.
Aussie Lawyers submits that this latter fact alone means that litigation privilege attaches to the whole file and it has not been waived (except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025). However, as I understand s 119 of the Evidence Act, that submission cannot be accepted. It is not the provision of the file to Ms Morson which attaches privilege to the whole file, even though the provision of the file was made for the purposes of legal advice in the context of litigation. Rather, it is necessary to consider whether each document within the file contained or comprised a confidential communication made for the dominant purpose of the client being provided with professional legal services in relation to (relevantly) an Australian proceeding in which the client is a party.
Taking this approach, it is still appropriate to consider the question of privilege. I take into account Mr Canceri’s Privilege Log which has listed each document in the file in relation to which privilege is claimed, and the basis for such claim. He has not claimed privilege in relation to every document. Despite some oral submissions by Senior Counsel for the State to the effect that the Privilege Log consisted, in part, of rote claims for privilege, and the claim for privilege in some instances did not appear to be justified, I am not in a position, without Mr Canceri being cross-examined, to second-guess the matters set out by him in the Privilege Log. As set out above at [39], Mr Canceri stated that the descriptions given were framed in general terms so as not to reveal the substance of any privileged communications. I accept the claims for privilege made by Mr Canceri.
Accordingly, I set aside Category 6 of the Aussie Lawyers Subpoena except to the extent that it requires Aussie Lawyers to produce the documents over which privilege is not claimed as set out in the Privilege Log annexed to the affidavit of Adam Canceri dated 9 September 2025, and also except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025.
As to Category 7, it is submitted on behalf of Aussie Lawyers that the correspondence sought by the subpoena is privileged, other than sub-category (c), which relates to the process of submitting the bill of costs. First, as to sub-category (c), I cannot see the apparent relevance of this sub-category. As to the remaining sub-categories, they are apparently relevant, but I am of the view, on the basis of the description of the documents themselves, that they attract client legal privilege and/or litigation privilege. Further, I am not of the view that that privilege has been waived (except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025). I cannot see why the concession of mistakes and the production of file notes by Mr Canceri in relation to two of the three days particularly targeted by Mr Condon is conduct inconsistent with the maintenance of privilege, especially when considered in light of the contested issues in the substantive matter.
Accordingly, I set aside Category 7 of the Aussie Lawyers Subpoena (except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025).
Categories 2, 3 and 4:
[2] A copy of all correspondence between Charlotte Morson or any other staff member of The Legal Costs Consultants Pty Ltd, and Aussie Lawyers Pty Ltd in relation to the matter of Christopher Rizzo v State of NSW – District Court of NSW proceeding number 2022/00159828.
[3] All documents provided by Aussie Lawyers Pty Ltd to The Legal Costs Consultants Pty Ltd in respect of the preparation of the bill of costs in Christopher Rizzo v State of NSW – District Court of NSW proceeding number 2022/00159828.
[4] All correspondence between The Legal Costs Consultants Pty Ltd and Aussie Lawyers Pty Ltd in respect of submissions in respect of the bill of costs and the costs assessment appeal process in Christopher Rizzo v State of NSW – District Court of NSW proceeding number 2022/00159828.
As to all of these categories, I am of the view, based on the description of the documents themselves, that they are subject to client legal privilege and/or litigation privilege and for the reasons set out above that has not been waived (except to the extent that it requires Aussie Lawyers to produce the documents over which privilege is not claimed as set out in the Privilege Log annexed to the affidavit of Adam Canceri dated 9 September 2025, and also except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025).
Accordingly, I set aside categories 2–4 of the Costs Consultants subpoena pursuant to UCPR r 33.4 and order that the Costs Consultants only be required to produce those documents referred to in the above paragraph.
Finally, for completeness, I note that paragraph 1 of each of the subpoenas simply seeks a copy of the subpoena itself.
As to the subpoena to produce issued to Aussie Lawyers Pty Ltd, I make the following order:
Except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025 and/or over which privilege is not claimed as set out in the Privilege Log annexed to the affidavit of Adam Canceri sworn on 9 September 2025 the subpoena be set aside.
As to the subpoena to produce issued to The Legal Costs Consultants Pty Ltd, I make the following order:
Except in relation to the documents exhibited to the affidavit of Adam Canceri sworn on 4 April 2025 and/or over which privilege is not claimed as set out in the Privilege Log annexed to the affidavit of Adam Canceri sworn on 9 September 2025 the subpoena be set aside.
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State of New South Wales
Rizzo [2025] NSWSC 1340
(1976) 135 CLR 674
(2006) 155 FCR 30
(2016) 339 ALR 635