Supreme Court New South Wales

• Medium Neutral Citation: Hall v Donlon [2011] NSWSC 1088
• Hearing dates: Wednesday, 31 August 2011
• Decision date: 31 August 2011
• Jurisdiction: Equity Division - Duty List
• Before: Brereton J

Decision

Respondent attend court and produce subpoenaed documents.

• Catchwords: PRACTICE AND PROCEDURE - Subpoenas - solicitor fails to comply with subpoena for production - failure of issuer to provide conduct money - conduct money only mandatory for subpoenas to attend to give evidence - asserts failure to reach agreement as to costs incurred in complying with subpoena - Court has discretion to make costs orders for expenses incurred in complying with subpoena - discretion ordinarily occur post compliance - solicitor claims possessory lien entitling to refuse to produce - solicitor cannot simply disregard subpoena - solicitor must take positive steps to have subpoena set aside or oppose inspection.
• Legislation Cited: (NSW) Civil Procedure Act 2005, s 68, s 97; (NSW) Uniform Civil Procedure Rules, r 33.6, r 33.11
• Cases Cited: Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253; Tyneside Property Management Pty Ltd & Ors v Hammersmith Management Pty Ltd & Ors [2011] NSWSC 156
• Category: Procedural and other rulings
• Parties: Ernest Hall & Sons P/L (plaintiff); Bernard James Donlon (first defendant); Shirley Alice Donlon (second defendant)
• Representation: Ms C Watson (solicitor) (plaintiff); Mr G Doherty (defendants); Mr Hancock (solicitor) in person (respondent); Bansgroves Lawyers (plaintiff); Finn Roache (defendants)
• File Number(s): 11/132749

Judgment (ex tempore)

1 HIS HONOUR: By notice of motion filed on 22 August 2011, the defendants Bernard James Donlon and Cheryn Donlon seek an order pursuant to (NSW) Civil Procedure Act 2005, s 97, for the issue of an arrest warrant for the arrest of Mr John Leslie Hancock for non-compliance with a subpoena to produce certain documents to the court.

2 Mr Hancock is a solicitor. Although there is some dispute about it, he claims that he formerly acted for the defendants and incurred costs. He has put into evidence a ledger and bills of costs, which tend to establish a solicitor/client relationship between himself and the defendants; at least, the contrary is not established.

3 The evidence also establishes that the subpoena was served on his office and came to his notice not later than the last date for service specified in the subpoena, namely 25 May 2011. Since its first return date on 2 June 2011, documents have been not produced, and the subpoena has been adjourned from time to time until the present day.

4 Essentially, Mr Hancock raises three objections which he says explain and excuse his non-compliance with the subpoena. The first is that no conduct money was tendered. However, the subpoena was a subpoena for production of documents. The requirements for the handing over or tendering of conduct money to an addressee are expressed in (NSW) Uniform Civil Procedure Rules 2005, r 33.6(1), as being limited to a subpoena to attend to give evidence. Thus the requirement for handing over or tendering conduct money does not apply to subpoenas for production. This objection is spurious.

5 The second objection raised was that an agreement had not been reached as to payment of his costs of compliance with the subpoena. The defendants are said to have given an undertaking to pay Mr Hancock's reasonable costs. There is a dispute as to whether that was sufficient, and as to what were reasonable costs. However, the absence of agreement or payment of costs and expenses of compliance is not a legitimate objection to production of documents in compliance with a subpoena. The court is given a discretion to order an issuing party to pay the amount of any reasonable losses or expenses incurred by the addressee in complying with the subpoena [UCPR, r 33.11]. Ordinarily, that question is determined after compliance with the subpoena, when the addressee has incurred expenses [ Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253, [15]]. In Re Bauhaus, Austin J observed (at [16]) that whilst UCPR, r 33.11, does not expressly state that the Court has jurisdiction to entertain an application for an order to be made prior to the addressee incurring expenses, the Court may, under its inherent jurisdiction, have such jurisdiction which might be exercised in circumstances where the amount to be incurred will be substantial when compared with the resources of the addressee and/or there is doubt about the ability of the issuing party to meet an order for recovery of such expenses. No application was made under this rule. This objection was not a proper basis for resisting compliance.

 

6 The third basis was that Mr Hancock claimed a possessory lien over the defendants' documents and materials for his unpaid costs. I reviewed the law in this area in Tyneside Property Management Pty Ltd & Ors v Hammersmith Management Pty Ltd & Ors [2011] NSWSC 156. It is true that in that, and in some of the earlier judgments on the topic, it has been said that a solicitor can refuse to produce documents in answer to a subpoena for production, over which the solicitor has a possessory lien, where the subpoena is issued by or at the instance of the former client. That would be better expressed as that the court will not require a solicitor to produce documents the subject of a lien in those circumstances. It is not as if the solicitor has a right to disregard the subpoena; the proper process to be followed in such a scenario is that if the solicitor wishes to resist production of the documents to the court, he or she should make an application to have the subpoena set aside. Alternatively, the solicitor could produce the documents to the court but oppose inspection being permitted. What is clear is that the solicitor cannot simply disregard the subpoena.

7 Whatever the position originally was, the evidence establishes that payment of the principal amount of outstanding costs - being $3,400.64 for solicitors costs and $3080 counsel's fees - was tendered by cheques in those amounts on 18 and 19 August 2011 respectively, albeit that they were expressed to be without admission that the amounts claimed were due and owing. The only outstanding question now is that of interest. Counsel's fee note contained a note that interest was payable at the rates prescribed by the rules of courts for interest on unpaid judgment debts. The solicitors fee notes contain a statement that "Interest may be charged at the current rate of 10% prescribed by regulation 10 A of Legal Professional Regulation on any bill of costs that remains unpaid after thirty days". In the correspondence, there has been reference on the part of Mr Hancock to the claim for interest and an indication that he will accept, in satisfaction of his and counsel's fees, a total sum, initially indicated to be $6,750 and subsequently $6,500. When the court asked today what the interest claimed was, it was indicated that it was that sum of $400.

8 Although the court made a direction on 21 June 2011 that Mr Hancock file any motion to set aside the subpoena by 28 June 2011, no such motion was filed. In those circumstances, and having regard to the very slight amount in question, I do not think that the outstanding claim for interest should any longer remain an objection to production of the documents. In my view, whatever merit there was in Mr Hancock's position was lost when he failed to take the step he ought to have taken in compliance with the Court's direction of 21 June 2011 by filing a motion to set aside the subpoena by 28 June 2011. It ought to have been on his application that the matter came before the court, rather than it being left to the defendants to bring the matter to the court even after the principal fees were paid.

9 My orders are as follows:

1. Pursuant to Civil Procedure Act , s 68, order that at 10am on Wednesday 7 September 2011, John Leslie Hancock attend before the Court at court 2, Hospital Rd complex, Queen's Square Sydney and produce to the Court the documents described in the schedule to the subpoena issued on 18 May 2011.

2. Order that the respondent pay defendants' and the plaintiff's costs of the motion.

**********

Decision last updated: 16 September 2011