In Parry v Kennedy & Anor  QCA 239,
the Queensland Court of Appeal has upheld a decision by the Supreme
Court of Queensland to reject a solicitor's request for
reimbursement of substantial loss and expense incurred in complying
with a subpoena requiring him to give evidence at
The appellant was a solicitor who was subpoenaed to give
evidence in relation to estate litigation for the respondents. The
appellant had previously acted for the respondents in the estate
The appellant originally sought an order from the Supreme Court
of Queensland that the respondents pay him $45,000.00 as
reimbursement of loss and expenses in complying with the subpoena.
The bulk of the costs were said to have arisen from the appellant
obtaining legal advice from his firm and from junior and senior
counsel in relation to claiming legal professional privilege.
The primary judge, Justice Lyons, concluded it was not
reasonable for an experienced solicitor to seek independent legal
advice about his obligations in these particular circumstances. Her
Honour concluded the appellant's reasonable costs of complying
with the subpoena amounted to $800.00.
On appeal, the appellant argued the primary judge erred in not
finding the appellant had properly sought the independent legal
The appellant also attempted to challenge the primary
judge's finding that he was an 'experienced solicitor'.
The appellant was admitted as a solicitor in 1979, was a director
of the company that ran the legal firm and had been a 'founding
partner' of the firm.
He ran the estate litigation. Taking these facts into account,
the Court of Appeal found the trial judge was entitled to assume
the appellant was competent to understand what a privileged
occasion was. Furthermore, the appellant's former client would
be present and represented by a solicitor and counsel at the trial.
The primary judge considered the applicable rule that the
'privilege belonged to the client...not the solicitor' and
that the appellant, as the solicitor, had no independent interest
in maintaining or waiving the legal professional privilege',
but was dependent upon the attitude of his client.
The appellant also attempted to argue that there was nothing in
the primary judge's reasons that indicated a circumstance that
disentitled him from recovering costs, much less that he should be
ordered to pay the respondent's costs.
The Court of Appeal rejected this argument. It was held the
primary judge was entitled to consider that the application,
brought by a senior solicitor who had practiced litigation, was
lacking in merit. Furthermore, the discrepancy in the amount
nominated and the amount awarded was vast. In these circumstances
it was open to the trial judge to order the appellant pay the
The Court of Appeal ordered costs be assessed on an indemnity
basis due to a general lack of merit in the appeal, and the fact
the appellant mounted his appeal on the false basis that the only
reasons given by the primary judge were to be derived from remarks
made by her Honour in the course of argument. This case serves as a
lesson to both solicitors and to those commissioning expert
evidence as to the reasonableness of expenses incurred and claimed
when answering a subpoena.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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