Resistance to inspection of subpoenaed documents & Costs

Boorman and Ors v Glaxo Wellcome Australia Pty Ltd [2017] NSWSC 576 is an interlocutory decision in the context of a claim against a pharmaceuticals manufacturing company as described at [6]:

On various dates in the 1970s and 1980s each plaintiff underwent a radiographic procedure known as a myelogram to obtain images of the spine and parts of the nervous system. Each plaintiff alleges that for the purposes of this procedure he or she was given an injection into the spinal column of an oil based contrast medium manufactured by the defendant under the name Myodil. It is alleged that this fluid caused inflammation of a layer of the meningeal sheath around the spinal cord, leading to the formation of scar tissue and causing adhesion of nerve fibres in the spine. This is a condition known as adhesive arachnoiditis. It has resulted in the plaintiffs’ nerves clumping together and causing symptoms which have included severe pain in the lumbar spine and lower limbs.

The plaintiff had resisted inspection of subpoenaed documents (relevant to a limitation defence) but later consented, once the defendant had litigated the question of inspection. The court was required to determine whether the plaintiff was justified in resisting inspection and the costs orders to be made.

At [50] the court concluded that the plaintiffs were not justified in resisting production of the subpoenaed documents for inspection and that they must pay the defendant’s costs of and incidental to the notice of motion. The court further held at [54] that by the applicable standard of the reasonably competent solicitor it should have been evident to the solicitors that their clients had acted in the litigation inconsistently with maintaining privilege over, at least, the significant number of documents tendered by way of example and that the defendant’s notice of motion should not have been resisted. Accordingly the solicitors were ordered to pay the costs.


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