Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd
[2007] WASC 276 (S)
AREVA NC (AUSTRALIA) PTY LTD -v- SUMMIT RESOURCES (AUSTRALIA) PTY LTD [2007] WASC 276 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 276 (S) | |
| Case No: | COR:114/2007 | ON THE PAPERS | |
| Coram: | MARTIN CJ | 23/10/07 | |
| 31/01/08 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to pay Mr Ian M Lishman's costs incurred in complying with the subpoena in the amount of $8,138.23, inclusive of GST | ||
| B | |||
| PDF Version |
| Parties: | AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782) SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078) RESOLUTE LTD (ACN 009 069 014) MT ISA URANIUM PTY LTD (ACN 064 536 483) SUMMIT RESOURCES LTD (ACN 009 474 775) IAN MICHAEL LISHMAN |
Catchwords: | Practice and procedure Costs Costs of compliance with subpoena |
Legislation: | Rules of the Supreme Court 1971 (WA), O 36B, r 11 |
Case References: | Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276 Deposit & Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267; 289 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 1 FEBRUARY 2008 FILE NO/S : COR 114 of 2007 BETWEEN : AREVA NC (AUSTRALIA) PTY LTD (ACN 003 337 782)
- Plaintiff
AND
SUMMIT RESOURCES (AUSTRALIA) PTY LTD (ACN 009 188 078)
First Defendant
RESOLUTE LTD (ACN 009 069 014)
Second Defendant
MT ISA URANIUM PTY LTD (ACN 064 536 483)
Third Defendant
SUMMIT RESOURCES LTD (ACN 009 474 775)
Fourth Defendant
(Page 2)
Catchwords:
Practice and procedure - Costs - Costs of compliance with subpoena
Legislation:
Rules of the Supreme Court 1971 (WA), O 36B, r 11
Result:
Plaintiff to pay Mr Ian M Lishman's costs incurred in complying with the subpoena in the amount of $8,138.23, inclusive of GST
Category: B
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Mr Ian M Lishman : No appearance
Solicitors:
Plaintiff : Minter Ellison
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Mr Ian M Lishman : Mallesons Stephen Jaques
(Page 3)
Case(s) referred to in judgment(s):
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276
Deposit & Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267; 289
(Page 4)
1 MARTIN CJ: These reasons are concerned only with the assessment of the costs to be paid by the plaintiff, Areva NC (Australia) Pty Ltd (Areva), to Mr Ian Michael Lishman (Mr Lishman) in respect of the losses or expenses incurred by him in complying with a subpoena to produce documents issued by Areva.
2 The circumstances in which the subpoena was issued, and the procedure followed prior to its issue, are set out in my reasons for decision dated 23 October 2007 - Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276.
3 In summary, Mr Lishman is a member of a firm of solicitors, Cochrane Lishman, who were advising Summit Resources Ltd and Summit Resources (Australia) Pty Ltd (the Summit parties) in relation to a number of issues, including the proceedings between Summit Resources (Australia) Pty Ltd and Resolute Ltd and Mt Isa Uranium Pty Ltd (being CIV 2021 of 2006). The parties for whom Mr Lishman acted are, of course, parties to these proceedings. However, Mr Lishman submits, and Areva accepts, that the fact that he is entitled to an indemnity from those parties in respect of losses or expenses incurred by him in complying with the subpoena does not disentitle him to an order that Areva pay those costs. Because both parties accept that proposition, I will proceed upon that assumption, without being taken to determine that assumption to be correct in all circumstances.
4 The subpoena required Mr Lishman to produce, and he did produce, documents falling within the following categories:
(1) All drafts of the 5 July letter.
(2) All documents evidencing or recording any instructions given to Cochrane Lishman by any person to provide advice to Summit Resources Limited in connection with the Supreme Court proceedings CIV 2021 of 2006.
(3) All documents evidencing or recording any instructions given to Cochrane Lishman by any person in relation to the preparation and content of the 5 July letter.
(4) All documents evidencing or recording any material or information relied upon by Michael Lishman, or any person assisting him, in the preparation of the 5 July letter, save to the extent that such documents have been discovered in proceedings CIV 2021 of 2006.
(Page 5)
- ("5 July letter" means the letter dated 5 July 2007 from Cochrane Lishman to Mr Mal Randall and Mr David Berrie, a copy of which was an attachment to a letter dated 10 August 2007 from Cochrane Lishman to Mr Ron Forster at Minter Ellison, including any drafts of that letter.)
5 Mr Lishman only seeks an order for losses and expenses incurred in producing documents within categories 2 and 4. He does not seek any order in respect of any costs, losses or expenses incurred in producing documents falling within categories 1 or 3, or in respect of the contested hearing which preceded the issue of the subpoena.
6 Mr Lishman seeks an order pursuant to O 36B r 11 of the Rules of the Supreme Court 1971 (WA) which provides:
(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs.
(3) An amount fixed under this rule is separate from and in addition to -
(a) any conduct money paid to the addressee; and
(b) any witness expenses payable to the addressee.
(a) Collating and listing category 2 and 4 documents - technology support - $6,768.00;
(b) Collating and listing category 2 and 4 documents - lawyer support - $6,055.00;
(c) Legal advice regarding documents - $18,991.50.
(Page 6)
8 In addition, the invoice includes an amount for disbursements described as:
e-file - Agent's Fee - 8.11.07 1,798.39
- All these amounts are exclusive of GST.
9 Mr Landis deposes that the work included technology support in collating the documents within category 2 and 4 which had been identified by Mr Lishman (that work having been completed by paralegals). Although the text of Mr Landis' affidavit does not condescend to detail, I infer that this is the work the subject of the itemised amount of $6,768 in the invoice to which I have referred.
10 Mr Landis also deposes that the work done by Mallesons included work done by junior lawyers who assisted in listing the documents within categories 2 and 4 which had been identified by Mr Lishman. Again, although the affidavit does not say so expressly, I infer that this is the work itemised in an amount of $6,055 in the invoice to which I have referred.
11 Mr Landis also deposes that the work included the provision of advice to Mr Lishman regarding compliance with categories 2 and 4, and that the two lawyers who provided that advice were Ben Luscombe and Mr Landis, whose hourly rates were $560 and $405 respectively. Again, although Mr Landis does not say so expressly, I assume that this is the work itemised in the amount of $18,991.50 in the invoice to which I have referred.
12 Mr Landis also deposes that the copying of the documents was outsourced to an independent organisation specialising in copying documents, which organisation charges 11 cents per page per documents copied. Again, although the affidavit does not say so expressly, I assume that this is the disbursement in the amount of $1,798.39 shown on the invoice to which I have referred.
13 Mr Landis also deposes that he was informed by Mr Lishman that he spent approximately 25 hours searching for and collating the category 2 and 4 documents. Mr Lishman informed Mr Landis that his hourly rate at the time that work was undertaken was $560. Although it is not expressly stated in Mr Landis' affidavit, I assume that amount is exclusive of GST.
14 It will thus be seen that the fees charged by Mallesons to Mr Lishman, in respect of the work undertaken on his behalf, and Mr Lishman's time, charged at his normal hourly rate, exceeds $40,000.
(Page 7)
- However, Mr Lishman submits that in all the circumstances, an amount of $15,000 would be reasonably fixed by the court to reimburse his expenses pursuant to O 36B r 11.
15 Areva points out that only nine documents were identified by Mr Lishman falling within category 2 of the subpoena, and that category 4 involved the production of 'much of the material' (an expression taken from Mr Lishman's affidavit of 22 October 2007) on the file maintained by Mr Lishman relating to action CIV 2021 of 2006. Areva further points out that identifying the material which Mr Lishman relied upon in order to prepare his letter of 5 July is a task which could only be undertaken by Mr Lishman himself. Having regard to these submissions, which I accept, and the material in Mr Landis' affidavit and the Mallesons' invoice, I conclude that all of the work done identifying and assembling the documents falling within categories 2 and 4 of the subpoena was done by Mr Lishman, and that the work done by Mallesons was work done collating and listing those documents in terms of the list which was attached to Mr Lishman's affidavit of 12 October 2007, together with legal advice in relation to matters associated with the production of those documents. Privilege is claimed in respect of that advice, and so I do not know what that advice related to. However, it is difficult to see how any advice would have been required in relation to the relatively straightforward task of identifying and assembling the documents falling within categories 2 and 4, as those categories are described in straightforward terms which should have been readily understood by Mr Lishman.
16 A party producing documents to the court under subpoena is not required to list those documents. It was Mr Lishman's choice to instruct Mallesons to undertake that task. Accordingly, I conclude that the fee rendered to Mr Lishman by Mallesons in respect of that work is not a loss or expense reasonably incurred by Mr Lishman in complying with the subpoena, but rather, is a loss or expense incurred by him either for his own benefit or for the benefit of the Summit parties he was advising.
17 Similarly, as privilege has been claimed in respect of the advice given by Mallesons, and on the material available to me, it is not reasonable to infer that the advice related to the work done in identifying and assembling the documents produced on subpoena. It is not open to conclude that the advice given by Mr Luscombe and Mr Landis was a loss or expense reasonably incurred by Mr Lishman in complying with the subpoena. All that was required to comply with the subpoena was to identify and assemble the documents falling within categories 2 and 4,
(Page 8)
- and there is no evidence to the effect that the undertaking of that task required the provision of legal advice.
18 Accordingly, I conclude that the only expenses falling within the Mallesons' invoice of 20 November 2007 which are potentially recoverable by Mr Lishman under O 36B r 11 are the copying costs recorded as a disbursement, in the amount of $1,798.39 (plus GST).
19 Mr Lishman is entitled to reimbursement for the time he spent identifying and assembling copies of documents falling within the relevant categories at his normal hourly rate - see Deposit & Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell & Co(1996) 39 NSWLR 267; 289. Mr Landis deposes that Mr Lishman has informed him that 25 hours was spent undertaking that task. That is between three and four days of full-time work. In the absence of direct evidence from Mr Lishman, given that only nine documents were produced within the second category of documents, and that the bulk of the documents produced within the fourth category would have been found on a file which he maintained in relation to CIV 2021 of 2006, it is difficult to accept that between three and four days of full-time work was reasonably required to identify and assemble the documents falling within categories 2 and 4 in the subpoena. In the absence of some greater information as to the work undertaken by Mr Lishman, I would have thought that work could and should have been readily performed within 10 hours at the most. At Mr Lishman's normal hourly rate, that would reflect a loss of revenue earning time in an amount of $5,600. To that amount I would add the copying expenses identified on the Mallesons' invoice in the amount of $1,798.39, producing a total of $7,398.39. GST should be added to those amounts, giving a total of $8,138.23.
20 For these reasons, I order Areva to pay Mr Lishman's costs and expenses incurred in complying with the subpoena in the amount of $8,138.23, such amount to be paid within 21 days.
0
2
0