Bank of New South Wales v Withers

[1981] FCA 52

Re: BANK OF NEW SOUTH WALES
And: GARY RAYMOND WITHERS and DENISE JOY WITHERS (1981) 52 FLR 207
No. G41 of 1978
Practice and Procedure - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Practice and Procedure - subpoena to produce documents served on bank - bank put to expense in retrieving, collating and copying documents - bank not entitled to recover expenses from party issuing subpoena.

Practice - Subpoena to produce documents served on bank - Whether bank can recover expense of searching out, gathering and photocopying documents from party issuing subpoena - Federal Court of Australia Act 1976 (Cth), ss. 4, 43 - Federal Court Rules, O. 27, r. 3; O. 62, r. 21, Second Schedule - High Court Rules, Second Schedule.

HEADNOTE

The respondents to the notice of motion were the applicants in an action under the Trade Practices Act 1974.

During the course of that proceedings, the respondents' solicitors served subpoenas on the Bank of New South Wales for the production of certain documents, with which the bank complied. Shortly thereafter the action was settled. The bank then sought to recover its expenses of searching out, gathering and photocopying the documents in compliance with the subpoenas.

Held: (1) Under the general law a person served with a subpoena, whether to give evidence or produce documents, was entitled to recover in an independent action at common law his expenses of attending court (that is, a reasonable sum for his travelling expenses and for his sustenance during the time he was required to remain away from his usual place of abode or business). The action lay against the party on whose behalf the subpoena was issued and not, except in special circumstances, against the solicitor who caused it to be issued.

(2) But no such person, except apparently a doctor or a solicitor (query other professional people) was entitled to any reimbursement for loss of time or of earnings as the result of his being absent from his profession, business or employment.

(3) When rules of court eventually provided for the payment of daily allowances to witnesses from various vocations the position changed. A person served with a subpoena was then able to recover also the amount of such allowance in addition to his travelling expenses and an amount for his sustenance. But the amount he could recover was limited to the amount provided for in rules of court.

(4) There is no provision in the Federal Court of Australia Act 1976, the Federal Court Rules or the Second Schedule to the rules, nor in the Second Schedule to the rules of the High Court, which contemplates an allowance to a witness for the time occupied in searching out and collating documents or the expense of copying documents required to be produced pursuant to a subpoena.

(5) Accordingly, the bank was not entitled to recover the expenses which it claimed.

(6) A proceeding of this kind should be brought by way of separate application and not by way of notice of motion in the proceedings in which the subpoena was issued. The Federal Court has jurisdiction to hear and determine such an application made in respect of expenses incurred in complying with a subpoena issued in proceedings otherwise within the court's jurisdiction.

Hallet v. Mears (1810), 13 East 15; 104 ER 271; Goodwin v. West (1639), Cro Car 540; 79 ER 1066; Pell v. Daubeny (1850), 20 LJ Ex 44; Collins v. Godefroy (1831), 1 B & Ad 950; 109 ER 1040; Re Working Men's Mutual Society (1882), 21 Ch D 831; Chamberlain v. Stoneham (1889), 24 QBD 113; The Ibis VI, (1921) P 255; Commissioner for Railways (N.S.W.) v. Small (1938), 38 SR (NSW) 564; Pritchard v. Walker (1827), 3 C & P 212; 172 ER 391, referred to.

HEARING

Sydney, 1980, July 10; 1981, May 11. #DATE 11:5:1981

NOTICE OF MOTION.

Application for expenses incurred in complying with subpoena to produce documents.

D. Cowan, for the applicant.

H. Emmett, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Henry Davis York.

Solicitors for the respondents: N.G. Green & Co.

J. ISLES

ORDER

1. The Notice of Motion be dismissed.

2. The Bank of New South Wales pay the costs thereof of the respondents thereto Gary Raymond Withers and Denise Joy Withers.

JUDGE1

The question raised by the notice of motion taken out by the Bank of New South Wales in this matter is whether the Bank is entitled to recover from persons who caused subpoenas to produce documents to be served upon it, its expenses of searching out and gathering documents in order to comply with the subpoenas.

The above numbered matter was a proceeding in which the respondents to the motion sued N.S.W. Mutual Real Estate Fund Limited and Members Management Pty. Limited for damages for breaches of the Trade Practices Act 1974. The proceedings were set down for hearing on 8 July, 1980, and were settled. It is unnecessary to refer to the detail of the orders which were then made by consent except to say that the respondents were ordered to pay the costs of the applicants, they being the respondents to this application. I shall hereafter refer to them as the respondents.

On 1 July, 1980, the solicitors for the respondents caused a subpoena to produce documents to be served upon the Bank of New South Wales, the applicant in the present motion to which I shall hereafter refer as the Bank. With the subpoena was tendered the sum of $2 for conduct money. The subpoena was in a usual form. It required the production of documents specified in a schedule which was as follows:
"All authorities, letters of instruction, and other documents relating to any account kept by the first respondent, the second respondent or Newbridge Finances Pty. Limited (formerly NSW Mutual Loans Agency Pty Limited), at the Bank of New South Wales (including account no. 032 006 68 177160) forwarded to the bank by the first respondent, the second respondent or Newbridge Finances Pty Limited (NSW Mutual Loans Agency Pty Limited)."

On 4 July, 1980, a further subpoena was served upon the Bank. It also required production of the documents specified in its schedule which was as follows:
"(a) All authorities, letters of instruction and other documents forwarded to the bank for the first or second respondents or by Newbridge Finances Pty Limited (in liquidation) in regard to the operation of any Bank of New South Wales account (including account no. 006 68 177 160) operated by the first or second respondents or by Newbridge Finances Pty Limited (in liquidation) (formerly NSW Mutual Loans Agency Pty Limited).
(b) All correspondence, bank statements, authorities directions and other documents forwarded to the bank by the first or second respondents or by Newbridge Finances Pty Limited (in liquidation) (formerly NSW Mutual Loans Agency Pty Limited) or by any other parties in connection with the operation of account no. 006 68 177 160 in so far as this account relates to the payment of calls or other banking transactions relating to NSW Mutual Real Estate Fund Limited Loan Priority Numbers 291, 329, 1148, 1149, 1404 and 1405 from January 1973 to date."
The evidence discloses that it was the intention of the respondents' solicitors to substitute the later subpoena for the earlier one.

After service of the first subpoena, one of the Bank's officers, Mr. McGraw, had a discussion with the respondents' solicitor. He told him that there were difficulties in complying with the subpoena because -
"(a) the subpoena was not limited as to time;

(b) the customer's account had a statement produced each working day from commencement;

(c) due to the branch's size, vouchers and records older than three years are stored at the Bank's Bankstown repository;

(d) vouchers are destroyed in accordance with the Bank's policy after four years;

(e) from 4 March, 1977 the Bank commenced microfilming its statement records;

(f) the only account within the subpoena works on a building society basis and the account specified has a trancode 60 operation which involves personalised deposit forms recorded on daily statements. In the case of an individual loan account as was referred to in the subpoena, all statements during the relevant period would have to be extracted to show the operation of a particular account number."

Mr. McGraw sought advice from one of the Bank's legal officers as to the validity of the subpoena. The evidence does not disclose what advice he was given but the legal officer spoke to the respondents' solicitor who said that a further subpoena would be issued in a more limited form. That subpoena was, as I have mentioned, served on 4 July, 1980. The solicitor was told that there was no need to pay any further sum by way of conduct money.

The second subpoena was complied with. According to a schedule annexed to Mr. McGraw's affidavit the cost of complying with the subpoena amounted to $1,392.50. The principal component of this charge was $1,175 being the charge for 1,175 copies of accounts at $1 per copy. That was said to be the normal charge made by the Bank to its customers for duplicate statements. Apart from taxi fares the balance of the charge was made up by labour costs (charged at $10 per hour per officer) for the time of bank officers engaged in searching and copying at various places including the Bank's Bankstown Repository and Data Centre.

After it had been announced that the action brought by the respondents had been settled, a solicitor, Mr. Fuller, sought leave to appear for the Bank and said that the Bank wished to claim its expenses of producing the documents pursuant to the subpoena. I gave leave to the Bank to take out a motion for an order that the respondents pay its reasonable costs and expenses of complying with the subpoenas served upon it. Pursuant to this leave the motion now under consideration was taken out. It seeks orders that the respondent pay the Bank its costs and expenses of complying with the subpoenas and that the respondents pay its costs of the motion. Presumably, if an order is made, the respondents will seek to recover, upon taxation, the amount which they are obliged to pay from the respondents in the principal proceedings who were ordered to pay their costs.

An affidavit was filed in opposition to the motion by the respondents' solicitor, Mr. Carr-Gregg. He deals in more detail with his conversations with the Bank's officers and solicitor than does Mr. McGraw to whose evidence I have already referred, but I do not find it necessary to refer to much of the detail of his evidence. He was told that the account referred to in the first subpoena was a special account into which payments relating to hundreds of different loan priority number calls were paid by numerous shareholders of N.S.W. Mutual Real Estate Fund Limited. Mr. Carr-Gregg said that he told Mr. McGraw that he was under the mistaken impression that the account related to the respondents' calls only. He made it clear that he was only interested in the account insofar as it related to the calls paid on the respondents' shares. He thereupon specified precisely the documents he required. The second subpoena was subsequently served. Only those documents which were referred to in it were eventually produced by the Bank.

The principal proceedings were settled late on the afternoon of 7 July, 1980. Mr. Carr-Gregg was unable to speak to Mr. Fuller until the following morning when the matter was in the list. Mr. Fuller told Mr. Carr-Gregg that the Bank's expenses in producing the documents could be as much as $700. Mr. Carr Gregg said that he considered that that sum was excessive and would not be allowed as reasonable on taxation. Mr. Carr-Gregg told Mr. Fuller that the Bank should be represented when the settlement was announced later that morning. Mr. Fuller was present. I have already described what then took place.

At the hearing Mr. McGraw was cross-examined. It was suggested to him that the Bank had acted unreasonably in that it had copied far more pages of the accounts than was necessary. Mr. McGraw said that, although many of the pages which had been copied were not relevant, the bank officer in charge of the search had thought it more expeditious, having regard to the time limit which was involved, to copy the whole of the account and then to have bank officers search through it for the relevant entries. This was an exercise which could be done more efficiently in this way than by searching each page at the Bank's Data Centre. I accept Mr. McGraw's evidence in this regard. Questions were also asked Mr. McGraw as to the charge of $1 per page for copying. It was suggested that this charge was excessive. He said that it was what customers were charged for the supply of copies of their accounts. Later, after the evidence had concluded, counsel for the Bank said that the bank would be prepared to accept sixty cents per page instead of $1. I propose to adopt that figure as a reasonable charge. The figure of $1,175 will therefore be reduced to $705. To this sum must be added the balance of the Bank's expenses which amount to $217.50. I find that the Bank's reasonable expenses of complying with the second subpoena were $922.50. No claim is made in respect of any expenses incurred in complying with the first subpoena. No submission was made that the second subpoena was too wide or invalid for any other reason.

Those being my findings, I can now come to deal with the substance of the matter which is before me. By its notice of motion the Bank is seeking to recover from the respondents whose solicitor issued the second subpoena its reasonable expenses of complying therewith other than the attendance by one of its officers in court. No claim is made for the cost of that attendance presumably because the Bank is content with the $2 conduct money tendered when the first subpoena was served.

In my opinion the questions which are at issue are:-

(a) Omitting from consideration any question of jurisdiction, has the Bank a right to recover its expenses.

(b) If so, has this Court jurisdiction to give effect to the claim, whether in this proceeding or in some other proceeding, for example, an application separate from that instituted by the respondents in the principal proceedings.

(c) If there is a right to recover and jurisdiction in this Court to give effect to that right, is there any discretionary reason why that jurisdiction should not be exercised.

I deal with these questions in order. It should be clear at the outset that the case is not directly concerned with a question of costs. The term "costs" signifies the sum of money which the court orders one party to pay another party in respect of expenses of litigation incurred by him; Halsbury's Laws of England, 4th edn., para.1108, p.414. It will only be if the Bank is successful in its attempt to recover its expenses of complying with the subpoena that the further question will arise of whether the respondents are entitled to recover as part of the costs ordered to be paid to them by the respondents in the principal proceedings the amount which they are obliged to pay to the Bank. That is a matter which is not in question in these proceedings. If the Bank is successful, it will be for the taxing officer to decide whether the respondents (the applicants in the principal proceedings) should be entitled to include the sum to be paid by them to the Bank in the costs to be recovered by them from the respondents in the principal proceedings.

Notwithstanding those considerations it is necessary to have in mind some of the provisions of the Federal Court of Australia Act 1976, the Rules of this Court, and, by reference, the Rules of the High Court. One of these, s.43 of the Federal Court of Australia Act, I consider to have no relevance to the questions to be decided, but I mention it because reliance was placed upon it in argument. I refer to it first in order to put it out of the way.

The section provides that the Court or a judge has jurisdiction to award costs in all proceedings before the Court other than proceedings in respect of which another Act provides that costs shall not be awarded. The term "proceeding" is defined in s.4 of the Act to mean a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal. In the submission of counsel for the Bank the subpoenas were proceedings within the meaning of s.43 of the Act. Thus the Court had jurisdiction to make an order for the costs of the party upon whom the subpoena was served. I am prepared to assume, without deciding, that a subpoena may be a proceeding, but in my opinion the submission overlooks the ordinary meaning of "costs" to which I have earlier adverted. There is no indication that the legislature was using the word "costs" in other than its ordinary sense. It is true that provisions of the Rules made by the Judges pursuant to the Act cannot control its meaning. But it is plain that those responsible for the drafting of the Rules thought that the expression "costs" in the Act was used in its conventional sense. That would not permit of the expression including expenses incurred by a party upon whom a subpoena had been served in collecting documents production of which the subpoena required.

Of some relevance to the question now under consideration is Order 27 of the Rules dealing with the issue and service of subpoenas both for the attendance of witnesses to give evidence and for production. In Rule 1 of the Order "subpoena for production" is defined to mean an order in writing requiring the person named to attend as directed by the order and produce a document or thing for the purpose of evidence. "Subpoena to give evidence" means an order in writing requiring the person named to attend as directed by the order for the purpose of giving evidence. Rule 2 provides that the Court may, in any proceeding, issue a subpoena to give evidence, or a subpoena for production or a subpoena both to give evidence and for production in the prescribed form. Rule 6(4) provides that subpoenas are to be in or substantially in the forms numbered 41 to 43 in the First Schedule to the Rules. Rule 5 makes a special provision concerning banker's books. I do not refer to the detail of the forms. I note, however, that each bears an endorsement which says, "Failure to comply with this subpoena may constitute contempt of court and may result in your arrest or in the case of a corporation an order of sequestration may be made". In the case of subpoenas to give evidence the reference to sequestration is omitted upon the basis that the person to whom the subpoena is directed must be a natural person. The subpoenas issued in the present case complied with the Rules in that they were in accordance with Form 41.

The remaining relevant provision of Order 27 is Rule 3 which provides:
"A person named shall be excused from complying with a subpoena requiring him to attend or produce any document or thing on any day on which his attendance is required unless a sum sufficient to meet his reasonable expenses of complying with the subpoena in relation to that day is paid or tendered to him at the time of service of the subpoena or not later than a reasonable time before that day."

In my opinion the expenses referred to in Rule 3 are the expenses required to enable the person served to come to court. In other words, the provision is one concerned with the payment of what is known as conduct money as distinct from expenses incurred before the person served actually comes to court. That is how both counsel agreed that it should be interpreted. There was no submission that it had not been complied with. The Bank waived its entitlement to further conduct money in relation to the second subpoena.

I next refer to Order 62 which deals with costs. Rule 6 of that Order provides that, subject to the exceptions mentioned, a party to a proceeding in the Court shall not be entitled to recover any costs of and incidental to the proceeding from any other party to the proceeding except under an order of the Court. Rule 12 provides that except as otherwise ordered, solicitors are, subject to the Rules, entitled to charge and be allowed the fees set forth in the Second Schedule in respect of the matters referred to in that Schedule. I shall come to the Second Schedule in a moment. Before I do so I refer to Rules 19, 20 and 21. The first of these provides that on every taxation the taxing officer shall allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party. Rule 20 provides that, subject to the exception mentioned, a disbursement shall not be allowed which has not been actually made before the delivery of the bill of costs. Rule 21 provides:
"The taxing officer may in his discretion allow such sum as he thinks just and reasonable having regard to all the circumstances of the case for work and labour properly performed and not specifically provided for in the Second Schedule in respect of work and labour for which, in his opinion, an allowance should be made."

The Second Schedule to the Rules, referred to in Rule 12, provides in paragraph 1 that solicitors are entitled to charge and be allowed the costs set out in the Second Schedule to the High Court Rules as varied from time to time until such times as another schedule is prepared providing for a scale of costs of proceedings in the court. Paragraph 3 of the Schedule provides that writs of subpoena referred to in the Second Schedule to the High Court Rules shall be deemed to include subpoenas issued from the Federal Court in accordance with Order 27 of its Rules.

The Second Schedule to the High Court Rules provides a scale of costs for work done by solicitors. The scale operated from 1 February, 1976. The amounts provided for in it have been increased, firstly by 20 per cent as from 31 March, 1978, and then by approximately a further 30 per cent from 1 March, 1981. Paragraphs 101 and 102 of the Schedule provide for witnesses' expenses and disbursements. The relevant portions of those paragraphs are as follows:
"101 Witnesses called because of their
professional, scientific or other
special skill or knowledge 45.00

225.00

Witnesses generally 25.00

Or, if remunerated in their occupations by wages, salary or fees, the amount lost by the witness by the attendance of the witness, not exceeding $50 per day of attendance."

"102 All court fees, counsel's fees and other fees and payments to the extent to which they have been properly and reasonably incurred and paid shall be allowed."

The amounts were those provided for in 1976. I have not thought it necessary to show any increases brought about as a result of the changes made in 1978 and 1981.

It should be clear that the taxations of costs which are contemplated by the provisions of Order 62 will usually, if not entirely, be taxations as between party and party. The task of the taxing officer will be to quantify the amount of the order for costs which the court has made against one party for the benefit of the other. The taxing officer will not usually be concerned with the question of what the claiming party is ultimately charged by his own solicitor. Rather the taxing officer is concerned with quantifying the amount of the indemnity to which the party is entitled. It may be that the successful party will be charged costs or debited with expenses which the taxing officer, in accordance with the Rules, will decide are not properly recoverable against the other party. That does not mean that such costs and expenses may not, provided they were reasonably charged or incurred, properly be recovered by the solicitor from his client. For such costs and expenses the client will be in the same position as an unsuccessful party who is bound to pay his solicitor's reasonable charges and the amount of expenses reasonably incurred on his behalf. What is reasonable may eventually be a matter for a taxing officer upon a solicitor and client taxation. But that does not affect the thrust of what I am now saying. The Rules and the provisions of the Schedules to which I have referred will usually be referred to in order to determine what amount the successful party is entitled to receive from his adversary for the costs which his adversary has been ordered to pay. Nevertheless, as the authorities to which I am about to refer will show, certain of the provisions of the Rules and the Schedules to which I have referred have a relevance to the question which is here to be decided.

I turn to consider those authorities. A starting point for that exercise is s.12 of the Imperial Act 5 Elizabeth c.9 (repealed). The section provided that if any person or persons upon whom any process out of any of the courts of record within the realm should be served to testify or depose concerning any cause or matter pending in any of those courts, "and having tendered unto him or them, according to his or their countenance or calling, such reasonable sums of money for his or their costs and charges, as having regard to the distance of the places is necessary to be allowed in that behalf, do not appear according to the tenor of the said process, having not a lawful and reasonable let or impediment to the contrary" the party making default was to be liable for a penalty of Ten Pounds and also to make such recompense to the party grieved as the judge of the court should decide was appropriate. The Act 5 Elizabeth c.9 originally was enacted for a limited period. It was made perpetual by the Act 29 Elizabeth c.5.

The learned author of Taylor's Law of Evidence, 2nd edition (1855) said that the question as to what constitutes the "reasonable costs and charges" of a witness under the statute was left "until recently, very much to the direction of the taxing officers; but that question is now happily set at rest, so far as it relates to the Superior Courts of Common Law and to the County Courts by the formal adoption of fixed scales of remuneration". The scales were provided for in rules made by the judges pursuant to the provisions of the Common Law Procedure Act 1852, s.230. Taylor sets out the then applicable scale (pp.968-9). The amounts payable were designed to compensate people in various stations in life for their loss of time in attending court. The allowances were payable in addition to travelling expenses. No provision was made for any payment to any person for loss of time which had occurred prior to his coming to court. In that respect the scale is not dissimilar from the scale presently in force except insofar as it provides for allowances of that kind to be paid to expert witnesses. It should also be noticed that "Gentlemen, Esquires, Bankers and Merchants" were entitled to be paid One Guinea upon the service of the subpoena but were entitled to no daily allowance except after the first day. They were then paid a reasonable sum for refreshments and conveyance. No provision was to be allowed for loss of time. It is interesting, if irrelevant, also to note that females, on the other hand, were paid, depending upon their station in life, five shillings to ten shillings per day.

According to Taylor (para.1129, p.971) the reasonable expenses of a witness ought to be tendered to him at the time when he is served with the subpoena, or, at least, a reasonable time before the trial and even though he actually appears, he cannot be attached for declining to give evidence, unless these charges are paid or tendered.

He continued (para.1130, p.972):
"The law is not very clear as to what circumstances will justify a witness, who, in obedience to a subpoena, attends a trial in a civil cause, in bringing an action for his 'costs and charges,' and the following propositions are submitted with some hesitation. First, the witness can maintain such an action against the party to the suit who has subpoenaed him, if any express contract has been made upon the subject; secondly, the better opinion seems to be, that the jury may reasonably infer a promise to pay from the mere fact of the attendance of the witness at the trial, and that where such an inference is drawn, the action can be supported by the implied contract; thirdly, a witness cannot recover any larger amount than the sum specified in the scale of allowance as fixed by the judges, even though he rests his claim on an express promise; and, lastly, no action can be brought by the witness against the attorney who subpoenaed him, on an implied contract to pay the expenses of attendance, though possibly the witness may succeed, if he can establish the fact of an express agreement having been made to that effect."
The expression "costs and charges" comes from the words of the Statute 5 Elizabeth c.9, s.12.

The cases cited by Taylor for his first, second and third propositions were all decided before 1852 when the Common Law Procedure Act came into force. That is a matter which should be borne in mind when the cases are being considered. In support of his first proposition Taylor cited Hallet v. Mears (1810) 13 East 15; 104 E.R. 271, and Goodwin v. West (1639) Cro. Car. 522,540; 79 E.R. 1066. In the former case it was decided that a person who is subpoenaed as a witness and attends at the trial, but there refuses to give evidence unless his expenses are paid, and is thereupon not examined, may yet maintain assumpsit for his necessary expenses of attendance against the party who subpoenaed him. There was evidence of a promise to pay the expenses at the time of serving the subpoena. It was contended that this had been waived by the subsequent refusal to be examined. In holding that the action was good the court said that the witness had obeyed the subpoena, had attended at the trial and was ready and willing to have been examined if the party who subpoenaed him had paid his expenses. It was that party's own fault that the witness was not examined. I do not find it necessary to refer to the detail of Goodwin v. West.

In support of his second proposition Taylor referred to Pell v. Daubeny (1850) 5 Ex.R.955; 20 L.J.Ex.(N.S.) 44. In that case it was decided that a party served with a subpoena in a civil action, receiving a sum of money therewith, and making no further demand, may maintain an action against the party on whose behalf he has been subpoenaed for additional expenses incurred by him in attending the trial but not for loss of time. So much appears from the report of the argument (L.J.Ex. at p.45) where Parke B. said:
"In a civil case a contract with the witness is implied by serving him with a subpoena. Is there not an implied contract that the witness shall not be bound to defray his own expenses? A party who serves a subpoena upon a person may be considered to say 'Go to the trial, and I will pay your expenses either now or at some future time'."
But he also said:
". . . . . . . . . . it is understood that a witness is to sacrifice his time, but he is not to be put to expenses."
In his judgment Alderson B. said (ibid):
"I am of the same opinion. I think the plaintiff in the present case was entitled to maintain the action, and that there was some evidence in support of his claim. The question is, whether there must be an express contract, or whether an implied one arises out of the circumstances. I think a contract in this case may be implied. One party received a benefit, and it must have been understood between them that the party conferring it was to receive compensation. If one party goes to another and by a subpoena requests him to attend a trial, it being known personally that the party requested may refuse to attend unless his expenses are paid, and the latter, without saying anything, goes to the trial, he certainly does so upon the faith that he will be paid. That is the reasonable conclusion to be drawn by the jury from the facts, and they would be authorized to find that the party was promised a reasonable remuneration."

With Pell v. Daubeny should be contrasted Collins v. Godefroy (1831) 1 B & Ad.950; 109 E.R. 1040. That was an action to recover remuneration for the plaintiff's loss of time during his attendance on subpoena as a witness. The plaintiff sued in contract and upon the common money counts. Evidence was given that the plaintiff had demanded of the party who had subpoenaed him six guineas as his required fee (he was an attorney) for attendance and said that unless that sum was paid in the course of the next day, he would enforce payment of it. Lord Tenterden C.J. said (E.R. 1042):
"Assuming that the offer to pay the six guineas without costs was evidence of an express promise by the defendant to pay that sum to the plaintiff as a compensation to him for his loss of time, still, if the defendant was not bound by law to pay that sum, the offer to do so, not having been accepted, will not avail the plaintiff. If it be a duty imposed by law upon a party regularly subpoenaed, to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We think that such a duty is imposed by law; and on consideration of the Statute of Elizabeth, and of the cases which have been decided on this subject, we are all of opinion that a party cannot maintain an action for compensation for loss of time in attending a trial as a witness. We are aware of the practice which has prevailed in certain cases, of allowing, as costs between party and party, so much per day for the attendance of professional men; but that practice cannot alter the law. What the effect of our decision may be, is not for our consideration. We think, on principle, that an action does not lie for a compensation to a witness for loss of time in attendance under a subpoena. The rule, therefore, must be discharged."

The distinction between Pell v. Daubeny and Collins v. Godefroy is that in the latter case the action was to recover, not expenses, but compensation for loss of time during the period the plaintiff was detained as a witness. Parke B. had said in argument in Pell v. Daubeny that a witness was to sacrifice his time, but was not to be put to expense.

In support of his third proposition Taylor referred to Collins v. Godefroy and to Willis v. Peckham (1820) 1 Brod. & B. 515; 129 E.R. 821. That was to the same effect as Collins v. Godefroy, the Court of Common Pleas holding that a witness cannot recover a compensation for his time, though an express promise be given him that he shall be paid for it. Dallas C.J. said (E.R. 822) that there were in fact no expenses, as the witness came but a short distance, "and how could there be any consideration for a promise, when the witness was bound to remain to give evidence under his subpoena". Park J. said:
"Compensation for loss of time in attendance as witness is only allowed to medical men and attornies. The point has been settled in the King's Bench by the case of Moor v. Adam 5 M. & S. 156". ((1816) 105 E.R. 1009)."
It may be thought that Willis v. Peckham and Collins v. Godefroy are not entirely at one. That is because the plaintiff in the latter case was an attorney. It is unnecessary for my purposes to resolve that seeming conflict. I should add, however, that Willis v. Peckham was referred to in argument in Collins v. Godefroy.

The ratio of Willis v. Peckham and Collins v. Godefroy was that the witness was obliged by the subpoena to attend. Neither practice nor any rules of Court then made provision for compensation for loss of time, except apparently in the case of doctors and attorneys, and, notwithstanding the promises to pay for loss of time made expressly or by implication, the action would not lie because the witness was bound by law to attend.

In addition to looking at Taylor I have looked at Tidd's Practice, 7th edition (1821) and Chitty's Archbold's Practice, 12th edn. (1866). I have found nothing of assistance in Tidd but I refer in passing to pp.832-844. Chitty deals with the matter in perhaps more detail than Taylor but his text is substantially to the same effect and he cites no relevant additional authorities or at least no authorities different in their effect from those to which I have referred - see pp.350-355.

All the authorities and texts to which I have so far referred were decided or written before the coming into force of the Judicature Acts in 1873. The first case decided after those Acts were in force in relation to this problem was In re Working Men's Mutual Society (1882) L.R. 21 Ch.D. 831. In that case an auctioneer had been summoned to give evidence before a special examiner appointed under proceedings in the Chancery Division. It was held that he was a professional witness and as such entitled to be paid one guinea per day by way of compensation for his loss of time, together with his travelling expenses. It was said that although he be sworn, he might refuse to answer any questions until a sum sufficient to cover these amounts had been paid to him. The witness refused to answer any questions until his expenses had been paid. The motion, which came before Kay J., was a motion that the witness might be committed for refusing to answer questions. In the course of his judgment Kay J. referred to Taylor on Evidence, 7th edn. (1866) at p.1043. He said (p.834):
"There are two other cases to which I ought to refer. The first is Brocas v. Lloyd (23 Beav.129) in which the Master of the Rolls referred to the statute of 5 Eliz. c.9, and to authorities which established that Courts of law would not grant an attachment against a witness for not obeying a subpoena, unless the whole of the necessary expense of going to the place of trial, of his return from it, and also during his necessary stay there, had been tendered to him, and said that the general rule at Law, which was followed in Equity, was to allow 1 pound 1s. a day for the expenses of board and lodging of a gentleman. The second is Collins v. Godefroy. That was not a case of demanding payment before giving evidence, but one in which after evidence had been given an action was brought to recover compensation for loss of time. Moreover, it was a case under the old practice. I must then take it as having been decided in Equity (no doubt upon authority at Common Law) that an allowance must be made to a professional man as compensation for his loss of time. Now here the witness is an auctioneer, residing at Andover, and in the table of allowances to witnesses in Chitty's Archbold (12th edn. p.177) engineers or surveyors are indicated as receiving a guinea a-day. I was moreover referred to a case in the Weekly Notes of Wiltshire v. Marshall (W.N. 1866, p.80) in which it is stated that Vice-Chancellor Wood allowed an auctioneer and valuer two guineas a-day, one guinea for loss of time and one guinea for maintenance. The balance of authority, therefore, is in favour of allowing to a person in the position of an auctioneer a guinea a-day for his loss of time, and I have evidence before me that the first-class return ticket (to which I think he is entitled) from Andover to London is 1 pound 3s. That being so, the 2 pounds 2s. tendered to him was not a sufficient sum, and I must accordingly refuse this motion."

In Chamberlain v. Stoneham (1889) L.R.24 Q.B.D. 113 a solicitor was summoned as a witness before the registrar of a County Court in a bankruptcy proceeding. He was paid only his travelling expenses and brought an action against the Official Receiver by whom he was summoned for the amount provided for in the appendix to the Rules of the County Court as being appropriate for a professional witness. He was held entitled to recover. In order to understand the decision it is necessary to note that Rule 71 of the Bankruptcy Rules 1886 provided that any witness required to attend for the purpose of being examined or of producing any documents should be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in court. The County Court Rules provided that the costs of witnesses might be allowed and that their allowance for attendance should not exceed the highest rate of the allowances mentioned in the appendix. The court held that the right which a person has to an allowance as a witness was then statutory being founded on the Bankruptcy and County Court Rules to which I have referred. Collins v. Godefroy and the statute 5 Elizabeth c.9 were referred to. After stating the effect of Collins v. Godefroy, Huddleston B. continued (p.116):

"The Court (in Collins v. Godefroy) held that there was no presumption that a witness was entitled to compensation for loss of time, and that there was no consideration for the alleged promise, even although the defendant had promised to pay the expenses of the witness. That is very different from this case, in which the plaintiff's right to recover is based on the Bankruptcy Rules, and Rules of the County Court. In Hale v. Bates ((1858) 28 L.J. Q.B. 14) the question as to the allowance of a witness was brought fully before the Court, and Collins v. Godefroy was examined, but was not acted on, and so in In re Working Men's Mutual Society."
Stephen J. said (p.116):
"There is no connection between the case of Collins v. Godefroy and this case, because the right which a person has to an allowance as a witness is now statutory, being founded on the Bankruptcy and County Court Rules."

In the light of what was said by Huddleston B. concerning Hale v. Bates it is necessary that I should make some reference to it. The plaintiff sought to recover witness's expenses. He had been subpoenaed by both the plaintiff and the defendant in certain proceedings. As the consequence of the subpoena of one of them he remained in attendance at court for 11 days. The other party was successful. The witness called upon the unsuccessful party to pay his expenses. That party refused to do so. The attorney for the successful party then paid the demand upon an understanding that the witness should return to him any part which might not be allowed on taxation. At the taxation the attorney gave evidence that he had paid the witness the whole sum demanded. Portion of what had been paid was disallowed. The witness returned it to the successful party's attorney and then sued the unsuccessful party to recover what he had lost. It was held that he was not prevented from recovering in the action by reason of his repayment of the sum which he had first received from the successful party's attorney. The court was critical of the attorney for not disclosing in his affidavit the promise to return so much of what had been paid as was disallowed on taxation. But that was not regarded as a relevant circumstance in the judgments of the court which were delivered by Coleridge and Erle JJ. Collins v. Godefroy was cited in argument but is not referred to in the judgments. The expenses claimed included expenses for loss of time. The case was decided in 1858 after the coming into force of the Common Law Procedure Act 1852 and the Rules made by the Judges thereunder. The fact that the witness succeeded in recovering an amount to recover his loss of time is explicable on that basis and not because the court took any adverse view of Collins v. Godefroy. With respect, it would seem unlikely to me that the court would have intended to depart from it without expressly saying so. I would therefore question Huddleston B's statement in Chamberlain that the decision in Collins v. Godefroy was not acted upon in Hale v. Bates. It may be that all he meant by it was that the case, for the reasons I have mentioned, was, in the light of the new legislation, no longer applicable and therefore distinguishable. That was the view of Kay J. in In re Working Men's Mutual Society in relation to the case he had to decide which was a case similar to Chamberlain. It was also the view of Stephen J. in Chamberlain, who simply distinguished the circumstances in Chamberlain from those in Collins v. Godefroy. I would therefore take the view that nothing in Chamberlain affected the correctness of Collins v. Godefroy. What had changed in the interim between the two decisions was that rules of court had provided for payment, not only of witnesses expenses, but also for loss of time during the period that a witness was required to attend court.

Collins v. Godefroy was still regarded as good law by Younger L.J. in The Ibis (1921) P.255. That was a case dealing with the amount to be recovered on taxation for the expense of detaining a seafaring witness from his ship pending the coming on of an action in the Admiralty Division. The court referred to the fact that seafaring witnesses had always been regarded as being in a special category. Younger L.J. said (pp. 270-271):
"The question at issue has a long history. We may take as a convenient starting point the principle enunciated in Collins v. Godefroy - a principle still the law of the Court, although its application has been softened by later rules of procedure, namely, that there being a duty imposed by law upon a person regularly subpoenaed to attend from time to time and give his evidence, a promise to give him remuneration for loss of time incurred in such attendance is a promise without consideration, and the fact that allowances are given as between party and party in respect of the attendance of professional witnesses does not alter the law in this matter.
Remuneration for loss of time of professional witnesses was apparently, as is recognized in Collins v. Godefroy, always an exception to the general rule laid down in that case. It would also appear that seafaring witnesses at all times held a similar position of advantage, privileged in this respect in all Courts, for reasons which may conveniently be taken from the judgment in Berry v. Pratt ((1823) 1 B. & C.276): 'Upon principle, the master was justified in allowing the subsistence money in question. Although the witness was an Englishman, yet he was a seafaring man; and, unless detained for the purpose of giving evidence, might again have gone to sea, and then the parties might have been put to a far greater expense by the postponement of the trial, on account of his absence. There would also have been some danger of his evidence being altogether lost by the various casualties to which seafaring-men are exposed.'"

I have found no later English authority on the question than The Ibis and was referred to no later authority by counsel. A search of the Australian Digest has revealed only two authorities in both of which Collins v. Godefroy was applied. The first of these was Re M'Mullen (1859) 3 Q.S.C.R. 205. That was a decision of Lutwyche J. then sitting as a judge of the Supreme Court of New South Wales at Moreton Bay. The second case was a decision of a County Court judge in Victoria and is noted at p.23 of the notes to the fifth volume of the Argus Law Reports.

I mentioned earlier that Kay J. in his judgment In re Working Men's Mutual Society had referred to the 7th edition of Taylor on Evidence. Paragraph 1250 (pp.1044-1045) is little different from the paragraph cited earlier from the 2nd edition. I have looked at later editions of Taylor including the last edition of his work, the 12th, published in 1931. In that work paragraph 1250 was as follows (pp.802-803):
"The law is not very clear on what circumstances will justify a witness, who, in obedience to a subpoena, has attended a trial in a civil cause, in bringing an action for his expenses and loss of time. It was formerly considered that expenses only could be recovered, and these only if an express contract had been made upon the subject or that, if a promise to pay from the fact of the attendance of the witness at the trial could be inferred and where such an inference was drawn, the action could be supported by the implied contract. Remuneration for loss of time was considered not to be recoverable on the ground that a witness was bound to attend upon the subpoena and that there was, therefore, no consideration for any promise to pay remuneration. The effect, however, of the Common Law Procedure Act, 1852, and the directions of the Judges thereunder as to the scale of allowances to witnesses, and of the present Rules of the Supreme Court, is to recognise the right of witnesses, in certain cases, to remuneration for loss of time, and in several cases professional men have been held entitled to recover by action the remuneration provided for by the scale. It is submitted, therefore, that under the present law a witness subpoenaed in a civil cause may recover from the person on whose behalf he has been subpoenaed, not only his bare expenses, but such remuneration as is provided for by the scale. No action lies by the witness against the solicitor who subpoenaed him, unless the solicitor has made himself personally liable by express contract. An expert witness called to depose to a matter of opinion is, and has always been, entitled to payment for his services, and the amount of his remuneration depends upon the special contract between himself and the person on whose behalf he is called."

I have been unable to find any relevant authority after 1931 in the most recent editions of Halsbury, the English and Empire Digest, the Supreme Court Practice and Phipson on Evidence. Nor did the research by counsel disclose any further authority. There is no discussion of the problem in the current edition of the Supreme Court Practice but earlier editions of the Annual Practice (the white book) refer to it and to some of the authorities to which I have referred; I instance the Annual Practice for 1949 (66th edn.) pp.1571-2.

I have looked generally at the rules in force in the United Kingdom and at the rules of the Supreme Courts of New South Wales and Victoria. My study of the relevant provisions has not been an exhaustive one but such consideration as I have given them does not suggest to me that the reason why there is no authority later than The Ibis is due to the form of any of the rules to which I have referred.

In addition to looking at the authorities and texts to which I have referred I have also consulted Wigmore on Evidence (3rd edn. - 1940, supplemented to 1980), vol.VIII, sub-titles 2192 and 2200-2205. It would appear that there are no relevant American authorities different in effect from the English authorities. There is perhaps a greater emphasis in the American authorities and texts upon the duty of citizens to attend court either for the purpose of giving oral evidence or of producing documents. But that duty has been emphasised many times in English and Australian authorities. It is sufficient if I refer to one decision which emphasises that duty. It is the well known decision of the Full Court of the Supreme Court of New South Wales in The Commissioner for Railways v. Small (1938) 38 S.R. (N.S.W.) 564. Jordan C.J. said (pp.573-4):
"A subpoena duces tecum is a writ which is issued by the Court as of course upon application by praecipe by or on behalf of a party to a cause or matter commanding some person or persons to attend before the Court to give evidence, and also to search for, bring and produce to the Court some document or documents relating to the cause or matter. In form, it is a writ of subpoena ad test, with an addendum directing the production of documents. . . . . . . . . . . . . . . . . . . . . . .

A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant . . . . . . . . . And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the Court to have it set aside.
If duly served with such a writ and provided with the proper conduct money, the person served must obey it and bring to the Court the documents mentioned in the subpoena if he has them, unless he procures the writ to be set aside as oppressive; and he must produce to the Court the documents which he has brought unless he satisfies the Court that some good reason exists why they should not be produced: this he is always at liberty to do if he can:"

The text of Wigmore summarises the American view (op. cit. at p.130):
"The true answer is that the testimonial duty, like other civil duties, is to be performed without pay; the sacrifice being an inherent burden of citizenship. Neither for military service nor for public office can the citizen claim that he shall be paid on a scale which will bear any equable proportion to the loss of his livelihood's income. Any other principle would be worthy only of a purely mercenary community. If the sacrifice made is a real one, the dignity of the service rendered should ennoble it. The sense of civic duty done must be the consolation."
Wigmore had earlier referred to the fact that the three general items of travel to and from the court and maintenance at the place of trial were almost universally preserved in statutes to which he referred.

The principles which in my opinion the authorities to which I have referred establish are:-

1. Citizens including corporations are bound to comply with subpoenas to produce documents properly served upon them. Failure to comply will render the citizen liable to be dealt with for contempt of court.

2. A person will not be bound to comply with a subpoena if it is oppressive, because it is too wide or too uncertain or because it has been served too late to enable the person on whom it is served to have a reasonable opportunity of complying with it. It will, however, remain valid until set aside upon a notice of motion taken out for this purpose. And if a subpoena is served late, it would be unwise of the person upon whom it is served not to come to court and explain why he has been unable to produce the documents.

3. A person upon whom a subpoena, whether to produce documents or otherwise, is served is entitled at common law (but originally probably because of the terms of the statute 5 Eliz. c.9, s.12) and now under rules of court to an adequate indemnity for his expenses of coming to and from court and for his sustenance during the time he is required to remain there. Such expenses may be recovered in an action based upon an implied contract from the person, that is the party (not usually his solicitor), who causes the subpoena to be served. He may refuse to give evidence or produce documents until he has a proper assurance that these expenses will be met. He is not obliged to come to court unless he has received a proper sum for conduct money, that is money which will enable him to travel to court; Order 27 Rule 3.

4. Professional witnesses, especially doctors and attorneys, and seafaring witnesses were also entitled at common law to recover an amount to indemnify them for loss of time whilst they were detained at court as a result of the service of a subpoena. No other person was so entitled.

5. That position changed in England and Australia from about the time of the passing of the Common Law Procedure Act 1852, pursuant to which scales of fees for witnesses were promulgated. Thereafter witnesses have been entitled, according to the appropriate scale, to payment for loss of time as well as for payment of expenses of travelling to and from, and remaining at court. Whether the right to recover is based upon an implied contract or upon a statutory entitlement arising by reason of the provisions of the rules, it is unnecessary to decide.

6. But it should be emphasised that unless the payment is provided for in the rules there can be no recovery. Collins v. Godefroy remains the law. The citizen's duty to aid the administration of the law by attending remains paramount and is the reason why there can be no recovery for loss of time as distinct from out of pocket expenses in the absence of specific provisions in rules of Court. Furthermore, and this needs to be stressed, it is not possible, in the sense of it not being lawful, for a contract to be made between a party to litigation and a person upon whom a subpoena is served whereby that person is promised more than he would receive upon the basis of what is provided in rules of Court. That is the essential proposition for which Collins v. Godefroy is authority.

Those being the principles which have been established by the authorities, I can now come more directly than I have so far done to the question to be decided. The claim being for copying documents and for loss of time occurring prior to the Bank's attendance in the court, there is no provision in the Federal Court Rules or Schedules, nor in the Schedule to the Rules of the High Court which is incorporated by reference, expressly dealing with this situation. Indeed, although I would not wish what I am about to say to be taken as an exhaustive statement of the matter, it would be correct to say that usually the only circumstances in which the Rules contemplate an allowance to a witness for loss of time arising prior to the hearing is in a case where he is an expert witness and needs to qualify himself to give evidence. Time occupied in searching out and collating documents is not referred to nor is the expense of copying documents required to be produced pursuant to a subpoena.

At this point it is appropriate to mention the provisions of State Evidence Acts dealing with the production of bankers' books. By reason of the provisions of s.79 of the Judiciary Act 1903 the legislation which is here applicable is Part IV of the Evidence Act 1898 (N.S.W.). Other States have similar provisions in their evidence legislation as do the Territories. The relevant provisions of the New South Wales legislation were designed to facilitate proof of entries in bankers' books and to avoid the necessity of a banker having to bring original records to court; see s.49. It is important to observe that no provision is made in the legislation for payment to a banker of the cost of copying any entries. Complementary to this legislation is Order 27 Rule 5 of the Rules earlier referred to (p.11).

I have said that there is no provision in the Rules of this Court expressly dealing with the matter. I should, however, mention again Rule 21 of Order 62, the provisions of which are set out on p.13 hereof. That gives a taxing officer a discretion to allow such sum as he thinks just and reasonable having regard to all the circumstances of the case for work and labour properly performed and not specifically provided for in the relevant Schedule, in respect of work and labour for which, in his opinion, an allowance should be made. The rule should be contrasted with Rule 19 which casts an obligation upon the taxing officer to allow all costs charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party. It would seem to me that the draftsman of the rules was contemplating work and labour done by persons other than legal representatives when he made the provision which he did in Rule 21. On the other hand he must also have had such work in mind when he used the words "charges and expenses" in Rule 19 alongside the word "costs". I have considered the question of whether I should not regard the provisions of Rule 21 as a provision which would authorise recovery in this case. Upon reflection I have decided that I should not take that course. The provisions of the Rules which permit recovery of witnesses expenses, whether for travel, sustenance or loss of time, are specific and clear. The principles upon which the matter is to be approached are also clear, notwithstanding that they are propounded in old cases not particularly easy to find. It seems to me that if the draftsman of the rules had intended to depart from established practice he would have used clearer words than those which are to be found in Rule 21.

In any event I would regard this case, involving as it does the records of a bank, as standing in a different category from that involving the production of records of other classes of person. That is because of the provisions of evidence legislation dealing with bankers' books to which I have referred. But my view is that, bankers' books legislation or not, a person upon whom a subpoena to produce documents issued out of this Court is served is not entitled to his expenses of searching out, collating and copying documents.

My conclusion means that the Bank's claim here must fail as a matter of substance. It is unnecessary to decide the questions of the appropriateness of the procedure adopted, jurisdiction and discretion. But I would say that there can be no question of the jurisdiction of the Court to deal with the claim. Adjudicating upon it is plainly incidental to a lawful exercise of jurisdiction pursuant to the Trade Practices Act 1974. Section 32 of the Federal Court of Australia Act 1976 may provide an alternative basis for jurisdiction; I do not need to determine that question.

If I had been of opinion that the Bank's claim was well founded, I do not think that there could have been any discretionary reason why it would not have been entitled to the relief which it claims. I think it would have been better if the claim had been made by way of an independent application rather than a notice of motion taken out in the principal proceedings, but that is a matter of technical legal procedure which could have been quite simply cured if the Bank had been successful on the question of substance which is involved.

Before I conclude there are some general remarks which I wish to make. This case, involving as it does a claim for the comparatively small sum of $922.50 by one of the large banks, may seem to be of relative unimportance. But I believe its ramifications for the litigating community, the legal profession and many of the large institutions, especially banks and building societies, are considerable. I cannot be dogmatic about the matter, but I believe the position to be no different in this Court from that which prevails in the Supreme Courts of the States and Territories, the Family Court of Australia, the District and County Courts and in magistrates' Courts. My hesitation arises because I have made no detailed analysis of the rules of court or regulations governing the procedures of those various courts. Nor have I considered whether the position is any different in criminal cases from that which prevails in civil cases. It is because of the general importance I believe the case to have, my need to conduct research into the law independently of that of counsel, and pressure of other work that this judgment has been delayed for an unduly long period.

My concern about the problem arises because of the growing tendency on the part of the profession to issue, in increasing numbers of cases, what can only be regarded as a proliferation of subpoenas to produce documents. To say that they are scattered almost like ticker tape or confetti a few days - often a few hours - before the commencement of litigation is no under-statement. They are issued by the Registry of the Court as of course without the intervention of any judicial or court officer, judge, master or registrar. Yet they are a court order demanding peremptory obedience; disobedience may result in imprisonment or sequestration in the case of corporations.

It is true that a subpoena which is uncertain or too wide may be set aside as oppressive. It is also true that courts will not usually insist upon immediate compliance with subpoenas served at too late an hour. And banks, government departments, large companies and some others have ready access to legal advice, whether through legal departments or independent solicitors. But whether a subpoena is too wide or not can be a nice question. Its determination will usually require legal representation and failure to have it set aside will result in a liability to pay a not inconsiderable sum of money for costs.

There are other problems not all of which I mention. The form of subpoena issued out of this Court - and I would think most, if not all others - says nothing about a citizen's right to have the subpoena set aside on the ground that it is oppressive. Institutions of the kind I have mentioned are usually staffed by employees who are familiar with the law on this topic. But there are companies and persons carrying on business who are not. I have known of cases where small businessmen have been served with subpoenas to produce documents the evening before a case has come on and have spent the night searching a storeroom or a garage for documents required the next morning. It has not occurred to these people that they might have moved to set the subpoena aside on grounds of oppressiveness or sought an adjournment because of its late service; they would not known the law and they would not wish to incur expense for legal costs in order to find out what the rights and wrongs of the situation were. All that they were concerned to do as law abiding citizens was to obey the peremptory demand made by the court in the subpoena.

Of course, there are many subpoenas which, although requiring a vast quantity of documents, are not too wide and are valid. The fact that such a subpoena may be served in ample time for compliance with its terms means that the recipient must make staff available to search out and collate the documents.

Since the cases to which I have referred were decided and the original form of existing court rules laid down, times have changed. In the last century and really until the last two decades, documentation of transactions was comparatively simple. Those who years ago formulated the provisions about entries in bankers' books which appear in evidence legislation thought that they had solved a problem and yet did not provide for the recovery of costs. In the only case which I have found dealing with the production of documents, Pritchard v. Walker (1827) 3 C. & P. 212; 172 E.R. 391, the question was not whether an attorney should be paid for searching out the documents in question, but whether he should be paid for his loss of time whilst in court. In those days it was no doubt a comparatively simple and inexpensive matter to retrieve documents.

Nowadays there is an increasing tendency for records not only to be more numerous and complex, but also for them to be comprised only in tapes or discs forming part of data bases programmed into computers. They cannot be retrieved in any permanent form unless they are copied. All this costs money, as does the provision of the labour to select and collate the required documents. Involved also is inconvenience brought about by the loss to the institution served of employees' productive time which could be better used in furtherance of their employers' interests.

On the other hand, and, in a sense, balancing what I have said, there is the public interest in justice being done. That is a matter which is of paramount importance and must not be lost sight of. Cases may be won or lost - and justly won or lost - because of the availability of documents in the possession of a stranger. The ability of parties to litigation to require the production of documents has proved over the centuries to be not only a boon to them but of the utmost general public importance.

It seems to me that the whole problem to which the issue of subpoenas for the production of documents gives rise should be looked at. Tentatively I would think that:-
(a) Rules of Court ought to be amended to permit the recovery of some part at least of the amount incurred by strangers to litigation in looking out and producing documents. Compare the various charges apparently made by a number of public authorities in New South Wales referred to in the notes to Part 37 Rule 3 of the Rules of the Supreme Court of New South Wales - Ritchie, p.126. Whether these fees may be validly imposed is not a matter which it is necessary to decide in this case. But I would add to what I have said above that if persons are to be charged care would need to be taken to see that impecunious parties to litigation were not deprived of access to documents because of cost. Perhaps in these circumstances the community should pay.

(b) Subpoenas should include a statement that they may be set aside if they are oppressive.

(c) Subpoenas to produce documents ought not to be served without the leave of a judicial or court officer unless they are returnable not earlier than, say, 14 days after service.

(d) Solicitors or law societies on their behalf should enter into discussion with institutional bodies such as I have referred to so that there may be proper liaison in a given case. Desirably preliminary enquiries should first be made in order to acquaint the person to be served with what is required or sought to be proved. The subpoena first issued in this case was obviously too wide and ought not to have been issued. How much better would it have been if the conversations earlier recounted had taken place before any subpoena had been issued. There would still have been a problem but the very liaison which I suggest may have prevented the problem becoming as great as it was. I am conscious in saying what I have that some institutions may not be co-operative, some because of a reluctance to disclose to strangers what they would regard as the private affairs of a client or customer without the protection, requiring as it does production to the court, of a subpoena.

(e) Solicitors, whilst not overlooking the duty which they owe their clients and the fear that they naturally have of malpractice actions, must become more circumspect about the number of subpoenas that issue, the terms of them and the time at which they are served.

Undoubtedly others will have views on these various matters. I have said what I have in order to promote discussion. My views are not at all final or concluded.

In the present case, however, I have, as I have said, reached the conclusion that the Bank's claim must fail. Its notice of motion is dismissed. It must pay the costs of the respondents.