Boscaini Investments Pty Ltd v The Corporation of the City of Norwood, Payneham & St Peters
[2005] FCA 707
•23 MAY 2005
FEDERAL COURT OF AUSTRALIA
Boscaini Investments Pty Ltd v The Corporation of the City of Norwood, Payneham & St Peters [2005] FCA 707
PRACTICE AND PROCEDURE – costs – application for costs of notice of motion and compliance with subpoena – reasonableness of costs.
Federal Court Rules, O 27A r 2, O 27 r 11
BOSCAINI INVESTMENTS PTY LTD (ACN 009 599 991) & ORS v THE CORPORATION OF THE CITY OF NORWOOD, PAYNEHAM AND ST PETERS & ORS
SAD 6 of 2000
LANDER J
23 MAY 2005
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD6 OF 2000
BETWEEN:
BOSCAINI INVESTMENTS PTY LTD (ACN 009 599 991)
FIRST APPLICANTBOSCAINI HOLDINGS PTY LTD (ACN 009 592 778)
SECOND APPLICANTCARBO DEVELOPMENT AND MANAGEMENT PTY LTD (ACN 009 615 865)
THIRD APPLICANTAND:
THE CORPORATION OF THE CITY OF NORWOOD, PAYNEHAM AND ST PETERS
FIRST RESPONDENTMARIO BARONE
SECOND RESPONDENTVINCENZINA CICCARELLO
THIRD RESPONDENTJUDGE:
LANDER J
DATE OF ORDER:
23 MAY 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The applicants pay the reasonable expenses incurred by Tohspil Pty Ltd and Kelly and Co in complying with the subpoena.
2.The amount of those reasonable expenses be fixed in accordance with the Court’s usual procedure in relation to costs.
3.The applicants pay 40 per cent of Tohspil Pty Ltd and Kelly and Co’s costs of and incidental to the notice of motion of 2 August 2004.
4.The applicants pay two-thirds of Tohspil Pty Ltd and Kelly and Co’s costs of and incidental to the application for the costs of the notice of motion of 2 August 2004, and the reasonable expenses incurred in complying with the subpoena.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD6 OF 2000
BETWEEN:
BOSCAINI INVESTMENTS PTY LTD (ACN 009 599 991)
FIRST APPLICANTBOSCAINI HOLDINGS PTY LTD (ACN 009 592 778)
SECOND APPLICANTCARBO DEVELOPMENT AND MANAGEMENT PTY LTD (ACN 009 615 865)
THIRD APPLICANTAND:
THE CORPORATION OF THE CITY OF NORWOOD, PAYNEHAM AND ST PETERS
FIRST RESPONDENTMARIO BARONE
SECOND RESPONDENTVINCENZINA CICCARELLO
THIRD RESPONDENT
JUDGE:
LANDER J
DATE:
23 MAY 2005
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The first applicant and the first respondent in these proceedings were respectively first plaintiff and first defendant in proceedings brought in the Supreme Court of South Australia in which the applicant and other parties sought judicial review of a decision of the first respondent. In those proceedings, the applicants sought non-party discovery against Tohspil Pty Ltd (Tohspil) for whom Kelly and Co acted and against Kelly and Co.
Orders were made that Tohspil and Kelly and Co make non-party discovery and a list of documents was filed and served in the Supreme Court proceedings. In compliance with the Supreme Court Rules, the list of documents identified those documents for which the parties claimed legal professional privilege. The applicant was ordered to pay the reasonable costs of Tohspil and Kelly and Co complying with the subpoena and, in due course, paid the sum of $4163.03 to those parties.
On 2 August 2004, in these proceedings, the applicants sought, pursuant to O 27A r 2 of the Federal Court Rules, leave to issue a subpoena against Tohspil and Kelly and Co. That application came on for hearing before me on 23 August and I ordered that subpoenas issue, however, not in the same terms as the terms of the subpoenas sought to be issued in the notice of motion. The subpoenas that issued were in a narrower form. As a result of the issue of those subpoenas some, but not all, of the documents which had been discovered by Tohspil and Kelly and Co in the Supreme Court proceedings were produced to the Court. Some of the documents which had been discovered in the Supreme Court proceedings were not relevant to the proceedings in this Court and were not caught by the subpoenas which were ultimately issued.
Tohspil and Kelly and Co were partly successful in their opposition to the subpoenas - to the application for leave to issue the subpoenas. They were not, of course, wholly successful because the subpoenas issued but they were partly successful in that the subpoenas issued in a narrower form than that sought in the notice of motion. At that time I made no order as to costs of the notice of motion but reserved those costs. I also did not, at that time, make any order for the costs of compliance with the subpoena.
Tohspil and Kelly and Co have now sought orders for costs of that notice of motion and for the costs of compliance with the subpoena. It seems to me to be beyond doubt that Tohspil and Kelly and Co should be entitled to the costs of compliance with the subpoena, so much I think is made clear by O 27 r 11 of the Federal Court Rules, and I will make an order that Tohspil and Kelly and Co have the reasonable expenses of complying with the subpoenas which are to be fixed in accordance with the Court’s usual procedure in relation to costs.
That then leaves the question of the costs of the notice of motion of 23 August. I am advised by Tohspil and Kelly and Co that the costs of complying with the subpoena and the costs of the notice of motion exceed $20,000. As I said to those parties’ counsel during argument, that seems to me to be a very high figure and in fact seems to be frankly too high. However, Mr Trim QC, who appeared for Tohspil and Kelly and Co, said that was a matter for the Registrar on taxation and not for me.
He said in due course it may be that the Registrar would not allow all of the costs which are claimed. He said that his client should be entitled to both the costs of the notice of motion and the costs of compliance with the subpoena because they had successfully opposed the issue of subpoenas in the terms which the notice of motion of 2 August sought. I have already dealt with the costs of compliance with the subpoena and I need not say any more about that. I have accepted his argument and in that regard indeed Mr O’Sullivan, who appeared for the applicants, did not seek to persuade me otherwise.
I am not satisfied, however, that Tohspil and Kelly and Co ought to have all of the costs of the notice of motion of 2 August. They were indeed only partly successful. I am still not sure why they opposed the issue of the subpoenas in the terms that the subpoenas were sought to be issued. They had already discovered these documents in previous proceedings. There was no commercial sensitivity left in the documents. I can see no commercial reason why the documents could not have been discovered again in these proceedings by a production in accordance with the terms of the subpoena which was sought to be issued. However, they did successfully oppose the issue of the subpoena on some grounds of relevance and for that they must have part of their costs. In my opinion a fair exercise of my discretion in relation to the costs of the notice of motion is that Tohspil and Kelly and Co have 40 per cent of their costs.
That leaves one further matter, and that is the costs of this application for costs. Mr O’Sullivan opposed any order for the costs of this application. He said that his clients had invited Kelly and Co and Tohspil to identify their costs with more precision and if the costs had been identified reasonably and more precisely, the matter needed not have come back before me. I am not completely confident that the applicants applied their mind with sufficient seriousness to the question of Tohspil and Kelly and Co’s costs. I think Tohspil and Kelly and Co were treated somewhat indifferently by the applicants’ solicitors. I think that the exchange of correspondence between the parties shows that this application would have been inevitable.
I heard this application on two occasions. On the first occasion the parties sought an adjournment to put further information before me in relation to all of these issues. I adjourned the matter for that purpose. Further evidence was put before me which pointed up the respective parties’ cases. I think an appropriate exercise of my discretion in relation to the costs of this application heard on this occasion and on the previous occasion is that Tohspil and Kelly and Co have two-thirds of their costs to be taxed.
I make the following orders:
1.The applicants pay the reasonable expenses incurred by Tohspil Pty Ltd and Kelly and Co in complying with the subpoena.
2.The amount of those reasonable expenses be fixed in accordance with the Court’s usual procedure in relation to costs.
3.The applicants pay 40 per cent of Tohspil Pty Ltd and Kelly and Co’s costs of and incidental to the notice of motion of 2 August 2004.
4.The applicants pay two-thirds of Tohspil Pty Ltd and Kelly and Co’s costs of and incidental to the application for the costs of the notice of motion of 2 August 2004, and the reasonable expenses incurred in complying with the subpoena.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 1 June 2005
Counsel for the Applicants: Mr S P O’Sullivan Solicitor for the Applicants: Griffin Hilditch Counsel for the Respondents: Mr D A Trim QC Solicitor for the Respondents: Kelly & Co Date of Hearing: 23 May 2005 Date of Judgment: 23 May 2005
0
0
0