Carey-Hazell v Getz Bros and Co (Aust) Pty Ltd

[2004] FCA 1496

FEDERAL COURT OF AUSTRALIA

Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 1496

KAREN CAREY-HAZELL v GETZ BROS & CO (AUST) PTY LTD, PETER THOMPSON and TREVOR NICHOLLS
W75 OF 2001

KIEFEL J
BRISBANE
18 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W75 OF 2001

BETWEEN:

KAREN CAREY-HAZELL
APPLICANT

AND:

GETZ BROS & CO (AUST) PTY LTD
FIRST RESPONDENT

PETER THOMPSON
SECOND RESPONDENT

TREVOR NICHOLLS
THIRD RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

18 NOVEMBER 2004

WHERE MADE:

BRISBANE

THE COURT FIXES:

1.The amount of the loss and expense of the non-parties, Norman Phillip Carey and Westpoint Corporation Pty Limited in complying with the three subpoenas issued on 23 July 2004 is fixed at $500 each.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W75 OF 2001

BETWEEN:

KAREN CAREY-HAZELL
APPLICANT

AND:

GETZ BROS & CO (AUST) PTY LTD
FIRST RESPONDENT

PETER THOMPSON
SECOND RESPONDENT

TREVOR NICHOLLS
THIRD RESPONDENT

JUDGE:	KIEFEL J
DATE:	18 NOVEMBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 2 September 2004 Mr Norman Phillip Carey and Westpoint Corporation Pty Limited, who are not parties to the proceedings, sought orders that the costs occasioned by their compliance with three subpoenas issued by the first respondent be taxed on an indemnity basis.  Although they were not parties to the litigation they were not entirely ‘strangers’ to it and had some knowledge of the issues involved and the documents which were required to be produced.  Mr Carey is the brother of the applicant and funded her litigation in part.

2. On 2 September 2004 I directed that the non-parties provide submissions within seven days.  This was not attended to.  After further extensions of time were granted, submissions were received from the non-parties on 20 October 2004.  They did not contain any reference to the sum sought to compensate them for the loss and expense they have incurred.  No affidavit had previously been filed, in anticipation of the application, dealing with the extent of the loss or expense incurred in compliance or with the nature and extent of the work involved. 

3. The non-parties were asked, on 25 October 2004, to identify the sum sought and the basis for the calculation of it.  On 1 November 2004 the non-parties’ solicitors advised that they had a thirteen page draft bill of costs with respect to the three subpoenas but were unable to indicate to the Court the amount involved.

4. Although the Court may direct that the amount of loss or expense be fixed in accordance with the Court’s usual procedure in relation to costs, that is to say by way of taxation, I consider this further cost and expense to be inappropriate unless there is at least some indication that the sum cannot readily be fixed.  I am not assisted by the non-parties’ submissions in this regard. 

5. I am not satisfied that taxation is warranted.  The subpoenas were not wide ranging, although it would appear some fifty-five documents were produced by the non-parties on 9 August 2004 in response to subpoenas dated 23 July 2004.  The applicant non-parties have had a substantial period to put material before the Court relevant to the issue as to which course was appropriate to be taken.  The matter ought to be resolved sooner rather than later.  In these circumstances I fix an amount of $500 per non-party as the reasonable loss or expense incurred in complying with all three subpoenas.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:            18 November 2004

For the Applicant:	No Appearance
Solicitor for the First Respondent:	Minter Ellison
Solicitor for the Second and Third Respondents:	Clayton Utz
Solicitor for the Non-parties, Norman Phillip Carey and Westpoint Corporation Pty Ltd:	Dibbs Barker Gosling
Date of Submissions:	20, 21 October 2004 and 1, 5 November 2004
Date of Judgment:	18 November 2004