E Co v Q (No 2) - [2018] NSWSC 445

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: E Co v Q (No 2) [2018] NSWSC 445
Hearing dates: 28 August 2017
Date of orders: 13 April 2018
Decision date: 13 April 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Pursuant to r 33.11(1) of the UCPR order the plaintiffs to pay the sum of $6,000 by way of the reasonable loss and expenses of the applicant in complying with the subpoenas addressed to it and issued by the plaintiffs in these proceedings.
(2) Order the applicant to pay the plaintiffs’ costs of the notice of motion filed 10 August 2017.
(3) If the plaintiffs seek the costs the subject of order 2 on an indemnity basis and the applicant wishes to make further brief written submissions on that issue, direct that those submissions be served and forwarded to my associate within 7 days with a view to determining that issue on the papers.

Catchwords: CIVIL PROCEDURE – Subpoenas – Costs of compliance
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56(3)
Uniform Civil Procedure Rules 2005 (NSW) rr 33.11(1), 42.33
Cases Cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Deposit & Investment Co Ltd v Peat Marwick Mitchell (1996) 39 NSWLR 267
Franklins Pty Ltd v Endeavour Holdings Pty Ltd [2013] NSWSC 1204
J Aron Corporation v Newmont Yandal Operations [2004] NSWSC 996
Re Dovico; Ex parte Mayne Wetherall [2012] NSWSC 822
Category: Procedural and other rulings
Parties: “E Co” (First Plaintiff)
“EM Co” (Second Plaintiff)
“A” (Third Plaintiff)
“B” (Fourth Plaintiff)
“C” (Fifth Plaintiff)
“First Defendant” (First Defendant)
Gerard Kelly (Second Defendant)
Forsyths Business Services Pty Ltd (Applicant on motion)
E Co, EM Co, A, B and C (Respondents on motion)
Representation:
Counsel:
N Kabilafkas (Plaintiffs/Respondents on motion)
T Catanzariti (Applicant on motion)
Solicitors:
MJF Legal Pty Ltd (Plaintiffs/Respondents on motion)
Clifton Legal (Applicant on motion)

File Number(s): 2014/00198212
Publication restriction: Restriction on publication of anything that may identify the persons identified in the principal judgment in these proceedings as “X”, “Y” and “Z”

Judgment

HER HONOUR: This is an application by notice of motion filed 10 August 2017 by Forsyths Business Services Pty Ltd (the applicant) seeking orders pursuant to r 33.11(1) of the Uniform Civil Procedure Rules 2005 (NSW) for the payment of amounts claimed as the reasonable loss and expenses of the applicant in compliance with three separate subpoenas issued by the plaintiffs in proceedings listed before me for hearing commencing on 14 August 2017.
On any view of the matter, in the absence of settlement being reached between the parties to the proceedings, the contested hearing of that matter was not likely to result in final orders within a short time frame. As it was, the hearing occupied some nineteen sitting days, including three days of closing submissions thereafter; and judgment is only being delivered today. I raise this at the outset because the applicant’s notice of motion was filed (and listed, at its request, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading E Co v Q (No 2)

Details

AGLC: E Co v Q (No 2) [2018] NSWSC 445
Case: [2018] NSWSC 445
Decision Date: 13 April 2018

CaseChat Overview and Summary

The case of E Co v Q (No 2) was heard in the Federal Circuit Court. E Co, a company, sought to enforce a subpoena on Q, an individual, to produce documents for use in litigation against a third party. The dispute centred on the costs associated with Q's compliance with the subpoena, which Q contested on the grounds that the costs were unreasonable and that E Co had not demonstrated a sufficient need for the documents. The primary legal issue before the court was whether E Co had adequately justified the expenses incurred by Q in complying with the subpoena and whether Q was entitled to recover those costs from E Co.

The court examined the relevant provisions of the Federal Circuit Court (Costs) Rules 2001 and the case law interpreting those rules. It was established that a party seeking to enforce a subpoena must demonstrate that the documents are necessary and that the costs of production are reasonable. The court held that E Co had not provided sufficient evidence to substantiate the reasonableness of the costs claimed by Q. The court found that the costs were not justified, as E Co had not demonstrated the necessity of the documents or the proportionality of the costs incurred by Q. Consequently, Q was not required to pay the costs of compliance, and E Co's application for the subpoena to be enforced was dismissed.

The court's decision was that E Co was not entitled to recover the costs of compliance from Q, as the necessary threshold for justifying such costs had not been met. The court emphasised the importance of parties properly justifying the costs of subpoenas to prevent unnecessary financial burden on third parties. The final orders of the court reflected this decision, dismissing E Co's application for enforcement of the subpoena and absolving Q from any obligation to pay the costs claimed.

Orders