Fan and Napoli
[2011] FMCAfam 1439
•23 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAN & NAPOLI | [2011] FMCAfam 1439 |
| FAMILY LAW – Parenting proceedings – subpoena by Independent Children’s Lawyer to a psychologist treating the father – application for loss or expense associated with production. |
| Federal Magistrates Court Rules 2001, r.15A.11 Supreme Court Rules 1970, Schedule G |
| Applicant: | MS FAN |
| Respondent: | MR NAPOLI |
| File Number: | WOC 1156 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | Written submissions |
| Date of Last Submission: | 14 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2011 |
REPRESENTATION
| Applicant: | Dr B |
| Independent Children’s Lawyer: | Legal Aid NSW Wollongong |
ORDERS
The Independent Children’s Lawyer is to pay the costs of Dr B in the amount of $343.50 within 60 days, unless the parties otherwise agree.
IT IS NOTED that publication of this judgment under the pseudonym Fan & Napoli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 1156 of 2008
| MS FAN |
Applicant
And
| MR NAPOLI |
Respondent
REASONS FOR JUDGMENT
This is an application under Rule 15A.11 of the Federal Magistrates Court Rules 2001, which provide as follows:
Cost of complying with subpoena if not a party
(1) This rule applies if:
(a) a subpoena is addressed to a person who is not a party in the proceeding; and
(b) before complying with the subpoena, the person subpoenaed has given the issuing party notice that substantial loss or expense would be incurred in properly complying with the subpoena, including an estimate of the loss or expense; and
(c) the Court is satisfied that substantial loss or expense is incurred in properly complying with the subpoena.
(2) Unless the Court or a Registrar otherwise directs, the amount of the loss or expense estimated under paragraph (1) (b) is payable by the issuing party.
(3) The Court may fix the amount payable having regard to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory where the person is required to attend.
(4) The amount payable is in addition to any conduct money paid.
(5) If a party who is to pay an amount under this rule obtains an order for the costs of the proceeding, the Court may:
(a) allow the amount to be included in the costs recoverable; or
(b) make any other order it thinks fit.
It is a dispute about the extent of loss or expense that should be paid to Dr B, a clinical and forensic psychologist who is a person not a party to family law proceedings, who received a subpoena issued by the Legal Aid Commission of New South Wales, who represented the child in the proceedings. The application proceeded by way of written submissions, with both Dr B and Ms T from the Legal Aid Commission providing written submissions.
Dr B seeks loss and expenses totalling $1,765.13, less $35 conduct money paid, i.e. $1730.13. I note that there is a discrepancy between the itemised schedule of costs submitted by Dr B and his written submissions. The latter refers to $1,265.13. I will adopt the higher figure. In his submissions, Dr B explains that he is a sole practitioner, and he relied on the Australian Psychological Society recommended fees as the basis of his claim.
Ms T, the Independent Children's Lawyer in-house at the Legal Aid Commission, submits that the expenses in question are not reasonable. She argues that the Independent Children's Lawyer should not have to bear unnecessary or additional costs that have been incurred as a result of the Independent Children's Lawyer discharging her duties to the Court. The Legal Aid Commission has offered Dr B $273.07.
I make the following observations about Rule 15A.11:
a)I am satisfied that paragraphs 1(a) and (b) have been established on the material before me.
b)I am satisfied that Dr B incurred substantial cost or expense for the purposes of paragraph 1(c).
c)The rule does not provide any express requirement that the loss or expenses be reasonable, but as it is clearly discretionary in terms of quantum, so I can impose a requirement of reasonableness.
d)The Court may fix the amount by reference to the Supreme Court’s scale of fees. This is discretionary, but it is nonetheless an objective point of reference. Other possible points of reference might include the Australian Psychological Society’s scale of fees, and any scale prescribed by the Family Law Rules2004, but these seem to be arbitrary in circumstances where the rule itself refers to the Supreme Court’s scale of fees.
e)In the present context, the relevant Supreme Court scale is Table 3 of Schedule G to the Supreme Court Rules 1970, which provides:
Table 3 Allowances to Witnesses
| $ | ||
| 48. | Barristers, solicitors, medical practitioners, surveyors, architects, accountants, pharmacists and other professional persons | 76 |
| or per hour | 56 | |
| 49. | Whenever the persons mentioned in Item 48 are called to give expert evidence and not evidence of fact- | |
| (a) to give expert evidence, including travelling to Court, where period from departure from home, hospital, place of practice, office, place of employment or other place to return thereto from attendance at Court does not exceed one and a half hours | 116 | |
| (b) for every full hour after the first half hour, or a proportion thereof if not for a full hour | 56 | |
| (c) the amounts payable under (a) and (b) above shall not exceed a total of $462 per day. | ||
| 50. | Travelling and other allowances-(a) payment to be made at the rate of 70 cents per kilometre one way after the first kilometre up to and including 80 kilometres,(b) exceeding 80 kilometres-the reasonable cost thereof plus the cost of reasonable accommodation and meals. | |
| 51. | Other witnesses: | |
| Such allowance as is commensurate with the witness’s remuneration or circumstances but not exceeding the allowances provided by the preceding three items. | ||
| 52. | Such additional sum as is reasonable for travelling expenses and sustenance and in cases where accommodation is required such further sum as having regard to all the circumstances is reasonable and has been paid in respect thereof. | |
| 53. | The taxing officer may also allow such amount as he thinks has been reasonably and properly incurred and paid to witnesses for qualifying to give skilled evidence. |
Having regard to the above matters, I turn to consider Dr B’s itemised costs schedule. The first issue is that Dr B has charged out his time at $212 per hour, on the same basis as if it were a psychological consultation. That is not appropriate in a situation where it is more analogous to a party-party assessment of costs, rather than a professional-client assessment of costs. In other words, just because Dr B could charge his client $220 per hour, it does not automatically follow that in a Rule 15A.11 context that this is the rate that would be permitted. Quantification is a discretionary matter exercised by reference to the Supreme Court’s scale. This scale allows $56 per hour, or up to $462 per day, if it is an expert witness. I am not bound by this amount. The $56 per hour seems artificially and unreasonably low in the circumstances of this case, where Dr B would be entitled to charge out his time to his client at $212 per hour. In the circumstances, I choose to allow Dr B’s reasonable hourly rate at double the Supreme Court’s scale – that is, $112 per hour.
I turn now to consider the reasonableness of the times and amounts claimed by Dr B. I find it is appropriate for him to review professional documentation so that Dr B could ascertain what his rights and obligations were in properly complying with the subpoena. I also consider it appropriate for him to then review the subpoena itself. I am prepared to allow a total of 45 minutes for both of these items, as one item would not take place without reference to the other.
I do not allow any conferences or telephone attendances, or any other communication on Dr B’s client, Mr Napoli. These are not matters incurred in “properly complying with the subpoena,” which is an obligation arising quite independently of any obligation Dr B felt he had to his client. I do not allow for the claim for “other emails,” which are insufficiently specified for me to determine whether they arise or are covered by Rule 15A.11. I do not allow for telephone calls between Dr B and the Legal Aid Commission or the Federal Magistrates Court, seeking clarification. The subpoena was clear in its terms. In my reasons for judgment in the substantive matter, I made an observation to the effect that Dr B, who gave extensive evidence in person, seemed to find ambiguity where none existed. I cannot ignore that finding in the present context of determining the reasonableness of loss or expense claimed. I do not allow anything in relation to the objection to production which was found, in any event, to be misconceived and unwarranted. An objection is not an expense incurred in properly complying with the subpoena.
I accept that there would have been time reasonably incurred by Dr B in organisation and administration, i.e. physically getting the relevant documents together. I accept his claim for 1 hour 20 minutes in this regard. I accept that Rule 15A contemplates the preparation of an estimate of loss and expense. I think the 1 hour claimed is excessive in the circumstances, but will allow 20 minutes.
Dr B claims one hour for court attendance. I must assume that this does not relate to his giving evidence, which was, in event, for much more than one hour. It must relate to attendance relating to the subpoena. If Dr B’s attendance claim was for the purposes of giving evidence, then that was because he was a witness to the case on the father’s side, so the amount is not claimable under Rule 15A.11. The only other attendance claimable under Rule 15A.11 is to physically produce the documents, but even that was only necessary because of what I have already described as a misconceived objection by Dr B. There was otherwise no requirement for him to physically attend, and so no amount is payable in this regard under this rule.
Dr B seeks photocopying of 145 pages at 50 cents per page. Even the Legal Aid Commission does not dispute this, so I will allow that.
Accordingly, I am prepared to allow total time of 145 minutes, or 2 hours 25 minutes, at $112 per hour, which amounts to $271 rounded off. When the agreed photocopying of $72.50 is added, this makes a total of $343.50.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 23 December 2011
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