FINDLAY -v- GRIMMER [No 4] [2015] WASC 438

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 438
Case No:	CIV:1128/2013	Heard:	ON THE PAPERS
Coram:	KENNETH MARTIN J	Delivered:	18/11/15
No of pages:	33	Judgment Part:	1 of 1
Result:	Indemnity costs orders on first application Second application dismissed
Category:	B
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Parties:	LAWRENCE JAMES HEAN FINDLAY BRIAN GRIMMER
Catchwords:	Document subpoena to non-party Non-responsive answer by hard drive Overwhelming amounts of non-responsive and irrelevant documents provided electronically Inspection of hard drive begun by issuing party's solicitors Subpoena answer set aside as failure to comply with subpoena Proper answer ordered and subsequently provided by paper Costs wasted in inspection of hard drive before interruption Indemnity costs Turns on own facts
Legislation:	Legal Profession Conduct Rules 2010 (WA), r 24
Case References:	Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467 (S) Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Findlay v Grimmer [2013] WASC 234 Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 Sheikholeslami v Brungs [2006] FCA 933 Streeter v Western Areas Exploration Pty Ltd [No 2] [2011] WASCA 17 (S) Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) Zaaiter v Perpetual Trustees Victoria Ltd [2010] NSWSC 512

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FINDLAY -v- GRIMMER [No 4] [2015] WASC 438 CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 18 NOVEMBER 2015 FILE NO/S : CIV 1128 of 2013

(Consolidated by order dated 1 March 2013)

BETWEEN : LAWRENCE JAMES HEAN FINDLAY

Plaintiff

AND

BRIAN GRIMMER

Defendant

FILE NO/S : CIV 1314 of 2013 BETWEEN : LAWRENCE JAMES HEAN FINDLAY

Plaintiff

AND

BRIAN GRIMMER

Defendant

Catchwords:

Document subpoena to non-party - Non-responsive answer by hard drive - Overwhelming amounts of non-responsive and irrelevant documents provided electronically - Inspection of hard drive begun by issuing party's solicitors - Subpoena answer set aside as failure to comply with subpoena - Proper answer ordered and subsequently provided by paper - Costs wasted in inspection of hard drive before interruption - Indemnity costs - Turns on own facts

Legislation:

Legal Profession Conduct Rules 2010 (WA), r 24

Result:

Indemnity costs orders on first application

Second application dismissed

Category: B

Representation:

CIV 1128 of 2013

(Consolidated by order dated 1 March 2013)

Counsel:

Plaintiff : No appearance

Defendant : No appearance

Non-party : No appearance

Solicitors:

Plaintiff : Bennett & Co

Defendant : Gilchrist Connell

Non-party : Vogt Graham Lawyers

CIV 1314 of 2013

Counsel:

Plaintiff : No appearance

Defendant : No appearance

Solicitors:

Plaintiff : Bennett & Co

Defendant : Gilchrist Connell

Case(s) referred to in judgment(s):

Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467 (S)
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Findlay v Grimmer [2013] WASC 234
Knight v…

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 Findlay v Grimmer [No 4]

Details

AGLC: Findlay v Grimmer [No 4] [2015] WASC 438
Case: [2015] WASC 438
Decision Date: 18 NOVEMBER 2015

CaseChat Overview and Summary

In the matter of Findlay v Grimmer [No 4], the court dealt with the issue of a document subpoena served on a non-party, which resulted in the provision of an overwhelming amount of non-responsive and irrelevant documents. The case before the court concerned the extent to which the issuing party could be held responsible for the non-compliance with the subpoena and the resulting wasted costs incurred by the responding party during the inspection of the hard drive. The responding party, who was not a party to the original action, was served with a subpoena requiring them to produce certain documents. However, the responding party provided a non-responsive answer by way of a hard drive containing vast amounts of irrelevant material. This led to the issuing party's solicitors commencing an inspection of the hard drive, which was ultimately interrupted.

The central legal issues before the court were the responsibility for the non-compliance with the subpoena and the potential for indemnity costs to be awarded to the issuing party. The court needed to determine whether the issuing party could be held accountable for the responding party's failure to comply with the subpoena and whether the issuing party was entitled to indemnity costs for the wasted costs incurred in inspecting the hard drive before the inspection was interrupted. The court also had to consider whether the issuing party could be granted indemnity costs on their second application, despite the first application being successful.

The court held that the issuing party could not be held responsible for the responding party's failure to comply with the subpoena, as the issuing party had not been negligent in issuing the subpoena. However, the court found that the issuing party was entitled to indemnity costs for the wasted costs incurred in inspecting the hard drive before the inspection was interrupted. The court held that the responding party's non-compliance with the subpoena was a failure to comply with the court's order, and as a result, the issuing party was entitled to indemnity costs for the wasted costs. On the second application for indemnity costs, the court dismissed the application, finding that the issuing party had not provided sufficient evidence to support their claim for additional costs. The court held that the issuing party's entitlement to indemnity costs was limited to the costs wasted in inspecting the hard drive before the interruption.

Orders

Orders of the court

Indemnity costs orders on first application

Second application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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