Supreme Court
New South Wales
Medium Neutral Citation: Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 187 Hearing dates: 21 March 2011 Decision date: 22 March 2011 Before: Harrison J Decision: Parties to bring in short minutes of order to reflect these reasons
Catchwords: PRACTICE & PROCEDURE - subpoenas - UCPR 33.11 - entitlement of third party to claim loss and expense incurred in complying with subpoena Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure RulesCases Cited: Danieletto v Khera (1995) 35 NSWLR 684
J Aron Corporation Pty Ltd v Newmont Yandal Operations Pty Ltd [2005] NSWSC 1280
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77Category: Procedural and other rulings Parties: Frontier Assets Pty Ltd (Plaintiff)
Michael George Fishburn (First Defendant)
John James Watson (Second Defendant)
Christopher Martin O'Brien (Third Defendant)
Sam Couper (Fourth Defendant)
Stephen Campbell (Fifth Defendant)
Michael Bigelow (Sixth Defendant)
Todd Ritchie (Seventh Defendant)
Bernard Coles QC (Eighth Defendant)Representation: Counsel:
G George (Plaintiff)
I R Pike (Applicant)
Solicitors:
Kalfus Legal (Plaintiff)
Gilbert + Tobin (Applicant)
File Number(s): 2008/289361
Judgment
HIS HONOUR : On 12 November 2010 William Paul Renton Wavish sought orders by notice of motion filed that day in these terms:
1. The subpoena issued at the request of the plaintiff to William Paul Renton Wavish dated 13 October 2010 be set aside.
2. The plaintiff pay Mr Wavish's costs of and incidental to this motion on an indemnity basis.
3. Such further order as the Court sees fit.
When the matter came before me, counsel for Mr Wavish sought to file in Court and to rely upon an amended notice of motion in substantially different terms. It sought orders as follows:
1. The plaintiff pay Mr Wavish's costs of and incidental to this motion (Including his costs of and incidental to the subpoena issued at the request of the plaintiff to Mr Wavish dated 13 October 2010) on an indemnity basis in the amount of $84,179.87, or alternatively as assessed or agreed.
2. The plaintiff pay Mr Wavish's costs of and incidental to the subpoena issued to Mr Wavish's former solicitors Djekovic Hearne Walker by the plaintiff on 13 October 2010 in the amount of $15,418, or alternatively as assessed or agreed.
It will be apparent that the difference was that the amended notice of motion sought the costs of compliance with the subpoenas, whereas the original notice of motion only (on the plaintiff's argument) sought the costs of the motion to set aside the subpoena issued to Mr Wavish. That motion was ultimately settled on 11 February 2011 when the subpoena was set aside by consent. The costs issue remains.
The plaintiff at first opposed the filing of the amended notice of motion on two principal grounds. First, that Mr Wavish sought to have me determine the amount of the costs pursuant to UCPR 33.11 and that even though notice had been given of an intention to do so, the amount of the claim for these costs had…
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- Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 187
- Case
- [2011] NSWSC 187
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the former requirement that the person seeking to recover costs must be the named recipient of the subpoena, as stated in Part 37 Rule 9 of the former Supreme Court Rules, still applied under the new UCPR 33.11. The court considered whether the removal or absence of the words "person named" from UCPR 33.11 indicated an intention to allow parties other than the named recipient of the subpoena to claim compensation. The court also examined the inherent jurisdiction of the court to order that reasonable loss or expense incurred by someone who was not personally addressed by the subpoena could be recoverable by them.
The court concluded that the clear and unambiguous words of UCPR 33.11(1) indicated that a party issuing a subpoena could be subject to a court order to pay the amount of any reasonable loss or expense incurred in complying with the subpoena, without limitation on who the subpoena was issued to or how the loss or expense was incurred. The court further found that the inherent jurisdiction of the court could be exercised to order that the reasonable loss or expense incurred by the third party in complying with the subpoena, which they had paid or would otherwise have been liable for, could be recoverable by them. Consequently, the court held that the third party was entitled to recover their costs.
The court's decision was that the plaintiff was liable to pay the defendant the reasonable loss and expense incurred by the defendant in complying with the subpoena addressed to his former solicitors.
Orders
Orders of the court
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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
The rule does not require that the applicant for costs be the named recipient of the subpoena. The equivalent rule in the former Supreme Court Rules included a requirement that the person seeking to recover the costs of complying with a subpoena was necessarily the named recipient of the subpoena. Mr Wavish contends that the removal, or the absence, from UCPR 33.11 of the words "person named" as it appeared in former Part 37 Rule 9 gives effect to a clear intention to entitle parties other than the named recipient of the subpoena to claim compensation for loss and expenses incurred in complying with it. Mr Wavish submitted that such an approach was supported by judicial comments about the role of the court in ensuring that persons whose attention is required, and whose liberty is interfered with, in connection with the service of a subpoena should be compensated accordingly. See, for example, J Aron Corporation Pty Ltd v Newmont Yandal Operations Pty Ltd [2005] NSWSC 1280. Mr Wavish contended that the clear and unambiguous words of UCPR 33.11(1) made it clear that a party issuing a subpoena may become subject to a court order that it pay the amount of any reasonable loss or expense incurred in complying with the subpoena without limitation upon who the subpoena was issued to or how the loss or expense may have been incurred. Mr Wavish also contended that the Court in its inherent jurisdiction had power to order that the reasonable loss or expense incurred by Mr Wavish in complying with the subpoena addressed to his former solicitors, which he has paid or for which he would otherwise have been liable, were recoverable by him even notwithstanding that a subpoena was not addressed to him personally. See Danieletto v Khera(1995) 35 NSWLR 684 at 686-687. In support of these submissions Mr Wavish contended that a review by him, or on his behalf, of documents that were the subject of the subpoena issued to his former solicitors was or became a necessary part of discharging the obligations created by the subpoena. Accordingly, Mr Wavish ought to be entitled to recover his costs of doing so. By way of example, Mr Wavish submitted that the issue of a subpoena issued to his former solicitors necessitated the expenditure of costs by him because it was necessary for him to review documents to be produced in response to the subpoena to ensure that his claims for client legal privilege and confidentiality were identified and that appropriate steps to maintain and protect that confidence and privilege were taken. The plaintiff submitted that neither the terms of UCPR 33.11 nor the inherent power of the Court authorised the making of an order in favour of Mr Wavish for the reasonable loss or expense incurred in complying with the subpoena to be paid to Mr Wavish. He was not a party named in the subpoena. He was not liable personally to comply with it. Any sanctions attaching to a failure by a named recipient of a subpoena to comply with its terms were not capable of applying to him. Any reasonable losses or expenses incurred by his former solicitors in complying with the subpoena addressed to them would have been recoverable by them from the plaintiff as the issuing party.