Global Finance Group Pty Ltd (in Liq) v Marsden Partners (A Firm)

[2001] WASC 361

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GLOBAL FINANCE GROUP PTY LTD (IN LIQ) -v- MARSDEN PARTNERS (A FIRM) [2001] WASC 361

CORAM:   MASTER BREDMEYER

HEARD:   21 SEPTEMBER 2001, 5 OCTOBER 2001 & 9 NOVEMBER 2001

DELIVERED          :   28 DECEMBER 2001

FILE NO/S:   CIV 2640 of 2000

BETWEEN:   GLOBAL FINANCE GROUP PTY LTD (IN LIQ) (ACN 009 380 205)

Plaintiff

AND

MARSDEN PARTNERS (A FIRM)
Defendant

Catchwords:

Costs of a subpoena issued prior to trial

Legislation:

Nil

Result:

Costs awarded

Category:    B

Representation:

Counsel:

Plaintiff:     Mr T J Carmady

Defendant:     No appearance

Solicitors:

Plaintiff:     Williams & Hughes

Defendant:     No appearance

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

Nil

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  This is a reserved decision on costs.  It concerns the plaintiff and the subpoenaed party, the Department of Consumer and Employment Protection ("the Department").

2. On 1 August 2001 the plaintiff applied by way of chamber summons for leave to issue a subpoena duces tecum to the Department to get access to documents which would assist the liquidator in his claim for negligence against the defendant auditors.  The Department carries out investigations into finance brokers such as the plaintiff.

3. The plaintiff and the Department (which was represented by Ms Pritchard of counsel) appeared before me on 21 September 2001 and, after argument about the scope of the subpoena, I gave some rulings.  I ordered each party to produce minutes within seven days, in the hope that they could agree on the appropriate scope for the subpoena.  On 5 October 2001 I made orders in terms of the Crown Solicitor's Minute of Proposed Orders of 28 September 2001.

4. The parties appeared before me again on 9 November 2001 to argue briefly on costs.  The plaintiff submitted that there should be no order as to costs.  The Department sought its full costs.

5. The general position on costs of a subpoena issued by the plaintiff against a non‑party is that the plaintiff should pay the subpoenaed party's costs.  Where, however, as here, the subpoenaed party argued that the subpoena was too wide, then the "costs follow the event" rule needs to be considered.  In this case, the plaintiff won some of the argument about the scope of the subpoena and the Department also won some of the argument.  The documents sought on the subpoena fall into four categories.  In categories three and four, counsel for the Department argued that the subpoena should exclude these documents.  I ruled against the Department on that although I narrowed the scope of the documents by reference to certain numbered paragraphs in the amended statement of claim.  That was, I consider, largely a forensic win for the plaintiff.  On categories one and two, the Department argued that certain documents should be excluded from the subpoena and those were documents relating to the qualifications contained in the defendant's audit reports for certain years.  I accepted that argument so that was a forensic win for the Department.  Weighing up these successive results with the general rule that the plaintiff should pay for the inconvenience caused to a non‑party by issuing a subpoena against it, I consider that the plaintiff should pay the Department's costs of the application on a three quarter basis to be taxed if not agreed.  Those same costs will also be the plaintiff's costs in the cause against the defendant.  I will so order.