Grimes v Grimes [No 2]
[2010] WADC 191
•8 DECEMBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GRIMES -v- GRIMES [No 2] [2010] WADC 191
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 8 DECEMBER 2010
DELIVERED : 8 DECEMBER 2010
FILE NO/S: CIV 264 of 2008
BETWEEN: MARK PETER GRIMES
Plaintiff
AND
RAYMOND JOHN GRIMES
First defendantJUDITH GRIMES
Second defendant
Catchwords:
Practice and procedure - Costs - Costs of compliance with subpoena
Legislation:
Rules of the Supreme Court 1971 (WA), O 36 r 11
Result:
Defendant to pay Mrs A Frigger's costs incurred in complying with the subpoena in the amount of $1338, inclusive of GST
Representation:
Counsel:
Plaintiff: No appearance
First defendant : Ms J L M Deligeorges
Second defendant : Ms J L M Deligeorges
Mrs Angela Frigger : In person
Solicitors:
Plaintiff: Separovic & Associates
First defendant : Talbot Olivier
Second defendant : Talbot Olivier
Mrs Angela Frigger : Not applicable
Case(s) referred to in judgment(s):
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276
Grimes v Grimes [2010] WADC 137
PRINCIPAL REGISTRAR GETHING: [This judgment was delivered extemporaneously on 8 December 2010 and has been edited from the transcript.]
By application dated 5 November 2010, Mrs Angela Frigger, whom I will refer as 'the witness', sought orders requiring the defendants to pay the losses which she says she incurred in complying with two subpoenas issued by the defendants. The action in which the subpoenas were issued was the subject of a trial on 14 to 18 and 21 June 2010. His Honour Judge Goetze delivered reasons on 17 September 2010, dismissing the plaintiff's claim and ordering the plaintiff to pay the defendants' costs. The decision is reported as Grimes v Grimes [2010] WADC 137. I have drawn some of the background and contextual facts from this decision.
In the action, the plaintiff claimed damages for injuries he sustained when he fell from a ladder resting against a palm tree at the home of the defendants. The defendants are his parents. The fall occurred as the plaintiff was attempting to inspect the gutters and the roof of his parents' home.
By letter dated 15 November 2010 to the witness, copied to the parties, I made the following directions for the conduct of this hearing:
(a)By 24 November 2010, the witness was to file and serve any further affidavit and any submissions in relation to the application.
(b)By 24 November 2010 the witness was to file and serve an affidavit, setting out whether she had rendered any invoice to the plaintiff in relation to the work done for the trial of the action and, if so, to annex a copy of it and then set out whether the invoice had been paid.
(c)By 1 December, any other parties were to file and serve any other affidavit and any submissions in relation to the application.
I gave limited liberty to the parties to apply in relation to the directions. Neither the witness nor either party sought to invoke this liberty.
In support of the application the witness filed an affidavit dated 5 November 2010. In this affidavit the witness deposed to having been the accountant for the plaintiff, his family members and StarPath Investments Pty Ltd since 1999. StarPath is the company through which the plaintiff conducts his business of a bricklaying contractor. The witness also deposes that (par 8):
The plaintiff and his solicitors met with me regarding these proceedings, for which I charged my hourly rate of $275 plus GST total hourly rate $302.50.
On 6 December 2010, the witness filed a short affidavit sworn that day. In this affidavit she annexed an invoice to the plaintiff's solicitors in the amount of $2,268.75, being for 7.5 hours work. She deposed that this invoice had been paid.
Relevant law
The power to order a party who issues a subpoena to pay the costs incurred by a witness is contained in Rules of the Supreme Court 1971 (WA) (RSC) O 36B r 11. That rule is in the following terms:
Costs and expenses of compliance
(1)The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
(2)If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs.
(3)An amount fixed under this rule is separate from and in addition to –
(a)any conduct money paid to the addressee, and
(b)any witness expenses payable to the addressee.
In Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276, the Chief Justice undertook a similar exercise pursuant to RSC O 36B r 11. His Honour allowed a witness expenses based on a reasonable allowance for the witness to review the subpoena and identify relevant documents. For present purposes the case is authority for two propositions:
(a)in reviewing a claim for loss or expense pursuant to RSC O 36B by a professional person, it is permissible to assess the claim based on the witness's normal hourly charge out rate; and
(b)the court will review the work done to determine what work was reasonably required to identify and assemble the documents falling within the categories of documents in the subpoena.
Subpoenas
The first subpoena issued by the defendants was dated 23 April 2010. It was for the production of documents and was returnable on 18 May 2010. The documents requested were as follows:
All financial documents in your possession relating to Mark Peter Grimes and StarPath Pty Ltd, including but not limited to income tax returns, financial statements, books of account and details of bank accounts.
The defendants obtained orders allowing the subpoena to be returned prior to trial. The orders made on 14 April 2010 contained the following order as to costs:
5.The Applicant pay the reasonable cost to the witness of production of the documents fixed at $80 to be tendered with the subpoena, without prejudice to the right of the witness to apply to the Court for a higher amount to be fixed and to any agreement to the contrary between the Applicant and the witness.
The sum of $80 was tendered with this subpoena at the time of service.
The second subpoena issued by the defendants was dated 14 May 2010. It required the witness to both attend the court and produce documents. The documents were to be produced by 8 June 2010. Again, an order was made granting the defendants permission to have the subpoena returnable prior to trial. Paragraph 5 of the order of 14 May 2010 was in similar terms to par 5 of the order of 14 April 2010. Again, the sum of $80 was provided to the witness with the subpoena.
Loss claim - first subpoena
In relation to the first subpoena, the witness deposes that she was obliged to look through what she described as her 'extensive file and electronic records' in order to extract the documents required by subpoena. She then made copies and a list of documents, and posted them to the court. In the hearing before me the witness advised that this took approximately three hours.
In looking at the time reasonably taken to collate and identify the documents, it seems to me that the time can be divided into two categories. The first category is what I might call professional time, being the time taken to identify the documents. The second category is administrative time, being for collating the documents, copying the documents and dealing with postage.
It seems to me that a reasonable allowance for the first category in relation to professional time is an amount of one hour. In relation to the second, it seems to me that any administrative time is adequately covered by the $80 tendered with the subpoena.
Loss claim - second subpoena
Turning then to the amount claimed in relation to the second subpoena, it is convenient that I deal with this in two parts.
The first part relates to the collation of documents. In relation to the second subpoena, the witness advised in the hearing before me that this required her to check three computer based accounting programs in order to determine whether or not there were any documents complying with the subpoena. No documents were identified falling within the class of documents sought.
The documents sought were as follows:
All documents relating to the financial returns of StarPath Pty Ltd including but not limited to, tax returns, balance sheets and profit & loss statements for the period 1 July 2000 to 30 June 2009; and
All documents relating to payments made to employees, contractors and company office bearers including, but not limited to, wage records, time sheets, invoices from sub‑contractors, payments to subcontractors; and
All documents relating to the expense account named 'StarJet Investments Pty Ltd JV'; and
All records relating to payments made to Michael Thomas; and
All records relating to bricklaying contracts; and
All records relating to the payment of salaries to Mark Peter Grimes and Raymond Grimes, including but not limited to salary expense account; and
Tax returns of Mark Peter Grimes for the period 1 July 2000 to 30 June 2009.
The witness claims an amount of three hours for undertaking this work. I am prepared to allow what I consider to be a reasonable amount of time, being one hour together with the $80 for any administrative expenses taken in relation to that.
The second part of the claim relates to attendance at court. In relation to the second subpoena the witness claims:
(a)two hours on 14 June 2010 including travel time,
(b)two and a half hours on 16 June including travel time; and
(c)three hours on 17 June which included printing and copying tax returns for Mrs Rhoda Grimes being the plaintiff's wife.
The witness also deposes that for her attendance as a witness she was provided with two reports of a Mr A Smit. She read through the reports and compared the reports with the financial statements of StarPath Investments prior to attending court as a witness.
In total, the witness claims 16 hours for complying with the two subpoenas. At her charge-out rate this would be 16 hours by $302.50 being $4,840 of which $605 has been paid by the defendants.
From the transcript of the proceedings it appears that the witness was called by the plaintiffs. She commenced giving evidence on 16 June 2010 at 3.11 pm and went through to 4.23 pm. She resumed giving evidence on 17 June 2010 at 10.33 am and then concluded at 12.44 pm.
The witness is listed as a witness whom the plaintiff intended to call in the list of witnesses filed by the plaintiff on 10 June 2010. On the file there is a written and signed proof of evidence for the witness dated 16 June 2010 which on its face responds to the reports of Mr A Smit (whose business name is RGL Forensics).
The second subpoena appears to have been issued by the defendant out of an abundance of caution to ensure that the witness attended trial. From the file it appears that the plaintiff subpoenaed a number of witnesses, though did not subpoena the present witness, Ms Frigger.
It seems to me that the appropriate way for me to assess this is to look at the operative cause of the loss of professional time to the witness. If the operative cause was that she had been called by the plaintiff, the witness expenses ought to be paid by the plaintiff. If the operative cause was that she had been called by the defendant, pursuant to the subpoena issued by the defendant, then the witness expenses ought to be borne with by the defendant.
I can deal first with the claim in relation to reviewing the reports of Mr Smit. It seems to me that any amount of preparation time in relation to this was for the benefit of the plaintiff as is apparent from the proof of evidence filed on behalf of the plaintiff. I do not allow any time referable to the defendant in relation to the review of the reports of Mr Smit.
The two hours on 14 June was an attendance in response to the subpoena. I will allow that two hours as that is not referable to being called by the plaintiff.
In terms of the trial time on 16 and 17, as the witness was called by the plaintiff, any witness fees ought to be dealt with by the plaintiff. The operative cause of the loss was not the subpoena, but the fact the witness was called by the plaintiff. I am not prepared to allow any time referable to the defendant for the time spent in court on 16 and 17 June.
In relation to obtaining taxation returns for Mrs Rhoda Grimes (who is the plaintiff's wife) it seems to me that that flowed out of being called by the plaintiff. I am not prepared to allow any cost for that to be attributed back to the defendant.
The final amount claimed then is in relation to the costs of the making of the application. The witness claims here a further four hours, $1,210, plus the application fee of $128 for bringing this application.
I am prepared to allow the $128 fee. In relation to the preparation, the materials provided in the affidavits were in my view deficient. They were deficient in that they did not refer to work undertaken by the witness for the plaintiff. They did not make it clear that the witness was called by the plaintiff. Had the material provided a full analysis of the time referable to the specific tasks, then it may well be that the need for the hearing would have been obviated.
Summary of orders
In summary terms I am prepared to allow the following amounts:
(a)in relation to the first subpoena, one hour of professional time over and above the $80 already provided;
(b)in relation to the documents produced under the second subpoena, one hour professional time in addition to the $80 already provided;
(c)two hours for the attendance on 14 June;
(d)I will not allow anything else in relation to the appearance at trial; and
(e)I will allow the fee for the filing of the application at $128.
In relation to the hearing today, given the amounts that I have set, my preliminary view is that I do not propose to make any order in relation to the costs for the hearing today. I will hear from the witness and counsel on this issue.
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