Harith & Kanuth v Beale

[2004] QSC 16

SUPREME COURT OF QUEENSLAND

CITATION:                 Harith & Kanuth v Beale [2004] QSC 016

PARTIES:  PAUL ANTONI HARITH  

(First Plaintiff/First Respondent)

and

ELIZABETH GAY KANUTH

(Second Plaintiff/Second Respondent)

v  

JOHN BEALE
(Defendant)
  and
  PLASTIRAS MEREDITH MOHR LAWYERS
  ABN 64 641 311 403
  (Applicant)

FILE NO:  S55 of 2003 (Mackay)

S163 of 2003 (Rockhampton)

DIVISION:                   Trial Division

DELIVERED ON:       18 February 2004

DELIVERED AT:        Rockhampton

TRIAL HEARING

DATES:  15-18 September 2003 in Mackay

(Judgement delivered 5 December 2003)

JUDGE:   Dutney J

ORDERS:Application dismissed

CATCHWORDS: PRACTICE – SUBPOENA – where applicant solicitor served with a subpoena for production and to give evidence – whether r 418 UCPR applies

Uniform Civil Procedure Rules 1999 (Qld), rules 414, 418 and 420

COUNSEL:C Mohr (Solicitor) for the applicant

PJ Flanagan for the first and second plaintiffs/first and second respondents

SOLICITORS:             Plastiras Meredith Mohr for the applicant

MBP Legal for the first and second plaintiffs/first and second respondents

1. During the course of the trial, a Brisbane solicitor was required to attend the court in Mackay to produce documents and give evidence on behalf of the plaintiffs.  At the conclusion of his evidence he made an oral application for remuneration to compensate him for, inter alia, the time lost to his practice as a result of his attendance.  This application was supported by written submissions.

1. The written submission discloses that the solicitor was served with a subpoena for production and to give evidence.  He was not a party.  Although he received conduct money – a paltry sum for a professional person deprived of the opportunity to pursue his calling for the duration of his attendance in another city – he submitted that it was appropriate to order that a further sum be paid to him as compensation for his losses under the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), rule 418.

1. My initial response to the application was sympathetic. Unfortunately, as was pointed out by the plaintiffs’ counsel, r 418 cannot be invoked in the circumstances here. Rule 418 relevantly provides:

(1) This rule applies if –

(a)  a subpoena for production is addressed to a person who is not a party to the proceeding; and
(b) the court is satisfied that substantial loss or expense has been or would be incurred in complying with the subpoena.

(2)The court may order the party on whose behalf the subpoena was issued to pay all or part of the losses and expenses, including legal costs, incurred by the person to whom the subpoena is addressed in responding properly to the subpoena.

…

(5)An order under this rule may be made at the trial or hearing or at another time but in all cases before the order is made finally deciding the proceeding at first instance.

1. Rule 414(1) identifies three discrete types of subpoena which may be issued. These are a subpoena for production; a subpoena to give evidence; and a subpoena for production and to give evidence. As is clear from r 418(1)(a), r 418 applies only to the first of these. The subpoena issued by the plaintiffs to the solicitor in this case was of the third variety. A subpoena for production is a new category of subpoena created by the Uniform Civil Proceedure Rules. This type of subpoena differs from the old subpoena duces tecum by requiring neither attendance at the hearing to which it is directed nor personal compliance by the person named in it.[1]  There is thus no power under rule 418 to make an order of the type here sought.

[1] See UCPR r 420.

1. In any event, costs can be awarded under r 418 only in relation to production for which personal attendance at the hearing is not required. The attendance in Mackay which has caused the great part of the loss to the solicitor is because of the requirement in the subpoena to give evidence orally. Even if r 418 was taken to apply to the production part of a “subpoena for production and to give evidence” it would have no application to the substantial losses suffered here.

2. I indicated during the course of the trial that I accepted the submissions of the plaintiffs’ counsel and consequently would not make the order asked for by the solicitor. By the time I did this the solicitor had left Mackay and, through oversight, was not notified of the decision. I did not formally give reasons at that time. I raise this matter because of the provisions of r 418(5) which prohibits the making of an order under r 418(2) after the giving of judgement in the action. Having dealt with the matter in that way no order is now required. There are no costs associated with the application which was made orally by the solicitor from the witness box.