Harrold v Exactech Australia Pty Ltd

[2025] FCA 1058

FEDERAL COURT OF AUSTRALIA

Harrold v Exactech Australia Pty Ltd [2025] FCA 1058  

File number(s):

NSD 1224 of 2024

Judgment of:

JACKMAN J

Date of judgment:

29 August 2025

Catchwords:

COSTS – third party application for costs incurred in complying with subpoena – consideration of scope and application of r 24.22 of the Federal Court Rules 2011 (Cth) – principles for assessing loss or expense incurred – where costs applicant already discounted the amount charged to costs respondent – where costs respondent submits that documents received were not required by subpoena and challenges reasonableness of hours spent answering subpoena – application for legal costs of interlocutory application – costs granted

Legislation:

Health Insurance Act 1973 (Cth)

Federal Court of Australia Act 1976 (Cth)

Health Insurance Regulations 2018 (Cth)

Federal Court Rules 2011 (Cth)

Supreme Court Rules 1970 (NSW)

Cases cited:

Australian Competition and Consumer Commission v Boral Limited [2007] FCA 14

Deposit and Investment Co Limited (Receivers Appointed) v Peat Marwick Mitchell and Co (1996) 39 NSWLR 267

Foyster v Foyster Holdings Pty Limited (in liq) [2003] NSWSC 881

Fuelxpress Limited v L M Ericsson Pty Limited (1987) 75 ALR 284

J Aron Corp v Newmont Yandal Operations Pty Limited [2004] NSWSC 996

Titan Enterprises (Qld) Pty Limited v Cross [2016] FCA 1275

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

22

Date of hearing:

29 August 2025

Counsel for Costs Applicant:

Mr S Powrie

Solicitors for Costs Applicant:

HWL Ebsworth

Counsel for Costs Respondent:

Mr M Robinson and Mr L Judd (written submissions)

Solicitors for Costs Respondent:

Gerard Malouf and Partners

 

ORDERS

NSD 1224 of 2024

BETWEEN:

SIMON HARROLD

Applicant

AND:

EXACTECH AUSTRALIA PTY LTD ACN 146 150 754

First Respondent

EXACTECH INCORPORATED

Second Respondent

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	29 AUGUST 2025

THE COURT ORDERS THAT:

1.Pursuant to r 24.22 of the Federal Court Rules 2011 (Cth), the Costs Respondent is to pay the Costs Applicant's reasonable loss and expense in complying with the subpoena to produce documents issued on 20 November 2024 in the sum of $112,262.84.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Delivered ex tempore, revised from transcript

JACKMAN J:

1. The Australian Orthopaedic Association (Costs Applicant) seeks orders pursuant to r 24.22 of the Federal Court Rules 2011 (Cth) that the applicant in the substantive proceedings, Mr Simon Harrold (the Costs Respondent), pay the amount of the Costs Applicant's loss or expense incurred in complying with a subpoena to produce documents issued on 20 November 2024. Rule 24.22(1) provides as follows:

   The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

   It is common ground that I should fix the amount on a lump sum basis under subrule (2).

2. The subpoena required production of documents that record or evidence…