In the matter of Bristrol Custodians Limited
[2013] NSWSC 1241
•20 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Bristrol Custodians Limited [2013] NSWSC 1241 Hearing dates: Tuesday 20 August 2013 Decision date: 20 August 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Order pursuant to UCPR rule 33.11 that the respondents pay the applicant the sum of $16,720.
Catchwords: PRACTICE AND PROCEDURE - Subpoenas - costs of responding to subpoena - quantum of costs to be awarded Legislation Cited: (NSW) Uniform Civil Procedure Rules r 33.11 Cases Cited: Rochfort v Trade Practices Commission [1982] HCA 66 Category: Interlocutory applications Parties: Vincent J Di Bella & Associates Pty Ltd (applicant)
Ozem Kassem and Bruno Secatore as Liquidators of ACN 092 138 442 Pty Ltd (In Liquidation) (first respondent)
ACN 092 138 442 Pty Limited (In Liquidation) (second respondent)Representation: Counsel:
Ms B Nolan (applicant)
Mr Condon SC w Mr P Wallis (respondents)
Solicitors:
Knightsbridge North Lawyers Pty Ltd (applicant)
Sage Solicitors (respondents)
File Number(s): 2010/245867
Judgment (Ex tempore)
By interlocutory process filed on 21 June 2013, the applicant Vincent J Di Bella & Associates Pty Ltd seeks an order pursuant to UCPR rule 33.11 to the effect that the plaintiffs, who caused to be issued and served on the applicant a number of subpoenas for production, pay the amount of any reasonable loss or expense incurred in complying with those subpoenas.
As I have indicated in the course of argument, although the rules provide that if the court makes such an order it must fix the amount or direct that it be fixed in accordance with the court's usual procedure in relation to costs. It is, particularly in the context of this litigation, highly preferable that the court fix the amount rather than leave its ascertainment to some further, perhaps more precise but inevitably additionally costly, process. That also necessarily involves that the court takes a somewhat impressionistic and blunt approach to the assessment of the amount so fixed.
It is not in issue that the applicant is entitled to an order under rule 33.11. The argument is as to quantum. In that respect, I think there are essentially five issues to be addressed. The first is the charge out rate claimed. The second is the time expended on searching for documents, including in particular at premises of the applicant's client corporations who are parties in the substantive proceedings. The third is the time occupied in obtaining legal advice concerning the subpoenas. The fourth is the time expended in discussing the subpoenas with the applicant's client. The fifth is the costs of photocopying.
As to the charge out rate, there is evidence that establishes that the applicant's charge out rate was $300 per hour and that its business was the provision of external accounting services to clients. I see no reason to suppose that time spent on searching out documents for the purposes of complying with the subpoenas would not otherwise have been put to remunerative use. I allow the charge out rate of $300 per hour.
So far as the time spent in searching for documents to comply with the subpoenas is concerned, at a slightly earlier stage, on 31 May, the applicant asserted that 40 hours was so spent; but, in the affidavit sworn on 21 July in support of the present application, claimed 60 hours. Of that 60 hours, it seems to me that well in excess of 10 must have been spent searching for documents not at its premises but at premises of its client companies.
For the applicant it was argued that, as its principal was an accountant retained by the client companies, documents in the control of the companies were in his control as its retained accountant, by analogy with the position of an employee. But I do think that the case referred to in support of that proposition, Rochfort v Trade Practices Commission [1982] HCA 66, goes nearly so far. It establishes that all that is required for a party bound by a subpoena to be required to produce documents is that the documents be in its possession, custody or control and that mere possession is sufficient, such that the person concerned need not have any further proprietary interest in the documents before being obliged to produce them. But it is very difficult to see how an accountant whose principal office is in North Sydney and who has a subsidiary office at one of its client premises has possession of documents at other premises of the client. I do not accept that the applicant was required to search its client's premises for documents to meet its obligations under the subpoena, nor to produce documents that were held by its client. The applicant was required to produce only documents in its possession. As I have said, an impressionistic and blunt approach is required to this, and I propose to allow 45 hours in place of the 60 claimed in respect of searching for documents.
The applicant is entitled to obtain advice as to the scope of the subpoena and compliance with it, but that does not extend to advice on an application to set aside the subpoena, nor the preparation of evidence in connection with such an application, let alone the preparation of evidence for the substantive proceedings. It seems to me that an attendance on solicitors for a conference to obtain advice in excess of two hours would not be reasonable for the purposes of obtaining advice as to the scope of and compliance with the subpoenas. I will allow two hours only under that head.
The applicant was also entitled, given the nature of the documents sought, to consult its client and obtain instructions from its client as to whether claims for confidentiality or privilege should be made in respect of documents to be produced. Again, it seems to me that two hours should have been adequate for that purpose, and I will allow only two hours.
So far as photocopying is concerned, on the one hand I accept that the applicant being a small business and, albeit that the principal's wife is engaged in it, effectively almost a sole practice, it may not have been realistic to expect another employee at a cheaper rate to do the photocopying. On the other hand, it seems to me that the task could have been given to an external provider at a cost far less than 12 hours of the principal's time at $300 an hour. I will allow $1 per page, a total of $1500.
According to my mathematics, that totals $15,200 plus GST at $1,520, a total of $16,720.
Pursuant to UCPR rule 33.11, I order that the respondent pay the applicant the sum of $16,720.
I order that the respondent pay the applicant's cost of the application, assessed in the sum of $5,000.
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Decision last updated: 18 March 2014
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