Mackie Pty Ltd v Republic of Turkey

[2014] VCC 348

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
BUILDING CASES DIVISION

Case No. CI-13-01367

MACKIE PTY LTD	Plaintiff
v.
REPUBLIC OF TURKEY	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2014
DATE OF JUDGMENT:	31 March 2014 (revised 1 April 2014)
CASE MAY BE CITED AS:	Mackie Pty Ltd v. Republic of Turkey
MEDIUM NEUTRAL CITATION:	[2014] VCC 348

REASONS FOR JUDGMENT

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Catchwords:             Practice and procedure – Subpoena to produce documents to the Registrar – Loss and expense of complying with subpoena fixed – Rule 42.11 County Court (Civil Procedure) Rules 2008 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.A.F. Twigg of Counsel	Christopher Bunnett
For the Defendant	Mr R. Andrew of Counsel	BMA Lawyers Pty Ltd
Subpoenaed party, Tectura Pty Ltd	Ms E. Grigg and Mr S. Baycon (by leave)

HIS HONOUR:

1The plaintiff and the defendant are involved in major litigaton in relation to a construction project. It is anticipated that the trial of the proceeding between them will take 15 sitting days. The plaintiff served a subpoena on the architect for the project, Tectura Pty Ltd (“Tectura”). The subpoena is dated 18 December 2013 and was served by post, apparently on 7 January 2014.

2The subpoena required production of documents to the Registrar by 28 January 2014. The documents to be produced were set out in a schedule and were defined by reference to three categories, first, delays in completion, secondly, variations and thirdly, defects.

3The subpoena, in comprehensive notes, gave instructions to the party required to comply with the subpoena. These included a direction that a failure to comply with the subpeona without lawful excuse was a contempt of court and may be dealt with accordingly.

4This was the first time the architect’s firm had been served with a court subpoena. They had previously been asked by their client on the project, the defendant in the proceeding, to provide copies of documents to it. At first, the architects thought that the subpoena was a further requirement they were asked to comply with on behalf of their former client. They had, on 5 April 2012, sent a letter to their client notifying the defendant of the charges they would make for any work to be carried out during the course of the litigation. The charges were $250 per hour for work carried out by a director or principal architect, $200 per hour for work to be carried out by a project architect and $150 for work to be carried out by an architect. These charges are in accordance with industry standards.

5The archictectural practice is a relatively small one. It comprises only architects and all administrative tasks are performed by the architects. The project itself took approximately five years to complete and although the managing director, Mr Baycan worked on the project since the commencement, there were a number of architects who had also worked on the project who were no longer in the employ of the firm.

6Upon the application to fix the architect’s loss and expense of complying with the subpoena, evidence was given by Mr Baycan and by Ms Grigg, the principal architect in the firm who had primary responsibility for complying with the subpoena, gave evidence of the work they did personally and the work they supervised. The bulk of the work was carried out by a project architect, Mr Di Clemente and a project architect, Mr Falzon.

7Apparently, on 22 January 2014 or shortly prior to that date, the plaintiff’s solicitors had made a telephone inquiry asking the firm to notify them of the work they had carried out to that time and to give an estimate of the work that would be required to complete the task. In a letter dated 22 January 2014, the architects set out the scope of work, the charges they would make, the work that had been performed including the dates it had been performed and the persons performing the work and an estimate of the further work that would be required. The solicitors did not respond.

8Ms Grigg and Mr Baycon gave evidence that the work referred to in the account and the estimate of the additional work was the work that was carried out and for which the firm ultimately charged. Ms Grigg gave evidence that the work was streamlined, it was work that was not a duplication of the requests made of it by the defendant previously and every effort was made to ensure that the requirements of the subpoena were complied with.

9Both Ms Grigg and Mr Baycon were extensively cross examined by plaintiff’s counsel, Mr Twigg. In his final submissions, Mr Twigg submitted that the time spent in carrying out the task was twice the time that should have been taken. No basis for that submission was given. He submitted that the collating work to produce the discs should have been carried out by administrative staff. The firm did not have such staff. Presumably the charge rates for administrative staff would have been at a lesser cost than the charges that were made for the architects who performed the work. However, all of the persons who worked on complying with the subpoena were to some degree familiar with the project. Mr Baycon and Mr Di Clemente were more familiar with the project. This helped them and the others working on the project to understand more easily where the electronic documents and documents in hard copy were located and to compile a compact disc of the documents.

10The subpoena required production of correspondence which necessitated a careful review of the hard-drives of the computers of present members of staff and of the architects who had previously worked on the project and who no longer worked for the firm. Where emails had been copied to a number of persons, the trail of corresondence needed to be followed to ensure that all responses and attachments that were relevant were accessed and collated.

11In my view, there is no basis to conclude that the charges made by Tectura were inflated or do not reflect the reasonable cost of the work completed in complying with the subpoena. Accordingly, it is approrpaite that I fix the cost of complying with the subpoena at $19,030, which includes GST.

12The orders of the court will be as follows:

1.     The plaintiff must pay Tectura Pty Ltd the sum of $19,030 as the reasonable loss and expense the company incurred in complying with the subpoena addressed to it and issued by the plaintiff on 18 December 2012.

2.     The said sum is payable forthwith. Upon payment of the said sum, the Registrar may forthwith deliver to the plaintiff and to the defendant a copy of the two compact discs that have been produced by Tectura Pty Ltd in repsonse to the subpoena.

3.     The question of who ultimately pays the costs of Tectura Pty Ltd in complying with the subpoena, as between the plaintiff and defendant, is reserved.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 31 March 2014 and revised on 1 April 2014.

Dated: 1 April 2014

Olivia Bramwell

Associate to His Honour Judge Anderson