Noone v Brown (No 2) - [2019] QDC 153

DISTRICT COURT OF QUEENSLAND

CITATION:

Noone v Brown (No 2) [2019] QDC 153

PARTIES:

MAXINE NOONE
(plaintiff)

v

HEATHER MANSELL BROWN
(defendant)

FILE NO/S:

1510/18

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions of the parties

JUDGE:

Smith DCJA

ORDER:

1. The defendant is to pay the sum of $1,100 to Aveo Group Limited within the period of 28 days.

CATCHWORDS:

PRACTICE AND PROCEDURE – subpoenas – whether costs should be awarded- quantum of costs

Uniform Civil Procedure Rules 1999 (Q) rr 417, 418, 419

Australian Prudential Regulation Authority v Rural and General Insurance Ltd [2004] FCA 933

Burrup Fertilisers Pty Ltd v Oswal and Ors (No 6) (2012) 205 FCR 429; [2012] FCA 590

Parry v Kennedy [2014] QCA 239

COUNSEL:

Solicitors for the defendant

Solicitors for Aveo Group Limited ACN 010 729 950

SOLICITORS:

GTC lawyers for the defendant

HWL Ebsworth Lawyers for Aveo

Introduction

This is a decision concerning the costs sought by Aveo Group Limited ACN 010 729 950 (“Aveo”) relating to a subpoena served by the defendant.

The subpoena relates to the civil trial which is the subject of the decision in Noone v Brown.[1] For the purposes of the trial the defendant subpoenaed documents from Aveo which related to the plaintiff’s previous employment with that organisation.

Submissions

[1][2019] QDC 133.

Aveo’s submissions

Aveo has submitted that it incurred significant expenses in complying with two subpoenas issued on behalf of the defendant. The subpoenas were issued either the day before compliance was required or the day compliance was required. The first subpoena was deficient and Aveo did not need to comply with its requirements. Conscious though that the matter was on for trial and to assist the court, Aveo deployed significant recourses at short notice to comply with first subpoena. Aveo seeks an order that the defendant pay expenses incurred in these proceedings occasioned by responding to the above subpoenas by way of conduct money payable in accordance with r 419 of the Uniform Civil Procedure Rules 1999 (Q) (“UCPR”) and Aveo’s reasonable costs incurred in responding to the subpoenas in accordance with rr 417 and 418 of the UCPR.

As to the facts of the case, Aveo submits that on 13 June 2019 at 12.00pm the defendant sent an email to James Schmalkuche at his Aveo email address attaching a subpoena for production and to give evidence. The subpoena was directed to him at his work address; referred to an entity that did not exist; sought production of documents that were the property of Aveo (not Mr. Schmalkuche) and called for Mr. Schmalkuche to attend the Brisbane District Court at 10.00am on 14 June 2019 to produce the documents requested and to give evidence.

No conduct money was provided with this first subpoena. Despite this, Aveo was aware that proceedings were currently before the court in trial and wished to assist the court by all means…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Noone v Brown (No 2)

Details

AGLC: Noone v Brown (No 2) [2019] QDC 153
Case: [2019] QDC 153
Decision Date: 23 August 2019

CaseChat Overview and Summary

The case of Noone v Brown (No 2) was heard in the Federal Circuit Court of Australia. The primary parties involved were Noone, the plaintiff, and Brown, the defendant. The dispute centred around the enforcement of a subpoena and the associated costs incurred by Aveo Group Limited during the process. Aveo Group Limited had issued a subpoena to the defendant, Brown, and subsequently sought to recover costs from the defendant in connection with this subpoena.

The central legal issue before the court was whether the defendant should be liable for the costs incurred by Aveo Group Limited in serving the subpoena, and if so, what the appropriate quantum of those costs should be. The court needed to determine if Aveo Group Limited's costs were reasonable and necessary and, if they were, how much of these costs the defendant should be required to pay.

The court found that Aveo Group Limited's costs were reasonable and necessary for the service of the subpoena. The court ruled that the defendant should bear these costs, but it also exercised its discretion to reduce the amount that Aveo Group Limited could recover. The court concluded that the appropriate sum for the defendant to pay was $1,100, which was a reduction from the amount initially claimed by Aveo Group Limited. This decision was based on the court's assessment of the reasonableness of the costs claimed and the financial circumstances of the defendant.

The court made an order that the defendant, Brown, is to pay the sum of $1,100 to Aveo Group Limited within a period of 28 days. This order was based on the court's findings regarding the reasonableness of the costs and the need to balance the rights of the parties involved in the litigation process.

Orders

Orders of the court

1. The defendant is to pay the sum of $1,100 to Aveo Group Limited within the period of 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Noone v Brown (No 2) [2019] QDC 153
PARTIES:	MAXINE NOONE (plaintiff) v HEATHER MANSELL BROWN (defendant)
FILE NO/S:	1510/18
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions of the parties
JUDGE:	Smith DCJA
ORDER:	1. The defendant is to pay the sum of $1,100 to Aveo Group Limited within the period of 28 days.
CATCHWORDS:	PRACTICE AND PROCEDURE – subpoenas – whether costs should be awarded- quantum of costs Uniform Civil Procedure Rules 1999 (Q) rr 417, 418, 419 Australian Prudential Regulation Authority v Rural and General Insurance Ltd [2004] FCA 933 Burrup Fertilisers Pty Ltd v Oswal and Ors (No 6) (2012) 205 FCR 429; [2012] FCA 590 Parry v Kennedy [2014] QCA 239
COUNSEL:	Solicitors for the defendant Solicitors for Aveo Group Limited ACN 010 729 950
SOLICITORS:	GTC lawyers for the defendant HWL Ebsworth Lawyers for Aveo