Noone v Brown (No 3)

[2019] QDC 154

DISTRICT COURT OF QUEENSLAND

CITATION:

Noone v Brown (No 3) [2019] QDC 154

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:

On the papers

JUDGE:

Smith DCJA 

ORDER:

The defendant is to pay the sum of $1,850 to the Lutheran Church of Australia, Queensland District trading as Lutheran Services (ABN 47 291 464 804) 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 Lutheran Church of Australia, Queensland District trading as Lutheran Services ABN 47 291 464 804

Solicitors for the defendant

SOLICITORS:

Neumann & Turnour Lawyers for the Lutheran Church of Australia

GTC Lawyers for the defendant

Introduction

1. This is an application by the Lutheran Church of Australia, Queensland District, trading as Lutheran Services ABN 47 291 464 804 (“Lutheran Services”) for legal costs pursuant to r 418 of the Uniform Civil Procedure Rules 1999 (Q) (“UCPR”) relating to a subpoena issued relevant to the trial the subject of the decision in Noone v Brown.[1] 

   [1][2019] QDC 133.

Submissions

1. In written submissions Lutheran Services submits it was subpoenaed to produce documents and has incurred substantial loss or expense in complying with the subpoena and ought not to because: the documents compelled for production by the subpoena were not relevant to the pleaded issues; both appearances were necessitated by the non-payment of conduct money by the defendant; conduct money was not paid as directed and the subpoena was an abuse of process. 

1. It is submitted that the class of documents called for by the defendant included the plaintiff’s entire personal file, which was too broad to have any relevance in the proceeding, and of the categories narrowed by correspondence, the only documents that existed were in a category which was not relevant to the pleaded issues. 

1. It is submitted that on 14 June 2019 the defendant’s solicitors admitted that the documents in that relevant category were not relevant to the pleaded issues. 

1. On 24 June 2019 the court ruled that the documents were inadmissible as to the credibility or general reputation of the plaintiff, and they were otherwise irrelevant to the pleaded issues. It is submitted that Lutheran Services’ submissions concerning the relevance of the documents has been vindicated and they should never have been put to the inconvenience of producing documents or instructing solicitors to appear for the purpose of dealing with the defendant’s non-compliance with the UCPR or court directions.

1. The first and second appearances by Lutheran Services was necessitated by the non-payment of conduct money.  It is submitted…