Owners Strata Plan 58577 v Banmor Developments Finance Pty Ltd

[2006] NSWSC 171

CITATION:	Owners Strata Plan 58577 v Banmor Developments Finance Pty Ltd [2006] NSWSC 171
HEARING DATE(S):	9 March 2006
JUDGMENT DATE :	9 March 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	03/09/2006
DECISION:	Costs refused
CATCHWORDS:	PRACTICE - Subpoenas - recipient of subpoena to produce document seeks payment in advance of reasonable expenses of compliance - request for payment made to solicitor issuing subpoena but refused - recipient takes out Notice of Motion seeking payment of such costs, but withdraws it - issuer of subpoena seeks costs of that Notice of Motion
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
CASES CITED:	Danieletto v Khera (1995) 35 NSWLR 684 Foyster v Foyster Holdings [2003] NSWSC 881
PARTIES:	Owners Strata Plan 58577 - Plaintiff Banmor Developments Finance Pty Limited - First Defendant Pluim Constructions Pty Limited - Second Defendant Ryde City Council - Third Defendant
FILE NUMBER(S):	SC 4822/02
COUNSEL:	G Segal - Plaintiff W La Hood, solicitor - First Defendant G W McGrath - Second Defendant M Hewett - Third Defendant
SOLICITORS:	Charles G Roth & Co - Plaintiff Toltz La Hood Lawyers - First Defendant Tesoriero Henderson Cotter - Second Defendant Pike Pike & Fenwick - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

THURSDAY 9 MARCH 2006

4822/02 OWNERS STRATA PLAN 58577 v BANMORE DEVELOPMENTS FINANCE PTY LIMITED & 2 ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: Doctor Robinson is a court-appointed expert, appointed to inquire into certain matters relating to water flow. He produced a report to the Court, which was dated 20 September 2004. In that report he identified various references which he had relied upon in the course of the report. Some of those references were of the nature of professional text books, for instance, a book by Henderson called Open Channel Flow published by Macmillan in 1966. Others were matters which related to historical investigations concerning water management in the Ryde area in January 1990. There was a general text relating to Australian rainfall and runoff, which was a guide to flood estimation, published by the Institution of Engineers in 1987. There were also other matters which were more specifically related to the particular building project that gives rise to this litigation. All those references were identified in a paragraph, which was Part 11 of his report.

2 On 6 June 2005 the solicitor for the plaintiff requested from Doctor Robinson copies of the documents that he had had reference to in his report. Doctor Robinson requested $825 for the work involved in providing those copies said to relate to contacting all parties, writing to the Registrar of the Court and retrieving material from archives.

3 The solicitor for the plaintiff sent that sum of $825. When documents were not produced within 12 days thereafter, without personal contact with Doctor Robinson, the solicitor for the plaintiff sent someone to Doctor Robinson’s office saying to an office assistant there that they would uplift the documents, copy them and return them to him. The documents were not made available in response to that request.

4 Doctor Robinson was then served with a subpoena, issued on 5 August 2005. It required him to produce “All of the documents referred to in Part 11 of your report in these proceedings dated 20 September 2004”. Doctor Robinson replied, saying that concerning some of the documents he was not able to release them to other parties but could provide a copy. He provided the results of the quotation obtained from a commercial copying service for copying of the documents, which totalled, excluding GST, $1,740. He also said there was time involved in his complying with the subpoena, which he would charge at his usual consulting rate, or his court appearance rate as appropriate. He sought payment in advance of those expenses. It was not suggested that this request for payment was additional to the amount of $825 which he had already received.

5 It is highly likely that the subpoena, if it had been pressed, would have been set aside. To require production of, as this subpoena did, documents which included the original of text books and reference material which were part of a professional library, of a person actively practising in that profession, is the sort of conduct which is oppressive.

6 The basis upon which Doctor Robinson requested payment is not, it seems to me, inherently unreasonable. The response of his solicitors for the plaintiff, however, was to say he was required to produce the documents. Doctor Robinson repeated the basis on which he would expect to be paid, and the solicitor for the plaintiff refused to pay anything more.

7 Doctor Robinson made application for a court order for payment of his expenses, but, today, having notified the parties on 8 March 2006 that he would not be seeking further payment, decided to withdraw the motion which he had taken out which sought that payment.

8 It is a fundamental requirement of any person who serves a subpoena that they pay not only conduct money, but also the amount required by Part 33 rule 11 Uniform Civil Procedure Rules, namely, the amount of any reasonable loss or expenses incurred in complying with the subpoena. It is unacceptable to exercise the Court's power for someone, who has issued a subpoena, and is met with a reasonable request for payment as the price of complying with the subpoena, to say that they will pay the amount of money they think is appropriate, and leave the recipient of the subpoena to come to Court and seek more if they want more. While the UCP Rules concerning subpoenas to produce documents now differ in some respects from the Supreme Court rules which I considered in Foyster v Foyster Holdings [2003] NSWSC 881, the Court still retains an inherent power to require that reasonable expenses be paid in advance of compliance with a subpoena: Danieletto v Khera (1995) 35 NSWLR 684. In the present case the demand which Doctor Robinson made seems to me to be reasonable. The subpoena was a particularly wide one and one, indeed, which I said he could have set aside.

9 Today, when Doctor Robinson came to Court to seek leave to withdraw his Notice of Motion, that course was consented to, but counsel for the plaintiff (who was already here in connection with another application which was due to be heard today) sought costs of the Notice of Motion. It is a bit difficult to see what extra costs would have been incurred save for the cost of filing one affidavit which is read on the application which set out the history of the matter but, in any event, in the circumstances I have mentioned this does not seem to me to be an appropriate case in which to make any such order for costs. The application for costs is rejected.

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