Pfenning & Anor and Snow
[2014] FamCA 736
•5 September 2014
FAMILY COURT OF AUSTRALIA
| PFENNING AND ANOR & SNOW | [2014] FamCA 736 |
FAMILY LAW – PRACTICE & PROCEDURE – where a third party objector to a subpoena seeks costs of compliance – consideration of rule 15.23 – consideration of distinction between rule 15.23 and section 117 – where the objector asserts she incurred substantial loss or expense in complying – where the objection was substantially sustained – whether the costs of compliance were reasonable – where limited costs of compliance awarded – where costs of objection also awarded.
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 r 15.23 |
Bank of New South Wales v Withers (1981) 35 ALR 21
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D Costs (No 2) (2010) FLC 93-435
Fuelexpress Ltd v Ericsson Pty Ltd (1987) 75 ALR 284
G & D & D [2005] FamCA 1429
Hadid v Lenfest Communications Inc (1996) 65 FCR 350
Kohan & Kohan (1993) FLC 92-340
Lavell & Lavell [2012] FamCA 34
Limousin & Limousin (Costs) (2008) 38 Fam LR 478
Lucas Industries v Hewitt (1978) 18 ALR 555
Moriarty & Moriarty (2009) 41 Fam LR 336
Markovska & Markovska [2011] FamCA 833
| NAMED PERSON/OBJECTOR: | Ms D Pfenning |
| APPLICANT: | Ms S Pfenning |
| RESPONDENT: | Mr Snow |
| FILE NUMBER: | BRC | 8784 | of | 2013 |
| DATE DELIVERED: | 5 September 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 25 August 2014 |
REPRESENTATION
| SOLICITOR FOR THE NAMED PERSON/ OBJECTOR: | Hopgood Ganim |
| SOLICITOR FOR THE APPLICANT: | Barry Nilsson |
| COUNSEL FOR THE RESPONDENT: | Dr Brasch |
| SOLICITOR FOR THE RESPONDENT: | Phillips Family Law |
Orders
That, in full and final satisfaction of the claim for the losses and expenses associated with her compliance with the subpoena filed 19 November 2013, the Respondent pay Ms D Pfenning the sum of $165.00 by 4.00 pm on 12 September 2014.
That by way of costs, the Respondent pay Ms D Pfenning her costs of and incidental to the Notice of Objection – subpoena filed 10 January 2014 with such costs to be assessed on a party and party basis and to be paid in an amount agreed between the parties or, failing agreement, as assessed.
That there be no order as to the costs of Ms D Pfenning and the Respondent of and incidental to the appearance on Monday 25 August 2014.
All extant applications in respect of the costs or expenses of the subpoena filed 19 November 2013 are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pfenning and Anor & Snow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8784 of 2013
| Ms D Pfenning |
Named Person/Objector
And
| Ms S Pfenning |
Applicant
And
| Mr Snow |
Respondent
REASONS FOR JUDGMENT
The Applicant and Respondent are parties to a property settlement proceeding. In the course of that proceeding, the Respondent filed a subpoena[1] directed to Ms D Pfenning, the Applicant’s mother, seeking the production of specified documents.
[1] On 19 November 2013.
Ms D Pfenning did not object to producing those documents particularized in Items 1 and 2 of the subpoena. She did, however, object to the production of all other documents particularised in Items 3 to 5 of the subpoena and, in the manner prescribed by the Family Law Rules 2004 (the Rules); a Notice of Objection to the subpoena was filed on 10 January 2014.
Ms D Pfenning also sought an order that:
a)paragraphs 3 to 5 of the subpoena be set aside; and
b)the Respondent pay her costs of and incidental to the subpoena, Notice of Objection and application to set aside the subpoena.
After considering the matter in Chambers, Registrar Stoneham limited the scope of the documents particularised in Item 3 of the subpoena required to be produced by Ms D Pfenning in the manner outlined by the Order made 14 February 2014. The Registrar otherwise set the subpoena aside on the bases outlined in the Order and reserved the costs of the parties to the trial Judge.
As a consequence of the Registrar’s Order made 29 May 2014, I am asked to determine Ms D Pfenning’s Application, pursuant to Rule 15.23 of the Rules and s 117(2) of the Family Law Act 1975 (Cth) (the Act), for costs/loss and expense of compliance with the subpoena.
Ms D Pfenning’s standing to seek an order in the terms sought
Relevantly, Rule 15.23 (3) of the Rules provides that a “named person” may apply to be reimbursed if the named person incurs a substantial loss or expense that is greater than the amount of the conduct money or witness fee payable to that person under this Rule.
Ms D Pfenning is a “named person.”[2] She quantifies the ‘substantial loss or expense’ she has incurred in the amount of $21,843.56 – clearly greater than the $10.00 payable to her pursuant to the Rules.[3]
[2] Rule 15.16, Family Law Rules 2004.
[3] Family Law Rules 2004, Schedule 4, Part 1.
The term ‘substantial’ is not defined in the Rules. Its usual meaning includes: “of considerable importance, size or worth”; “real and tangible”; “having real substance”; “of ample or considerable amount”.
In G and D and D[4] Carmody J took it to denote something ‘considerable’ as distinct from a mere trifle.
[4] [2005] FamCA 1429.
In Moriarty & Moriarty (2009) 41 Fam LR 336 Cronin J expressed the view[5] that the term ‘substantial’ means “that the expense must be large causing loss; it must be unusual in the sense of requiring normal activity to be stopped; or it must cause an unfair inconvenience having regard to the fact that the recipient has nothing to do with the litigation.”
[5] At par [58]
With the greatest of respect to his Honour, I am not persuaded that the term ‘substantial loss or expense’ requires that those matters outlined by his Honour be established before a moving party may obtain an Order reimbursing the loss or expense incurred as a result of compliance with a subpoena.
I consider, as expressed by Murphy J. in Markovska[6] that the word “substantial” should receive its ordinary and natural meaning: that is, “having real substance” or “of ample or considerable amount.”
[6] [2011] FamCA 833, at par [127]
For the purpose of the application of Rule 15.23(3), I am persuaded that a loss or expense in an amount of $21,843.56 amounts to a substantial loss or expense.
What do the Rules require a named party receive?
Ms D Pfenning is entitled to be paid conduct money by the Respondent, at the time of service of the subpoena, in an amount that is:
a)sufficient to meet the reasonable expenses of complying with the subpoena; and
b)at least equal to the minimum amount mentioned in Part 1 of Schedule 4 (which is $10.00).[7]
[7] Rule 15.23(1).
In Bank of New South Wales v Withers (1981) 35 ALR 21 Sheppard J examined the historical basis of ‘conduct money’. His Honour said, (at 38)
…it should be emphasized that unless the payment is provided for in the rules there can be no recovery. Collins v Godefroy remains the law. The citizen’s duty to aid the administration of the law by attending remains paramount and is the reason why there can be no recovery for loss of time as distinct from out of pocket expenses in the absence of specific provisions in rules of court.
In Lucas Industries v Hewitt (1978) 18 ALR 555, Bowen CJ, Smithers and Nimmo JJ said (at 570-571)
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and produce the documents referred to is a relevant circumstance. Large business entities may be though to be highly organized and well staffed. What may be burdensome to lesser entities may be of small significant to a large one.
Thus, the recompensable expenses of complying with a subpoena are those which are reasonable in all the circumstances. Thus, a person such as Ms D Pfenning, who has incurred a substantial loss or expense is entitled to be recompensed for those amounts reasonably incurred.
However, Rule 15.23(3) does not mean that a party who issues a subpoena is required to indemnify the recipient of the same for all expenses irrespective of whether they are reasonably incurred or incurred in a reasonable amount.[8]
[8] See also Murphy J at par [123] in Markovska.
I agree that the assessment of what is, in fact, reasonable in any case should properly take into account:
a)that the purpose of the process of subpoena is to facilitate the proper administration of justice between parties and that, for that purpose, “it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to Court”: Lucas Industries v Hewitt (1978) 18 ALR 555, 570;
b)each citizen has a “duty to aid in the administration of the law”[9];
c)that the subpoena process is an integral party of our system of the administration of justice and that there is some aspect or facet of community responsibility to be taken into account.[10]
[9]See: Bank of New South Wales v Withers (1981) 35 ALR 21 per Sheppard J at 38; Markoska & Markoska and Anor [2011] FamCA 833 per Murphy J at [112] and G and D and D [2005] FamCA 1429 per Carmody J at [28].
[10] Per Cronin J in Moriarty (2009) 41 Fam LR 336, at [56].
I agree with and adopt that said by Murphy J at par [116] of Markoska:
Reasonable expenses of compliance are, in my view, not ascertained by reference to any pre-ordained categorisation of those expenses. Rather, what are reasonable expenses must be ascertained by first looking at what reasonably needed to be done so as to comply with the particular subpoena and any obligations attached to, or associated with, its compliance.
I accept that, provided the asserted loss or expense associated with compliance with the subpoena is reasonable in the circumstances of this case, Ms D Pfenning may be reimbursed for the same. I also accept that, in exercising its very broad discretion, the Court must determine what is reasonable for the issuing party to pay: the measure of such amount may be, but is not necessarily, that which a recipient of the subpoena may charge ordinarily for tasks associated with compliance.
I accept that expenses which may be covered by an order made on an application such as the present include those incurred in:
a)finding, collecting, collating, marshalling and producing the documents or materials sought by the subpoena;
b)the costs of attending at court to produce the documents or material;
c)obtaining advice as to the validity of the subpoena and about matters such as privilege or confidentiality and representation in respect of the documents sought by the subpoena: see Fuelexpress Ltd v Ericsson Pty Ltd (1987) 75 ALR 284 and Hadid v LenfestCommunications Inc (1996) 65 FCR 350.
d)attending at an Objection hearing if there is one.
I agree with the view expressed by Murphy J in Lavell& Lavell [2012] FamCA 34 to the effect that that the recompense envisaged by Rule 15.23 is in the nature of a broad, discretionary payment designed to represent the balancing of the interest of the administration of justice and the inconvenience - sometimes necessarily caused - to third parties with loss or expense that is other than minimal or ordinary and which is substantial.[11]
[11] At par [259].
Is the substantial loss and expense claimed ‘reasonable’?
In Moriarty & Moriarty Cronin J expressed the view[12], that:
Assessment of the reasonableness of burdens involved in complying with a subpoena must take account the capacity of a party to collect and produce the documents. That means that in a large organization, the capacity to cover the expense is greater than in a small organisation (see Lucas Industries v Hewitt (1978) 18 ALR 555 and G and D & D (2005) FamCA 1429).
[12] At par [59].
Whilst I agree that the Rules are not intended to place a person producing documents in a position where they lose income or capital,[13] neither are they intended to cause the issuing party to bear unreasonable costs associated with the recipient’s compliance with the subpoena.
[13] See par [60] Moriarty.
If the subpoena issued was clear and simple and sought production of the recipient’s own documents, the inconvenience expected to be associated with compliance may well be minimal.
I agree that in determining whether an amount claimed is reasonable a judicial officer should consider whether the tasks associated with compliance could have been done by a clerical or junior person, albeit with some ownership or professional oversight: that is, it may be appropriate to undertake an assessment of the degree of expertise required to perform those tasks necessitated by the obligation to comply with the subpoena.[14]
[14] Per Cronin J. at par [62] in Moriarty.
In order for the Court to exercise the discretion there needs to be sufficient evidence before it to enable it to determine whether the expense claimed was or was not reasonable.
I agree with the following comments expressed by Carmody J in G and D and D at paragraphs 23-26,
23. A number of points need to be made before I move on to deal with the merits of the application of both the first and second applicants.
24. The first is that the subpoena is a compulsory process to aid the proper administration of justice between litigating parties. For that purpose, the law imposes a legal duty on strangers to the action who have relevant knowledge or documents in their possession or control. The procedure interferes with the enjoyment of private rights by third parties and can put them to considerable expense and effort. Severe penalties are provided for non-compliance yet they are available to litigants as of right and issued ex parte by an administrative officer without judicial supervision.
25. For these reasons, courts require the exercise of care and due diligence by the issuing party to take account of the recipient’s legitimate rights and interests when framing the terms of a subpoena. In Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 572 for instance, Jordan CJ said:
it is altogether improper that a pre-emptory order should be issued from the court commanding persons under a heavy penalty to do something which they are not or ought not be required to do.
26. Allen J also emphasised the professional responsibility of legal practitioners in drawing subpoenas in Dewley v Dewley [1971] 1 NSWLR 264 at 270:
The right to have a subpoena issued with the authority of the court and the stated sanctions must carry with it the responsibility of acting reasonably and properly in relation to any person summoned to appear and obey its terms. Solicitors, as officers of the court, should, in my view, be vigilant to ensure that no oppressive or improper demands are made on strangers to the litigation under the authority and power which a subpoena presents to a layman. This should be obvious to any conscientious and responsible practitioner.
In considering the application for an order that the Respondent pay the Applicant’s costs of and incidental to the appearance at the hearing before the Registrar at which objection was taken to the terms of the subpoena, I agree with and adopt the discussion by Murphy J at paragraphs 83-97 in Markoska.
Overview of Ms D Pfenning’s submissions
It was submitted that Ms D Pfenning incurred the following in answering the subpoena issued to her:
a)$20,243.06 legal costs;
b)$27.50 – report and affidavit from her medical practitioner;
c)$165.00 – accounting services;
d)$1,408.00 – her personal costs of responding to the subpoena.
Legal Costs incurred
The written submission prepared on behalf of Ms D Pfenning assert that the Court would be satisfied it is appropriate that Ms D Pfenning be compensated for her actual costs, expenses and loss in meeting the subpoena.[15]
[15] Further Submissions on behalf of Ms D Pfenning filed 7 March 2014: par 6.4.
It is submitted that the costs are reasonable having regard to the detailed nature of the documents sought to be produced, the arguments in support of the objection to production and the outcome of that appearance. Further, it is submitted that it is reasonable, given the extent of the documents sought and the period of time over which they ranged (that is, from 2008 until date) for Ms D Pfenning to seek legal advice about compliance with the subpoena and to take objection to it as she did. In addition, given that the February 2014 Order set aside the majority of the subpoena, it is further submitted that she was justified – and it was reasonable – for her to act as she did.
It is submitted that the costs of obtaining advice and representation at the Objection hearing were “properly and reasonably” incurred in complying with the subpoena. This submission overlooks the necessary consideration that the expenses be reasonable expenses.
The evidence of Mr Wilson establishes that Hopgood Ganim issued Tax Invoices to Ms D Pfenning in amounts totalling the claim of $20,243.06. The exhibited Invoices refer to “Subpoena Material – to our legal costs of and incidental to this matter in accordance with the attached Memo of Work Performed and detailed invoice.” Each Invoice then contains, under the word “Summary”, the phrase “legal costs” and the quantum of the same.
The “Memo of Work performed and detailed invoice” referred to in each of the exhibited Tax Invoices are not in evidence before me. Whilst there is, in evidence, a copy of the Costs Agreement between Ms D Pfenning and the firm Hopgood Ganim, there is no way for the Court to ascertain those items or work done to give rise to the amounts invoiced. I cannot, therefore, discern what of the amount spent by Ms D Pfenning is “reasonable” because I do not know those tasks which were performed to give rise to the obligation to pay fees in the amounts paid.
I accept the Submission filed on behalf of the Respondent on 21 March 2014 that Ms D Pfenning has failed to discharge the necessary evidentiary onus to satisfy me that the totality of the sums spent on legal fees is a reasonable expense of complying with the subpoena. In the circumstances, I am not persuaded that the sum of $20,243.06 is an amount reasonably incurred by Ms D Pfenning in compliance with the subpoena issued by the Respondent.
Report from medical practitioner
Ms D Pfenning submits that it was reasonable and necessary that she obtained a report from her medical practitioner given the issues about her health and testamentary capacity raised by the Respondent. Her medical practitioner sent a Tax Invoice for $27.50 for this report.
These costs seem to me to relate more to Ms D Pfenning’s objection to the subpoena – whilst I fully appreciate, as set out above, that a person such as Ms D Pfenning may seek recompense under Rule 15.23 for the costs associated with appearing at an Objections hearing, I consider it more appropriate that the necessity for the report and its associated cost is considered as part of her application for costs.
Accounting services costs
The Respondent accepts that the costs levied by Ms D Pfenning’s accountants are a reasonable expense for which she should be reimbursed and that, consequently, there should be an order compensating Ms D Pfenning for the amount of $165.00. The point is simply made that the Respondent had not been asked to pay this amount before Ms D Pfenning made application for the orders sought and, thus, did not have the opportunity to voluntarily pay it.
Ms D Pfenning’s own costs
Ms D Pfenning seeks the payment of $1,408.00 to recompense her for time taken in meeting the subpoena. It is said that she spent 32 hours – at a cost of $40.00 per hour – in meeting the requirement of the subpoena. Her Tax Invoice[16] outlines ‘document sourcing’ as the task in which she engaged for the number of hours nominated.
[16] See Affidavit of Geoffrey John Wilson filed 25 February 2014, annexure GJW 2.
Whilst I accept that Ms D Pfenning’s claim is no different in type to that claimed when an employee spends time searching for, collating, copying and delivering documents, the amount of time in respect of which recompense is sought must be reasonable for the tasks necessary to comply with the subpoena.
It is clear from a perusal of Ms D Pfenning’s affidavit filed 10 January 2014 that one of the bases on which objection was successfully taken to complying with the subpoena was that it “will be an onerous, time consuming and costly exercise for me to locate, collate, copy and then produce the documentation.”[17] (my emphasis) That the submission was made in the future tenses suggests that the work adverted to had not then been undertaken.
[17] See: para 40 affidavit of Ms D Pfenning filed 10 January 2014
In fact, Ms D Pfenning was not required to undertake the exercise of producing the documents in Items 4 and 5 of the subpoena – and was only required to produce a significantly reduced number of those documents listed in Item 3 of the subpoena – after the Registrar heard and determined her Objection. Thus, there was no necessity for the onerous work anticipated by her to be undertaken “in compliance with” the subpoena.
The documents which remained to be produced after the registrar determined Ms D Pfenning’s Objection to the subpoena were, in respect of the Pfenning Family Trust and Pfenning Pty Ltd:
a)All tax returns and financial statements;
b)The constitution and Memorandum of Articles for Pfenning Pty Ltd; and
c)All documents (including letters, emails, faxes, memorandums, agreements, contracts, Deeds, statements, drafts) in relation to distributions, whether by gift, loan or other arrangement, of income or assets from Pfenning Family Trust and/or Pfenning Pty Ltd to Ms S Pfenning.
Is it reasonable to allow 32 hours to source these documents? Is it reasonable to allow Ms D Pfenning 32 hours for ‘document sourcing’ when the Tax Invoice issued by her accountants – referred to above – seeks $165.00 “for the supply of documents and response to Hopgood Ganim’s letter of 16 December 2013, in relation to the subpoena serviced on [Ms D Pfenning]”? On the evidence before me - which, because of a lack of particularity, does not permit of analysis of the actual work done by Ms D Pfenning and the accountant - I am not persuaded that it is.
In the absence of any particularity from either Ms D Pfenning or her accountants, I am unable to discern which of the documents ultimately required to be produced pursuant to the subpoena were sourced by the accountants and which were sourced by Ms D Pfenning. I am unable to be confident that, if I allowed any amount other than the amount payable to the accountants, I would not be ‘double-counting’.
I am unable, as a consequence of Ms D Pfenning’s failure to particularise the steps or work she undertook in compliance with the subpoena, to be persuaded that this time was reasonably expended on such compliance. I accept the force of the submission outlined in paragraphs 6.17.3 and 6.17.4 of the Submission on behalf of the Respondent filed 21 March 2014.
Further, there is no evidence to establish the basis on which the hourly rate of $40.00 is claimed or to establish that this is a reasonable rate to apply. The absence of time in the Tax Invoice issued by Ms D Pfenning’s accountants means that I am unable to ascertain their hourly rate – thus I have no benchmark against which to determine the reasonableness or otherwise of the claimed $40.00/hour.
In the circumstances, I am not persuaded that the sum of $1,600.50 is a reasonable expense of complying with the subpoena.
Given that the Respondent will pay the sum invoiced by Ms D Pfenning’s accountants – and for the reason outlined above – I am not persuaded to make any other order that the Respondent pay Ms D Pfenning any further amount by way of reimbursement for the reasonable losses or expenses of complying with the subpoena filed 19 November 2013.
The alternative claim: that the Respondent pay Ms D Pfenning’s costs of and incidental to her application to set aside the subpoena on an indemnity basis
The Court may make an order that the Respondent pay Ms D Pfenning’s costs: see the discussion of Murphy J in Markoska at par 77-82 with which I agree.
Whilst the “general rule”[18] in proceedings under the Family LawAct 1975 (Cth) (“the Act”) is that each party bears his or her own costs, the Court may, if of the opinion that there are circumstances that justify it in so doing and subject to certain considerations, make such order as to costs as the Court considers just.
[18] Pursuant to s 117(1) of the Act.
In considering what order as to costs, if any, to make, the Court shall have regard to a number of specified matters prescribed by s 117(2A) of the Act.
No submission was made to contradict the Respondent’s assertion that Ms D Pfenning owns real property personally and within structures under her control with a value in the vicinity of between about $28,000,000.00 and about $32,000,000.00. The Respondent himself is described as having “significant wealth”. Clearly, neither the Respondent nor Ms D Pfenning is in receipt of legal aid.
No relevant offers of settlement were made.
Whilst it was submitted on behalf of the Respondent that neither he nor Ms D Pfenning were wholly unsuccessful, the terms of the Order made by the Registrar on 14 February 2014 persuade me that Ms D Pfenning was substantially successful in the objections taken. The terms of the subpoena were significantly narrowed and Ms D Pfenning was relieved of the obligation to comply with it in respect of a number of categories of documents on the basis that the subpoena was oppressive, too widely drawn and lacking in relevance. Had the subpoena been drawn more narrowly, Ms D Pfenning’s objections to it would not have succeeded as they did.
Whilst the Respondent’s submissions address conduct, the conduct identified is that of the Applicant wife and not that of Ms D Pfenning, a person not a party to the substantive proceedings. Should the Respondent make out the assertions against the Wife contained in the written submissions, it may be open to him to seek to include his costs of the subpoena process in any costs application brought against the Applicant.
Having considered the matters discussed above, I am persuaded that there are circumstances which justify the making of an order that the Respondent pay Ms D Pfenning’s costs of and incidental to her objection to the subpoena and application to have the subpoena set aside.
It seems to me that, if, at a final hearing of the matter, the evidence established – as the Respondent contends – that the Applicant’s failure properly to discharge the obligation of full and frank disclosure necessitated the issue of the subpoena, it would be open to him to seek to have the costs payable by him to Ms D Pfenning considered in any costs application brought against the Applicant.
I turn now to consider the basis upon which such costs should be paid given that Ms D Pfenning seeks that the Respondent pay them on an indemnity basis. It is uncontroversial that, unless there are exceptional circumstances, an order for costs should be made on a party and party basis.
I have had regard to D & D Costs (No. 2) (2010) FLC 93-435 in which the Full Court reviewed extensively earlier authorities, including Limousin & Limousin (Costs) (2008) 38 Fam LR 478 and Kohan and Kohan (1993) FLC 92-340, and also Sheppard J’s decision in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248.
Whilst the evidence establishes the actual quantum of costs paid by Ms D Pfenning to Hopgood Ganim, it does not – as outlined above – establish with particularity the matters in respect of which such costs were incurred.
I am not persuaded, on the evidence before me, that the circumstances of this case are ‘exceptional’ circumstances which warrant the making of an order for costs on an indemnity basis. Rather, I consider it just as between Ms D Pfenning and the Respondent that he pay her costs of and incidental to the objection to subpoena and application to set the subpoena aside on a party and party basis. If Ms D Pfenning and the Respondent are unable to reach agreement as to amount, then the costs payable will be as assessed on this basis.
Costs of this Application
Neither Ms D Pfenning nor the Respondent have been wholly unsuccessful before me. Each has achieved some part of that which was hoped to be achieved.
Taking this into account and considering the matters outlined in paragraphs 55 and 56 above, I am not persuaded that the circumstances justify the making of any further order departing from the position mandated by s 117(1) of the Act.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 5 September 2014.
Associate:
Date: 5 September 2014
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