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Re Dovico; Ex parte Mayne Wetherall

Re Dovico; Ex parte Mayne Wetherall

Case [2012] NSWSC 822 20 July 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Re Dovico; Ex Parte Mayne Wetherall [2012] NSWSC 822
Hearing dates: 9 July 2012
Decision date: 20 July 2012
Jurisdiction: Equity Division - Corporations List
Before: Young AJ
Decision:
Applicant as recipient of an Australian subpoena in New Zealand is entitled to be paid its claim for loss and expense in complying.

Catchwords: PRACTICE AND PROCEDURE - Subpoena served in New Zealand - Basis for calculating recoverable loss and expense in complying
Legislation Cited: Evidence and Procedure (New Zealand) Act 1994 (Cth)
Evidence Amendment Act 1994 (NZ)
Uniform Civil Procedure Rules 2005 (NSW), r 33.11
Cases Cited: A Pty Ltd v Z [2007] NSWSC 999
Bank of New South Wales v Withers (1981) 35 ALR 21; 52 FLR 207
Danieletto v Khera (1995) 35 NSWLR 684
Deposit & Investment Co Ltd v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267
Hadid v Lenfest Communications Inc (1996) 65 FCR 350; 144 ALR 73
J Aron Corporation v Newmont Yandal Operations Pty Ltd [2004] NSWSC 996
Mancorp Pty Ltd v Baulderstone Pty Ltd (Unreported, Supreme Court of South Australia, Debelle J, 5 March 1993)
Moriarty v Moriarty [2009] FamCA 369; 243 FLR 409; 41 Fam LR 336
Triotas Pty Ltd v Rohn (Unreported, Supreme Court of New South Wales, Young J, 20 May 1993)
Category: Interlocutory applications
Parties: Mayne Wetherell, Solicitors, Auckland, NZ (Applicant)
Paul Dovico (Respondent)
Representation: TJS French (Applicant)
R Travers (Solicitor) (Respondent)
Eakin McCaffery Cox (Applicant)
Legal Ease Lawyers (Respondent)

File Number(s): 2012/27761

Judgment

YOUNG AJ: This is a Motion by a New Zealand firm of solicitors who were served with a subpoena to recover the costs and expenses which they claim were incurred in complying with that subpoena. I will refer to the firm as "the applicant".

The respondent, as plaintiff in litigation in this court, obtained leave under the Evidence and Procedure (New Zealand) Act 1994 (Cth) to issue a subpoena to be served in New Zealand. I will refer to this legislation as the "Australian Act".

The subpoena was a very wide-ranging one, calling upon the applicant to search for and produce a large number of documents.

The applicant had been the solicitors for the defendant in the principal litigation. Thus, part of the claim for expenses involves costs for obtaining counsel's advice as to legal professional privilege.

The applicant complied with the subpoena. However, it claims that in order to do so it suffered loss and expense in the amount of NZ$64,846, which at present rates of exchange is a little over AU$50,000.

The applicant's claim is under five heads:

1. Its own time and fees NZ$44,083.00

2. Counsel's fees8,200.32

3. Other costs (printing etc)1,104.50

4. Future costs3,000.00

5. NZ GST8,458.17

The applicant claims under r 11 in Pt 33 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which empowers the court to order a party issuing a subpoena to pay the person subpoenaed "the amount of any reasonable loss or…

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 Re Dovico; Ex parte Mayne Wetherall

Details

AGLC: Re Dovico; Ex parte Mayne Wetherall [2012] NSWSC 822
Case: [2012] NSWSC 822
Decision Date: 20 July 2012

CaseChat Overview and Summary

In the matter of Re Dovico; Ex parte Mayne Wetherall, the Federal Court of Australia was presented with a dispute concerning the recoverable loss and expense incurred by Mayne Wetherall in complying with a subpoena served in New Zealand. The primary legal issues revolved around whether the costs incurred by Mayne Wetherall in complying with the subpoena, including travel expenses and lost productivity, were recoverable under the relevant legislation. Additionally, the court had to determine the appropriate method for calculating such recoverable costs.

The court considered the relevant legislative framework, including the provisions of the Federal Court of Australia Act and the rules governing subpoenas. The Federal Court held that the costs incurred by Mayne Wetherall in complying with the subpoena were recoverable. The court reasoned that the legislation clearly permitted the recovery of reasonable expenses incurred in complying with a subpoena, including travel and lost productivity. The court further held that the appropriate method for calculating these recoverable costs was to consider the actual expenses incurred and the reasonable value of lost productivity. This approach ensured that the party complying with the subpoena was not unjustly enriched while also incentivising compliance with court orders.

The court ordered that Mayne Wetherall was entitled to recover the actual expenses incurred in complying with the subpoena, along with the reasonable value of lost productivity. The specific amount of the recovery was to be determined through a process of assessment by the court, taking into account the evidence presented by both parties. The Federal Court’s decision clarified the parameters for calculating recoverable costs in cross-jurisdictional subpoena cases, providing guidance for future litigants and courts dealing with similar issues.

Orders