FEDERAL COURT OF AUSTRALIA
Schiff v Nine Network Australia Pty Ltd (No 6) [2023] FCA 1427
File number(s): NSD 1086 of 2021 Judgment of: JACKMAN J Date of judgment: 16 November 2023 Date of publication of reasons: 17 November 2023 Catchwords: COSTS – costs of subpoena dispute – where the relevance of the documents sought turned on a particular pleading which was abandoned in the course of argument – proper basis for both parties to dispute the subpoena – each party to bear their own costs Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 3 Date of hearing: 16 November 2023 Counsel for the Applicant: Ms S Chrysanthou SC and Mr N Olson Solicitor for the Applicant: Kennedys (Australasia) Partnership Counsel for the Respondents: Mr D Sibtain SC and Mr M Lewis Solicitor for the Respondents: Minter Ellison ORDERS
NSD 1086 of 2021 BETWEEN: PETER DAVID SCHIFF
Applicant
AND: NINE NETWORK AUSTRALIA PTY LTD
First Respondent
THE AGE COMPANY PTY LTD
Second Respondent
NICHOLAS MCKENZIE (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JACKMAN J
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The subpoenas to each of the proper officer of Australian Taxation Office and the Proper Officer Subpoena Team Australian Federal Police be set aside.
2.Each party pay their own costs of the dispute concerning those subpoenas.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)JACKMAN J:
There is a dispute between the parties concerning a subpoena issued at the request of the respondents to the proper officer of the Australian Taxation Office. Mr Sibtain SC, counsel for the respondents, provided written submissions to the Court as to the relevance of the documents sought in that subpoena as turning on paragraph 12.4 of the statement of claim and a particular given by the applicant by letter dated 6 July 2023. In the course of argument, the applicant has abandoned reliance on paragraph 12.4 of the statement of claim and on the particular in question in the letter of 6 July 2023.
In my view, there was a proper basis at the time that leave to issue the subpoena was requested to have a subpoena issued in the terms in which it was; however, there was also a proper basis for the applicant to contend that the subpoena should not have been issued. As it is no longer necessary for me to decide the merits of the subpoena in question, and there was a proper basis for both parties to have adopted the positions which they took before today, in my view, the appropriate order is that each party should bear their own costs of the dispute concerning that subpoena.
In relation to the subpoena issued in similar terms to the proper officer of the subpoena team of the Australian Federal Police, in light of the abandonment by the applicant of the paragraph of the statement of claim and the particulars to which I have referred, that subpoena should also be set aside, and I make the same costs order, namely, that each party bears their own costs of the dispute concerning the subpoena to the Australian Federal Police.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman. Associate:
Dated: 17 November 2023
SCHEDULE OF PARTIES
NSD 1086 of 2021 Respondents
Fourth Respondent:
CHARLOTTE GRIEVE
Fifth Respondent:
JOEL TOZER
- AGLC
- Schiff v Nine Network Australia Pty Ltd (No 6) [2023] FCA 1427
- Case
- [2023] FCA 1427
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the documents sought by the subpoenas and determined that their relevance was contingent upon a specific pleading that was subsequently abandoned during the arguments. Given that both parties had grounds to contest the subpoenas due to the abandoned pleading, the court concluded that it was appropriate for each party to bear their own costs. This decision was made to ensure fairness, as neither party could be deemed solely responsible for the costs incurred in the dispute over the subpoenas.
The court's reasoning was grounded in the principle that costs should reflect the conduct of the parties in the litigation. Since both parties had legitimate reasons to dispute the subpoenas, the court ruled that each party should be responsible for their own costs. This decision was aimed at avoiding an unjust enrichment of one party at the expense of the other. The final orders of the court included setting aside the subpoenas to the Australian Taxation Office and the Australian Federal Police, and directing each party to bear their own costs related to the subpoena dispute.
Orders
Orders of the court
1. The subpoenas to each of the proper officer of Australian Taxation Office and the Proper Officer Subpoena Team Australian Federal Police be set aside.
2. Each party pay their own costs of the dispute concerning those subpoenas.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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.