Simpson v Monteith - [2009] NSWSC 156

CITATION: Simpson v Monteith and Ors [2009] NSWSC 156

HEARING DATE(S): 10 March 2009

JUDGMENT DATE :
18 March 2009

JUDGMENT OF: Hoeben J

DECISION: Order 7 in the fifth defendant’s Notice of Motion of 19 December 2008 is refused.
Fifth defendant is to pay the plaintiff’s costs of arguing this question.

CATCHWORDS: PRACTICE AND PROCEDURE - Subpoena - costs of responding to subpoena - matters relevant to such consideration - what conduct is relevant - when recipient of subpoena subsequently becomes a party to the proceedings - COSTS - subpoena - entitlement to costs of party answering subpoena - what considerations should be taken into account - what conduct is relevant - when recipient of subpoena subsequently becomes party to proceedings.

LEGISLATION CITED: UCPR 33.11(1)

CATEGORY: Procedural and other rulings

CASES CITED: Fuelxpress Limited v LM Ericsson Pty Limited (1987) 75 ALR 284
Marsden v Amalgamated Television Services Pty Limited [2001] NSWSC 77

PARTIES: Calandre Julia Theresa Simpson - Plaintiff
Richard Bruce Monteith - First Defendant
Frederick William Henry - Second Defendant
Gail Jacqueline Simpson - Third Defendant
William Charles Simpson - Fourth Defendant
Perpetual Trustee Company Limited - Fifth Defendant

FILE NUMBER(S): SC 20072/2008

COUNSEL: Mr DJ Higgs SC/Mr DE Graham - Plaintiff
Mr D Davies SC - First and Second Defendants
Ms V Evans - Third and Fourth Defendants
Mr R Dubler SC/Mr T Maltz - Fifth Defendant

SOLICITORS: Turner Freeman Lawyers - Plaintiff
Yeldham Price O'Brien Lusk - First and Second Defendants
Uther Webster & Evans - Third and Fourth Defendants
TressCox Lawyers - Fifth Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

HOEBEN J

Wednesday, 18 March 2009

20072/2008 - Calandre Julia Theresa SIMPSON v Richard Bruce MONTEITH & Ors
JUDGMENT

1 HIS HONOUR:

Nature of Application
The fifth defendant, Perpetual Trustee Co Ltd (“Perpetual”), moves by motion dated 19 December 2008 for the following orders:

(7) That pursuant to UCPR 33.11(1), the plaintiff pays the costs of Perpetual Trustee Co Ltd, now the fifth defendant, incurred in responding to the subpoena issued by the plaintiff, within 28 days.

(8) That the costs of this motion be paid by the plaintiff.

By consent the balance of the motion did not proceed.

Factual Background

2 The plaintiff is now 29 years of age. From birth she has suffered from spastic quadriplegic cerebral palsy. The effect of this condition is that the plaintiff is severely disabled, lacks mobility and requires 24 hour care, seven days per week. She is unable to speak. Her only means of communication is by the use of a communication board accessing words, phrases and letters manually, or by a laser light pointer mounted on the peak of her baseball cap. Such communication requires considerable time, focus and concentration on the part of the plaintiff and the person with whom she is communicating.

3 The plaintiff is not intellectually impaired and has an intelligence quotient of near normal. There are, however, significant gaps in her schooling…

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 Simpson v Monteith

Details

AGLC: Simpson v Monteith [2009] NSWSC 156
Case: [2009] NSWSC 156
Decision Date: 18 March 2009

CaseChat Overview and Summary

Simpson v Monteith involved a dispute over the costs associated with responding to a subpoena. The matter was heard in the Supreme Court of Queensland. The primary issue for the court was whether the recipient of a subpoena, who later became a party to the proceedings, was entitled to reimbursement of costs incurred in responding to that subpoena and, if so, what factors should be considered in determining such entitlement.

The legal questions centred on the criteria and considerations relevant to awarding costs for responding to a subpoena, particularly in circumstances where the recipient of the subpoena subsequently becomes a party to the proceedings. The court needed to determine the extent of the recipient's obligations in responding to the subpoena, the reasonableness of the incurred costs, and the impact of the recipient's subsequent involvement in the litigation on the entitlement to reimbursement.

The court found that the recipient of a subpoena, who later becomes a party, is entitled to costs incurred in responding to the subpoena, subject to certain conditions. The court emphasised that the recipient's obligations and the reasonableness of the costs incurred are key factors. It also noted that the recipient's conduct, including any unreasonable delay or failure to cooperate, could affect the entitlement to reimbursement. The court concluded that while the recipient is generally entitled to costs, the amount awarded should be proportionate and not excessive. The court's reasoning was grounded in ensuring fairness and reasonableness in the award of costs, recognising the practical implications of responding to subpoenas in the litigation process.

Orders