Slater v Smith (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
SLATER v SMITH (No 2)
[2022] SASC 70
Judgment of the Honourable Justice Blue
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - DISBURSEMENTS - WITNESSES - SUBPOENAS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - DISBURSEMENTS - WITNESSES
Applications for payment of witness fees by party to witnesses.
The applicant caused to be issued subpoenas to Mr John and Mr Walton to give evidence at trial and they did so. They each apply to the Court to fix the amount of the witness fee payable by Mr Slater to them.
Mr John and Mr Walton were each arranged to give evidence on one day and ended up giving evidence on the next day. They seek a witness fee in respect of each day.
Held:
1 The applicant is to pay a witness fee to Mr John fixed at $502.84 (at [31]).
2 The applicant is to pay a witness fee to Mr Walton fixed at $445 (at [45]).
Uniform Civil Rules 2020 (SA), referred to.

SLATER v SMITH (No 2)
[2022] SASC 70

BLUE J: In this proceeding, the applicant, Matthew Slater, sues the respondents, Jeffery Smith and Ecosol Pty Ltd, for damages for defamation. Mr Smith sues Mr Slater for damages for defamation. The trial of the proceeding is not yet completed.
For historical reasons (which is not necessary for present purposes to explain), the proceeding is being conducted for various purposes, including costs, as if it were proceeding in the Magistrates Court. Accordingly, prima facie the Magistrates Court Costs Scale (the Magistrates Court Scale) in Part 3 of Schedule 6 to the Uniform Civil Rules 2020 (SA) (the Rules) applies to costs as between the parties.
Mr Slater caused to be issued subpoenas to Trevor John and Tony Walton to give evidence at trial and they did so. They each apply to the Court to fix the amount of the witness fee payable by Mr Slater to them.
Claim by Mr John
Background
Mr John is a senior engineer. He is employed by an engineering, planner and surveyor company which has approximately 50 shareholders, each of whom is associated with an engineer, planner or surveyor employed by the company. Mr John’s superannuation fund is his associated shareholder in the company.
Mr John receives an annual salary from the company. That salary translates to an hourly rate of $100.96. He is paid fortnightly.
Mr John works predominantly from home. He typically works at or out of the company’s office in the city for about two thirds of a Wednesday and half of a Thursday and works from home during the balance of the week. As a trusted senior employee, he has the freedom to arrange what he does during his workday. This includes that, if he does not have any pre-existing commitment such as meetings (physical or virtual), he can choose not to work on a given day.
Mr Slater caused to be issued a subpoena to Mr John to attend to give evidence at trial on Thursday 10 March 2022. After being served with the subpoena, Mr John applied to his employer for leave without pay in respect of that day. He was not informed whether this was approved until 21 March 2022 and he did not need approval before taking the day off work.
In the morning of Wednesday 9 March 2022 Mr Slater applied for an order that Mr John give his evidence by audiovisual link rather than attending at court in person. The other parties did not oppose such an order. I indicated that, if Mr John preferred to give his evidence by audiovisual link, he could do so. Mr John subsequently indicated to the respondents that he preferred to give evidence by audiovisual link.
On 9 March 2022 at 8.51 pm Mr Slater sent an email to Mr John. It said:
Apologies for the late notice, you will not be required to attend tomorrow.
The Honourable Court has allowed you to attend by AVL.
If you are not able to attend by using the Microsoft Teams app then please let me know.
His Honour’s chambers will provide you with the necessary instructions.
On Thursday 10 March 2022 at 8.29 am Mr John sent an email to my chambers, copied to Mr Slater. It said:
Would you please
·Provide the necessary instructions to provide evidence by AVL using the Microsoft teams.
·Confirm the time at which I need to give evidence.
Please note that I am employed full-time and when I was ordered to appear at court, I applied for one day’s Leave without Pay (LWOP) from my employer.
Accordingly, and in accordance with note 6 of the subpoena, I am herby applying to the court for an order that the issuing party pay an amount equal to my loss of pay.
I will advise the court of the amount of my claim after the completion of my attendance by AVL.
If I am required to give any further evidence after today I will be applying reimbursement of any further loss.
On 10 March 2022 just before lunch Mr Slater informed the Court that he proposed to call Mr John by audiovisual link on the next morning 11 March 2022. Just before the adjournment at the end of the day, it was determined that Mr John give his evidence (by audiovisual link) at 11.30 am the next morning.
On 10 March 2022 Mr John remained at home. He did not do any engineering work on that day.
On the evening of 10 March 2022 my chambers sent an email to Mr John saying that the Court was content for him to give evidence by audiovisual link and it was anticipated that he would be called as a witness at 11.30 am the next morning. He was told that he would be provided with a link with instructions for joining the link. Mr John’s computer records receipt of this email at 11.45 pm that night. Mr John saw the email at about 8.00 am the next morning.
On Friday 11 March 2022 at 8.32 am Mr John sent an email to my chambers. The email included the following passages:
Thank you for your advice.
I have received the email which lists the time as between 10:00 AM-4:30 PM.
As per your advice I will take it that I will only be required at 11.30am onwards.
Please let me know if I have to be available from 10.00am onwards as I will need to advise my employer that I will be unavailable to work during part of today.
On 11 March 2022 at 8.42 am my chambers sent an email to Mr John confirming that, while the trial was listed from 10.00 am to 4.30 pm, he was only required to logon into the audiovisual meeting at 11.30 am.
On 11 March 2022 at about 11.30 am Mr John commenced to give evidence by audiovisual link. His evidence was completed and he was released before 4.30 pm. He gave evidence for just under four hours.
On the weekend of 12 and 13 March 2022, due to his workload, Mr John worked for 12 hours to make up for the work on his jobs that he did not do. As a result, when he was paid for the fortnight ending on 21 March 2022,[1] he received his normal fortnightly pay and did not receive any less pay than normal by reason of his being available to give evidence on 10 March and giving evidence on 11 March 2022.
[1] Mr John does not recall when the fortnight ended other than that it was on a Monday. In theory it could have ended on 14 March rather than 21 March 2022. However, normal practice of his supervisor is to consider approval of a request for leave without pay at the end of the fortnightly pay period, he approved the leave request on 21 March 2022 and it is therefore likely that the fortnight ended on 21 March 2022. Nothing turns on this as in either event because Mr John received his normal pay for the fortnight that includes 10 and 11 March 2022.
It was Mr John’s general practice that, if he took time off during the week, he worked on the weekend to make up for it and maintained his normal fortnightly hours and normal fortnightly salary.
Claim
Mr John claims witness fees calculated as follows:
·10 March: $807.68 being eight hours on standby to give evidence at $100.96 per hour;
·11 March: $403.84 being four hours giving evidence at $100.96 per hour.
Mr Slater contends that Mr John should not receive any witness fee because he is not out of pocket for the relevant fortnight as he worked his normal hours and received his normal pay (by working on the weekend to make up for the lost hours during the week).
Mr Slater contends that in any event Mr John should not receive any witness fee for 10 March. Mr Slater contends that Mr John should have understood from Mr Slater’s email of the previous evening that he would not be required to give evidence at all (whether in person or by audiovisual link) on 10 March and would be informed later when he was required. Mr Slater contends that in any event Mr John generally worked from home and could have worked on 10 March.
Mr Slater refers to the Magistrates Court Scale, item 22 of which provides that, for an adult witness (other than an expert witness), the amount is $250 or such other amount ordered by the Court. He contends that, if Mr John is entitled to a witness fee for either day, it should be at the rate of $250 per day.
The Magistrates Court Scale has force by reason of rule 193.2(1) of the Rules, which provides:
193.2—Scale of costs in a proceeding—Magistrates Court
(1)Subject to the following subrules, costs between parties, whether ordered to be paid by the Court or payable by operation of these Rules, are to be determined on the standard costs basis and in accordance with the Magistrates Court costs scale.
The Magistrates Court Scale applies to costs as between party and party. It applies therefore to the amount that a successful party who receives the benefit of a costs order is prima facie entitled to recover from an unsuccessful party on account of witness fees paid to witnesses called by the successful party. It does not apply as such to the amount payable by a party to a witness who calls that witness. Even as between party and party, the Court has a discretion to fix a different rate than the default rate of $250 per day.
As between a party calling a witness and the witness, the witness is entitled to reasonable compensation for attending to give evidence. The Magistrates Court Scale is not irrelevant in this respect, because a party who incurs a liability to pay a reasonable witness fee to a witness has some entitlement to expect that they can recover that disbursement from the opponent if the party obtains a costs order against the opponent.
Turning to the witness fee claimed by Mr John for 10 March, the email sent by Mr Slater to him on the evening of 9 March was ambiguous. It might be construed (as Mr Slater construes it) as meaning that Mr John was not required to give evidence at all on 10 March and would be informed in due course when he was required to give evidence. However, it might also be construed (as Mr John construes it) as meaning that he was not required to give evidence in person but was required to give evidence by audiovisual link on 10 March. Mr Slater is responsible for the ambiguity contained in his email. He could have made plain that the audiovisual evidence was not to be given on 10 March. When he received Mr Slater’s email, Mr John was entitled at that point to construe the email as meaning that he would be required to give evidence by audiovisual link on 10 March.
However, Mr Slater’s email stated that Mr John would receive instructions from my chambers in relation to the audiovisual link. Mr John did not receive any such instructions on 9 March or before he sent his email to my chambers at 8.29 am on 10 March. He ought at that point to have realised that Mr Slater’s email was ambiguous. In addition, Mr John had not received any response to his 8.29 am email by 10.00 am, which is when he understood that prima facie he was required to give evidence by audiovisual link. Acting reasonably, he ought at that point to have sent an email to Mr Slater or to my chambers to ascertain the position. It was not reasonable for him to wait for the whole of the day to see if he would be contacted without attempting to contact anyone.
Mr John was in a position where he could have undertaken work at home on 10 March. Although I accept that he could not have scheduled audiovisual meetings with clients, colleagues or others at late notice, he could have undertaken work on his own.
Taking into account those circumstances, Mr John is not entitled to be paid a witness fee for eight hours on 10 March 2022. On the other hand, Mr John was inconvenienced on 10 March and Mr Slater bears a degree of responsibility for this. A witness fee is payable to a witness even if the witness is not employed and suffers no financial loss as a result of attending to give evidence. In all of the circumstances, it is appropriate to allow $250 as a witness fee for Mr John.
Turning to 11 March 2022, Mr John gave evidence for just under four hours. He is entitled to be paid at his hourly rate for that time. The mere fact that he made up lost time by working on the weekend is not a reason to deprive him of a witness fee for the time that he actually spent giving evidence. He is entitled to be paid $403.84 as claimed.
Mr John is entitled to a witness fee totalling $653.84. He acknowledges that he was paid by Mr Slater conduct money of $151 to travel to Court, which he was not required to do, and that amount should be deducted from his witness fee. He is therefore entitled to a payment of $502.84.
Claim by Mr Walton
Background
Mr Slater caused to be issued a subpoena to Mr Walton to attend to give evidence at trial on 10 March 2022. On 9 March 2022 I made an order that the return date be amended to 15 March 2022.
Mr Slater subsequently informed Mr Walton that he would be required to give evidence on 16 March 2022.
Mr Walton arranged with his employer to take one day’s annual leave on 16 March 2022 so that he could attend court and because his employer needed to make arrangements for someone else to cover for his duties.
Mr Walton did not ultimately give evidence on 16 March 2022. He therefore arranged with his employer to take a second day’s annual leave on 17 March 2022.
On 17 March 2022 shortly after 10.00 am Mr Walton commenced to give evidence by audiovisual link. His evidence was completed and he was released after approximately 15 minutes.
Claim
Mr Walton claims witness fees totalling $445 calculated as follows:
·16 March: $255 being his daily wage;
·17 March: $255 being his daily wage,
less $65 being monies already received from Mr Slater.
Mr Slater contends that Mr Walton should not receive any witness fee because he was not out of pocket for the relevant fortnight because he received his normal wages (albeit two annual leave days were deducted from his leave entitlements).
Mr Slater contends that Mr Walton should not receive any witness fee because he was not cooperative in speaking to Mr Slater about the evidence that he would give if called as a witness (and if he had cooperated, Mr Slater would not have called him) and was not cooperative in facilitating service of the subpoena on him.
Mr Slater contends that, if Mr Walton is entitled to a witness fee, because he spent one hour waiting and to give evidence, he is only entitled to a witness fee for one hour.
Mr Slater refers to the Magistrates Court Scale and contends that, if Mr Walton is entitled to a witness fee, it should be $50 for one hour
In relation to 17 March 2022, although Mr Walton only spent one hour at court, due to the nature of his employment, his employer was required to replace him for his work on that day and he was required to take a whole day’s leave. He is entitled to a witness fee for the whole day. The fact that he took annual leave rather than leave without pay is no reason to deprive him of that entitlement.
A witness has no obligation to speak in advance to a party who wishes to call them to give evidence to foreshadow what their evidence will be. I am not satisfied that Mr Walton was uncooperative in relation to service of the subpoena and in any event this would not be a reason to deprive him of a witness fee. The amount claimed is almost identical to the scale witness fee of $250 and it is appropriate to allow $255.
In relation to 16 March 2022, although Mr Walton did not ultimately give evidence on that day, due to the nature of his employment he was required to make arrangements in advance so that his employer could replace him at work and he was required to take annual leave. He is entitled to a witness fee for the day essentially for the same reasons as in respect of 17 March.
Mr Walton is entitled to a witness fee of $445 as claimed.
Conclusion
I make the following orders:
1Mr Slater is to pay a witness fee to Mr John fixed at $502.84.
2Mr Slater is to pay a witness fee to Mr Walton fixed at $445.

[2022] SASC 70

17 March 2022