Tempre P/L v MacDougall & Co Ltd

[1992] FCA 966

JUDGMENT NO. ,.5.6.&.~ .,.2.&

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 266 of 1991

)

GENEFtAL DIVISION )

BETWEEN :  TEMPRE PTY LIMITED

Applicant

AND :  MacDOUGALL & CO LIMITED

First Respondent

AND :  PETER JAMES HARPER

Second Respondent

CORAW:	FOSTER J
DATE :	27 NOVEMBER 1992
PLACE :	SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

Note:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

1.  the applicant make available the amount of $558, that being the return airfare from Sydney to Coolangatta plus $50 for overnight accormnodation, to the persons subpoenaed;

2.    the costs of today be reserved.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	NO. NG 266 of 1991
GENERAL DIVISION	1

BETWEEN :  TEMPRE PTY LIMITED

Applicant

AND :  MacDOUGALL & CO LIMITED

First Respondent

AUD:  PETER JAMES HARPER

Second Respondent

CORAW:	FOSTER 3
DATE :	27 NOVEMBER 1992
PLACE :	SYDNEY

REASONS FOR JUDGMENT
(Extempore)

HIS HONOUR: There is a dispute between the parties here relating to the cost of compliance with subpoenas that have

been issued in respect of documents which are situated at	Tweed Heads. The subpoenaed parties seek payment and an order
of the Court to that effect for the amount of $1838 for the costs of compliance with the subpoena. The order is sought pursuant to 0 27, r 4A, of the Federal Court Rules. I have been told that any delay in compliance with the subpoena may involve a delay in the matter being listed for hearing and that it is desired that such delay be avoided.
Any decision to be made in a final way as to the reasonable necessity of these payments being made would require a decision on matters of fact which are in dispute between the parties. Broadly speaking, those matters are whether it is necessary for Mr Reid, a chartered accountant, to make the journey to Tweed Heads for the purpose of searching for and collating the documents that are sought or whether that search could simply be undertaken by an employee of the relevant company at Tweed Heads.
The material placed before me in this regard is inadequate for the purpose of making any satisfactory decision on that matter. It may that for this subpoena to be properly complied with costs of the nature claimed must be expended and would therefore be properly recoverable pursuant to the rule. It may be, on the other hand, that costs in that order are quite unnecessary. This is not a matter that can be decided at this point of time on the material currently before the Court. For that reason, I do not think it is possible for me
to make the order that is contemplated by the rule, namely,
that of the judge fixing the amount.
It is appropriate in the circumstances that the subpoena be answered but that the amount of the costs be subsequently fixed by the taxing officer. In order, however, to expedite the matter, I propose to take the course of directing that the applicant make available the amount of $558, that being the return air fare from Sydney to Coolangatta plus $50 for overnight accommodation, to the persons subpoenaed. That amount is ordered on a basis which I now indicate. It is not intended to indicate in any way that the amounts are regarded by the court as properly claimable.
If, in fact, it transpires that there was no need for the expenditure of those amounts or for the whole of those amounts, then the amounts not properly payable will be brought into account in the taxation of costs and may be subject to refund. Conversely, if on a taxation of the costs the amounts properly recoverable pursuant to the rule exceed that amount, then this amount of $558 will be brought into account in determining the amount payable under the rule.

So far as the costs of today are concerned, I order

that they be reserved.

I certify that this and the preceding two

(2) pages are a true copy of the reasons

for judgment herein of the Honourable Mr	Justice M. L. Foster.
Associate:
Date:  27 NOVEMBER 1992

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:	MR J.J. WHEELER (Solicitor)
INSTRUCTED BY:	J.J. WHEELER & CO
COUNSEL FOR THE RESPONDENT:	MR J. MORTON (Solicitor)
INSTRUCTED BY:	GILLIS DELANEY BROWN
DATE OF HEARING:	27 NOVEMBER 1992
DATE OF JUDGMENT:	27 NOVEMBER 1992