Waitemata Stevedoring Services Ltd v The Ship

[1998] FCA 778

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 115  of  1998

BETWEEN:

WAITEMATA STEVEDORING SERVICES LIMITED
Applicant

AND:

THE SHIP "RANGITATA"
First Respondent

ECOMAR-SCHIFFARHTS GMBH & CO KG
Second Respondent

JUDGE:	EMMETT J
DATE:	16 JUNE 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   I have before me an application for further orders pursuant to a notice of motion filed on 13 May 1998.  By that notice of motion a third party sought either an order that a subpoena addressed to it be set aside or alternatively an order giving security for the costs of compliance with the subpoena.  When the matter came before Tamberlin J on 14 May 1998, the subpoena having been served on 11 May 1998, an undertaking was given by the solicitor who issued the subpoena to pay the reasonable costs of complying with the subpoena.

That undertaking, on my reading of the transcript, was given inter partes and was not an undertaking to the Court.  In effect, it was an undertaking by the solicitor to be personally responsible for whatever order would have been made under Order 27 Rule 4A.  Rule 4A provides that where a person named in a person is not a party to the proceeding and he incurs substantial expense in complying with a subpoena, the Court may order that the party who has requested the issue of the subpoena pay to that person an amount to compensate him for such expense or loss as is reasonably incurred by that person in complying with the subpoena.

The question before me concerns the costs incurred by the subpoenaed party to its solicitor in monitoring a facsimile machine in the early hours of Friday 15 May 1998 while documents were received from New Zealand from the subpoenaed party.  The contention was that it was unnecessary for the solicitor concerned to be involved in that exercise and that it would have been appropriate for a paralegal to do the same task at a much lower cost. 

The solicitor has said that the reason why he did the task was that the firm's facsimile is accustomed to receiving numerous documents during the evening.  He was concerned, because of the seriousness of not complying with the subpoena, to ensure that there was no technological difficulty in the receipt of the documents and also to ensure that there was somebody with some familiarity with the proceedings to distinguish between incoming facsimiles from various sources.

Even so, such a task could have been performed by a properly instructed clerk.  However, the solicitor has said that the decision to do that was not made until 7.20pm on the Thursday evening, by which time no other member of the firm's staff was available to attend the office at 5.00am the following morning.  The facsimile had been monitored by a member of the staff from 4.00pm on the Thursday evening until 7.00pm.  At 7.20 that evening the solicitor spoke to the client in New Zealand and was informed that there were still several hundreds of boxes which had not yet been reviewed.  In those circumstances, the solicitor decided that it was necessary for the facsimile to be monitored on the following day, by which time it was too late to arrange for another member of staff.

In the circumstances, I am not persuaded that the incurring of that expense was unreasonable.  There was no cross-examination of the solicitor.  I would not criticise counsel for the subpoenaing party for failing to do so, having regard to the amounts involved and the inconvenience that might otherwise be involved.  However, I would have to make a finding that the solicitor acted unreasonably in charging his client for the time and I am not satisfied that that is so.  In the circumstances I consider that I would, had I been asked, have made an order under Order 27 Rule 4A for the payment of the costs which were incurred in the circumstances.

That, it seems to me, is sufficient determination of the question as to what should be paid.  The undertaking by the solicitor was a personal undertaking to pay the reasonable costs.  I assume that the costs will be paid without any further order.  There is no basis upon which I can make an order against the solicitor since he is not before me.  However, I have determined as between the parties what I regard to be the reasonable costs. 

The other matter concerns the costs of the notice of motion.   It was suggested that the applicant should not be entitled to its costs of the notice of motion because it was unsuccessful.  The notice of motion, as I have said, sought that the subpoenas be set aside and sought in the alternative an order for the provision of security. As I perceive the matter, it was really the question of costs which motivated the application.  The motion did not proceed because of the undertaking which had been given and in the circumstances it seems to me to be appropriate that the costs of the motion be borne by the issuing party.  The only evidence before me is that the issuing party asked for an estimate of the reasonable costs.  However, there was no suggestion in that that the solicitor would be personally responsible for the payment of the costs.

In the circumstances, it seems to me that some order for costs would not be unreasonable.  On the other hand, there is no suggestion that the subpoenaed party sought such an order other than by the filing of the notice of motion.  In the circumstances, it would be appropriate to order the issuing party to pay the subpoenaed party's costs of the motion of 14 May 1998 but to make no order as to the costs of today.

I have been asked to determine the costs of the motion.  There is before me some evidence of costs.  However, I see no reason why I should act as a taxing officer and I simply make an order, as I foreshadowed, that the issuing party pay the costs of the motion of 14 May 1998.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:             16 June 1998

Counsel for the Applicant on the motion:	L.T. Grey
Solicitor for the Applicant on the motion:	Ebsworth & Ebsworth
Counsel for the Respondent on the motion:	L.A. Muston
Solicitor for the Respondent on the motion:	Conway Leather Shaw
Date of Hearing:	16 June 1998
Date of Judgment:	16 June 1998