Zova & Elliott and Anor

In the matter of *Zova & Elliott and Anor*, O'Reilly J of the Family Court of Australia considered a dispute concerning the recovery of substantial loss and expense incurred by a witness, Mr Zova, in complying with a subpoena. The subpoena had been issued by the wife's solicitors but served by the husband's solicitors pursuant to a court order. Mr Zova sought reimbursement for his losses, raising the question of which party, if any, should bear this cost.

The central legal issue before the court was the proper exercise of discretion regarding the payment of a witness's substantial loss and expense when a subpoena is issued by one party's legal representatives but served by another's, particularly in circumstances where the witness seeks to recover these costs and potentially set aside the subpoena. The court was required to determine whether the issuing party, the serving party, or both, should be held responsible for reimbursing Mr Zova for the significant financial impact of complying with the court's process.

O'Reilly J reasoned that the responsibility for reimbursing Mr Zova's substantial loss and expense should lie with the party who initiated the process that led to the witness's involvement. Applying this principle, the court determined that the wife, through her solicitors who issued the subpoena, was ultimately responsible for Mr Zova's substantial loss and expense. Consequently, the court ordered that the wife pay Mr Zova $10,255.89 within 60 days for his incurred losses and expenses related to complying with the subpoena and his subsequent applications. The court also set aside certain prior orders and dismissed alternative applications by Mr Zova and the husband concerning the allocation of these costs.