Fuelxpress Ltd v L M Ericsson Pty Ltd

Order 27 r4A provides: "4A (1) Where a person named in a subpoena is not a party to the proceeding and he incurs substantial expense or loss in complying with the subpoena the Court or a Judge may order that the party who requested the issue of the subpoena pay to that person, in addition to any amount which the person served with the subpoena is entitled to be paid pursuant to Order 27 rule 3 or the Second Schedule, an amount to compensate him for such expense or loss as is reasonably incurred or lost by that person in complying with the subpoena. (2) Where an order is made under sub-rule (1) the Court or a Judge shall either fix the amount or direct that the amount be fixed by the taxing officer. (3) The provision of Order 62 shall apply mutatis mutandis to any taxation under this rule." In Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284, Lockhart J said at 286: "The intent of r.4A is to compensate a person subpoenaed to produce documents for expense or loss reasonably incurred in complying with the subpoena. It is not the case of a successful party to litigation seeking recovery of costs where the distinction of solicitor and client costs on the one hand and party and party costs on the other is observed by taxing officers. It is a case of a third party seeking compensation for what it has actually cost it in expense or loss in complying with the subpoena. In those circumstances I think it is appropriate, in this case that the legal costs and expenses ... in and about compliance with the subpoena (including its costs of this motion) and in and about the preparation of the bill for taxation and attending to the taxation should be on a solicitor and client basis".