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[2004] NSWSC 996
Supreme Court of NSW
2004-10-25
Campbell J
Original judgment source is linked above.
For the reasons which I have earlier quoted from the decision of Bainton J in Deposit & Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267 (Para [19] above), using the ordinary charge-out rate of directors and principals of the Applicant is appropriate. For the support staff, Bainton J in Deposit & Investment Co Ltd v Peat Marwick Mitchell at 290 held that not only the salary of the staff member reduced to an hourly rate should be recoverable, but also various on-costs associated with employing a person. To the extent to which these on-costs are not claimed, the claim of the Applicant is conservative. The failure to claim those on-costs more than outweighs the fact that the Applicant has not given credit for the $25 it was paid at the time of service of the subpoena. 27 The legal fees which are claimed are ones whose makeup has been listed in minute detail, stating in tenths of an hour which lawyer did which type of work and for how long, and applying charge-out rates of those lawyers which are within the range of reasonable fees. No legal fees paid to Gadens are claimed. 28 Concerning the photocopying, the Respondent complains that it has been charged for 3,440 pages, yet only 830 pages of documents were produced in response to the subpoena. Mr Gillett has sworn that: "The total costs incurred by the Applicant in complying with the Subpoena is $14,572.20 and details of how this amount is calculated are shown in the Calculations."
The "Calculations" are set out in the table to which I have earlier referred. Thus, Mr Gillett has sworn that 3,440 pages were actually photocopied. He has not been cross-examined on this statement (or, indeed, on any of the statements in his affidavit.) 29 The Respondent submits that it is hardly reasonable to expect it to pay for photocopying of items when it has not received the photocopies. In the circumstances of this case, I do not agree. The reason why the photocopies which the Respondent has not received were made, was because the Respondent caused the Court to issue an order the carrying out of which required the photocopies to be made. The reason why the Respondent did not receive them, was because it decided it did not wish to bear the cost of full compliance with the order it had so obtained, and on 21 October 2003 waived any further performance. The cost of making all 3,440 pages was incurred in consequence of service of the subpoena, regardless of whether the Respondent ever received all those pages. 30 In the course of argument the Applicant offered to make available to the Respondent, subject to any proper claims it had concerning confidentiality and access to the documents, those photocopies which it had made. While I have noted an undertaking by the Applicant to make those photocopies available, the Applicant would have been entitled to payment for them even if it had not proffered that undertaking. 31 It is for these reasons that I made orders on 25 October 2004, namely: "I order the Respondent to pay to the Applicant the sum of $14,572.20, as the costs to date of compliance with the subpoena dated 14 October 2003. I order the respondent to pay the costs of the applicant of the application." **********
Last Modified: 11/02/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
J Aron Corporation
Newmont Yandal Operations
CITATION : J Aron Corporation v Newmont Yandal Operations [2004] NSWSC 996 HEARING DATE(S) : 25 October 2004 JUDGMENT DATE : 25 October 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Payment to recipient of subpoena ordered
CATCHWORDS : PRACTICE - subpoenas - subpoena duces tecum addressed to stranger to proceedings - entitlement of recipient of subpoena to payment for its expense and loss - manner of calculation of amount to be paid LEGISLATION CITED : Supreme Court Rules 1970 Deposit & Investment Co Ltd (Receivers Appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267 Danieletto v Khera (1995) 35 NSWLR 684 CASES CITED : Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284 Foyster v Foyster Holdings [2003] NSWSC 881 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77 Re Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129 J Aron Corporation - First Plaintiff/Respondent AMC Consultants Pty Limited - Non-party Applicant Goldman Sachs Group Inc - Second Plaintiff Newmont Yandal Operations Pty Ltd (Administration Appointed) - First Defendant Mark Anthony Korda in his capacity as Administrator of Newmont Yandal Operations Pty Ltd - Second Defendant Mark Francis Xavier Mentha in his capacity as Administrator of Newmont Yandal Operations Pty Ltd - Third Defendant Clynton Court Pty Ltd (subject to a Deed of Company Arrangement) - Fourth Defendant Australian Metals Corporations Pty Ltd - Fifth Defendant Eagle Mining Pty Ltd - Sixth Defendant PARTIES : Great Central Holdings Pty Ltd - Seventh Defendant Great Central Investments Pty Ltd - Eighth Defendant Great Central Mines Pty Ltd - Ninth Defendant Hunter Resources Pty Ltd - Tenth Defendant Matlock Castellano Pty Ltd - Eleventh Defendant Matlock Mining Pty Ltd - Twelfth Defendant Newmont Wiluna Gold Pty Ltd - Thirteenth Defendant Newmont Wiluna Metals Pty Ltd - Fourteenth Defendant Newmont Wiluna Mines Pty Ltd - Fifteenth Defendant Quotidian No 117 Pty Ltd - Sixteenth Defendant FILE NUMBER(S) : SC 4666/03 COUNSEL : M Ryckmans, solicitor - Plaintiff/Respondent I Griscti - Applicant SOLICITORS : Abbott Tout - Plaintiff/Respondent Allens Arthur Robinson - Applicant
At 688, his Honour explained the rationale: "The right approach in my view is that the Court decides whether to order a witness to attend, and ought to do so on a basis which is just to the witness, and it is not just to make the witness give attention to someone else's litigation without being paid for his time. In my opinion resort to principle shows that it is a necessary incident of the exercise by the Court of its subpoena power that the Court should deal with the question of paying persons whose time and attention are involved in the exercise, and the Court has power to order payment of expenses incurred by witnesses and also compensation for their time, whether before or after the subpoena is complied with, and whether or not it is complied with or set aside or compliance is dispensed with. A limit to compensation for time actually spent in attendance at court is not reasonably based whether for professional persons or for any others. If the Court is invoked by a party to use public power to compel a person to give attention to preparation to hear litigation, there is a just entitlement to payment for the time of the person whose attention is thus required and whose liberty and freedom of action are thus interfered with. A law which entitled a party to conscript the time and attention of others without paying for it would be oppressive. It would also be very poor policy as it would tend to generate resistance to the ordinary administration of justice." 23 In the present case, the Applicant was under a legal obligation to comply with the subpoena from the moment it was served. It was in practical terms released from that obligation when Mr Ryckmans told Ms Thornton that compliance with paragraph 5 would not be required. Insofar as it spent time and effort in searching out, considering and organising documents to comply with paragraph 5 of the subpoena before Mr Ryckmans said he would not require performance of the obligation to do so, the Applicant is entitled to be paid, under Part 37 rule 9 Supreme Court Rules 1970, an amount in respect of its expense or loss. 24 Insofar as the Applicant incurred legal fees in consequence of service of the subpoena, it is likewise entitled to a reasonable amount for that expense: Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284 per Lockhart J; Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77 at [20] - [21] per Levine J; Re Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129; (2004) 48 ACSR 681 at [40] - [43] per Barrett J. Quantum of Applicant's Entitlement 25 It was submitted on behalf of the Respondent that the conversation between Mr Ryckmans and Ms Thornton on 21 October 2003 amounted to a contract that if paragraph 5 was not insisted upon, the Respondent would save itself the expenses of complying with that paragraph. I simply do not find any such contract in that conversation. 26 While the Respondent accepts that it has an obligation in the terms laid down by Part 37 rule 9(1) Supreme Court Rules 1970, it says it has no obligation to pay the amount which the Applicant claims, because the costs have never been properly itemised. I do not accept that submission. The Applicant has set out a table of its costs of compliance, which lists each person who did work on complying with the subpoena, and states in relation to each such person the number of hours he or she spent in complying with the subpoena, and the hourly rate of that person. Disbursements, in the form of photocopying, courier fees, and cost of CDs, are also itemised. As well, an amount of $1,666.95 for legal costs is listed. The total amount itemised in that table is $14,572.20. Mr Gillett has sworn that the work set out in that table was performed by the people listed in it. Concerning the rate of charge for each person, Mr Gillett has sworn: "With directors and principals the rate set out is the actual charge-out rate of that director or principal. With support staff, the rate is the salary of the staff member reduced to an hourly rate."
(1996) 39 NSWLR 267
(1995) 35 NSWLR 684
(1987) 75 ALR 284