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."