E Co v Q (No 2) [2018] NSWSC 445

E Co v Q (No 2) [2018] NSWSC 445

Although the applicant commenced the motion precipitately and without any genuine pre-filing attempt to agree the subpoena compliance costs, the later exchange of information and offers meant the Court was not precluded by r 42.33 from making an order. Because the evidence did not permit a detailed assessment of the reasonableness of the claimed expenses, a broad-brush lump sum of $6,000, about 60% of the amount claimed, was allowed. The applicant’s unreasonable and disruptive manner of bringing the motion warranted an order that it pay the plaintiffs’ costs of the notice of motion.

Jurisdiction
Australia
Judgment Date
13 April 2018
Procedural Posture
Notice of Motion for Payment of Reasonable Loss and Expenses of Compliance With Subpoenas / Interlocutory Application
Outcome
Application allowed in part; plaintiffs ordered to pay $6,000 for subpoena compliance expenses, and applicant ordered to pay the plaintiffs' costs of the notice of motion.
Legal Topics
['subpoenas' 'costs of Compliance' 'non Party Expenses' 'attempt to Agree Costs' 'notice of Motion']
['civil Procedure'] ['subpoenas' 'costs of Compliance' 'non Party Expenses' 'attempt to Agree Costs' 'notice of Motion']

Case Brief

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Procedural Posture

Notice of Motion for Payment of Reasonable Loss and Expenses of Compliance With Subpoenas / Interlocutory Application

Legal Issues

  1. 1 ['Whether the applicant should be paid reasonable loss and expenses under r 33.11(1) of the Uniform Civil Procedure Rules 2005 (NSW) for compliance with three subpoenas issued by the plaintiffs.' 'Whether r 42.33 of the Uniform Civil Procedure Rules 2005 (NSW) precluded an order because the parties had not attempted, but failed, to agree on the amount of costs to be paid.' 'What amount should be allowed as reasonable loss and expenses where the evidence supporting the claimed expenses was insufficiently detailed.' 'What costs order should be made in relation to the notice of motion given the manner in which the applicant commenced it.']

Ratio Decidendi

Although the applicant commenced the motion precipitately and without any genuine pre-filing attempt to agree the subpoena compliance costs, the later exchange of information and offers meant the Court was not precluded by r 42.33 from making an order. Because the evidence did not permit a detailed assessment of the reasonableness of the claimed expenses, a broad-brush lump sum of $6,000, about 60% of the amount claimed, was allowed. The applicant’s unreasonable and disruptive manner of bringing the motion warranted an order that it pay the plaintiffs’ costs of the notice of motion.

Court Disposition

Application allowed in part; plaintiffs ordered to pay $6,000 for subpoena compliance expenses, and applicant ordered to pay the plaintiffs' costs of the notice of motion.

Orders

  • ['Pursuant to r 33.11(1) of the UCPR order the plaintiffs to pay the sum of $6,000 by way of the reasonable loss and expenses of the applicant in complying with the subpoenas addressed to it and issued by the plaintiffs in these proceedings.' "Order the applicant to pay the plaintiffs' costs of the notice of motion...