Stephen John Pilgrim and another v Wendy's Supa Sundaes Pty Ltd and others [2002] NSWIRComm 4

Stephen John Pilgrim and another v Wendy's Supa Sundaes Pty Ltd and others [2002] NSWIRComm 4

ASIC established that the work undertaken to comply with the summons was necessary, that it was reasonable for a solicitor to undertake the relevant parts of the work given the nature of the summons and ASIC's statutory obligations, and that the cost burden substantially exceeded conduct money. The hourly rates claimed reflected ASIC's actual employment costs and did not include a profit element. The lower alternative amount claimed was sufficient to make good the expense or loss incurred in complying with the summons.

Jurisdiction
Australia
Judgment Date
30 January 2002
Procedural Posture
Application Under S106 of the Industrial Relations Act 1996; Unfair Contract Proceedings / Interlocutory Notice of Motion by Non Party ASIC for Costs and Expenses Incurred in Complying With a Summons for Production; Reasons for Earlier Order
Outcome
ASIC's motion was allowed in part by ordering payment of the lower alternative sum claimed, together with costs of the motion as agreed or assessed.
Legal Topics
['unfair Contract' 'summons for Production' 'non Party Costs and Expenses' 'conduct Money' 'subpoena Compliance Costs' 'confidentiality Obligations']
['industrial Relations' 'civil Procedure' 'costs'] ['unfair Contract' 'summons for Production' 'non Party Costs and Expenses' 'conduct Money' 'subpoena Compliance Costs' 'confidentiality Obligations']

Case Brief

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Procedural Posture

Application Under S106 of the Industrial Relations Act 1996; Unfair Contract Proceedings / Interlocutory Notice of Motion by Non Party ASIC for Costs and Expenses Incurred in Complying With a Summons for Production; Reasons for Earlier Order

Legal Issues

  1. 1 ['Whether ASIC, as a non-party served with a summons for production, incurred expense or loss substantially exceeding conduct money within cl 19(3) of the Industrial Relations (General) Regulation 1996.' 'Whether time spent by an ASIC solicitor and administrative assistant in searching for, checking, photocopying, collating and delivering documents was recoverable as expense or loss.' 'Whether the amount claimed included any impermissible profit element.' "What amount was sufficient to make good ASIC's expense or loss in complying with the summons."]

Ratio Decidendi

ASIC established that the work undertaken to comply with the summons was necessary, that it was reasonable for a solicitor to undertake the relevant parts of the work given the nature of the summons and ASIC's statutory obligations, and that the cost burden substantially exceeded conduct money. The hourly rates claimed reflected ASIC's actual employment costs and did not include a profit element. The lower alternative amount claimed was sufficient to make good the expense or loss incurred in complying with the summons.

Court Disposition

ASIC's motion was allowed in part by ordering payment of the lower alternative sum claimed, together with costs of the motion as agreed or assessed.

Orders

  • ["Wendy's Supa Sundaes Pty Ltd pay to ASIC the sum of $1390.98." "Wendy's Supa Sundaes Pty Ltd pay ASIC's costs of the motion as agreed or as assessed."]