Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334

Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334

Frontier, as the issuing party, became liable under UCPR 33.11 to pay Mr Wavish's reasonable loss and expense of complying with the subpoena, but not on an indemnity basis because both sides failed to act consistently with the overriding purpose and proportionality principles. The costs of complying with a subpoena do not extend to the costs of a motion challenging the obligation to comply; those costs were costs of the motion. Because the subpoena was too wide and potentially vulnerable but the challenge was not a foregone conclusion and a practical compromise should have been pursued earlier, no order should be made as to the costs of the motion or the costs of the costs argument....

Jurisdiction
Australia
Judgment Date
21 April 2011
Procedural Posture
Consequential Orders Concerning Costs and Expenses of Compliance With Subpoenas / Argument on Orders Following Earlier Judgment on Amended Notice of Motion and Consent Setting Aside of Subpoena
Outcome
Frontier ordered to pay Mr Wavish reasonable loss and expense of complying with two subpoenas; no order as to costs of the motion to set aside the subpoena, including hearings and argument.
Legal Topics
['subpoenas' 'costs and Expenses of Compliance' 'motion to Set Aside Subpoena' 'indemnity Costs' 'overriding Purpose' 'proportionality of Costs']
['civil Procedure' 'costs'] ['subpoenas' 'costs and Expenses of Compliance' 'motion to Set Aside Subpoena' 'indemnity Costs' 'overriding Purpose' 'proportionality of Costs']

Case Brief

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Procedural Posture

Consequential Orders Concerning Costs and Expenses of Compliance With Subpoenas / Argument on Orders Following Earlier Judgment on Amended Notice of Motion and Consent Setting Aside of Subpoena

Legal Issues

  1. 1 ['Whether Frontier should pay Mr Wavish his reasonable loss or expense incurred in complying with the subpoena issued to him by Frontier dated 13 October 2010.' 'Whether legal and other adviser costs claimed as loss or expense should be determined on an indemnity basis or some other basis.' 'Who should pay the costs of the notice of motion filed by Mr Wavish on 12 November 2010 and whether those costs should be paid on an indemnity basis.' 'Whether Frontier should pay Mr Wavish his reasonable loss or expense incurred in complying with the subpoena issued to Milan Djekovic dated 13 October 2010.']

Ratio Decidendi

Frontier, as the issuing party, became liable under UCPR 33.11 to pay Mr Wavish's reasonable loss and expense of complying with the subpoena, but not on an indemnity basis because both sides failed to act consistently with the overriding purpose and proportionality principles. The costs of complying with a subpoena do not extend to the costs of a motion challenging the obligation to comply; those costs were costs of the motion. Because the subpoena was too wide and potentially vulnerable but the challenge was not a foregone conclusion and a practical compromise should have been pursued earlier, no order should be made as to the costs of the motion or the costs of the costs argument....

Court Disposition

Frontier ordered to pay Mr Wavish reasonable loss and expense of complying with two subpoenas; no order as to costs of the motion to set aside the subpoena, including hearings and argument.

Orders

  • ["Order Frontier to pay Mr Wavish's reasonable loss and expense of complying with the subpoena issued to him dated 13 October 2010." 'Make no order as to the costs of the motion filed 12 November 2010 to set aside the subpoena, including the costs of the hearings and argument before me.' 'Order Frontier to pay Mr...