GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 3) [2023] NSWSC 775

GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 3) [2023] NSWSC 775

Mr Jess' further productions in June 2023 showed that earlier searches had not been a proper search of PJA's records as required by the subpoena. Had Mr Jess directed staff to conduct the equivalent of the later 'deep dive' when the subpoena was first served, the plaintiffs would not have needed to file the motion or proceed with the examination. There was reasonable cause to proceed with the examination, so Mr Jess should pay the plaintiffs' costs of the motion, excluding his attendance and the examination itself.

Jurisdiction
Australia
Judgment Date
05 July 2023
Procedural Posture
Costs; Examination Pursuant to S 68 of the Civil Procedure Act 2005 (nsw) Concerning Compliance With a Subpoena / Costs Determination on the Papers Following Examination
Outcome
Examinee to pay the costs of the plaintiffs' notice of motion of 12 December 2022, save for the costs of the examinee's attendance at the examination and the costs of the examination itself.
Legal Topics
['subpoena Compliance' 'examination Pursuant to S 68 of the Civil Procedure Act 2005 (nsw)' 'costs of Notice of Motion']
['civil Procedure' 'costs'] ['subpoena Compliance' 'examination Pursuant to S 68 of the Civil Procedure Act 2005 (nsw)' 'costs of Notice of Motion']

Case Brief

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Procedural Posture

Costs; Examination Pursuant to S 68 of the Civil Procedure Act 2005 (nsw) Concerning Compliance With a Subpoena / Costs Determination on the Papers Following Examination

Legal Issues

  1. 1 ["Whether Mr Peter Jess should pay the costs of the plaintiffs' Notice of Motion of 12 December 2022 seeking his examination concerning compliance with a subpoena." 'Whether there was reasonable cause to proceed with the examination of Mr Jess.']

Ratio Decidendi

Mr Jess' further productions in June 2023 showed that earlier searches had not been a proper search of PJA's records as required by the subpoena. Had Mr Jess directed staff to conduct the equivalent of the later 'deep dive' when the subpoena was first served, the plaintiffs would not have needed to file the motion or proceed with the examination. There was reasonable cause to proceed with the examination, so Mr Jess should pay the plaintiffs' costs of the motion, excluding his attendance and the examination itself.

Court Disposition

Examinee to pay the costs of the plaintiffs' notice of motion of 12 December 2022, save for the costs of the examinee's attendance at the examination and the costs of the examination itself.

Orders

  • ["Mr Jess to pay the plaintiffs' costs of the plaintiffs' Notice of Motion of 12 December 2022." "Those costs are not to include Mr Jess' costs of travelling from Melbourne to Sydney to attend the examination, nor the costs of the examination itself."]