King v GIO Australia Holdings Ltd [2001] FCA 1773

King v GIO Australia Holdings Ltd [2001] FCA 1773

O 27 r 4A did not empower the Court to order payment to PwC, Vines or AA because the subpoena was addressed to ASIC, and only ASIC was the "person named" within O 27 r 1. Assuming that s 43 was broad enough to permit a costs order in favour of the non-parties, the discretion should not be exercised because GIO, the other parties and ASIC had not acted inconsistently with protecting confidentiality, and it was not apparent that the non-parties' participation was necessary; GIO should not underwrite those costs. The applications were therefore dismissed.

Jurisdiction
Australia
Judgment Date
13 December 2001
Procedural Posture
Representative Proceedings; Oral Applications by Non Parties for Expenses or Costs Arising From a Subpoena to ASIC / Reasons for Judgment and Order Dismissing the Non Party Applications for Expenses and Costs
Outcome
Applications dismissed.
Legal Topics
['non Party Costs' 'expenses of Compliance With Subpoena' 'confidentiality Regime for Subpoenaed ASIC Examination Transcripts' 'meaning of "proceeding" and "costs"' 'federal Court Rules O 27 R 4 A']
['civil Procedure' 'costs' 'subpoenas'] ['non Party Costs' 'expenses of Compliance With Subpoena' 'confidentiality Regime for Subpoenaed ASIC Examination Transcripts' 'meaning of "proceeding" and "costs"' 'federal Court Rules O 27 R 4 A']

Case Brief

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Procedural Posture

Representative Proceedings; Oral Applications by Non Parties for Expenses or Costs Arising From a Subpoena to ASIC / Reasons for Judgment and Order Dismissing the Non Party Applications for Expenses and Costs

Legal Issues

  1. 1 ['Whether s 43 of the Federal Court of Australia Act 1976 (Cth) empowered the Court to order GIO to pay expenses or costs incurred by non-parties in relation to access to documents produced under a subpoena served on ASIC.' 'Whether the issue of the subpoena to ASIC and formulation of an access regime constituted a "proceeding" for the purposes of s 43.' 'Whether O 27 r 4A of the Federal Court Rules empowered the Court to order payment to persons whose names appeared in the subpoena but to whom the subpoena was not addressed.' 'Whether, assuming power existed under s 43, the discretion should be exercised to order GIO to pay the claimed expenses or costs.']

Ratio Decidendi

O 27 r 4A did not empower the Court to order payment to PwC, Vines or AA because the subpoena was addressed to ASIC, and only ASIC was the "person named" within O 27 r 1. Assuming that s 43 was broad enough to permit a costs order in favour of the non-parties, the discretion should not be exercised because GIO, the other parties and ASIC had not acted inconsistently with protecting confidentiality, and it was not apparent that the non-parties' participation was necessary; GIO should not underwrite those costs. The applications were therefore dismissed.

Court Disposition

Applications dismissed.

Orders

  • ['The applications by PricewaterhouseCoopers, PricewaterhouseCoopers Securities, Geoffrey Vines and the unnamed member of Arthur Andersen for expenses and costs be dismissed.']