Waitemata Stevedoring Services Ltd v The Ship [1998] FCA 778

Waitemata Stevedoring Services Ltd v The Ship [1998] FCA 778

The cost of the solicitor monitoring the facsimile was not shown to be unreasonable, particularly because the decision was made late in the evening when other staff were unavailable and there was no cross-examination of the solicitor. Had an order under Order 27 Rule 4A been sought, the Court would have ordered payment of those costs. The notice of motion was effectively prompted by the issue of costs and did not proceed because of the undertaking, so it was appropriate for the issuing party to pay the subpoenaed party's costs of the motion of 14 May 1998, but not the costs of the hearing on 16 June 1998.

Jurisdiction
Australia
Judgment Date
16 June 1998
Procedural Posture
Notice of Motion by Subpoenaed Third Party Concerning Subpoena Compliance Costs / Application for Further Orders; Ex Tempore Reasons for Judgment
Outcome
The Court determined the reasonable subpoena compliance costs and made a costs order in favour of the subpoenaed party for the earlier motion, with no order for the costs of the hearing on 16 June 1998.
Legal Topics
['subpoenas' 'costs of Compliance With Subpoena' 'security for Costs' "solicitor's Undertaking" 'costs of Motion']
['civil Procedure' 'costs'] ['subpoenas' 'costs of Compliance With Subpoena' 'security for Costs' "solicitor's Undertaking" 'costs of Motion']

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Procedural Posture

Notice of Motion by Subpoenaed Third Party Concerning Subpoena Compliance Costs / Application for Further Orders; Ex Tempore Reasons for Judgment

Legal Issues

  1. 1 ['Whether costs incurred by the subpoenaed party for its solicitor to monitor a facsimile machine while documents were received from New Zealand were reasonable costs of complying with the subpoena.' "Whether the issuing party should pay the subpoenaed party's costs of the notice of motion filed in relation to the subpoena."]

Ratio Decidendi

The cost of the solicitor monitoring the facsimile was not shown to be unreasonable, particularly because the decision was made late in the evening when other staff were unavailable and there was no cross-examination of the solicitor. Had an order under Order 27 Rule 4A been sought, the Court would have ordered payment of those costs. The notice of motion was effectively prompted by the issue of costs and did not proceed because of the undertaking, so it was appropriate for the issuing party to pay the subpoenaed party's costs of the motion of 14 May 1998, but not the costs of the hearing on 16 June 1998.

Court Disposition

The Court determined the reasonable subpoena compliance costs and made a costs order in favour of the subpoenaed party for the earlier motion, with no order for the costs of the hearing on 16 June 1998.

Orders

  • ["The issuing party pay the subpoenaed party's costs of the motion of 14 May 1998." 'No order as to the costs of 16 June 1998.']