15 May 2023
Although serving the subpoena on the Commissioner was inappropriate and avoidable, the application to set aside the subpoena was not heard or determined; the Court will not speculate on merits in that context, therefore it is not appropriate to award non-party costs to the Commissioner and costs are to lie where they fall.
11 Feb 2019
The court held that Mr Yarnton was entitled to recover the reasonable costs evidenced by his counsel's invoices because he did not oppose the non-party discovery application, the invoices were sufficiently verified and proportionate to the work required, and the defendant's conduct necessitated the additional legal work; accordingly the defendant was ordered to pay $9,453.75 to Mr Yarnton, while the separate $506 claim and any further costs for the present submissions were refused.
17 Dec 2018
The subpoena was an abuse of process and was set aside because (1) the documents or summaries sought were already available to Oxygen through discovery, (2) the subpoena would have required the witness to create or obtain documents he did not have, and (3) Oxygen did not make reasonable attempts to procure a brief from the witness prior to issuing the subpoena; accordingly costs were awarded to the witness and a 20% uplift under r 14.6 was justified though indemnity costs were not warranted.
9 Nov 2018
The subpoena duces tecum served on Lim was set aside because it impermissibly sought documents contrary to prior tailored discovery directions, would require creation or collation of extensive records Lim did not possess, and Oxygen had not exhausted reasonable attempts to obtain Lim's brief. Subpoenas for Rangihuna and Aerenga were not abusive and oral evidence directions were granted because their evidence was necessary to contested issues, covered time periods or perspectives not otherwise provided, and there was credible evidence they had been discouraged from cooperating with Oxygen; any…
26 Mar 2018
The Court accepted that issuing a subpoena in response to late disclosure was justified but found the subpoena was drafted in unnecessarily wide terms and that failure to respond to correspondence contributed to the need for the application; applying High Court Rules sch 2 as a guide the Court awarded costs to the witness in the sum of $1,110.00 representing specified schedule items.
12 May 2016
The High Court held the SDNY Letter of Request met the requirements of s184(c) because the US proceedings were civil; the Request sought specific, identifiable evidence (not impermissible fishing) that Mega likely uniquely possessed; Mega could comply without undue burden; privacy and human rights concerns were mitigable by comprehensive protective orders; MACMA did not preclude civil assistance; accordingly the Court exercised its discretion under s185 to grant a subpoena requiring Mega's authorised representative to produce specified identifying information.
23 Feb 2016
Judge accepted plaintiffs could not meaningfully brief their principal witness on subpoenaed RBS documents before trial, the documents were highly relevant to objective purpose and effect, and responsible opening could not occur without adequate briefing; the Commissioner's delay in obtaining the subpoena contributed to the prejudice; on balance the interests of justice required granting an adjournment and specific timetable orders were made.
9 May 2008
The court set aside the subpoenas insofar as they sought oral evidence and broad production of documents because the plaintiff failed to show relevance sufficient to justify compulsion under r509; staff analysis and preparatory material is generally irrelevant to judicial review which focuses on material before the decision-maker, subpoenas cannot be used as a vehicle for non-party discovery, and privilege/confidentiality claims on identified documents are upheld or to be litigated under agreed procedures. The r509 relief was refused for lack of specificity and realistic prospect of relevant…
23 Mar 2006
The application was dismissed because the Letter of Request did not satisfy the jurisdictional prerequisites of s 48A: the arbitration was being administered by the ICDR which had original cognisance, not the North Carolina court that issued the Letter of Request, and no proper judicial certificate established that the foreign court before which the proceeding was pending desired the evidence; alternatively, even if jurisdiction existed the request was an abusive, overbroad attempt to secure discovery via subpoena duces tecum lacking specificity and relevance and the Court would have refused…