CATCHWORDS

PRACTICE and PROCEDURE - application for recovery of expenses and loss incurred in compliance with a subpoena by a non-party to the proceedings - O 27 r 4A of the Federal Court Rules - bill of costs recoverable on a solicitor-client basis - cost reasonably incurred.

Federal Court Rules O 27 r 4A

Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284, applied

MOWIE FISHERIES PTY LIMITED and

SWITZERLAND INSURANCE AUSTRALIA LIMITED

NO NG 750 of 1994

Tamberlin J

Sydney

23 July 1996

IN THE FEDERAL COURT OF AUSTRALIA)                 

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 750 of 1994

GENERAL DIVISION                  )

              BETWEEN:           MOWIE FISHERIES PTY LIMITED

                                  Applicant

              AND:               SWITZERLAND INSURANCE

                                  AUSTRALIA LIMITED

                                  Respondent

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        23 JULY 1996

                   MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.   Pursuant to O27 r4A the respondent, Switzerland Insurance Australia Limited, pay Australian Fisheries Management Authority an amount which is sufficient to compensate it for the expense or loss which it reasonably incurred or lost in complying with the subpoena issued by the respondent and served on the Australian Fisheries Management Authority and the amount shall be fixed by the Court's taxing officer or agreed between the parties.

2.   The amount so certified by the taxing officer or agreed between the parties be paid to the Australian Fisheries Management Authority within 21 days after the certificate of taxation has issued or such agreement is reached.

NOTE:     Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 750 of 1994

GENERAL DIVISION                  )

              BETWEEN:           MOWIE FISHERIES PTY LIMITED

                                  Applicant

              AND:               SWITZERLAND INSURANCE

                                  AUSTRALIA LIMITED

                                  Respondent

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        23 JULY 1996

                    REASONS FOR JUDGMENT

TAMBERLIN J:

Pursuant to this Motion the Australian Fisheries Management Authority ("AFMA") seeks to recover, under O27 r4A of the Federal Court Rules, an amount of $2,744 to compensate it for claimed expenses and loss incurred in compliance with a subpoena issued by the respondent, dated 17 June 1996.

Order 27 r4A provides:

          "4A  (1) Where a person named in a subpoena is not a party to the proceeding and he incurs substantial expense or loss in complying with the subpoena the Court or a Judge may order that the party who requested the issue of the subpoena pay to that person, in addition to any amount which the person served with the subpoena is entitled to be paid pursuant to Order 27 rule 3 or the Second Schedule, an amount to compensate him for such expense or loss as is reasonably incurred or lost by that person in complying with the subpoena.

          (2)  Where an order is made under sub-rule (1) the Court or a Judge shall either fix the amount or direct that the amount be fixed by the taxing officer.

          (3)  The provision of Order 62 shall apply mutatis mutandis to any taxation under this rule."

In Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284, Lockhart J said at 286:

          "The intent of r.4A is to compensate a person subpoenaed to produce documents for expense or loss reasonably incurred in complying with the subpoena. It is not the case of a successful party to litigation seeking recovery of costs where the distinction of solicitor and client costs on the one hand and party and party costs on the other is observed by taxing officers. It is a case of a third party seeking compensation for what it has actually cost it in expense or loss in complying with the subpoena. In those circumstances I think it is appropriate, in this case that the legal costs and expenses ... in and about compliance with the subpoena (including its costs of this motion) and in and about the preparation of the bill for taxation and attending to the taxation should be on a solicitor and client basis".

The sum of $2,744 claimed includes expenses incurred by AFMA in respect of work by a senior legal officer and a management officer together with a courier. I am satisfied that they should be paid.

In addition, there is an item claimed which is described as "Pagination Expenses" in the sum of $315. This is said to represent the cost of paginating original files. This was done so that it will be possible to ensure that all documents are returned in due course. I am satisfied that this item is recoverable on a solicitor-client basis, but the amount seems, on its face excessive for work done by a clerk over a period of three hours.

The next item claimed is legal costs on a solicitor-client basis in the sum of $2,184. 

The respondent contends that the charges should be awarded on a party-party basis. No itemised account is given as to the way in which this amount is made up on a solicitor-client basis. There is, in evidence, a specific break-up on a party-party basis as to the legal costs which amount to $1,236.  The respondent says, that in the absence of any break-up on a solicitor-client basis, the legal costs on a party-party basis should be the starting point. I do not agree with this submission in the light of Fuelxpress (supra). I think the appropriate basis for assessing such amounts is the solicitor-
client basis. The specific charges to be allowed are a matter for the taxing officer or agreement between the parties.

A number of particular objections were raised with respect to items in the itemised bill of party-party costs.

The first group of items concerns solicitors' costs with respect to obtaining legal advice as to the subpoena and drafting an undertaking as to confidentiality. The respondent claims that the undertaking as to confidentiality was too restrictive and that costs in respect of it ought not be awarded. The purpose of the undertaking was to protect commercial confidentiality of fishermen and the public interest in relation to AFMA records. I am satisfied that the costs of preparation of the undertaking, including necessary attendances and advices, should be recoverable by AFMA. There is no dispute as to the attendance in Court on 8 July 1996 by AFMA. As to other correspondence and attendances through the period 8 July to 12 July 1996, I consider these charges should be paid by the respondent as they are in effect following up their claims for loss and expense. The balance of the items in Annexure G relate to the Notice of Motion which is presently before me and I consider these items are recoverable by AFMA on a solicitor-client basis. It has been successful in this matter. Care should be taken on taxation to ensure there is no double counting.

Accordingly, I consider that an order should be made under O27 r4A, that AFMA be paid by the respondents the expenses incurred by it as set out in the affidavit of Ms Waddell on a solicitor-client basis, as taxed or agreed although I note that the sum of $315 claimed for "pagination expenses" appears prima facie excessive.

The respondents should pay the costs of this Motion on a solicitor-client basis.

I certify that this and

the preceding four (4)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date:                                     23 July 1996                             

Solicitor for Applicant on the Motion:    Ms S Waddell of the

                                          Australian Government Solicitor

Counsel for Respondent:                   Mr G Nell                                

Date of Hearing:                          22 July 1996                                   

Date Judgment Delivered:                        23 July 1996