FEDERAL COURT OF AUSTRALIA

Chapman v Luminis Pty Ltd (No 3) [2000] FCA 1120

Practice and Procedure – subpoena to produce documents – whether Evidence Act 1995 (Cth) enters upon that field – subpoena to attend to give evidence – witness giving evidence declines to produce documents requested by the examiner – whether s 36 of the Evidence Act applies – whether inconsistency between Evidence Act and s 35 of the Aboriginal Heritage Act 1983 (SA) – whether s 35 has application to prohibit production of the documents insofar as they contain Aboriginal tradition – whether witness entitled to recover costs under FCR O 27, r 4A.

Aboriginal Heritage Act 1983 (SA), s 35

Evidence Act 1995 (Cth), ss 36, 48(4), 130

Judiciary Act 1903 (Cth), s 78B

Federal Court of Australia Act 1976 (Cth), ss 17(4), 47, 50

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 27

Federal Court Rules, O 33, r 11, O 27, r 4A(1), O 27, r 3

Family Court Rules, O 28, r 1

Chapman & Others v Luminis Pty Ltd & Others (No 2) (2000) FCA 1010 discussed

Northern Territory of Australia v GPAO (1999) 161 ALR 318 distinguished

Ramirez v The Trustee of the Property of Zoltan Sandor, A bankrupt, (unreported, SC NSW, Young J, 2990 of 1995, judgment delivered 22 April 1997) not followed

Morey v Transurban City Link Limited & Another (1997) ATPR 41-571 applied

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

Hadid v Lenfest Communications Inc & Others (1996) 144 ALR 73 cited

Charlick Trading Pty Ltd v Australian National Railways Commission & Another (1997) 149 ALR 647 cited

Moorehead Nominees Pty Ltd & Others v Barclays Australia Securities Ltd & Others (unreported, Federal Court of Australia, Hill J, VG63 of 1989, 17 May 1991) applied

Matter No. SG 33 of 1997

THOMAS LINCOLN CHAPMAN, WENDY JENNIFER CHAPMAN & BINALONG PTY LTD v LUMINIS PTY LTD, DEANE JOANNE FERGIE, CHERYL ANNE SAUNDERS, ROBERT EDWARD TICKNER & COMMONWEALTH OF AUSTRALIA

von DOUSSA J

ADELAIDE

10 AUGUST 2000

THE COURT ORDERS THAT:

1.         Sandra Saunders within seven days produce into the custody of the Court to abide the further order of the Court the two field notebooks prepared by Dr Deane Fergie and the computer disk identified by Sandra Saunders in her evidence today.

2.         A decision on the question of costs in connection with subpoenas addressed to Sandra Saunders reserved.

3.         The injunction for preservation of the said field notebooks and computer disk made on 2 August 2000 to continue until further order.

4.         Adjourn to a date to be fixed for further examination of Sandra Saunders.

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

THE COURT ORDERS THAT:

1.         Sandra Saunders recover from the applicants her costs of and incidental to the service on her of a subpoena (or subpoenas) for the production of documents returnable on 2 August 2000 on a solicitor and client basis.

2.         Sandra Saunders recover from the applicants her costs (if any) of obtaining advice as to her obligation to comply with a subpoena (or subpoenas) to attend and give evidence on 7 August 2000 on a solicitor and client basis, but not her costs of counsel to attend on the return of the subpoena to argue that she should not be required to produce documents in her possession falling within the scope of the earlier subpoenas to produce documents.

3.         The applicants recover from Sandra Saunders the fees of one counsel referrable to the argument on 7 August 2000 in support of an order that Sandra Saunders produce the said documents in the course of giving evidence.

4.         The costs awarded in the preceding paragraphs of this order be taxed and set off one and against the other and an order made for the payment of the net amount.

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

REASONS FOR DECISION

1                     The following are reasons for an order I made on 7 August 2000 directed to Ms Sandra Saunders, and for my decision on outstanding questions of costs sought in connection with subpoenas served on Ms Saunders.

2                     On 28 July 2000 I made a ruling that s 35 of the Aboriginal Heritage Act 1983 (SA) (the AHA) did not apply to witnesses whilst giving evidence in the trial of this action: Chapman & Others v Luminis Pty Ltd & Others (No 2) (2000) FCA 1010 (Chapman No. 2).  I also ruled on that occasion that there be no direction under s 130 of the Evidence Act 1995 (Cth) that information about restricted women’s knowledge not be adduced as evidence in the proceedings.  Consequential directions relating to the receipt of evidence on that topic
were given.

3                     The question of the possible operation of s 35 of the AHA in relation to evidence of witnesses called during the trial of these proceedings had arisen because the second respondent, Dr Fergie, had argued that she should not be required to answer questions about alleged restricted women’s knowledge given to her by Dr Doreen Kartinyeri, which became the contents of the “secret envelopes” described in Chapman No. 2.  At para 22 of the reasons in Chapman No. 2 I referred to arguments advanced by Mr Anderson QC, counsel for Dr Fergie that it was not proved that the secret envelopes (or rather their contents) “were not available” within the meaning of s 48(4) of the Evidence Act 1995.  Passing reference was also made to the belated issue of a subpoena by the applicants directed to the Aboriginal Legal Rights Movement (ALRM).  The question of the possible continuing existence of a copy of the contents of the secret envelopes, and also of two field notebooks in which Dr Fergie made entries in the course of her engagement by ALRM in June-July 1994
re-emerged in the proceedings on 2 August 2000 when a subpoena addressed to Ms Saunders for production of documents was returned. 

4                     In June-July 1994 Ms Saunders was the Director of the ALRM, a position which she is again presently holding under a temporary appointment.  Ms Saunders is a Ngarrindjeri woman.  Through her counsel, she informed the Court that she had in her custody and control Dr Fergie’s field notebooks.  These had been given to her for safe keeping by the Ngarrindjeri women who claimed to be the custodians of the restricted women’s knowledge about twelve months ago.  Her counsel also informed the Court that she had in her custody and control a computer disk that she believed could contain the contents of the secret envelopes in electronic form.  (In evidence later given by Ms Saunders on 7 August 2000 she informed the Court that this disk had been given to her by Dr Kartinyeri for safekeeping).  Counsel for Ms Saunders informed the Court that she refused to produce the field notebooks or the disk (the documents) relying in substance on the same grounds which Dr Fergie had advanced for not being required to answer questions relating to the restricted women’s knowledge:  see Chapman No. 2 at para 3.  It was argued that as the documents were sought under a subpoena to produce documents, the ruling in Chapman No. 2 was distinguishable as the subpoena was, in effect, a pre-trial procedure to which the Evidence Act 1995 did not apply: cf Northern Territory of Australia v GPAO (1999) 161 ALR 318 at 323-324 [16-17].  The return of the subpoena was stood over for further consideration and for argument on 7 August 2000.

5                     An injunction was made ordering Ms Saunders to take all reasonable steps available to her to take into her immediate possession and control the documents, and neither directly or indirectly to alter or destroy the same until further order of the Court.

6                     By 7 August 2000 the applicants had issued and served on Ms Saunders a subpoena to attend and give evidence on 7 August 2000.  The applicants had also filed a notice of motion returnable on that date seeking orders under FCR O 17, r 1, O 15A, r 8, O 15, r 11 and O 33, r 13 for the production, copying and safekeeping by the Court of the documents.

7                     On 7 August 2000 Ms Shaw QC, counsel for the applicants, called Ms Saunders as a witness in the proceedings to prove and identify the documents with a view to having them admitted into evidence so that Dr Fergie (and in due course Professor Saunders, Ms Mullins and Ms Kee) could be cross-examined upon them.  Ms Saunders confirmed the circumstances in which she received the documents.  She said that they were now in her possession, but they were not in Court as she refused to produce them.  She gave evidence on oath as to her reasons for not producing them, namely her reliance upon s 35 of the AHA, and the circumstances in which she was entrusted with the documents by the custodians of the knowledge.  On that topic she said:

“For me to actually do – to hand over the information actually breaks the trust of the people in the community, and I would never ever have the trust of those women or any of the Aboriginal people involved in this case again … they have given me complete trust to protect that information for them and I understand the consequences of what is happening but, for me, you know, better that than not have the trust of the Aboriginal people …”

Ms Saunders said that she had consulted the custodians of the knowledge (whom she named) who had declined to give her permission to produce the documents.

8                     Before the hearing on 7 August 2000 the applicants wrote to each of the Attorneys-General for the Commonwealth, States and Territories of Australia informing them of the events of 2 August 2000, and enclosing an amended Notice under s 78B of the Judiciary Act 1903 (Cth).  Notice had previously been given before the oral arguments which preceded Chapman No. 2.  The letters to the Attorneys-General said:

“Out of an abundance of caution, we have prepared a further Notice of Constitutional Matter.  The Notice is in exactly the same form as the previous Notices except that paragraphs 10, 11, 11A and 12 have been changed to relate the new circumstances … and consequential amendments have been made to paragraph 13.”

9                     The changed paragraphs of the Notice now read:

“10.    The Applicants have served a Subpoena to Produce Documents on one Sandra Saunders who has indicated to the Court through Counsel that she has certain items the subject of the Subpoena, namely Dr Fergie’s field notebooks and a computer disk believed to contain the contents of the secret envelopes.

11.       Ms Saunders has further indicated to the Court through Counsel that she declines to produce such documents on the basis (inter alia) of the proscription in s.35 of the Aboriginal Heritage Act (SA).

11A.    The applicants have or will issue a Summons for Ms Saunders to give evidence and/or provide documents returnable at 10:15 am Monday the 7^th August 2000 and intend to ask her questions relating to such documents as well as take such further steps as they may be advised in order to attempt to secure into the possession of the Court or otherwise obtain access to such documents including an Application for Third Party Discovery, and an Application for and Inspection of Property Order, or such other steps as may be available to them.

12.       The Applicants say that the documents in question are relevant to matters in issue in the action.”

Paragraph 13 of the amended Notice repeated the grounds as set out in the previous Notice in which the applicants contended that s 35 of the AHA was invalid by reason of s 109 of the Constitution: see Chapman No. 2 at para 20.

10                  Not one of the Attorneys-General intervened in response to the first Notice preceding Chapman No. 2.  However on 7 August 2000 the Attorney-General for the State of South Australia intervened, but no other Attorney-General did so.

11                  After Ms Saunders had articulated the grounds upon which she relied for not producing the documents, the Court heard argument from counsel for the applicants, for the third, fourth and fifth respondents (the Commonwealth respondents), for the Attorney-General for South Australia and for Ms Saunders.  Counsel for the applicants argued that the ruling in Chapman No. 2 was indistinguishable as Ms Saunders had been called to give evidence and stood in no different position to Dr Fergie.  It was also argued that s 35 had no application upon a number of additional grounds. Insofar as Ms Saunders relied upon a breach of confidence, that gave rise to an issue to be determined under s 130 of the Evidence Act, again a matter ruled upon in Chapman No. 2.

12                  Counsel for each of the Attorney-General for the State of South Australia, for the Commonwealth respondents and for Ms Saunders opposed an order for production of the documents.  Each argued that s 35 applied to protect Ms Saunders against producing the documents.  The thrust of their arguments was that the ruling made in Chapman No. 2 was distinguishable because Ms Saunders was, in substance, merely being asked to produce the documents in response to a subpoena, that being a situation which Northern Territory of Australia v GPAO had decided was not a field into which the Evidence Act entered: see Gleeson CJ and Gummow J at 323-324 [16-17], Gaudron J at 352 [135], McHugh and Callinan JJ at 371 [199] and Hayne J at 387 [254].

13                  The arguments of all counsel assumed that if s 35 of the AHA applied, and if Ms Saunders were to produce the documents to the Court in the course of her evidence, she would “divulge” Aboriginal tradition in contravention of that section.  Perhaps, in strictness, the mere production of the documents to the Court would not reveal their contents.  If the contents were thereafter to be revealed, and the Aboriginal tradition thereby divulged, that would not in law be the consequence of Ms Saunders’ action.  However such a construction of s 35 was treated as a technicality, and Ms Saunders addressed the reality of the situation, namely that if the documents were produced to the Court it would follow from the ruling made in Chapman No. 2 that limited access would be given to others contrary to the wishes of the Ngarrindjeri custodians of the knowledge.  I adopt the same approach.

14                  I do not accept the submission that the ruling in Chapman No. 2 is distinguishable from the circumstances which have now arisen concerning Ms Saunders.  Ms Saunders on 7 August 2000 was not merely responding to a subpoena to produce documents.  That may have been the situation on 2 August 2000, but on 7 August 2000 she attended, albeit in response to a subpoena to give evidence, and after taking an affirmation, was in the course of giving oral evidence on the topic of the documents when she refused a request to produce them.  Section 47 of the Federal Court of Australia Act 1976 (Cth) and FCR O 33, r 1 contemplate that the normal mode of adducing evidence at a trial will be through witnesses sworn or affirmed who give oral evidence.  In the course of giving oral evidence a witness may be asked to produce documents within the witness’ possession about which the witness has relevant knowledge, just as a witness may be requested to demonstrate the occurrence of a relevant event by physical movement of the body.  The receipt of evidence of a witness is not confined to oral expression.  In the course of giving oral evidence, evidence in documentary form may be identified and proved through a witness.

15                  Once Ms Saunders was called to give evidence, the Evidence Act governed the taking of evidence from her, including evidence to be received by way of the production of documents and things: see s 36 of the Evidence Act which provides:

“(1)     The Court may order a person who:

(a)        is present at the hearing of a proceeding; and

(b)        is compellable to give evidence in the proceeding;

            to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person.

(2)       A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process.

(3)       A party who inspects a document or thing produced to the court because of subsection (1) need not use the document in evidence.”

16                  In Ramirez v The Trustee of the Property of Zoltan Sandor, A bankrupt, (unreported, SC NSW, Young J, 2990 of 1995, judgment delivered 22 April 1979) (Ramirez) it was held that:

“Under s 36 a court may order a person ‘to give evidence and to produce documents’.  It would seem that by using the word ‘and’ the section is directed to a person who is not already giving evidence.  Accordingly, s 36(1) cannot be availed of to order the witness who is in the box to produce a document.”

17                  In my opinion I am compelled by an authority of the Full Court of this Court (with which I respectfully agree) to decline to follow the decision in Ramirez and to hold that s 36 does apply to a witness who is giving evidence in a trial, whether the attendance of that witness was pursuant to a subpoena to produce documents or otherwise.

18                  The decision of the Full Court is Morey v Transurban City Link Limited & Another (1997) ATPR 41-571.  The appellant had brought proceedings claiming that certain statements in a prospectus issued by the respondents contravened s 52 of the Trade Practices Act 1974 (Cth).  Central to the proof of the allegations that the prospectus contained statements that were likely to mislead or deceive was a report prepared by consultants upon which aspects of the prospectus was based.  The report was not voluntarily forthcoming from the respondents.  During the trial the appellant subpoenaed three people to produce the report there being reason to believe that each of those persons had a copy.  On the return of the subpoena the respondents argued that the subpoena should be set aside on various grounds including the lateness of the subpoenas.  The trial judge made an order to that effect.  This order was made during the cross-examination of one Mr Johnston who was an officer of a consultancy firm that had been engaged by the respondents to participate in the preparation of the report.  Upon the ruling being made, counsel for the appellant called for the report.  The call was refused, counsel for the respondents saying that the report was the property of the respondents, not the property of the witness or his consultancy company.

19                  On appeal, the Full Court (Lockhart, Heerey and Sundberg JJ) held that an order should have been made under s 36 of the Evidence Act against Mr Johnston for the production of the report.  The Full Court said at 43,932:

“The call that was made by the appellant’s counsel at trial should have led to an order being made under this section [s 36].  Even assuming that the copy of the Report in Mr Johnston’s office was the property of the respondents, ownership rights could not stand in the way of an order for production under s 36(1).  The ownership of the Report by the respondents was not relevant to the question whether the Report should be produced.  When a document or other thing is produced to the Court, no question of interference with ownership arises.  The Court takes the object in question into its custody, not to exercise any rights of ownership, but to use it for the temporary purpose of resolving disputed questions of fact.  That power is essential to the proper administration of justice and prevails over private property rights.

Questions of relevance, admissibility, privilege and confidentiality can of course be considered once the document or thing is produced to the Court.  But nobody can be heard to say: ‘The Court cannot see this document because it is my property’.”

20                  In my opinion the decision in Northern Territory v GPAO does not extend so far as to hold that the Evidence Act has no operation in respect of a witness who is giving oral evidence in a trial in a Federal Court, and who is asked to produce a document in the possession of that witness.

21                  Rather than formally order Ms Saunders there and then whilst she was in the witness box to produce the documents – thereby placing her in contempt of Court if she maintained her refusal – I made the order to which these reasons relate which required that she produce the documents into the control of the Court within seven days, and adjourned her further examination.  I took this course to allow the parties time to consider my ruling, and for Ms Saunders to reflect upon her position.

22                  I indicated to the parties on 7 August 2000 that in the event that Ms Saunders maintained her refusal to produce the documents, and did not comply with the order, I would take no action on my own motion in respect of that failure.  It would be for the applicants to decide what if any action would be taken.  I indicated that if compliance did not occur and were the applicants to commence proceedings against Ms Saunders in respect of that non-compliance, I would not interrupt the trial of these proceedings to hear that application.  In my opinion this long running trial should proceed without further delay, and if collateral proceedings arise against Ms Saunders, they should be heard by another judge.

23                  The applicants also argued that s 35 of the AHA was invalid because of its inconsistency with other federal laws besides the Evidence Act 1995.  First, the applicants contended that inconsistency exists with FCR O 33, r 11 which makes provision dealing with claims to privilege by a person ordered to produce documents or asked a question in the course of examination.  In my opinion no relevant inconsistency arises, nor does O 33, r 11 “otherwise provide” within the meaning of s 79 of the Judiciary Act 1903 (Cth), as O 33, r 11 by its terms exempts a person from compliance with an order to produce a document or an obligation to answer a question where “sufficient lawful objection” is substantiated.  If s 35 of the AHA otherwise applied, it would constitute a sufficient lawful objection, and O 33, r 11, by its terms, would operate to preserve the objection, not to defeat it.  Further, O 33, r 11(4) provides that:

“This rule does not affect any rule of law which authorises or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest.”

Rule 11(4) merely serves to confine the operation of r 11, and does not indicate any intention to cover the field of objections to answering questions or producing documents on public interest grounds.

24                  Counsel for the applicants contended that the following passage from the judgment of McHugh and Callinan JJ in Northern Territory v GPAO at 370 [196] supports the applicants’ argument that FCR O 33, r 11 gives rise to an inconsistency, or alternatively indicates that the rule “otherwise provides” than s 35 of the AHA:

“Order 28, r 1 of the Family Law Rules, set out earlier, provides that the court may compel production of any document by issue of a subpoena.  Neither the Rules nor the Act, however, make mention of a power to compel production of documents which are the subject of a ‘public interest’ privilege deriving from some other source, such as another enactment, State, federal or territorial, or the common law.  Section 97(3) of the Community Welfare Act is clearly intended to protect the wider public interest in so far as it shields sensitive documents from the usual processes by which such documents may be made public.  The general power conferred by O 28, r 1 of the Family Law Rules should not be construed as authorising the production of documents protected by a specific and narrowly directed provision such as s 97(3), which plainly intends to create an exception to long-established general principles about the procedures governing legal proceedings.”

25                  In my opinion this passage from Northern Territory v GPAO is supportive of, not contrary to, the conclusion that I have expressed about FCR O 33, r 11.  Rule 11, unlike O 28, r 1 of the Family Law Rules, does expressly preserve public interest, and by doing so removes any basis for arguing that the rule is inconsistent with a State law that seeks to protect a matter of public interest.  The judgment of Gaudron J in Northern Territory v GPAO at 354 [145] lends further support to this conclusion.

26                  Of the other grounds set out in the s 78B Notices for contending that s 35 is inconsistent with a law of the Commonwealth, the argument addressed by the applicants was confined to the powers to suppress or restrict the publication of evidence contained in ss 17(4) and 50 of the Federal Court of Australia Act and s 27 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the HPA). 

27                  Section 17(4) of the Federal Court of Australia Act empowers the Court to order the exclusion of the public or specified persons from a sitting of the Court where the Court is satisfied that the presence of the public or those persons would be contrary to the interests of justice.  Section 50 empowers the Court to make an order forbidding or restricting the publication of particular evidence, or the name of a party or a witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.  Section 27 of the HPA empowers the Court in certain proceedings arising under the HPA, to order the exclusion of the public or of specified persons from sitting in Court, and to make orders for the purpose of preventing or limiting the disclosure of information in respect to the proceedings, if it is satisfied that it is desirable to do so having regard to the interests of justice and the interests of Aboriginal tradition.  In my opinion these sections do not give rise to any inconsistency with s 35 of the AHA if that section otherwise has application to the proceedings.  The powers to exclude persons from a hearing, or to limit the publication and dissemination of evidence, do not deal with the question of whether a person may lawfully divulge information about an Aboriginal tradition to a court.  The powers are concerned with the extent of the publication and dissemination of information received by a court in the judicial process.  The Commonwealth laws are not directed to preventing the disclosure of information to a court or, more specifically, to the divulging to a court of Aboriginal tradition.  The Commonwealth laws are concerned to protect that information once it has been divulged to a court from further dissemination if the interests of justice and the interests of Aboriginal tradition so require.  The laws are dealing with quite different topics and in their textual operation do not come into conflict.

28                  One remaining issue requires determination.  At the conclusion of the hearing on 7 August 2000 counsel for Ms Saunders applied for an order in respect of the costs that she had incurred in instructing solicitors and counsel in relation to the subpoenas served upon her.  The application was made under FCR O 27, r 4A(1) which provides:

“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.”

This rule has been considered in a number of decisions, including Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284 (Fuelxpress), Hadid v Lenfest Communications Inc & Others (1996) 144 ALR 73 (Hadid) and Charlick Trading Pty Ltd v Australian National Railways Commission & Another (1997) 149 ALR 647 at 649 (Charlick).

29                  In both Fuelxpress and Hadid a non-party to the proceedings who had been served with a subpoena to produce documents was awarded costs.  In Fuelxpress, Lockhart J ordered that the legal costs and expenses incurred by a non-party in compliance with a subpoena should be on a solicitor and client basis.  Lockhart J also stated that, “[t]he intent of r 4A is to compensate a person subpoenaed to produce documents for expense or loss reasonably incurred in complying with the subpoena.”  In Hadid, Hill J endorsed a wide interpretation of r 4A and held in circumstances where a court has ordered that subpoenaed documents may be inspected by persons who have given appropriate confidentiality undertakings, that ensuring that the undertakings had been given before delivering up the documents is an expense incurred in complying with the subpoena, as long as the amount of the expenses is reasonable.

30                  In Charlick Mansfield J declined to order costs to non-parties under O 27, r 4A(1) in the following circumstances.  Two companies who were not parties to the proceedings had delivered documents to the Court in compliance with subpoenas.  Thereafter, they attended at the trial to ensure that the confidential information contained within those documents was not publicly disclosed.  His Honour held that the costs of attending the trial were costs incurred after the process of complying with the subpoena for production had been completed, and accordingly were not within the scope of the rule.  After referring to Fuelxpress and Hadid, Mansfield J at 649 said:

“In my view [those cases] establish that the scope of the rule is sufficient to encompass, if the expense is otherwise reasonable in the circumstances, the expense incurred in seeking advice as to the validity of the subpoena, including whether to comply with it at all or in part; correspondence or attendances on a party issuing the subpoena, regarding its terms, and including with a view to narrowing or clearly identifying the scope of documents to be produced; advice as to whether documents are confidential or properly subject to claims for privilege; correspondence and attendances and negotiations with the party issuing the subpoena, as to the terms upon which access to the documents should be permitted by the court, including the negotiation of and formulation of any undertakings as to confidentiality; attendances in court when the subpoena is called on or when it is stood-over, including attendances to assert and make out any claim that the documents subpoenaed should be protected from unrestricted access due to their confidential character and to seek orders restricting access to the document or documents produced; and steps to ensure that any confidentiality undertakings proposed to be entered into have, in fact, been properly given: Hadid’s case.  That list may not be exhaustive.”

31                  In the present case the Court has been given no itemised particulars of the costs sought nor of the items of work involved.  However in my opinion sufficient is known from the background circumstances and from the attendances of Ms Saunders’ counsel on 2 and 7 August 2000 to be satisfied that she has incurred “substantial expense” within the meaning of O 27, r 4A.  The applicants however oppose an order for costs on the ground that she has not complied with the subpoenas.

32                  In my opinion it is not possible to generalise in the manner asserted by the applicants’ submission.  Ms Saunders did not produce the documents in compliance with the subpoena to produce documents returned on 2 August 2000.  However even if that constituted a non-compliance without lawful objection, the authorities referred to above indicate that Ms Saunders was nevertheless entitled to obtain advice on the issue of s 35 of the AHA and on the question of confidentiality generally.  Moreover, on 7 August 2000 Ms Saunders in compliance with the subpoena to attend and give evidence did so.  She is entitled to conduct money pursuant to O 27, r 3 in respect of that attendance, and on the above authorities was entitled also to at least some of the costs of obtaining advice about that subpoena.

33                  In Moorehead Nominees Pty Ltd & Others v Barclays Australia Securities Ltd & Others (unreported, Federal Court of Australia, Hill J, VG63 of 1989, 17 May 1991) a subpoena was issued against a non-party, NZI, which thereafter obtained legal advice.  The subpoena was never called on and the proceedings eventually came to a halt.  The issue was whether NZI could recover its costs in circumstances where upon the receipt of legal advice, NZI gave instructions to have the subpoena set aside.  The respondents, who had issued the subpoena, submitted that since those instructions were to set the subpoena aside nothing NZI thereafter did could satisfy the description of compliance: the respondent argued “… it did not comply as a matter of fact; it did not seek to comply, nor did it ever intend to … once the intention was formed not to comply, it followed that no expenditure thereafter fell within rule 4A” (at p 8).

Hill J nevertheless allowed NZI part of its costs.  His Honour (at 5-6) said:

“When one examines rule 4A it is obvious that it is concerned with costs of compliance with the subpoena.  Not all costs incurred by a party subpoenaed as a consequence of being subpoenaed fall within the scope of these words.  The costs in question must be costs of compliance.  Of course as well they must be reasonably incurred.

Whether particular costs are costs of compliance is obviously a matter of fact.  Put in general terms, it seems to me that costs of compliance will include the costs incurred by the party subpoenaed in seeking advice as to the validity of the subpoena, that is to say, as to whether he has to comply with all or but a part of it …

On the other hand, I do not think that all of the expenditure which has been incurred by the applicant before me can be said to have been incurred in complying with the subpoena.”

34                  Applying these principles to the present case, I consider Ms Saunders is entitled to the costs she incurred in respect of the subpoena to produce documents that was returnable on 2 August 2000.  (The file suggests two subpoenas were lodged in the Registry to be issued, one on 21 July 2000 and another on 26 July 2000.  If indeed two subpoenas, each returnable on 2 August 2000, were in fact issued, Ms Saunders is also entitled to the additional costs incurred in respect of the unnecessary second subpoena) I consider costs should be awarded in Ms Saunders’ favour on the subpoenas as they sought to invoke a procedure to which the Evidence Act 1995 did not apply, and, when objection based on s 35 of the AHA was raised by Ms Saunders, the applicants then adopted another procedure, namely to call Ms Saunders to give evidence.  I have held that this alternative procedure was the one which did invoke the provisions of the Evidence Act 1995, and had the effect of rendering s 35 of the AHA inapplicable to the events which followed once Ms Saunders entered the witness box and commenced to give evidence.  Had this alternative procedure not been taken, s 35 of the AHA would, in my opinion, have provided a lawful objection to the production of the documents.  Those costs should be on a solicitor and client basis.

35                  In respect of the additional subpoena (or it seems subpoenas) issued on 2 August 2000 requiring Ms Saunders to attend to give evidence on 7 August 2000, I rule that she is entitled, in addition to conduct money for her actual attendance, to any additional costs reasonably incurred in obtaining additional advice regarding her obligation to comply with that subpoena.  Again, I think she is entitled to those costs on a solicitor and client basis.  However I rule that she is not entitled to the costs of the attendance of her counsel on 7 August 2000.  The attendance of counsel on that day was for the purpose of arguing that Ms Saunders should not in the course of her evidence be required to hand over the documents, and on that point I have ruled against her and in favour of the applicants’ position.  Contrary to the claim by Ms Saunders I consider the applicants are entitled to their costs against her in respect of that argument, but not counsel’s attendance for the purposes of calling and examining Ms Saunders.  In fairness, as Ms Saunders is receiving some of her costs on a solicitor and client basis I think the costs awarded to the applicants should be assessed on the same basis, but not including the costs of two counsel.  The particular issue was not one requiring more than the attention of one counsel.

36                  The quantification of the costs in favour of Ms Saunders, and in favour of the applicants, is a matter that will have to be determined by a taxing officer upon adequate particulars supplied by the parties.  The costs awards should be set off one against the other and an order made in respect of the net balance.

Associate:

Dated: