FEDERAL COURT OF AUSTRALIA

Australian Prudential Regulation Authority v Rural & General Insurance Limited [2004] FCA 619

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY v RURAL AND GENERAL INSURANCE LIMITED (ACN 000 007 492)

N 3050 OF 2003

GYLES J

10 FEBRUARY 2004

SYDNEY

THE COURT ORDERS THAT:

1.      Rural and General Insurance Limited pay Benfield (Australia) Pty Limited an amount to compensate it for such loss and expense as was reasonably incurred or lost by it in complying with Exhibit 1 and that the amount in question be fixed by the taxing officer. 

2.      One Thousand Dollars ($1,000) be paid forthwith by Rural and General Insurance Limited to Benfield (Australia) Pty Limited on account of such costs and expenses.

3.      Judgment be otherwise reserved on the Notice of Motion filed by Benfield (Australia) Pty Limited on 30 January 2004.

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

REASONS FOR JUDGMENT

1                     This is an application by Benfield (Australia) Pty Limited pursuant to O 27 r 4A.

2                     I am satisfied that an order is appropriate.  I take account of the fact that the solicitors for the respondent to this motion - whom I will call Rural and General - assert that they have never denied the necessity for some compensation.  However, it seems to me the only way to bring that to a head was by bringing these proceedings.  There was no payment in or offer of a substantial sum on account of Rural and General’s obligation.

3                     It is also clear from the evidence that costs were incurred in preparing to comply and in complying with the subpoena.  However, there is scope for debate both as to quantum in the strict sense and as to the scope of what was done.  In particular, there is scope for debate on account of the overlap between the subpoena in question and another subpoena issued by the Australian Prudential Regulation Authority for some of the same documents.. 

4                     I therefore order that Rural and General Insurance Limited pay Benfield (Australia) Pty Limited an amount to compensate it for such loss and expense as was reasonably incurred or lost by it in complying with the subpoena in question (Exhibit 1) and that the amount in question be fixed by the taxing officer.  I further order that $1,000 be paid forthwith by Rural and General Insurance Limited to Benfield (Australia) Pty Limited on account of such costs and expenses.

5                     I propose to reserve my decision in relation to the subpoena to give evidence, directed to Ms Effy Dimos.  It is plain enough that although Ms Dimos was not in fact required to give evidence, she was bound to attend and would be entitled to the normal conduct money.  I would hope that the quantification of that would not present a problem.  A more fundamental point has, however, been raised concerning the costs of preparing a witness to give evidence if called in relation to a subpoena.  That is a somewhat novel point and I would prefer to give it some further attention.  I will reserve my decision on the application for costs and expenses in relation to the subpoena to Ms Dimos in that respect.

Associate:

Dated:              1 June 2004