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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Noone v Brown (No 3)  QDC 154
HEATHER MANSELL BROWN
District Court at Brisbane
23 August 2019
On the papers
The defendant is to pay the sum of $1,850 to the Lutheran Church of Australia, Queensland District trading as Lutheran Services (ABN 47 291 464 804) within the period of 28 days.
PRACTICE AND PROCEDURE – subpoenas – whether costs should be awarded- quantum of costs
Uniform Civil Procedure Rules 1999 (Q) rr 417, 418, 419
Australian Prudential Regulation Authority v Rural and General Insurance Ltd  FCA 933
Burrup Fertilisers Pty Ltd v Oswal and Ors (No 6) (2012) 205 FCR 429;  FCA 590
Parry v Kennedy  QCA 239
Solicitors for the Lutheran Church of Australia, Queensland District trading as Lutheran Services ABN 47 291 464 804
Solicitors for the defendant
Neumann & Turnour Lawyers for the Lutheran Church of Australia
GTC Lawyers for the defendant
- This is an application by the Lutheran Church of Australia, Queensland District, trading as Lutheran Services ABN 47 291 464 804 (“Lutheran Services”) for legal costs pursuant to r 418 of the Uniform Civil Procedure Rules 1999 (Q) (“UCPR”) relating to a subpoena issued relevant to the trial the subject of the decision in Noone v Brown.
- In written submissions Lutheran Services submits it was subpoenaed to produce documents and has incurred substantial loss or expense in complying with the subpoena and ought not to because: the documents compelled for production by the subpoena were not relevant to the pleaded issues; both appearances were necessitated by the non-payment of conduct money by the defendant; conduct money was not paid as directed and the subpoena was an abuse of process.
- It is submitted that the class of documents called for by the defendant included the plaintiff’s entire personal file, which was too broad to have any relevance in the proceeding, and of the categories narrowed by correspondence, the only documents that existed were in a category which was not relevant to the pleaded issues.
- It is submitted that on 14 June 2019 the defendant’s solicitors admitted that the documents in that relevant category were not relevant to the pleaded issues.
- On 24 June 2019 the court ruled that the documents were inadmissible as to the credibility or general reputation of the plaintiff, and they were otherwise irrelevant to the pleaded issues. It is submitted that Lutheran Services’ submissions concerning the relevance of the documents has been vindicated and they should never have been put to the inconvenience of producing documents or instructing solicitors to appear for the purpose of dealing with the defendant’s non-compliance with the UCPR or court directions.
- The first and second appearances by Lutheran Services was necessitated by the non-payment of conduct money. It is submitted that on 13 June 2019 the court directed the defendant to pay conduct money in the sum of $200 by 9.00am on 14 June 2019. The direction was not complied with, but it is now conceded the conduct money has been received. The money should have been paid to the witness a reasonable period before the date for compliance, but was not.
- The conduct money of $200 was not paid by 9.00am on 14 June 2019, which necessitated the further involvement of lawyers. Lutheran Services submits that the documents were not relevant and the defendant’s solicitors admitted that the purported issue to which the documents were relevant was not pleaded, and the court ruled the documents were irrelevant and inadmissible. It is submitted an abuse of process has occurred here. Ultimately, it is submitted that a total sum of $4,906 ought to be paid by the defendant.
- The defendant relies on an affidavit by Mr. Jordaan sworn 4 July 2019 and on further written submissions.
- In the affidavit Mr. Jordaan swears that at the time GTC Lawyers came into the matter, the defendant had already issued and served a notice of non-party disclosure on Lutheran Services. The defendant handed Mr. Jordaan a letter dated 16 May 2019 from Carter Newell Lawyers, the solicitors for the plaintiff, to Mr. Chris Mills from Neumann & Turnour who were representing Lutheran Services. Cater Newell stated the documents referred to in the schedule were not relevant to any issue in the proceeding, their client was not dismissed from employment with Lutheran Services and it was understood that Lutheran Services would be delivering a notice of objection to the non-party disclosure. Such an objection was provided by Neumann & Turnour to the defendant on 24 May 2019. The two letters came to Mr. Jordaan’s attention at a late stage and on 5 June 2019 he left a message for Mr. DeAngelis to call him to discuss the production of the document. This call was not returned. Mr. Jordaan called Mr. Mills at Neumann & Turnour but there was difficulty with him returning any calls. Nothing further was heard so Mr. Jordaan caused the subpoena to be served on the email address of Mr. Mills at 11.36am on 7 June 2019 specifically advising on email “we also tender reasonable conduct money”. At 9.49am on 10 June 2019 Mr. Jordaan tried to conduct Mr. Mills and left a message for him to call back. Mr. Mills called at 10.08am and advised he did not hold instructions to accept service of the subpoena. The subpoena was then emailed to Mr. DeAngelis directly with a covering email stating “We also tender reasonable conduct money”.
- At 3.55pm on 10 June 2019 Mr. Mills advised inter alia the subpoena was not effectively served, r 421 had not been complied with and no conduct money was tendered in compliance with r 419.
- The defendant’s solicitor on 11 June 2019 replied stating the subpoena was effectively served and limited the requested documents to three categories to try and reach an agreement.
- On 11 June 2019 at 4.40pm Neumann & Turnour by letter suggested that orders be obtained from the court discharging the subpoena and a new subpoena be issued. Mr. Jordaan replied on 12 June 2019 advising the arrangement was acceptable, except a new subpoena would not be issued. Later on 12 June 2019 at about 5.07pm an email was received from Mr. Mills confirming the proposal that the only documents needed to be provided were those set out in the email.
- On 12 June 2019 Mr. Jordaan agreed and then he received a further email from Mr. Mills stating that the client had not received any conduct money. Mr. Jordaan on 13 June 2019 asked what was considered reasonable conduct money and once agreed, it would be paid. After the last email exchange, Mr. Jordaan was under the impression the documents would be produced and it was simply a matter of agreeing on conduct money. He was surprised therefore when Mr. Mills appeared at court on 13 June 2019 objecting to the subpoena, as he believed there was an agreement between them. Mr. Mills objected to the subpoena even as narrowed down by the agreement. The objection was overruled and the court found the documents were relevant to the proceedings. A direction was given that $200 be paid by 9.00am on 14 June 2019.
- Mr. Jordaan attempted to get the trust account details to pay the amount and, because of delays in this regard, the $200 was transferred at 9.03am on 14 June 2019. Although the file was later ruled inadmissible, the plaintiff produced two documents from it, Exhibit 6 and 9, which had not been previously disclosed by the plaintiff. These documents became available only after the subpoena was issued.
- In written submissions the defendant submits that Lutheran Services had made it as difficult as possible for the defendant to obtain the documents referred to in the subpoena. In this regard, it is submitted the plaintiff had an active role. This is significant as two documents from the file were produced to the court which had not been disclosed by the plaintiff previously.
- From when the subpoena was served on 7 June 2019, the defendant tendered reasonable conduct money and indicated her willingness to pay conduct money. It was not necessary for Mr. Mills to attend the court in view of the fact the parties had reached agreement on which documents were needed. It is submitted that Mr. Mills had a change of heart after first indicating which documents would be provided and then objecting to the subpoena. The objection was overruled on 13 June 2019 and the documents were ordered to be provided. At that stage Mr. Mills said he was claiming $2,050.
- The conduct money was paid three minutes late before his second appearance.
- Rule 417 of the UCPR provides that the court may order the defendant (being the party who sought the issue of the subpoenas) to pay the amount of any reasonable loss of expense incurred by Lutheran Services in complying with the subpoena. An amount ordered under r 417 must be fixed by assessment.
- Further, r 418 of the UCPR provides that the court may order the defendant to pay all or part of the losses or expenses incurred by Lutheran Services.
- In particular r 418(2) of the UCPR provides that:
“The court may order the party on whose behalf the subpoena was issued to pay all or part of the losses and expenses, including legal costs, incurred by the person to whom the subpoena is directed in responding properly to the subpoena.”
- An amount ordered under r 418 may be fixed by the court.
- Amounts under rr 417 and 418 are in addition to any conduct money paid.
- In Australian Prudential Regulation Authority v Rural and General Insurance Ltd at , the Federal Court held that steps taken to prepare to give oral evidence, including the obtaining of legal advice and assistance and the costs thereof, could be recovered by a witness.
- In the case of Parry v Kennedy a respondent (who was a solicitor) to a subpoena sought payment of $45,000 (or as otherwise assessed) as reimbursement of loss and expense in complying with a subpoena requiring him to give evidence at trial. The bulk of the costs of complying with the subpoena, which he claimed, were legal costs of obtaining advice from his firm and from senior and junior counsel relating to whether the solicitor, when giving evidence at the trial, might be required to claim legal professional privilege. The court determined that the reasonable costs of complying with the subpoena were $800.
- It is my opinion that there were some costs occasioned by Lutheran Services complying with the subpoena. On the other hand, my impression of the evidence is that further costs were unnecessary bearing in mind that there appears to have been an agreement relating to certain categories of documents.
- I do not find the issue of the subpoena was an abuse of process, despite later rulings given. As it turns out, two of the documents were relevant, having not been disclosed by the plaintiff.
- In the exercise of my discretion, I have determined that the sum of $1,850 is an appropriate amount to be awarded to Lutheran Services ($2,050 less the $200 paid).
- My formal order is the defendant pay Lutheran Services the amount of $1,850 with respect to compliance with the subpoena. The sum is to be paid within 28 days.
- Published Case Name:
Noone v Brown (No 3)
- Shortened Case Name:
Noone v Brown (No 3)
 QDC 154
23 Aug 2019