Compass Health Group v KD[2012] QChCM 2

MAGISTRATES COURTS OF QUEENSLAND

1. [1]
   At the request of Hannay Lawyers the solicitors for KD, the respondent mother, on 12 October 2011 the Children's Court at Southport issued a subpoena directed to Compass Health Group, returnable before the Children’s Court at Southport on 20 October 2011, seeking all documents in the actual or constructive possession of Compass Health Group relating to the assessment of the child TD or his carers L and LG, inclusive of all electronic and manual or hard copy records including case notes, memorandum, case plans, review reports, decision making tools and reports, referrals, placement review, placement agreements, plans, career reviews and assessments and any other documents created or coming into existence in respect to the child or it’s parents/carer and it’s involvement with the Department of Communities (Child Safety) inclusive of all documents obtained from other agencies. TD was the child the subject of the child protection proceedings before the Court.

2. [2]
   It is clear from two affidavits sworn by Jennifer Worsfold, a director of Compass Health Group, that considerable time and expense was incurred by Compass Health Group in complying with the subpoena, particularly given the short notice that Compass Health Group was given of the issue of the subpoena. Compass Health Group seeks to recover from Hannay Lawyers costs incurred in complying with the subpoena, including the costs of researching their rights and obligations with the Australia Psychological Society and obtaining external legal advice. Ms Worsfold was particularly concerned at her confidentiality obligations in relation to the material the subject of the subpoena.

3. [3]
   The evolution of the law pertaining to payment to persons for the cost of compliance with a subpoena was explored in Bank of NSW v Withers & Anor (1981) 35 ALR 21. Sheppard J referred to, amongst other authorities, the decision of Collins v Godefory (1831) 109 ER 1040. He quoted the following passage from that decision^[1]:

“Assuming the offer to pay the six guineas without costs was evidence of an express promise by the defendant to pay that sum to the plaintiff as a compensation to him for his loss of time, still, if the defendant was not bound by law to pay that sum, the offer to do so, not having been accepted, will not avail the plaintiff. If it be a duty imposed by law upon a party regularly subpoenaed, to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We think that such a duty is imposed by law; and on consideration of the Statute of Elizabeth, and of the cases which have been decided on this subject, we are all of the opinion that a party cannot maintain an action for compensation for loss of time in attending a trial as a witness. We are aware of the practice which has prevailed in certain cases, of allowing, as costs between party and party, so much per day for the attendance of professional men; but that practice cannot alter the law. What the effect of our decision may be, is not for our consideration. We think, on principle, that an action does not lie for a compensation to a witness for loss of time in attendance under a subpoena.”

4. [4]
   Having canvassed myriad authorities, including Collins v Godefory, Sheppard J stated:

“The principles which, in my opinion, the authorities to which I have referred establish are:

1. Citizens including corporations are bound to comply with subpoenas to produce documents properly served upon them. Failure to comply will render the citizen liable to be dealt with for contempt of court.

2. A person will not be bound to comply with a subpoena if it is oppressive, because it is too wide or too uncertain or because it has been served too late to enable the person on whom it is served to have a reasonable opportunity of complying with it. It will, however, remain valid until set aside upon a notice of motion taken out for this purpose. And if a subpoena is served late, it would be unwise of the person upon whom it is served not to come to court and explain why he has been unable to produce the documents.

3. A person upon whom a subpoena, whether to produce documents or otherwise, is served is entitled at common law (but originally probably because of the terms of the statute 5 Eliz c9, s 12) and now under rules of court to an adequate indemnity for his expenses of coming to and from court and for his sustenance during the time he is required to remain there. Such expenses may be recovered in an action based upon an implied contract from the person, that is the party (not usually his solicitor), who causes the subpoena to be served. He may refuse to give evidence or produce documents until he has a proper assurance that these expenses will be met. He is not obliged to come to court unless he has received a proper sum for conduct money, that is money which will enable him to travel to court: O27,r3.

4. Professional witnesses, especially doctors and attorney, and seafaring witnesses were also entitled at common law to recover an amount to indemnify them for loss of time whilst they were detained at court as a result of the services of a subpoena. No other person was so entitled.

5. That position changed in England and Australia from about the time of the passing of the Common Law Procedure Act 1852, pursuant to which scales of fees for witnesses were promulgated. Thereafter witnesses have been entitled, according to the appropriate scale, to payment for loss of time as well as for payment of expenses of travelling to and from, and remaining at court. Whether the right to recover is based upon an implied contract or upon a statutory entitlement arising by reason of the provisions of the rules, it is unnecessary to decide.

6. But it should be emphasized that unless the payment is provided for in the rules there can be no recovery. Collins v Godefory remains the law. The citizen’s duty to aid the administration of the law by attending remains paramount and is the reason why there can be no recovery for loss of time as distinct form out of pocket expenses in the absence of specific provisions in rules of court. Furthermore, and this needs to be stressed, it is not possible, in the sense of it not being lawful, for a contract to be made between a party to litigation and a person upon whom a subpoena is served whereby that person is promised more than he would receive upon the basis of what is provided in rules of court. That is the essential proposition for which Collins v Godefory is authority.”

5. [5]
   His Honour went on to hold that there was no provision in the Federal Court rules which permitted a bank to recover $1,392.50 being the cost of complying with the subpoena for the time bank officers engaged in searching and copying at various places the documents the subject of the subpoena.

6. [6]
   The Children’s Court is constituted under the Children’s Court Act 1992. The Court is established as a court of record under s 4 of that Act. Section 5(3) of that Act provides that if the Children’s Court is not required to be constituted by a Children’s Court Judge it may be constituted by a Children’s Court magistrate or if such magistrate is not available any magistrate.

7. [7]
   It is clear than that in exercising jurisdiction in the Children’s Court, a magistrate is acting as a member of the Children’s Court.

8. [8]
   The Children’s Court Rules 1997 apply to Child Protection applications such as this^[2]. Rule 27(2) enables the registrar upon the application of a party to a proceeding to issue a subpoena requiring the attendance of a person before the court to give evidence in a proceeding or produce stated documents and things. The Rules are silent as to the cost of complying with a subpoena.

9. [9]
   Ms Worsfold contends that the Children’s Court has power to make an order in relation to the costs of Compass Health Group complying with the subpoena by virtue of the provisions of the Uniform Civil Procedure Rules 1999 (“UCPR”). Rule 417 of the UCPR empowers the court to make an order for the payment of any loss or expense incurred in complying with a subpoena. However those rules apply to civil proceedings in the Supreme, District and Magistrate’s court.^[3] The Rules will only apply to the Children’s Court exercising jurisdiction under the Child Protection Act 1999 if a Magistrate’s Court in the Rules includes a reference to a magistrate constituting the Children’s Court. The UCPR are enacted pursuant to s 118 of the Supreme Court of Queensland Act 1991 which empowers the Governor in Counsel to make rules for the practices and procedures of the Supreme Court, the District Court or the Magistrates Court.

10. [10]
    There has been some recent judicial decision and comment on whether a Children’s Court constituted by a District Court Judge is a District Court. Section 118(3) of the District Court of Queensland Act 1967 provides that a party who is dissatisfied with any other judgement of the District Court may appeal to the Court of Appeal. In SBD v Chief Executive, Department of Child Safety [2007] QCA 318 in Keane JA (with whom Muir JA and Lyons J agree) stated; “It is arguable that the Children's Court constituted by a Judge is not the District Court for the purposes of s 118(3) of the District Court of Queensland Act. Indeed counsel for the applicant advanced just that argument^[4]. It is to be noted that Keane JA did not express a concluded view because in any event, if that section did apply it was not appropriate to grant leave.

11. [11]
    In KAA & Anor –v- Schemioneck & Anor (2) [2007] QCA 449 Daubney J, with whom Muir JA agreed, stated:

“Counsel for the Department submitted that an appeal as of right does not lie to this court against the decision and orders of the three Children’s Court. It was submitted on behalf of the Department that …. whilst, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) an appeal against a judgment of the District Court may lie to this Court with the leave of the Court, with the reference to “District Court” in s 118(3) does not extend to encompass a reference to District Court judges who are sitting as Children’s Court judges. Children’s Court judges are appointed under Part 3 Division 2 of the Act and, it is submitted, whilst District Court judges are appointed as Children’s Court judges, an appointment as a Children’s Court judge is a separate and district appointment to that as a District Court judge. The submission is that the right of appeal, with leave, granted by s 118(3) of the District Court of Queensland Act does not extend to a decision of a Children’s Court constituted by a judge on an appeal from a decision and orders of a Children’s Court magistrate.

Some significant support for the argument advanced on behalf of the respondent is found in the judgement of Keane JA, with whom Muir JA and Lyons J agreed in SBD v Chief Executive, Department of Child Safety. However, his Honour in that case declined to go so far as to hold expressly that there is no right of appeal, even with leave, to this Court from an appellant decision of a District Court Judge sitting as the Children’s Court.

Given the manner in which these matters have been argued before this Court, I consider that this is an inappropriate vehicle for the determination of this point”.

Daubrey J agreed with the approach of Keane JA in the decision in SBD v Chief Executive, Department of Child Safety that “if it is the intention of the legislature that there should be no further appeal, even by way of leave under s 118(3) ….from the appellate court being the Children's Court constituted by a judge, then it would be desirable for the position to be put beyond doubt by the legislature.”^[5]

12. [12]
    McMurdo P in KAA anor –v- Schemioneck & Anor (No 2) [2007] QCA 449 stated “It is by no means clear that there is an avenue to apply for leave to appeal from a decision of the Children’s Court to this Court under s 118(3) District Court of Queensland Act 1967 (Qld)”, citing the decision of SBD v Chief Executive, Department of Child Safety. Her Honour then stated, “Accepting for present purposes there is such an avenue, the applicants have not demonstrated in any of these three applications any reason warranting a grant of leave to appeal to this Court.”^[6]

13. [13]
    In Cousins v HAL & Anor [2008] QCA 49 Fraser JA stated with reference to s. 118(3) of the District Court of Queensland Act 1967, “Section 118 authorises appeals only from the District Court. That is a reference, of course, to the District Court of Queensland established by Part II of the District Court of Queensland Act 1967. That Court is a court of record constituted by any of the District Court Judges. It is to be distinguished from the Children’s Court which is a separate court established as a court of record by section 4 of the Children’s Court Act 1992. The Children’s Court is not constituted by any of the District Court judges. Rather, section 5 of that Act provides that the members of the Children’s Court are, so far as judges are concerned, a Children’s Court Judge, or and only if such a judge is not available, a District Court judge. That on occasions where a Children’s Court Judge is not available the court may be constituted by a District Court Judge does not establish an identity between the Children's’ Court and the District Court. The Courts are established by separate legislation and have a different, albeit overlapping, membership. Ultimately, the question is whether the Children's Court of Queensland established by the Children’s Court Act 1992 may also be regarded as the District Court for the purposes of the right of appeal conferred by s 118(3) of the District Court of Queensland Act 1967. The question was adverted to in SBD, in which Keane JA observed that it was arguable that the Children’s Court constituted by a judge was not the District Court for that purpose. It is necessary to decide the point here. For the reasons I have given, the conclusion is unavoidable, in my opinion, that these are different courts. It follows that I must conclude that the Children’s Court is not the District Court for the purpose of s 118(3) so that no appeal lies from a decision of the Children’s Court, constituted by a District Court judge under s 118(3) of the District Court of Queensland Act 1967.”^[7]

14. [14]
    In FY & Anor v Department of Child Safety [2009] QCA 67, Keane JA with whom Muir JA and Daubney J agreed stated, “At the outset of the discussion of this issue, it is necessary to note that the respondents to this application argue that no appeal lies to this court, even by leave, from a decision of the Children’s Court as the appellate court. There is much to be said in favour of this view.” The footnote then referred to the paragraphs I have previously referred to in the decisions in SBD v Chief Executive, Department of Child Safety and Cousins v HAL & Anor 2008 [QCA] 49 at pages 8-9. Keane JA then states, “But it is unnecessary to decide this question because it is clear that, even if this court has the discretion to grant leave to appeal under s 118(3) of the District Court of Queensland Act, this is not a case in which that discretion should be exercised in favour of the applicants.”^[8]

15. [15]
    In CAO v Dept of Child Safety & Ors [2009] QCA 169 Keane JA, (with whom the Chief Justice and Fraser JA agreed) expressed his agreement with the views expressed by Fraser JA in Cousins v HAL & Anor. In CAR & Anor v Department of Child Safety [2010] ACQ 27 the Court of Appeal unanimously followed Cousins v HAL & Anor.

16. [16]
    Applying the reasoning of Fraser JA in Cousins v HAL& Anor [2008] QCA 49 at pages 8-9 the fact that a Magistrate constitutes a Children’s Court does not make that court a Magistrate’s Court for the purpose of the UCPR. As there is no provision in the Children's Court Rules permitting a subpoenaed witness to recover expenses incurred in complying with a subpoena the Children’s Court has no power to make an order for re-imbursement of those expenses.

17. [17]
    Accordingly, whilst it is of concern that Compass Health Group has been put to considerable time and expense in complying with the subpoena issued by the Court, the only cost to which Compass Health Group is entitled is the costs of attending Court in compliance with the subpoena. I note that there is not prescribed rate for the Children’s Court but there seems no reason why the rate prescribed for persons appearing in a court pursuant to the UCPR would not be an appropriate amount. I note the attendance fee for a professional witness is $74^[9] and that travelling is allowed at 74c per kilometre^[10]. Assuming a 12km return trip travelling expenses equate to $8.88. I order the respondent to pay the costs of Compass Health Group fixed in the sum of $82.88 being conduct money and travelling expenses due and owning pursuant to the subpoena served upon Compass Health Group by the respondent’s solicitors. There is nothing in the Children’s Court Act or Rules that permits me to order that the payment be made by a person other than a party to the proceedings.