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- Unreported Judgment
Noone v Brown (No 2) QDC 153
DISTRICT COURT OF QUEENSLAND
Noone v Brown (No 2)  QDC 153
HEATHER MANSELL BROWN
District Court at Brisbane
23 August 2019
Written submissions of the parties
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 defendant
Solicitors for Aveo Group Limited ACN 010 729 950
GTC lawyers for the defendant
HWL Ebsworth Lawyers for Aveo
- This is a decision concerning the costs sought by Aveo Group Limited ACN 010 729 950 (“Aveo”) relating to a subpoena served by the defendant.
- The subpoena relates to the civil trial which is the subject of the decision in Noone v Brown. For the purposes of the trial the defendant subpoenaed documents from Aveo which related to the plaintiff’s previous employment with that organisation.
- Aveo has submitted that it incurred significant expenses in complying with two subpoenas issued on behalf of the defendant. The subpoenas were issued either the day before compliance was required or the day compliance was required. The first subpoena was deficient and Aveo did not need to comply with its requirements. Conscious though that the matter was on for trial and to assist the court, Aveo deployed significant recourses at short notice to comply with first subpoena. Aveo seeks an order that the defendant pay expenses incurred in these proceedings occasioned by responding to the above subpoenas by way of conduct money payable in accordance with r 419 of the Uniform Civil Procedure Rules 1999 (Q) (“UCPR”) and Aveo’s reasonable costs incurred in responding to the subpoenas in accordance with rr 417 and 418 of the UCPR.
- As to the facts of the case, Aveo submits that on 13 June 2019 at 12.00pm the defendant sent an email to James Schmalkuche at his Aveo email address attaching a subpoena for production and to give evidence. The subpoena was directed to him at his work address; referred to an entity that did not exist; sought production of documents that were the property of Aveo (not Mr. Schmalkuche) and called for Mr. Schmalkuche to attend the Brisbane District Court at 10.00am on 14 June 2019 to produce the documents requested and to give evidence.
- No conduct money was provided with this first subpoena. Despite this, Aveo was aware that proceedings were currently before the court in trial and wished to assist the court by all means available.
- Significant resources at short notice were allocated to attempt to locate any documents that responded to the first subpoena, and Aveo engaged HWL Ebsworth Lawyers (“HWLE”) to obtain advice regarding the first subpoena. HWLE attended the court on 14 June 2019 on Aveo and Mr. Schmalkuche’s behalf. At the production of the first subpoena, HWLE produced the only document Aveo could locate which responded to the subpoena and the defendant’s solicitor advised the court that Mr. Schmalkuche was no longer required as a witness. He was discharged by the court and leave was sought to issue a subpoena to Susan Barnett, which was granted.
- The second subpoena required Ms. Barnett to attend the court and give evidence at 2.00pm the day the second subpoena was issued. HWLE sought instructions to accept service of the second subpoena on behalf of Ms. Barnett, conferenced with her and facilitated her giving evidence to the court at about 2.30pm that day. To date, no conduct money has been tendered for the first or second subpoenas.
- On 14 June 2019 Aveo sought costs of $2,200 representing its reasonable loss in expenses incurred in properly responding to the first and second subpoenas. That amount sought is by no means representative of all the costs incurred.
- The defendant’s solicitor has sworn an affidavit dated 5 July 2019 relative to this matter. In this affidavit he says that on 11 June 2019 his assistant, Mr. Carruth made contact with Aveo Freedom Aged Care at Bridge Street, Toowoomba and spoke to Susan Barnett who confirmed the plaintiff was employed there. She also told him they should speak to the manager, Sheelagh Hanson to obtain her approval to obtain the documents on her file. An email was sent on 11 June 2019 at about 5.49pm requesting further information.
- On 12 June 2019 at 12.40pm Ms. Hanson replied advising that the details had been sent to the HR team who would be able to assist. On 12 June 2019 Mr. Jordaan sent an email to Ms. Hanson asking HR to send through the documents as soon as possible as there was only two days left for the case. Ms. Hanson advised that the matter had been escalated to HR based at Newstead in Brisbane. On 13 June 2019 at 9.08am Mr. Schmalkuche advised that they should put the request on a firm letterhead. This was done. No response was received and a subpoena was issued calling for the production of the employment files.
- On 13 June 2019 a Daniel from Sydney HWLE telephoned Mr. Jordaan advising that there was only one document which could be tracked down. Mr. Jordaan advised that the document should be emailed and he would ask the plaintiff’s solicitors to consent to the document being produced in court. Daniel said he would email the document and read the document to him over the phone. Mr. Jordaan asked what was reasonable conduct money and Daniel said he would obtain instructions in that regard. The same evening Mr. Jordaan received a message from Daniel that he had time to reflect and he would produce the document at court the next day.
- The next day Mr. Tait appeared on behalf of Aveo and refused to hand over the document. He complained about conduct money not being provided. He was specifically asked whether $200 would be enough, and he advised the court he would get instructions.
- On 14 June 2019 $200 cash was tendered to Mr. Tait, but this was refused.
- On 18 June 2019 an email was sent to Ms. Barnett suggesting that $80 would be sufficient for her travelling costs. Later, an email was received requesting cab charges from Gumdale to court and back, and the defendant’s solicitor was happy to recommend $180 to reimburse the client. Ms. Hanson was offered reasonable conduct money on 18 June 2019.
- On 19 June 2019 HWLE informed Mr. Jordaan that he should not contact employees at Aveo. Carter Newell refused to consent to the dismissal letter being produced.
- Hall Payne Lawyers, representing Ms. Barnett, advised on 21 June 2019 that the $180 conduct money was appropriate for Ms. Barnett, which was handed to her. Sheelagh Hanson produced the dismissal letter and there was no further need for Mr. Schmalkuche to attend court or have any further involvement.
- In submissions the defendant submits that Aveo Freedom Aged Care had a sudden change of heart which made it difficult for the defendant to obtain the documents referred to in the subpoena, which led to a lot of further, unnecessary costs being incurred. It firstly appeared that Aveo would produce the relevant documents without a subpoena, but this did not occur. Conduct money was offered but rejected, although Ms. Barnett’s conduct money was accepted. It is therefore difficult to understand how it could be submitted that no conduct money was tendered for the first or second subpoena.
- It is also difficult to understand how Aveo deployed significant resources to comply with this subpoena. It is submitted that no further money should be allowed to Aveo.
- Rule 417 of the UCPR provides that the court may order the defendant (being the party who sought the issue and sent the subpoenas) to pay the amount of any reasonable loss or expense incurred by Aveo in complying with the first and second subpoenas. An amount ordered under r 417 must be fixed or 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 Aveo.
- 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.
- The 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 the court dealt with whether the obtaining of legal advice or assistance could be recovered by a witness under the relevant Federal Court rules. It was held at  that such amounts could be recovered.
- In Parry v Kennedy a respondent (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. He claimed the bulk of the costs of complying with the subpoena, the legal costs of obtaining advice from his firm and from senior and junior counsel relating to whether the solicitor, when he gave 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 Aveo did incur costs relating to the defective first subpoena, responding to the subpoenas at short notice and in obtaining legal advice. On the other hand, I do take into account the defence submissions that the court was only concerned with one document and a discrete piece of evidence, and HWLE seemed to have had a change of heart overnight.
- In all of the circumstances, it is my judgment that the defendant ought to be ordered to pay $1,100 to Aveo by way of conduct money and expenses.
- My formal order is that the defendant pay the sum of $1,100 to Aveo Group Limited within the period of 28 days.
- Published Case Name:
Noone v Brown (No 2)
- Shortened Case Name:
Noone v Brown (No 2)
 QDC 153
23 Aug 2019