Costs – departing from general rule – special or exceptional circumstances…

…indemnity costs – power to order solicitors pay costs of application – failure to give reasonable or proper attention to relevant law and facts

The plaintiff claimed damages for alleged sexual abuse whilst he was detained as a child at the Brisbane Youth Detention Centre (BYDC) in 2004. 

At the time of the plaintiff’s detention, the BYDC was responsible for the operation, administration and management of the BYDC and the safe custody and wellbeing of the children detained there.

The matter was listed for trial commencing 27 September 2022. Liability and quantum were in issue.

On 19 September 2022 (8 days prior to the commencement of trial), Queensland Government Insurance Fund general manager Mr Dwyer was served with a subpoena issued at the request of the plaintiff compelling the production of 10 categories of documents. Mr Dwyer was not a party to the proceeding and the return date for a response to the subpoena was the first day of trial.

Mr Dwyer applied for orders that the subpoena be set aside. The application was heard on the first day of trial. Mr Dwyer was cross examined, at the conclusion of which the plaintiff abandoned the request for the production of 9 of the 10 categories of documents listed in the subpoena, and further significantly reduced and clarified the documents required in the final remaining category outlined in the subpoena.

By ex tempore judgment delivered on the second day of trial, Mr Dwyer was ordered to produce the documents the subject of the re-drafted subpoena – that is, those listed within the final remaining category. 

The solicitors for the plaintiff submitted that there should be no order as to the costs of the application, whereas the solicitors for Mr Dwyer sought orders requiring the plaintiff’s lawyers to pay his costs on an indemnity basis. 

Decision

The plaintiff’s solicitors were to pay 85% of Mr Dwyer’s costs of the application, to be assessed on the indemnity basis. 

Ratio

The court considered the various communications that had taken place between the solicitors for the plaintiff, and the solicitors for Mr Dwyer, in the days leading up to the hearing of the application. Generally, the solicitors for Mr Dwyer outlined that the original subpoena was too wide in its scope and requested that it be withdrawn, failing which Mr Dwyer would proceed with the threatened application to set it aside, and associated costs.

After further communications between the parties, the solicitors for the plaintiff confirmed Mr Dwyer’s application to set aside the original subpoena would be opposed, and Mr Dwyer would be required for cross-examination at the hearing of the application.

The court considered Rule 417 of the Uniform Civil Procedure Rules 1999 (UCPR) which outlines the ability of a party served with a subpoena to be paid its reasonable loss or expense in complying with the subpoena, which the court found may include the cost of seeking legal advice on any objection to it.

The court determined that Mr Dwyer, despite not being a party to the plaintiff’s claim, was entitled to the benefit of the general rule that costs follow the event pursuant to Rules 679 and 681(1) of the UCPR.

The court found the starting point was that Mr Dwyer, as the recipient of the subpoena, was required to comply with it – but, as a non-party to the claim, he would have some difficulty forming a view as to whether the documents requested were required to be produced. In considering the drafting of the initial subpoena (for the provision of a wide category of documents), the court considered four issues:

1. Each of the 10 categories of documents requested by the plaintiff started with the words “every document relating to”, which the court found to be too vague a connection. Further, that it therefore imposed an impossible and unfair obligation upon Mr Dwyer to determine the scope of the search required.
2. Given the breadth of the initial categories listed in the subpoena, responding to it would be an unduly onerous and costly exercise.
3. None of the categories of documents required to be produced were referrable to any time frame, having regard to the date of the plaintiff’s alleged abuse, and therefore extended beyond what would be said to be a legitimate forensic purpose.
4. The 10 categories of documents requested were unnecessarily repetitive and therefore compounded the need for Mr Dwyer to spend an unreasonable period responding to the subpoena. The court noted the repetitive nature of the request was conceded by one of the solicitors for the plaintiff in her affidavit material.

The court found that the original subpoena was deficiently drafted and would have been set aside, with a costs order in Mr Dwyer’s favour. It further determined there was no delay by Mr Dwyer in making the application to have the subpoena set aside.

The court also found that the shortcomings in the original subpoena’s drafting were not acknowledged on behalf of the plaintiff until the oral hearing of the application had commenced (on the first day of trial).

The court determined that while the redrafted subpoena significantly confined and more clearly defined the documents to be produced, Mr Dwyer continued to press the application to have it set aside (unsuccessfully), which increased the length of the application’s oral hearing but not the prior preparation for it. The court accordingly reduced the costs otherwise recoverable by Mr Dwyer by 15%.

The court then considered whether standard or indemnity costs should be awarded against the plaintiff or his solicitors. The court found that the original subpoena was formulated in a way that was objectionable and, to some extent, providing the requested documents was oppressive and unduly burdensome. It noted the opposition to Mr Dwyer’s application to set aside the original subpoena was unreasonable, and that it should have been recognised that opposing the application was doomed to failure.

In determining whether to order the payment of standard or indemnity costs, the court:

• considered the plaintiff’s solicitors unreasonably continued opposing Mr Dwyer’s application to set aside the original subpoena, when it ought to have been evident that there was no reasonable prospect of success on account of established law
• considered the plaintiff’s lawyers were unreasonable in resisting the application to set the subpoena aside, given no attempt was made by them prior to the hearing of the oral application to narrow the scope of the subpoena
• considered the subpoena was issued only five business days prior to the commencement of trial, and in circumstances where the plaintiff’s solicitors had previously brought an application to dispense with the defendant’s signature on the request for trial date – and, in doing so, had certified the proceeding was in all respects ready for trial when the court found it clearly was not
• found that even if the subpoena had been properly drafted, given the proximity to trial within which it was issued, it would likely have resulted in an adjournment of the trial
• disagreed with the plaintiff’s assertion that Mr Dwyer could have requested the return date for the hearing of the application be prior to the first day of trial, given there were only four business days between the service of the affidavit and the commencement of trial
• found that within two days of the original subpoena being served, the solicitors for the plaintiff were advised that Mr Dwyer would likely apply to have it set aside given it was so broad in its scope, and subsequently invited the plaintiff’s solicitors to withdraw the subpoena with no adverse cost consequences
• found that nothing in the cross examination of Mr Dwyer at the hearing of the application persuaded it as being reason for, at that time, the re-drafted subpoena in a narrower and less ambiguous form to be issued.

In summary, the court determined that the plaintiff’s solicitors pay 85% of Mr Dwyer’s costs of the application to set aside the subpoena on the indemnity basis.

This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Trent Johnson, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.