CATCHWORDS Practice and procedure - subpoena to produce documents served on bank - bank put to expense in retrieving, collating and copying documents - bank not entitled to recover expenses from party issuing subpoena. BANK OF NEW SOUTH WALES v. JOY WITHERS No. G 41 of 1978 SHEPPARD J. 12 May, 1981 SYDNEY GARY RAYMOND WITHERS and DENIS& IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 41 of 1978 GENERAL DIVISION BANK OF NEW SOUT] WALES Applicant GARY RAYMOND wITHERS and ENISG JOY slTes Respondents ORDER JUDGE MAKING ORDER: SHEPPARD J. DATE CF ORDER: 11 May, 1981 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Notice of Motion be dismissed. 2. The Bank of New South wales pay tne costs tnereof of the respondents thereto Gary Raymond withers and Denise Joy Withers. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT R&GIITRY No. G 41 of 1978 GENERAL DIVISION BANK OF NEW SCUTH wWAL&S Applicant GARY RAYHOND WITHERS and DeaNiSk JOY wITHEKS Resvondents CORAM: SHEPPARD J 11 May, 1981 (on application for expenses incurred _in complying with subpoena to produce documents) The question raisea by the notice of motion taken out by the Bank of New South Wales in this matter 18 whether the Bank is entitled to recover from persons who causec subpoenas to produce documents to be served upon it, its expenses of searching out and gathering documents in orcer to comply with the subpoenas. The above numbered matter was a proceeding in which the respondents to the motion sued N.S.W. Mutual Real =state Fund Limited and Members Management Pty. Limited tor damages for breacnes of the Trade Practices Act 1974, ne proceed- angs were set down for heering on & July, i980, and were settled. It is unnecessary to refer to the detail of the orders which were then made by consent except to say tnat "(b) All correspondence, bank statements, authorities directions and other documents forwardea to the bank ty the first or second respondents or by Newbridge Finances Pty Limited (in 12Guidation) (formerly NSW Mutual Loans Agency Pty Limited) or by any other parties in connection with the operation of account no. 006 68 177 160 in so far as this account relates to the payment of calls or other banking transactions relating to NSW Mutual Real Estate Fund Limited Loan Priority Numbers 291, 329, 1148, 1149, 1404 and 1405 fron January 1973 to date." The evidence discloses that it was the intention of the respondents! solicitors to substitute the later subpoena for the earlier one. After service of the first subpoena, one of tne Bank's officers, Mr. McGraw, had a discussion witn the respondents' solicitor. He told him tnat there were difficulties in com- plying with the subpoena because - "(a) (b) (c) (da) (e) (f) the subpoena was not linited as to time; the customer's account had a statement proauced each working day from comrencement; due to the branch's Size, vouchers and records older than three years are store at the Bank's Bankstown repository; vouchers are destroyed in accordance with tue Bank's policy after four years; from 4& March, 1977 the Bank commenced microfilm- ing its statement records; the only account within the subpoena works on s builaing society basis and the account specified has a trancode 60 operation which involves personalised deposit forms recorded on daily statements, I1n the case of an individual logn account as wes referred to in the sutsoena, sll statements curing the relevant periog wouldc have to be extracted to show the operation of a particular account number," Mr. McGraw sought advice from one of the Bank's legal officers as to the validity of the subpoena. The evidence 3. respondent pay the Bank its costs and expenses of complying with the subpoenas and that the respondents pay its costs of the motion. Presumably, if an order 1s made, the respondents will seek to recover, upon taxation, the amount which they are obliged to pay from tne respondents in the principal proceedings who were ordered to pay their costs. An affidavit was filed in opposition to the motion by the respondents! solicitor, Mr. Carr-Gregeg. Ke deals in more detail with nis conversations with the Bank's officers and solicitor than does Mr. McGraw to whcse evidence J have already referred, but I do not find 1% necessary to refer to much of the detail of his evidence. He was told that the account referred to in the first subpoene was a special account into which payments relating to hundreds of aifferent loan priority number calls were paid by numerous sh-zreholders of N.S.W. Mutual Real Estate Fund Limited, Mr. Carr-Gregg saia that he told Mr. McGraw that ne was uncer the Tistaken zmpression that the account related to the respondents! calls only. He made it clear that he was only interested in the account insofar as it relatea to the calls paid on the respondents' shares. He thereupon specified vorecisely the documents he required. The second sutpoena was subsequently served. Only those dcecuments which were referred to in it were eventually produced by the Eank. The principal proceedings were settled late on the suggested tnat this charge was excessive. He said that 1t was what customers were charged for the supply of copies of their accounts. Later, after the evidence had concluded, counsel for the Bank said that tne bank would be prepared to accept sixty cents per page instead of $1. I propose to adopt that figure as a resonable charge. The figure of $1,175 will therefore be reduced to $705. To this sum must be added the talance of the Bank's expenses which amount to $217.50. I fina that the Bank's reasonable expenses of complyinz with the second subpoena were 3922.50. No claim 1s made in respect of any expenses incurred 1n complying w2ti 'he first subpoena. No submission was made that the second subpoena was too wide or invalid for any other reason. Those being my findings, 1 can now come tc deal with the supstance of the matter which is before me. By its notice of motion the Bank 1S Seeking to recover from tne respondents whose solicitor issued the second subpoena its reasonable expenses of complying therewith other than the attendance by one of its officers in court, No claim is made for tne cost of that attendance presumably tecause tne Bank is content with tne $2 conduct money tendered wnen tne first subpoena was served. In my opinion the questions whicn are at issue are:- if the Bank 1s successful, 1t will ce for the taxing officer to decide whether the respondents (the applicants in the vrincipel proceedings) should be entitled to include tne sum to be paid py them tc the Bank in the costs to be recovered by them from the respondents in tne principal proceedings. Notwithstanding those considerations 1t 1s necessary to nave in mind some of the provisions of the Federal Court of Australia Act 1976, the Rules of this Court, and, by reference, the Rules of the Hizh Court. One of these, s.43 of tne Federal Court of Australie Act, 1 ccnsider te have no relevance to the questions to be decided, but I mention it because reliance was placed upon il in argument. I refer to it first in order to put it out of the way. The section provides tnat the Court or a judge has gurisdiction to award costs in all proceedings before the Court other tnan proceeaings 1n respect of which enotner Act provides that costs shall not be awardec. The tern "oroceeding" 1s cefined in s.4 of the uct to mean a procevd- anz in a court, whether between pirties or not, and includes an inciaental proceeding 1n tre course of, or in connection with, a proceeding, and also includes an sppeal. In the suomnission of counsel for the Eank the subpoenas were proceedings witnin the meaning Of ¢.43 of the act, TauUs tne Court haw gurisdiction to make an oraer for lLne costs purpose of giving evidence. Rule 2 provides thet the Court may, 1n any proceeding, issue a Subnoenz to five evidence, or a subpoena for production or 4 sucpoena both to give evidence and for production in the prescribed forn. Rule 6(4) provides that subpoenas are to te in or substantially in the forms numbered 41 to 43 in the First Schedule to the Rules. rule 5 makes a sp¢cial provision concerning banker's books. I do not refer to the detail of the forms. I note, however, that each bears an endorse- ment which seys,"Failure to comply with this subpoena 'nay constitute contempt of court and may result in your arrest or in the case of a corporation an order of seauestralion may be made". In the case of subpoenas to give evidence the reference to sequestration is omitted upon the tasis that the person to whom the subpoena is directed must be a natural person. The subpoenas issued ir tne present crse complied with tne tules in that they were in accordance witn Form 41, The retaining relevant provision of Oraer 27 1s Rule 3 which provides: " » verson named srall be excuseu from complyims with a subpoena rejuiring hin to attend or rroduce any document or thin-s on any day on wwnaicn his attendance 1s reyulred unless e sum sufficient to meet his reasonable expenses of complyines sith the subpoena in relation lo that diy 1S valu or tendered to nim at the time of cervice o: the subpoena or not later than <« rea-orable tit before that day." ill. defending the rights of a party. Rule 20 provides that, subject to tne exception mentioned, a disbursement shall not be allowed which has not been sectually mace cefore the delivery of the bill of costs. Rule 21 provides: "The taxing officer may in his discretion allow such sum as he thinks gust ard reason- able having regara to all the circumstances of the case for work and latour properly perforned and not specificelly provided for in the Second Schedule in respect of work anc labour for wnich, in his opinion, an allowance snould be made." The Second Schedule to the Rules, referred tc in Rule 12, provides in paragrapn 1 tnat solicitors are entitled to charge and te allowed the costs set out in the Second Schedule to the Hizh Court Rules as varied from time to time until such tines as another schedule is pren_red providing Tor a scale of costs of proceedings in the court, Paragraph 3 of the Schedule vrovides that writs of subpoena referrea to in the Second Sche@ule to bne Hign Court Rules snall be deemed to include sutpoenas issued from tne Federal Court 1n accordance with Order 27 of its Rules. The Second Schedule to the Hiren Court «oles orovi ies a scale of costs tor work done by solicitors. The ccale overated fron 1 February, I1S76. The amounts provided for in it heave been increased, lirstly by 20 per cent «es fron 31 March, 1978, and then by approximately a furtner 30 per cent from 1 March, 1981. ) o resrapns lul and 102 of che Fl ocheuule provide for witnesses! expenses ani cisbursements,. 13. debited with expenses whicn the taxing officer, in accordance witn the Rules, will decide are not properly recoverable ageinst the other party. That does not mean that such costs and expenses may not, provided they were reasonably charged or incurred, properly be recovered by tne solicitor from his client. For such costs and expenses tne client will] te in tne same position as an unsuccessful party who 1s bound to pay his solicitor's reasonable charges and the amount of expenses reasonably incurred on his cehalf. What 1s reasonable ~ay eventually be a matter for a taxing officer upon a solicitor ena client taxation, Buc thet coes not affect tne shrust of what I am now saying. The Rules and tne provisions of the Schecules to wnich I nave referred will usuall, be referrec to in order to determine whac amount the success- ful party 1s entitlec to receive from 41s adversary for the costs which 035 adverszry nes been ordered tc pay. Nevertneless, as the authorities to which I an avout to refer will show, certain of the provisions of the Rules en the Schedules to whicn 1] have referred have a relevarce to tae wuestion whicn 1s here to te decided. I turn to consider tnose autnorities. & starting point for that exercise is s.12 of tnelmperial act 5 alizebeth c.9 (repealed). Tne section provided tnat if any verson or sercens upon whom eny process ont of were provided for in rules nade by the judges pursuant to tne provisions of the Common Law Procedure Act 19352, s.230. Tayior sets out tne then applicetle sccle (op. 968-9). The amounts payatle were uesigned to compensate people in various stations in life for their loss of time in attending court. The allowances were payable in additzon to travelling exvcenses. No provision was mace for any payment to any person for loss of time wnich had occurred prior to kis comin to court, In that respect the scale 1s not dissirilar from tne scale presently an force except insofer as it provides for allowences of tnat kind to be paid to expert witnesses. It shoule also be noticed tnat "Gentlemen, Esquires, Bankers ana Merchants" were entitled to te pazu One Guinee unon the service of the subpcena but were entitled to no daily allowance except after the lirst aay. They were then paid a reasonable sum for refreshments ard conveyance. No provision was to te allowea for loss of time, It 1s interesting, if irrelevant, also to note tnat females, on the other hand, were paid, depending upon tneir statisn in life, five shillings to ten srillings per day. accordinz to Taylor (para.1129, p.Y71) the reasonable expenses of ae witness ovght to be tendered to him ct the time wnen he 18 served sitn tre »ubpoenc, or, at least, a reasonable tite before the trial end even thouera ne sctually a witness ani attends at the trial, but there refuses to give evidence unless his expenses are paid, anc is thereupon not examined, may yet maintain assumpsit for his necessary expenses of attendance asg3inst tne perty who subpoenaed him, There was evidence of a promise to pay the expenses at the time of servin:, the subdpcer =] fa It was contended tnat this had been waived by the sub- sequent refusal to be examined. In holding tkat the action was good the court said tnat the witness had obeyed the subpoena, had attendea at the trial and was ready and willing to have been examined if tne party who subpoenaed him had paid his expenses. It was that party's own fault that tne witness was not examinec. I do not find it necessary to refer to tne detail of Gooawin v. west. In support of nis second propositior Taylor referrena to Pell _v. Daubeny (1350) > 2x.R.955; 20 L.d.Ea. Cis.) 44, In that case it was decided that a party served with a sukpoena in a civil action, receivins a sum of money therewith, and making no further denand, ney naantein an action against tne nerty on whose behalf he has Leen sub- poenaea for additional] expenses incurrea by nim in attending che trial but not for Joss of time. So mucn appears fron tie report of the argument (L.¢.Ex. at p.45) where rerke B. party who had subpoenaed him six guineas as his required fee (he was en attorney) for attendance and said that unless tnat sum was paid in the course of the next day, he would enforce payment of it. Lord Tenterden C.J. said (H.R. 1042): "Assuming that the offer to ray the six guineas without costs was evidence of an express promise by the defendant to pay that sum to the plaintiff as a compensetion to him for ais loss of time, still, if the defendant was not bound by law to pey that sum, the offer to ao so, not having: been accepted, will not avail the plaintiff. If 1t be a duty imposed by law uvon a perty regularly subpoenaed, to attend frem time to time to give his evidence, then a cromise to give nim any remuneration Tor ioss of tire incurred in such attendance 1s a promise without ccnsideration, we think thit sucn a duty 18 imposed by law; and on consideration of the Stetute of 2#lizabetn, and of the cases which have been uecided on tnis subject, we are all of opinion that a party cannot maintiin an action for compensation for loss cf time in attending a triel as a witness. We are aware of the practice wnich nes prevaltied in certain cases, of allowing, as costs betwees varty and party, so much per day for tne attendance of professionali men; Dut that practice cannot alter tne law. what the effect cf our 1ecision may be, 1s not for our considercticn. we tnink, on vrinuciple, that an action cses rot lie for a compensetion to @ witness for less of time in attendance under a suopeena, Tre rule, Lrerevore, must be discharged." + fne aistinction between Peli v. Leubeny ami Coliins v. codaerroy 1s that in the latter case the action was to recover, not expenses, but coppensation ior loss of f:7e during the period the plaintiff was aetainend es a witness, Parke B, aad said in argument in Pell v. Daubeny that a Neither practice nor any rules of Court then made provision for compensation for loss of tire, except apparently in tne case of doctors and attorneys, and, notwithstanding the promises to pay tor loss of time made expressly or by implication, tne action would not lie because the witness was bound by law to attend. In addition te looking at Taylor 1 have looked at Tidd's Practice, 7th edition (1821) and Chitty's Archbold's Practice, 12th edn. (1866). I heve found nothing of assistance in Tidd tut I refer in passing to pp.832-844, Chitty deals with the matter in serhaps more deta1l than Taylor but nis text 2s substantialiy to the same effect and he cites no relevant additional authorities or at least no authorities dirterer or an their effect from those to which I heave referre2 - see fe pp. 350-355. All the authorities and texts to whicd I kave so far referrea were Cecided or written before the coming unto force of the Judicature acts in 187%, The first case decided after those acts were in torce in reéletion to Lais probler was In re working Men's Mutuel Sccrety (1832) LR. 21 Cn.D. 831. Ir. that case an auctioneer haa been summoned to give evidence before a special examiner appointed under proceeainss in wie Chancery Division. It was held that he was @ arciessione] "receiving a guineé a-day. I wes moreover referred to a case in tne weekly Notes of Wiltshire v. Marshall (s.i). 1866, p.38U) in wnicn it 1s statea that Vace-Chencellor Woc% allowec an acutioneer end valuer two ruineas a-day, one guinea for loss of time and one guinea for maintenance. The calance of autnorily, tnerefore, 1s in favour of allowing to a person in the position of an auctioneer a suinea a-Gay tor his loss of time, and I have evidence before me that the first-class return ticket (to which 1 think he 1s entitled) from Ancover to London is £1 3s. That being so, the £2 2s. tendered to him was not a sufficient sum, end I must accord- angly refuse this motion." In Chamberlain v. Stoneham (1689) L.R.24 ..P.D. 113 a solicitor was summoned as a witness Ltefore tne recistrer of a County Court in a btensruptcy proceeding. de Was paid only nis travelling expenses ena orought an action against the Official Receiver by waom he was summcenec for the amount proviaced for in the appendix to the huies of the County Court as being appropriate for a professional] witness. He was held entivied to recover. In order to underctena the decisicn it 1s necessary to note taut Rute 71 of the Bankruptcy Rules 1886 provided thet any witness recvired to attenc for the ourpose of being exaTined or of preducing any documents should te entitled to tne like conduct money and peyment for expenses and loss of tine as uron ettercance ata trial an court, The County Court Rules orcsviceu thet the costs of witnesses mignt ce allowea and thet their gllowance Jor atltandence sSnoule not excead the nichest rete oO. tne allowances mertioned in tae cp.ocndix. rhe sourt ine) VW . party to pay his expenses. That party refused tc do so. The attorney for the successful party tnen paid the demand upon an uncerstanding that tne witness should return to hin any part which might not te alloweca on taxation. At the taxation the attorney gave eviience that he had oaid the witness the whole sun cemanded. Portion of what had been paid was disallowed. The witness returned 1t to the successful party's attorrey and ther. sued the unsuccessful party to recover what he had lost. It was held tnat he was not prevented fron recovering in the action ty reason of h2s repayment o* the sum wnicn he had first received fror the successful party's attorney. The court was critical of tne attorney for not disclosing in his affidavit the promise to return so much of wnat had been paid as was disal2owec on taxation. But that was not regarded as 2a relevent cir- cumstance in the judgments of the court which were delivered by Coleridge and Erle JJ. Collins v. Godefroy was cited in argument but is not referred to in tne gudgmerts. The expenses claimed included expenses for loss of time. The case was decided in 1858 after the coning into force of tre Common Law Froceaure Act 1852 and th Rules nede by tha Juuges tnereunder, Tne fact Lhat the witners succeesed in recovering an amount to recover his loss of tame 1S explicable on tnet basis ana noc because the court 27. ship pending the coming on of an action in the Acriralty Division. The court referrec to the fact Llnat seararing witnesses had always been regarded as being 1n a special category. Younger L.J. seid (rp. 270-271): "The question at 1Ssue haus a long nistory. we may take as a convenient starting point the principle enunciated in Collins v. Gccefroy - a principle still the law of the Court, although its application nas been softtenea by later rules of procedure, namely, that there being a duty imposed by law upon a person regul- arly subpoenaed to attend from tiine to time and Give his evicence, a promise to Sive him remuner- ation for loss of time incurrec in such attendence 1S a pronise without consideration, ani the tect that allowances are given as between varty ana party in respect of the attendance of profess3icnal witnesses does not alter tne law in this "atter. Remuneration for loss of time of professicnal witnesses was apparently, as 1S recognized in Collins v. Godefroy, always an eycepztion to the general rule laic down ir that case. It vould also appear that seafaring witnesses at all times held a Similar position of advantage, vrivileged in this respect in all Courts, for reasons which ray convenientjy be taxen from the gucprent in 3erry v. Pratt ((1823) 1 B. & C.276): 'Upon praincipl=, tne master was justified in allowin, tne subsisterce- money in question. Althouszn the witness was en Englishman, yet ne was a seafurinyg man; and, unless detained for tne purpose of siving eviacerce, mivht again nave gone to sea, and tnen the parties mi;nt have been put to a far greater excense by tne post- ponemerrt of the trial, on accourt of his absence. There would also heve been some danver of his evicence being altogether lost ty tne varisus casualties to which seefaring-men are exposedc.! " I have found no Jater English authority on the .uestion then The Ibis and was referred %w no leter authority ty ecunsel, A vearcn of the australian cizvest uas reveuled "directions of the Judges thereunder as to the scale of allowances to witnesses, end of tne present Rules of the Supreme Court, 15 to recognise the right of witnesses, 1n ccortain cases, to remuneration for loss of time, and in several cases professional men have oeen held entitled to recover by action the remuneration proviaed for by tne scale. It 1s submitted, therefore, that under the present law a witness subpoenaed in a civil cause may recover fron the person on whose behalf he hes been subpoeneed, not only his bare expenses, but sucn reruneration as is provided for by the sczle. Ne action lies by the witness against the solicitor wno sub- poenaed him, unless the solicitor has made hitself personally liacle by express contract. An expert witness called to depose to a matter of opinion is, and has always been, entitled to »ayrent for his services, and tne amount of his remuneration depends upon the speci3l contract between himself and the person on whose tenalf he 21s cailed." I have been unable to fina any relevant authority after 1931 in the most recert editions of Helsbury, the English and Enpire Digest, the Suprete Court Practice anc Fhipson on Evidence. Nor cid the research by counsel disclose any further authority. There 3S no a1scussion of the protlen in tne current edition of the Supreme Court Fractice but earlier editions of the Annual Practice (tne white bosk) refer to 1t and to some of the euthorities to wniciI néve referred; I instance the Annual Practice for pp. 1571-2. I have looked generaily «at the rules in force in lhe Lnited Kingcom ang at the rules of the Supreme Courts of lew 2outd woies unu Vittoria. my stuay o* tne relevant 1G45 (6Sta edn.) "A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it ve addresced tc a stranger, it must specify with reasonable particularity the documents which ar requirea to te produced. A subpoena duces tecum ougnt not to be issued tc such a person revuiring him to search for ane produce all such documents as he may have in his possession or power relcting to a particular sucject tatter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what woula be in effect discovery of docu- ments against a person who, being a stranger, 1s not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which 1s to be litigated upon issues of which ne is presumably ignorant ...... ... And if a subpoena duces tecum 1S 1ssueq to such a person in an objectionable form, tne «witness may apply tc tne Court to nave 1t set eside. If duly served .2th such a writ and provided «ith the proper conduct money, *he person served must obey it ana bring to the Court the cocuments mentioned in the sibpoena if he has ther, unless he procures tne writ to be set asice es oppressive; and he must produce to the Court tne 'iocuments which he has brought unless he satisfies tne Court that some good reason exists why tney shoulc not be produced: this he is always at liberty to do if he can: " The text of Wigmore summarises the émerican view (op. cit. at p.13u): "The true answer 1s that the testimonial duty, like other civil duties, ts to be performed without pay; tne sacrifice veiling an innerent burten of citizen- ship. Neither for military service nor for public office can the citizen claim that he shell te paid on a scale which will bear any equable proportion to the loss of his livelahoodts income. Any other principle would be vorthy only of a purely mercenary community. If the sacrifice made 1s a real ore, tne dignity of the service renderea should ennoble 3 t. The sense of civic duty done must be the consol-tion." wigmore had earlier referred to the fect that the tas three meneral items of travel to ana from tie court ana meintenance oe 33.6 there. Such expenses may be recovered in an action oased 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 tc give evidence or produce documents until he hes a proper assurance that these expenses will be met, He 1S not obliged to come to court unless he nas received a proper sum for conduct money, that 1s money which will enable him to travel to court; Order 27 Rule 3. Professional witnesses, especially doctors and attorneys, and seafaring witnesses were also entitied at common law tc recover an amount to indemn:fy them for loss of time whilst tney were detained at court as a result of the service of a subpoena. No other person was so entitled. That position changed in England and Australia from about the time of the passinz of the Common Law Procedure Act 1852, pursuant to which scales of fees for witnesses were promulgated. Thereafter wilnesses have peen entitled, accoraing to the eroropriute scale, to payment for loss of time as well as for payment of expenses of travelling to and from, and reneining at court. Whether the right to recover is vtased upon an implied contract or upon a statutory envitiement reference, expressly dealing with this situation. Inceed, although I would not wish what I am about to cay to be taken as an exhaustive statement of the matter, it would be correct to say tnat usually the only circumstances in which tne Rules contemplate an allowance to a witness for loss of time arising prior to the nearing is 1n a case where he is an expert witness and needs to jualify himself to give evidence, Time occupied in searching out and collating documents is not referred to nor is the expense of copying documents rejuired to be produced pursusnt to @ subpoena, At this point it 1s appropriate to mention the provisions of State #vidence Acts dealing with the pro- duction of bankers! books. By reason of the provisions of s.79 of tne Judiciary Act 1903 the legislation which is here applicable is Part IV of tne Evidence Act 1898 (N.S.W.). Other States have similar provisions in their evidence legislation as do the Territories. The relevant provisions of the New South wWeles legislation were designed to facilit=te proof of entries in bankers! tovks ana to avoid tne necessity of a banker naving to bring originel records to court; see 3.49, It 1s important to observe that no provision is "ede an tne legislation fur payment to a banker of the cost of copying any entries. Complementary to this legislation 1s Orcer 27 Rule 5 of the Rules eerlier referred to (p.21). 37. whether for travel, sustenance or loss of time, are specific and clear. The principles upon which the matter 1s to be approached are also clear, notwitnitandine tnat they are propounded in old cases not particularly easy to find. It seems to me that af the uraftsmen of the rules had 1ntended to depart from establiskedc practice he would have used clearer words than those which are to be found in Rule 21. In any event I would regard this case, involving as it does the records of a bank, as standing in a cifferent category from that involving the procuction of records of ther classes of person. That is because of the vrovisiors of evidence legislation dealing with bankers' books to which I have referred. But my view is that, bankers' books lerisletion or not, @ person upon whom a subpoera to produce documents issued out of this Court is servea is not ertitlec to his expenses of searching out, coilating and copying documents. My conclusion means that the Bank's claiz nere "ust fail as a matter of substance, It 1s unnecessary to decide . tne cvestions of tne appropriateness of tne procecure adopted, gurisdiction and discretion. But I would say + treat there con be no cuestion o* te guriseiction of the Court to aeal with the clain, Adgudicating upon it is ylcinly incidental to a lawful exercise or jurisdiction 39. the States and Territories, the Family Court ot Australia, the District and County Courts and in magistrates! Courts. My hesitation arises te ul O a u a I heave made no detailed analysis of the rule £ urt n oO ie) Qa or regulations governing the procedures of those verious courts. Nor have I considered whether the positicn 1s any different in criminal cases fron that wnich prevails in civil cases. It 18 because of the general imoortance I believe the case to have, my need tc conduct researcn into the law independently of that of counsel, ard pressure of other work that this jucsrent has been delayed for an unduly long period. Ky concern about the problem erises because 9f the growing tendency on the part of the vrofession to issue, in increasing numbers of cases, what can only be regarded as a proliferation of subpoenas to croduce documents. To say that they are scattered almost like ticker tape or confetti a few days - often a few hours - before the commencetent of latigation 1s no under-stetement. They are issued by tne Registry of the Court as of ccurse vithcut tne intervention %f any judzciil or court officor, be (6) t+ ia [] judge, master or rez Yet they are a court orcer demanding peremtory obedience; disobecience may result in imorisonment or sequestratior in the case of corporations, that they might have moved to set the subpoena aside on grounds of oppressiveness or sought en adjournment because of its late service; they woulu not know the law and tney would not wisn to incur expense Sor legal costs in order to find out what the rights end wrongs of the situation were, All tnat they were concerned to do as law abiding citizens was to obey the peremptory demand mede by the court in the subpoena. Of course, there are many subpeenas which, elthoush requiring a vast quantity of documents, are not too wide and are valid. The fact that such a subpcena ray be served in ample time for compliance with its terms mezns tnat the recipient rust make staff available to search out and collate the docurents. Since the cases to which I have referred were decided and the original forn of existing court rules laid down, times have changed. In the last century ani really until the last two decades, documentation of trensactions was comparatively simple. Those who years ago formulated the provisions about entries in bankers' books wrich appear in evidence legislation thourht that they had solved a problem and yet cid not provide for the recovery of ccsts. In the only case which I nave found dealing woth the production of documents, Pritenerd v. walker (1827) 3 Cc. & P, 212; 172 5.R. 391, the juestion was not vhether an 43, It seems to me that the whole problem to which the issue of subpoenas for the producticr of documents gives rise should be looked at. Tentatively I would think that :- {a) Rules of Court ought to be amended to permit the recovery of some part at least of the anount incurred by strangers to litigation in looking out and producing documents. Compare the various — charges apparently made by a nunber of public authorities 1n New South Wales referred to in the notes to Part 37 Rule 3 of the Rules of the Supreme Court of New South Wales - Ritchie, 9.126, Whetner these fees may be validly imposed is not a matter which it 1S necessary to decide in this case. But I wo.id add to whet I have said above that if persons are to te charged care would neec to be texen to see tnat impecunious parties to litigation were .- not deprived of access to documents because of cost. Perhaps in these circumstences the community should pay. (b) Subpoenas should include a statement thet they 'say be set aside if they are opvrressive. (c) Subpoenas to produce dccuments ouvrt not to be served without the leave of a gudicinzl or court officer unless they are returnable not earlicr than, say, 14 days after service. 45. issue, the terms of them and the time at which they are served. Undoubtedly others will have views on these various matters. I have said what I have in order to promote discussion. My views are not at all final or concluded. In the present case, however, I have, as I have said, reached the conclusion that the Bank's claim must fail. Its notice of motion is dismissed. It must pay the costs of the respondents. | sertfy that this ard tne te prececing jy easons for pages are a true copy cf the reaso The Honourable judgment hel gin of Mr Justice Sheppard. aes AT ~ Agsoclate Dated 1\ Mor, qs 47.