FEDERAL COURT OF AUSTRALIA Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 5) [2015] FCA 1483 Citation: Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 5) [2015] FCA 1483 Parties: BASETEC SERVICES PTY LTD ABN 30 086 798 361 v LEIGHTON CONTRACTORS PTY LTD ABN 98 000 893 667 File number: SAD 84 of 2014 Judge: BESANKO J Date of judgment: 23 December 2015 Date of hearing: 2 December 2015 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicant: Mr RJ Whitington QC with Mr B Jenner Solicitor for the Applicant: Cosoff Cudmore Knox Counsel for RPC Technologies Pty Ltd: Mr M Douglas Solicitor for RPC Technologies Pty Ltd: DMAW Lawyers Pty Ltd IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 84 of 2014 BETWEEN: BASETEC SERVICES PTY LTD ABN 30 086 798 361 Applicant/Cross Respondent AND: LEIGHTON CONTRACTORS PTY LTD ABN 98 000 893 667 Respondent/Cross Claimant JUDGE: BESANKO J DATE OF ORDER: 23 december 2015 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant pay the costs of RPC Technologies Pty Ltd of preparing and issuing the application to set aside the subpoena dated 26 November 2015 and of preparing the affidavit of Mr Peter Groch sworn on 26 November 2015, but that otherwise there be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 84 of 2014 BETWEEN: BASETEC SERVICES PTY LTD ABN 30 086 798 361 Applicant/Cross Respondent AND: LEIGHTON CONTRACTORS PTY LTD ABN 98 000 893 667 Respondent/Cross Claimant JUDGE: BESANKO J DATE: 23 december 2015 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 These reasons deal with the question of the costs of an application to set aside a subpoena dated 18 November 2015. The applicant in this proceeding issued a subpoena to produce documents to RPC Technologies Pty Ltd ("RPC") with a return date of 26 November 2015. On that day, RPC issued an application to set aside the subpoena. The application was supported by an affidavit sworn by the General Manager of the Infrastructure & Rail Systems Division of RPC, Mr Peter Groch, on 26 November 2015. Mr Groch swore a second affidavit in connection with RPC's application on 1 December 2015. 2 The subpoena and application to set it aside came before a registrar on 26 November 2015 and the Registrar referred these matters to me as the trial judge. The trial commenced on 1 December 2015, and the subpoena and application to set it aside came on before me on 2 December 2015. 3 The subpoena required the production of thirteen categories of documentation and the volume of documentation was fairly substantial. 4 The application to set aside the subpoena was ultimately resolved and, on 3 December 2015, I made the following orders, relevantly: 1. The Subpoena issued by the Applicant to RPC Technologies Pty Ltd (RPC) dated 18 November 2015 be varied as follows: a. in respect of paragraph 2.1, to delete the words "the APLNG project including"; b. in respect of paragraph 2.2, to insert the words "in the period commencing 1 April 2013 and ending 21 May 2013, and only in respect of emails from or sent to George Berger, Peter Groch, Tony Caristo and Darren Bishop"; and c. paragraphs 2.3, 2.8, 2.9, 2.12 and 2.13 be deleted. 2. Compliance with the Subpoena is extended as follows: a. production of documents responsive to paragraphs 2.6, 2.10 and 2.11 be extended to close of business on 3 December 2015; b. production of documents responsive to paragraphs 2.1, 2.4 and 2.5 be extended to 4pm on 4 December 2015. c. production of documents responsive to paragraphs 2.2 and 2.7 be extended to 12 noon on 10 December 2015. … 5 I also made orders designed to preserve the confidentiality of the documents produced by RPC. 6 RPC made an application for the costs of its application to set aside the subpoena. 7 In my opinion, the applicant should pay the costs associated with the preparation and issuing of the interlocutory application dated 26 November 2015 and the preparation of Mr Groch's affidavit of the same date, but that otherwise, there should be no order as to costs. 8 I have considered each of the thirteen categories of documents which were the subject of the subpoena. I have also considered the letter from RPC's lawyers dated 23 November 2015, and the response from the applicant's lawyers dated 25 November 2015. I have compared the concessions made by the applicant's lawyers in their letter dated 25 November 2015 with the orders ultimately made. Having regard to the need for RPC to proceed expeditiously, I consider that it was reasonable and appropriate for RPC to issue the interlocutory application and Mr Groch's accompanying affidavit sworn on 26 November 2015. However, after those things had been done, and having regard to the applicant's concessions, I am unable to see any clear basis for preferring one party over the other in terms of the costs of the application. In those circumstances, I do not think that there should be an order as to the costs of either party after the issuing of the application supported by Mr Groch's affidavit sworn on 26 November 2015. 9 I order that the applicant pay the costs of RPC Technologies Pty Ltd of preparing and issuing the application to set aside the subpoena dated 26 November 2015 and of preparing the affidavit of Mr Peter Groch sworn on 26 November 2015, but that otherwise there be no order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 23 December 2015