Set aside by Appeal : CITATION: Law Society of NSW v Khera (No 2) [2004] NSWADT 103 DIVISION: Legal Services Division APPLICANT Council of the Law Society of New South Wales PARTIES: RESPONDENT Jaswant Khera THIRD PARTY Ian Jones FILE NUMBER: 012024 HEARING DATES: 26/05/2004 SUBMISSIONS CLOSED: 05/26/2004 DATE OF DECISION: 05/31/2004 BEFORE: Fox R - Judicial Member; Pheils J - Judicial Member; Mara A - Non Judicial Member APPLICATION: Summons - application by third party for costs MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 CASES CITED: Bank of New South Wales v Withers (1981) 35 ALR 21 Danielletto v Khera (1995) 35 NSWLR 684 THIRD PARTY In Person REPRESENTATION: RESPONDENT In person ORDERS: The Respondent is to pay the costs and proper expenses of Mr Jones as assessed in complying with the Summons to Produce Documents, preparation for and subsequent appearances (including today's) at this Tribunal. REASONS FOR DECISION 1 This application is an incident of our decision of 9 February 2004 which at the time of the writing of these reasons is subject to an appeal. We think it appropriate to publish these reasons in time for them to be included within the appeal process if that be the wish of either party. 2 The applicant in this matter is a Third Party, Ian Jones, former partner of the Respondent Jaswant Khera. Mr Jones is seeking an order against the Respondent for his costs and expenses of complying with a summons to produce documents. 3 The summons in question was issued and served by the Respondent by letter of 18 July 2002. It encompassed 13 paragraphs seeking what can only be described as a very wide range of documents. The first 7 paragraphs sought instruction files relating to former clients' matters identified in the Information. It further sought as well as the "cheque books, deposit books, bank statements, receipt books and accounting records" for the trust and general account records of Kheras the Law Firm between 1 June 1992 and 1 February 1993, the trust and general account records "including but not limited to cheque books, deposit books, bank statements, receipt books and accounting records of Kheras the Law Firm recording transactions between the period of 1 September 1993 to date maintained by you in your capacity as receiver and manager of the partnership business between you and Jaswant Khera." 4 On 27 August 2002 Mr Jones appeared and objected on the grounds of relevance and width. He also claimed that insufficient conduct money had been offered. On that day there was not time to deal with the detail, and there was further argument on 9 October 2002. It is proper to say that our directions only slightly reduced the width of the net cast. Even at that early stage the question of cost and expense was raised. We reserved our decision. 5 We are satisfied that Mr Jones made the appropriate efforts to search out, collate documents and comply with the Tribunal's direction. To date Mr Jones has not received any recompense for his efforts. Mr Khera initially offered $50 as conduct money and Mr Jones responded in a letter of 4 August 2002 seeking a guarantee of $2000. 6 Shortly after our substantive order in these proceedings Mr Jones wrote to the Tribunal submitting an itemised bill of costs for $7,036 for his time and expenses in complying with the summons. This bill of costs itemises all attendances both telephone and personal in relation to the application to limit the scope of the summons, time spent in collating material, time spent travelling to and from the Tribunal, travel expenses, time spent in drawing documents such as affidavits in opposing the summons etc. 7 We directed that this be dealt with as subsidiary application to the proceedings and gave both parties an opportunity to make preliminary written submissions and address argument to those today. 8 Mr Jones' entitlement to claim arises from Section 141 of the Administrative Decisions Tribunal Act 1997. It provides: " Allowances and expenses of witnesses (1) A person (other than a public servant) who is required to appear or give evidence before the Tribunal is entitled to be paid such allowances and expenses as are ascertained in accordance with a scale of allowances and expenses prescribed the regulations. (2) Subject to subsection (3), the allowances and expenses are to be paid by the party at whose request a witness is summoned (3) The Tribunal may order that the allowances and expenses of a witness referred to in subsections (2) be paid wholly or partly by the State out of money otherwise lawfully available." 9 Mr Jones also relies on the decision of Bryson J in Danielletto v Khera (1995) 35 NSWLR 684. The ratio of that decision (between these same parties) related to an entitlement for recompense despite the eventual withdrawal of a subpoena. The comments made by His Honour appear to us to be greatly apposite. His Honour said at p 688 " it is not just to make the witness give attention to someone else's litigation without being paid for his time". 10 The question is whether or not we are bound to follow this decision given the differing legislative provisions between jurisdictions. His Honour was dealing with Part 37 rule 9 of the Supreme Court Rules which specifically addresses the "expenses and loss" of persons who are not parties. The words used in the Administrative Decisions Tribunal Act are "allowances and expenses" of "persons". 11 We think that it is abundantly clear that Section 141 in using the word "person" rather than "party" extends its effect to include people such as Mr Jones, not just those who are parties. 12 More perplexingly, Section 141(1) refers to allowances and expenses "as are ascertained in accordance with a scale of allowances and expenses as prescribed by the regulations". The regulations adopt the District Court Scale "Allowances for witnesses attending civil proceedings in the District Court". The relevant District Court determination simply identifies an hourly rate for professionals $125- $200/hour to attend and give evidence and appears to identify a rate for travel expenses. The scale does not appear to contemplate the time and trouble involved in gathering material in compliance with a subpoena. 13 It would appear that the matter before us has identified a lacuna not unlike that which Bryson J had in contemplation in Danielletto. His Honour said "Rules of court which apply in most cases entitle witnesses to be paid for their time as well as their expenses and the same result should follow in the present case notwithstanding that close attention to the exact terms of the rules of court has revealed that this is an interstitial case with which they do not deal" (p 688). 14 We note that His Honour refused to apply the result that would follow from the decision in the Bank of New South Wales v Withers (1981) 35 ALR 21 to achieve the obviously just result that a person is entitled to be paid for his time and trouble if he is directed on pain of being referred to the Supreme Court on an information alleging contempt of the Tribunal, to bring documents to court. We propose to apply the same approach to section 141 insofar as it may fail to expressly address the loss of professional income suffered by Mr Jones in complying with the Tribunal's attendance and production requirement. 15 We further note that our ability to make an order for costs may be affected by the requirements of Section 88 of the Administrative Decisions Tribunal Act. We are satisfied that the issue of a summons against a person who is not a party amounts to the requisite special circumstances. We are further satisfied that this extends, in this matter, to the appearance to argue the width of the summons, and indeed the submissions, preparation for and attendance at today's hearing. 16 It is appropriate to indicate that the detail and amount of Mr Jones' claim means that it must be properly assessed pursuant to the only assessment process now in existence in this state, ie referral to a cost assessor. Orders The Respondent is to pay the costs and proper expenses of Mr Jones as assessed in complying with the Summons to Produce Documents, preparation for and subsequent appearances (including today's) at this Tribunal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.