New South Wales Supreme Court CITATION : Gemtaf P/L & Ors v Tradebanc International P/L [No 3] [2000] NSWSC 706 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11419/98 19/05/99 HEARING DATE(S) : 11/06/99 17/07/00 JUDGMENT DATE : 17 July 2000 Gemtaf Pty Limited t/as "El Paso Motor Inn" (1 Appel) PARTIES : Margaret Denise Pursell (2 Appel) Terence Edward Fitzgibbon (3 Appel) Tradebanc International Pty Ltd (Resp) JUDGMENT OF : Kirby J LOWER COURT Local Court JURISDICTION : LOWER COURT 13632/97 FILE NUMBER(S) : LOWER COURT Ms J Wahlquist JUDICIAL OFFICER : COUNSEL : D Knaggs, sol (Appels) A P Spencer (Resp) SOLICITORS : Douglas Knaggs (Appels) Tony Simons (Resp) CATCHWORDS : Motion to set aside subpoena - Costs DECISION : Ref para 7 THE SUPREME COURT Extempore Revised OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Monday 17 July 2000 11419/98 - GEMTAF PTY LTD & ORS v TRADEBANC INTERNATIONAL PTY LIMITED JUDGMENT [No 3] - On Costs of Miss Thompson (see page 148 of transcript) 1 HIS HONOUR: In this matter Mr Knaggs, on behalf of Gemtaf Pty Ltd, issued a subpoena against Leigh Catherine Thompson, both to appear and to produce documents. The basis upon which he sought to have Miss Thompson appear emerges from exhibit A, which are documents in his possession, namely, the front piece of the financial statements for the year ended 30 June 1995 of Tradebanc International Pty Ltd. Those statements were prepared by Vered Thompson & Co, Chartered Accountants. 2 In argument Miss Merkel said that Miss Thompson now practices on her own account. She did not concede that at the relevant time she was the accountant for Tradebanc International or was in a position to give any relevant evidence. However, Mr Knaggs included in his tender, as part of exhibit A, the accountant's report dated 15 December 1995, which is signed by Leigh Thompson on behalf of Vered Thompson & Co. 3 Having regard to the many issues which were foreshadowed in the case, as it was then fashioned after the last hearing, it appears to me not unreasonable that Mr Knaggs may have believed that Miss Thompson may be in a position to give relevant evidence on behalf of his client. 4 Dealing with the terms of the subpoena to produce documents addressed to Miss Thompson as trustee, it contains six paragraphs. Paragraphs 4 to 6 inclusive were not pressed by Mr Knaggs by letter of 4 July. He did, however, press the remaining paragraphs. The solicitors for Miss Thompson, in response, and reasonably, wrote to Mr Knaggs on 26 June pointing out that the subpoena was unacceptably wide, and inviting him to specify the documents which he sought to have produced. Mr Knaggs responded by letter of 27 June. He sought to define the documents by reference to companies in which Mr or Mrs Rorke or Mr Douglas-Irving were directors or companies related, which included those three individuals. The subpoena and the terms in which it was drawn was indeed quite unacceptably wide. 5 The identification by Mr Knaggs did not, to my mind, meet the problem, although it did go some way towards doing so. However, the matter appears not to have progressed from that point, and was not resolved in a way satisfactory to Miss Thompson, such that counsel were instructed today. 6 Whilst I readily acknowledge that the subpoena was inappropriate in that it was not limited in time and not sufficiently particular as to subject matter, nonetheless it appears to me that more may have been done by the solicitors pursuing their initiative of 26 June to define precisely what it was that Mr Knaggs wanted. A letter seeking to identify the companies, to my mind, would not have been inappropriate. 7 What then should be done in terms of costs? Whilst the subpoena, I think, inevitably would have been set aside, had it been pressed in those terms, it seems to me that issues of fairness and reasonableness on the part of the parties do arise when determining costs. Whilst ordinarily costs follow the event, I do not believe that in the circumstances that does justice to the situation. I believe the appropriate order is that Lee Catherine Thompson should have one third of her costs and I so order. ********** Last Modified: 09/26/2000 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.