Foyster v Foyster Holdings [2003] NSWSC 881

New South Wales Supreme Court

CITATION : Foyster v Foyster Holdings [2003] NSWSC 881 HEARING DATE(S) : 23/9/03 - 24/9/03 and 10/10/03 JUDGMENT DATE : 23 September 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Issuer of subpoena to pay reasonable expenses and loss of recipient of complying with subpoena

CATCHWORDS : PROCEDURE - Supreme Court procedure - subpoenas - extent of obligation to tender "reasonable expenses" at time of service of subpoena - extent of rights of recipient of subpoena to recover expenses and loss involved in complying with subpoena - WORDS AND PHRASES - "expenses" - "loss" LEGISLATION CITED : Supreme Court Rules 1970 Jacqueline Foyster - Plaintiff PARTIES : Foyster Holdings Pty Limited (In Liquidation) - Defendant Geoffrey Trent Hancock - Applicant David Foyster - Respondent FILE NUMBER(S) : SC 5585/01 J Sexton SC - Applicant COUNSEL : M B Evans - Respondent P W Hopkins, solicitor - Tasmanian Titanium Pty Ltd Coudert Brothers - Applicant SOLICITORS : Kings Lawyers - Respondent P W Hopkins - Tasmanian Titanium Pty Ltd

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

TUESDAY 23 SEPTEMBER 2003

5585/01 JACQUELINE WYATT FOYSTER v FOYSTER HOLDINGS PTY LIMITED JUDGMENT – Ex Tempore (revised 25 September 2003) 1 HIS HONOUR: In this matter, a subpoena was served on Peter H Stitt & Associates Pty Ltd, by solicitors for Mr David Foyster, one of the respondents to the present application. Peter H Stitt & Associates Pty Ltd is a company of geologists who had done some work in connection with the development of a mine on King Island, which is connected with the subject matter of these proceedings. 2 The subpoena is one which is dated 9 September 2003. It required production of the following documents: "SCHEDULE 1. Copies of all and any Feasibility Study or Studies prepared by the Peter H Stitt & Associates Pty Ltd, including copies of all drafts thereof sent to Tasmanian Titanium Pty Limited or anyone on behalf of that company, in respect of the project identified as the "King Island Sands Project" prepared for Tasmanian Titanium Pty Ltd together with copies of all and any supplementary updates of any such feasibility study sent to Tasmanian Titanium Pty Limited or anyone on behalf of that company. 2. Copies of all and any correspondence between Peter H Stitt & Associates Pty Ltd and Tasmanian Titanium Pty Ltd or anyone purporting to act on behalf of that company in relation to the "King Island Sands Project" for the period from 1 January 2001 to date. 3. A copy of a video film made by Peter H Stitt & Associates Pty Ltd on the subject of the "King Island Sands Project" and concerning a visit to King Island by Peter Stitt and Peter Hopkins in February 2002 which video was shown at a meeting of shareholders of Tasmanian Titanium Pty Ltd held on or about 4 October 2002." 3 The subpoena was returnable on 18 September 2003. There was no production at that time. It has come to be stood over to today. 4 On 17 September 2003, the principal of Peter H Stitt & Associates wrote to the solicitor who had procured issue of the subpoena saying that he had reviewed the files and collated the material, and that he had been paid conduct money of $50 but that was quite inadequate in view of the work involved. He claimed that he had spent 11 hours searching out material, that his personal attendant had spent six hours, and that some copying of documents had been done. Altogether, he claimed that an amount of $1,306.36 should be paid for his company's work in complying with the subpoena. He said: "I understand that I am not obliged to produce the documents unless this amount is paid prior to production. I am not prepared to accept any undertaking by David Foyster to pay this amount." 5 He requested payment that day, and said that if the issue could not be resolved that day he would have no alternative but to arrange for his solicitor to appear on the return of subpoena, and that he would seek additional payment of costs if it became necessary for the solicitor to appear. 6 The solicitors who had issued the subpoena, wrote to Mr Stitt's solicitor on 22 September, pointing out that Part 37 rule 9 of the Supreme Court Rules allowed a party served to make an application to the court for orders that they be reimbursed: "However this does not mean that documents requested on subpoena can be held effectively hostage." 7 There was no offer to pay any amount of reasonable expenses or loss which might have been incurred. Rather, the letter concluded by saying: "We confirm that if the documents requested on subpoena are not produced tomorrow and the subpoena is called, our clients reserve all their rights including the right to recover from your client all costs thrown away if the matter is adjourned, any costs ordered against them if proceedings are adjourned, and all rights to request the issue of a bench warrant." 8 There was some other correspondence, in which again the solicitors issuing the subpoena referred to Part 37 rule 9 and the rights under that rule, but made no offer to pay anything. 9 Part 37 rule 3 of the Supreme Court Rules provides: "Conduct money 3(1) A subpoena shall not require the person named to attend or produce any document or thing on any day on which his attendance or production by him is required unless a sum sufficient to meet the reasonable expenses of the person named of complying with the subpoena in relation to that day is paid or tendered to him at the time of service of the subpoena or not later than a reasonable time before that day."