McNamara v Trylow Plant Hire Pty Ltd [2016] NSWSC 1605

Supreme Court New South Wales

Medium Neutral Citation: McNamara v Trylow Plant Hire Pty Ltd [2016] NSWSC 1605 Hearing dates: 31 October 2016 Date of orders: 18 November 2016 Decision date: 18 November 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) Dismiss the Second Defendant's Notice of Motion filed 19 July 2016.

(2) Order that the costs of the Second Defendant in complying with the subpoena of 3 November 2014 be costs in the cause.

(3) In the event that a costs order is made against the Second Defendant in the cause, leave is given to the Second Defendant to claim from the First Defendant the costs thrown away by reason of the withdrawal of the subpoena date 3 November 2014 by the First Defendant.

(4) The Second Defendant is to pay the First Defendant's costs of the Motion. Catchwords: PROCEDURE – subpoenas – costs – costs of compliance with subpoena – workplace injury proceedings - subpoena issued by defendant to non-party to proceedings – non-party subsequently joined by plaintiff – first subpoena abandoned – second subpoena issued – whether UCPR 33.11 applied – large number of documents examined by subpoenaed party – lengthy delays by subpoenaed party – documents not produced – third subpoena issued for single class of documents – defendant abandons reliance on second subpoena – costs claimed of $23,000 – whether costs should be costs in the cause – no order made under UCPR 33.11 Legislation Cited: Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A Pty Ltd v Z [2007] NSWSC 999 Deposit & Investment Co Limited (Receivers Appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267 Simpson v Monteith [2009] NSWSC 156 Sunfield Resources Pty Limited v Waratah Resources Limited [2014] NSWSC 788 Category: Procedural and other rulings Parties: Joshua Troy McNamara (Plaintiff) Trylow Plant Hire Pty Ltd (First Defendant/Respondent) Leighton Contractors Pty Ltd (Second Defendant/Applicant) South West Civil Pty Ltd (Third Defendant) Representation: Counsel: D Macfarlane (Second Defendant/Applicant) T Berberian (First Defendant/Respondent)