“Received a Subpoena and Unsure of What Reasonable Costs You Can Claim? Hint: It’s More Than You Think”

It’s a rare situation you may find yourself in as a business owner, but much like jury duty, eventually it will happen to you. Being issued a subpoena to produce or even give direct evidence can be an unnerving and unusual experience.

However, whilst complying with a subpoena many business owners are not aware that their reasonable costs are claimable under the Uniform Civil Procedure Rules (UCPR) both in producing documents and the giving of evidence.

A hot topic is usually what is considered a reasonable amount of conduct money in such circumstances? 70%? 80%? Or the entirety of your actual costs? And can you refuse to comply if your monetary needs are not met?

One of the leading authorities for the proposition that an addressee cannot lawfully refuse to comply with a subpoena to produce where, in the addressee’s opinion, the conduct money is insufficient to meet the costs of compliance is set out in the decision of Austin J in Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253 which was reaffirmed by Brereton J in Hall v Donlon [2011] NSWSC 1088 at [4]:

… The requirements for the handing over or tendering of conduct money to an addressee are expressed in (NSW) Uniform Civil Procedure Rules 2005, r 33.6(1), as being limited to a subpoena to attend to give evidence. Thus the requirement for handing over or tendering conduct money does not apply to subpoenas for production.

However, pursuant to UCPR rule 33.11, the Court does have discretion to make an order that the issuing party pay the amount of any reasonable loss or expense incurred by an addressee in complying with the subpoena.

So how is this reasonable amount calculated and what exactly can be claimed? In a decision delivered by the Federal Court of Australia on 21 September 2016 In the matter of NewSat Limited (receivers and managers appointed) (in liquidation) ACN 003 237 303 and the entities listed in the Schedule (“NewSat”), The Federal Court took the view that:

• While there is no specific statutory authority to allow for compensation for searching for documents in compliance with an order for production, it is appropriate for an allowance to be made.
• The jurisprudence concerning costs and expenses in complying with a subpoena is relevant to considering such a claim in connection with an order to produce.
• The Court’s role when determining costs and expenses of compliance is to determine whether the costs and expenses claimed were incurred reasonably in complying with the order. It is not looking at it as a taxation (ie. assessment) of costs.
• Considering the time constraints and the volume of the material, it was reasonable for Morgan Stanley to engage an external law firm to undertake the review of the material, including the review for relevance.
• It is not for the Court to look into the internal work capacity of a third party who has been ordered to produce documents.
• It was reasonable to undertake manual review of each document to determine relevance, privilege and confidentiality.

In conclusion, there is no requirement to pay conduct money for a subpoena to produce, however, under rule 33.11 of the UCPR that party may apply for a ruling on reasonable costs for the time taken in producing that information. Such a reasonable cost may include:

• Internal costs;
• External legal costs for reviewing the documents; and
• External legal costs for advice.

This means then that any settlement on the issue of costs outside of Court becomes an exercise in commercial negotiation, of which the above factors are to be taken into account. Be mindful of your rights when issued a subpoena and contact us at Priority Business Lawyers for advice and assistance with reviewing any such documents.