Nazzareno Castrucci v Australian Capital Territory Electricity Authority [1990] ACTSC 13; (1990) 101 FLR 447 (10 April 1990)

SUPREME COURT OF THE ACT

NAZZARENO CASTRUCCI v. AUSTRALIAN CAPITAL TERRITORY ELECTRICITY AUTHORITY
S.C. No. 1381 of 1986
Subpoena
[1990] ACTSC 13; (1990) 101 FLR 447

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Subpoena - application to be excused from compliance - whether reasonable to expect compliance - conduct of solicitors relevant - need for undertaking to meet witness' reasonable expenses.

Subpoena - successful application to be excused from compliance - costs follow the event.

HEARING

CANBERRA
10:4:1990

ORDER

The applicant Dr Suzette Knyvett be excused from complying with the terms of the subpoena dated 22 August 1989.

The defendant pay the applicant's costs of the notice of motion dated 4 October 1989.

DECISION

This was an application by Dr Suzette Knyvett (the applicant) commenced by notice of motion dated 4 October 1989 seeking orders:
1. That the subpoena for production and to give evidence in the civil matter of Nazzareno Castrucci (plaintiff) and the Australian Capital Territory Electricity Authority (defendant), dated 22 August 1989 be set aside as oppressive; or
2(a) That the applicant, Dr Suzette Knyvett be excused from complying with the said subpoena by the defendant to attend and produce certain documents and things on 23 October 1989 unless a sum sufficient to meet her reasonable expenses of complying with the subpoena in relation to that day is paid or tendered to her forthwith; or
2(b) That the evidence of Dr Knyvett of and incidental to the action herein be heard by the court on a date subsequent to 15 November 1989 following service by the defendant upon Dr Knyvett of a letter specifying the time, date and place of hearing of such further evidence and provided service of such letter is effected no later than 3 days prior to the further hearing date. 3. That the costs incurred by Dr Knyvett of and incidental to this motion be paid by the defendant.

2. The subpoena was issued and served on behalf of the defendant to the action, the Australian Capital Territory Electricity Authority. The defendant was represented on the hearing of the motion and opposed the orders sought.

3. By her affidavit sworn 4 October 1989, the applicant stated that she was a retired medical practitioner and in January 1989 made arrangements with her elderly sister and brother-in-law, resident in Scotland, to meet them in Cairns on 9 October 1989 for the purposes of a holiday which was planned to continue in Queensland until early November when the relatives would return to Scotland. The applicant made firm arrangements for her own accommodation in Queensland with a travel agency in the middle of July 1989.

4. The subpoena was issued on 22 August 1989 and served on the applicant at her home in Yarralumla on 1 September 1989. The person serving the subpoena tendered the sum of $10 as conduct money, which was accepted by the applicant. She made contact with the solicitor for the defendant by telephone and told him of her arrangements, but she was told she must attend court on the date fixed for hearing, 23 October 1989, in accordance with the terms of the subpoena. The applicant indicated in her affidavit that she was prepared to give her evidence either by affidavit or other means before her departure from Canberra or after her return. On the other hand, if she was required to answer the subpoena on 23 October 1989, she would incur the expense of a return air ticket from northern Queensland and hotel or similar accommodation in Canberra, and she sought an order that those expenses be paid to her in advance as a condition of her being required to comply with the terms of the subpoena. It was submitted on behalf of the applicant in the first instance that the subpoena was oppressive. I ruled that the subpoena was not oppressive. It gave the applicant approximately six weeks notice of the hearing. A subpoena requiring a person to produce documents which it would take months to find and assemble would possibly be oppressive, but there was no suggestion of that nature in the present case.

5. The real question that needed to be decided was whether it was reasonable to expect the applicant in the circumstances to comply with the subpoena. In regard to this aspect the conduct of the plaintiff's solicitors had to be taken into account. The applicant was not contacted at any stage prior to service of the subpoena to enquire from her whether she would be available on the date already fixed for hearing. It would have been a prudent measure to take in any event to ascertain before the call-over date whether the witness was likely to be available in the period covered by the likely available hearing dates. When solicitors accept a fixed hearing date from the court without having contacted witnesses in advance in order to ascertain their availability, the risks are obvious.

6. The solicitor for the defendant submitted that it was "premature" to require the defendant to pay in advance the applicant's expenses of returning to Canberra in order to answer the subpoena. In my view, where a witness is expected to incur substantial expense in complying with a subpoena, it is appropriate to tender a modest amount of cash at the time of service (together with a return air ticket, if appropriate), together with a written undertaking from the solicitor to pay such further reasonable expenses as may be incurred, including the expenses of accommodation should a prolonged stay away from the witness' usual place of residence be necessary. Such an undertaking would have been appropriate in the present case and was not forthcoming.

7. In all the circumstances, I decided that it was unreasonable to require the applicant to comply with the terms of the subpoena. It was not, in my view, appropriate that an additional order should be made requiring her attendance conditional upon the payment in advance of her expenses or the giving of an undertaking by the defendant's solicitors. I therefore made an order excusing the applicant from complying with the terms of the subpoena. I said I would give my reasons at a later date, which I have now done. I also had reserved the question of costs. The applicant has been substantially successful in her application, and I see no reason why costs should not follow the event. I order the defendant to pay the applicant's costs of the notice of motion.