Escobar v Rainbow Printing Pty Ltd [2002] FMCA 22 (13 February 2002)

Last Updated: 30 April 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ESCOBAR v RAINBOW PRINTING PTY LTD

[2002] FMCA 22

PRACTICE AND PROCEDURE - Subpoenas - failure of solicitor to ensure documents directed to correct court registry - failure to specify clear return address of the court on the subpoena. COSTS - Whether costs should be awarded against the solicitor who failed to ensure that documents were produced to the court.

Applicant:

SANDRA ESCOBAR

Respondent:

RAINBOW PRINTING PTY LTD

File No:

SZ583 of 2001

Delivered on:

13 February 2002

Delivered at:

Sydney

Hearing Date:

13 February 2002

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr G Donnellan

Solicitors for the Applicant:

Kingsford Legal Centre

Counsel for the Respondent's

Solicitor:

Mr R Moore

Solicitors for the Respondent:

John H Maait & Co

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ583 of 2001

SANDRA ESCOBAR

Applicant

And

RAINBOW PRINTING PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This matter came before me today on the return of a subpoena issued on 17 January 2002 at the instigation of the applicant. More importantly, there was also an application for costs against the respondent's solicitor, Mr Maait, personally. Mr Moore appeared for Mr Maait, not for the respondent. The subpoena was directed to an officer of the respondent and sought production of a number of documents relating to the proceedings between the parties. The subpoena was originally returnable on 25 January 2002, subsequently amended to 29 January 2002.

2. No documents were produced in answer to the subpoena on 29 January 2002. By letter to this Court dated 5 February 2002 the solicitors for the respondent explained the circumstances. The solicitors stated that their client was served with the subpoena returnable on 29 January 2002. There being no address shown on the subpoena for the delivery of the documents, the respondent, in purported compliance with the subpoena, mistakenly sent the documents in a sealed envelope by courier to the solicitors' office in Parramatta on 29 January 2002. Mr Maait's secretary was not familiar with the Federal Magistrates Court in Sydney and did not know what address to direct the courier to. It seems, however, that the secretary was familiar with the operations of this Court at Parramatta and made enquiries with the Family Court in Sydney as to where the courier should be directed to deliver the documents. She was given the address of 97-99 Goulburn Street, Sydney. The courier was then directed to deliver the documents there and did so.

3. The solicitor for the applicant appeared on the return of the subpoena on 29 January 2002 and the Court adjourned the return of the subpoena until 6 February 2002. It seems that, being apprised of the circumstances, the applicant's solicitors formed the view that the respondent's solicitors had neglected their duties in relation to the subpoena and that an order for costs against Mr Maait should follow. That issue came before a registrar on 6 February 2002 and was adjourned for determination by me today.

4. In their letter dated 5 February 2002 the respondent's solicitors say that they have not been able to find out from the Family Court in Sydney the whereabouts of the subpoenaed documents. They criticised the Family Court for an alleged inability to provide information on the location of registries of this Court. They also criticise this Court for allowing a subpoena to be issued without a clear return address.

5. The solicitors for the respondent wrote again to the Court on 7 February 2002, having been advised of the outcome of the proceedings before the registrar the previous day. I reproduce the terms of that letter in full.

We thank you very much for you letter of 6^th instant.

We cannot but express our regrets and our very grave concern that a straightforward matter such as the issue and service and compliance with a Subpoena has taken the course it has and resulted in such waste of costs for the parties. May we humbly, but firmly, suggest that much of the confusion and waste could have been, and could in the future be, avoided with the implementation of a simple procedure that provides the address of the Court where the documents are to be produced on the face of the Subpoena.

We appreciate that in an ideal world, and with the benefit of hindsight, parties to a litigation and all staff in their lawyer's offices should be intimately aware of the workings of the new Federal Magistrates Service and the location of its Registries and Exhibits Offices. We respectfully observe, however, that Subpoenas are not only addressed to litigants and/or their lawyers, but to third parties who cannot be expected to look into a crystal ball in their endeavour to ascertain where compliance with a Subpoena is required.

As to the adjournment of the Subpoena in question, we have today written to the Applicant's solicitors and we enclose for the record copy of that letter, the contents of which we trust are self-evident. We make no apology for the outrage expressed therein.

6. The letter referred to in the last paragraph of the above letter was forwarded to the Court but I do not need to reproduce it here. The applicant sought to introduce two affidavits into evidence detailing conversations between the two firms of solicitors. That was objected to by Mr Moore. I read the affidavits but declined to accept them as evidence. Apart from being largely hearsay they added nothing material to the explanation provided by the respondent's solicitors.

7. Point 9 of the prescribed form of subpoena used in this Court requires the time, date and place to be inserted where the recipient of the subpoena must attend court to produce the documents sought pursuant to the subpoena. It is clear from part D of the form, consistently with the rules of court that, instead of attending court, the person responding to the subpoena may produce the documents sought to an officer of the Court at least one day before the return date. In this instance, the place for the return of the documents was described as the "Federal Magistrates Court of Australia, Sydney NSW".

8. I understand that the usual practice of the registry is to stamp a subpoena at the time of issue with a stamp that includes the address of the court at Queens Square in Sydney. That was not done in this case. By letter dated 11 February 2002 to the respondent's solicitors, a registrar explained that in this particular instance the subpoena was addressed to the respondent in the proceedings which is legally represented. Additionally, several documents have been filed in the proceedings and an appearance had been made on behalf of the respondent, all of which suggested that the respondent and/or its solicitors, was aware of the address of the court.

9. In the end result no harm has been done as the documents were located in the Family Court at Goulburn Street and conveyed to Queens Square in time for the hearing of this matter today (apparently via Wollongong). The only issue remaining is whether any order for costs should be made against the solicitors for the respondent or Mr Maait personally. Rule 21.07 of the Federal Magistrates Court Rules 2001 permits an order for costs to be made against a lawyer if the lawyer or an employee or agent of the lawyer has caused costs to be incurred by a party or another person or has caused costs to be thrown away because of undue delay, negligence, improper conduct or other misconduct or default. Rule 21.07(2) relevantly provides that a lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed to file, lodge or deliver a document as required. In this instance I find that the failure of the solicitors for the respondent to arrange for the delivery of the documents required on 29 January 2002 was not unreasonable. The respondent had mistakenly delivered the documents to Mr Maait's office on that day and his secretary, not being able to speak to Mr Maait at the time, did the best she could in the circumstances. It is unfortunate that the subpoena did not clearly specify the address of the court and it is unfortunate that the respondent's solicitor's secretary was advised to have the documents delivered to the Family Court in Goulburn Street, Sydney, where it took some time to find them. Mr Maait apparently made enquiries in an attempt to locate the subpoenaed documents in time for the hearing before the registrar on 6 February 2002 but was not successful. The failure to produce the documents on that day was again, not unreasonable in the circumstances.

10. The publication of these reasons should go some way to ensuring that this problem does not arise again. The Federal Magistrates Court does not operate its own registries but uses the registry services of the Federal Court of Australia and Family Court of Australia, depending on whether the relevant proceedings are family law/child support proceedings or other federal law proceedings. Practitioners need to bear this point in mind when dealing with a matter in this Court. In some locations little confusion will arise, either because the relevant registry accepts documents in both kinds of proceedings or because there is only one registry in the relevant location. In central Sydney however the registries of the Federal and Family Courts are in different locations and there is potential for confusion to arise. Practitioners and litigants seeking guidance as to the appropriate address of the relevant registry can obtain the necessary information from the Court website at www.fms.gov.au or from the Federal Magistrates Service telephone assistance line: 1300 367 110.

11. A practitioner or litigant obtaining the issue of a subpoena from the Court should check that a clear return address has been specified. This is particularly important where the subpoena is directed to someone other than a party. A practitioner or litigant responding to a subpoena should make appropriate enquiries if the return address is not clear. There is potential for costs to be awarded against a lawyer who carelessly neglects his or her responsibilities in this regard. It goes without saying that it would be improper conduct for a lawyer to seek to take advantage of any confusion arising in relation to the proper return address on a subpoena.

12. It is apparent from submissions made by Mr Donnellan that an issue of professional courtesy has in part motivated the application for costs. The applicant's solicitors have had difficulty dealing with the respondent's solicitors. That may properly be a matter for complaint between the solicitors or elsewhere but it is not a matter that I need to deal with on this application for costs. Mr Moore sought his client's costs of the day. I declined that request, on the basis that the application for costs in respect of the non production of documents, while not successful, was reasonably based upon the rules of court. In the circumstances of this matter there is no need for me to make any orders.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 February 2002