What costs can I claim if I am issued with a subpoena?


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What costs can I claim if I am issued with a subpoena?

If you are served with a subpoena to provide documents in a family law matter, the recent case of Agostino & Co Solicitors & Anor & Colville confirms that you can request additional costs in respect of compliance over and above the usual “conduct money” that accompanies the subpoena. As the usual amount of conduct money is $30, this means the opportunity to recoup your actual costs in respect of compliance.

In the case of Agostino,the wife’s solicitors issued a subpoena to a solicitor with an undated cheque for $30. The day before the date for production, the solicitor returned the undated cheque and sought costs of $1,540 for compliance with the subpoena.

The Court considered the issue of the cost of compliance, the costs of the appearance and who should be liable for those costs.

The Court held that the Rules provide that the Court may make an order for costs with respect to ‘any loss or expense incurred in complying with a subpoena’.

The solicitor required to comply with the subpoena was seeking the cost of compliance in the amount of $770. That was made up of two hours of the professional’s time at a rate of $350 per hour plus GST. The Court found the costs to be necessary to ensure full compliance with the subpoena by the solicitor.

After approving $770 as the cost of compliance, the Court next considered the costs of the day in court and held:

“The matter can and should have been dealt with by people picking up the telephone and speaking to each other. If that had occurred, then surely a sensible and commercially realistic determination of the issue could have been made inter partes without the need for the Court’s involvement.”

After finding that an appearance by the third party (the solicitor) was necessary, the Court ordered that $1,500 be paid towards the third party’s costs.

The husband was ordered to meet the approved sums of $770 and $1,500 for the costs of complying with the subpoena.

This case is available for you to read a the link set out below.

Agostino & Co Solicitors & Anor & Colville [2014] FCCA 3127