Hall v Donlon [2011] NSWSC 1088

Brereton J:

4.  …The first is that no conduct money was tendered. However, the subpoena was a subpoena for production of documents. 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.

5. …The court is given a discretion to order an issuing party to pay the amount of any reasonable losses or expenses incurred by the addressee in complying with the subpoena [UCPR, r 33.11]. Ordinarily, that question is determined after compliance with the subpoena, when the addressee has incurred expenses [ Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253, [15]]. In Re Bauhaus, Austin J observed (at [16]) that whilst UCPR, r 33.11, does not expressly state that the Court has jurisdiction to entertain an application for an order to be made prior to the addressee incurring expenses, the Court may, under its inherent jurisdiction, have such jurisdiction which might be exercised in circumstances where the amount to be incurred will be substantial when compared with the resources of the addressee and/or there is doubt about the ability of the issuing party to meet an order for recovery of such expenses.

UCPR r 33.6(1)

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