Case: Bank of New South Wales v Withers (1981) 35 ALR 21
Outcome: cited
To answer these questions it is necessary to begin with an examination of the Court's jurisdiction to award costs in favour of a witness ordered to attend to give evidence before, or produce document to, a court. There is a detailed examination of this topic by Sheppard J in Bank of New South Wales v Withers (1981) 35 ALR 21. According to that analysis, at common law, a person required to attend by subpoena was entitled to his costs and charges of attendance and, if a professional witness, some indemnity for his loss of time. The first statute allowing such expenses was 5 Eliz 1562, c 9 which, by s 12 , provided that a person served with a subpoena should have paid to him "such reasonable sums of money for his or their costs and charges, as having regard to the distance of the places necessary to be allowed in that behalf". Thereafter all superior courts adopted scales that set out the "reasonable costs and expenses" to which a witness was entitled. The scale was set by the judges. Sheppard J's analysis led him to conclude that the witness was only entitled to receive the amount provided for in the scale of fees for witnesses. He said (35 ALR at 38) that "unless the payment is provided for in the rules there can be no recovery". 5 Following the decision in Bank of New South Wales v Withers , O 27 r 4A was introduced. This provides that when a person named in the subpoena is not a party to the proceeding and incurs expense in compliance with a subpoena, the court may order the party who issued the subpoena to pay an amount to compensate the person "for such expense or loss as is reasonably incurred or lost by that person in complying with the subpoena". Similar rules were introduced in all states and territories, other than Queensland, Tasmania and the Australian Capital Territory, to deal with what would otherwise have been an unsatisfactory state of affairs. 6 The views of Sheppard J have not withstood the test of time. The most powerful attack came in Danieletto v Khera (1995) 35 NSWLR 684. In that case Bryson J rejected the idea that the entitlement of witnesses to be reimbursed for their costs and expenses could be established by reference to conflicting decisions from long ago affected by a Tudor statute long since repealed. He said (35 NSWLR at 688) that the matter should be approached as one of principle and, according to principle it "is a necessary incident of the exercise by the court of its subpoena power that the court should deal with the question of paying persons whose time and attention are involved in the exercise". That is, the court has an inherent jurisdiction to award in favour of a witness such costs as it thinks appropriate to compensate the witness for his time and expenses incurred in compliance with a subpoena. Thus it has been said, correctly in my opinion, that the rules that fix costs for witnesses "represent[s] but an aspect of the more comprehensive jurisdiction in respect of persons subjected to compulsion by the processes of the Court in proceedings to which they are not parties": Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681, 690 per Barrett J.