The widely used term ‘conduct money’ is regularly misapplied in situations where a party complying with a Subpoena to Produce to the Court (Subpoena to Produce) requests payment of a reasonable fee for their efforts. Conduct money, however, has been recognised as only applying where parties have received a Subpoena to Attend to Give Evidence (Subpoena to Appear), pursuant to Uniform Civil Procedure Rules (UCPR) 33.2(1)(a). This paper seeks to clarify the distinction, and better shed light on what producing parties (recipients) are entitled to according to the UCPR and case law.
Conduct Money for Appearance
A party served with a Subpoena to Appear need not comply with the Subpoena unless they have been monetarily compensated in an amount “sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending.”1 This entitlement recognises the impact of protracted court proceedings, and the not insignificant expenses that can be incurred in appearing, including travel costs, overnight accommodation, and other ‘reasonably anticipated’ expenses.2
However, what is apparent from the wording of the UCPR is that the term ‘conduct money’ can only be seen to apply in situations involving a Subpoena to Appear – not a Subpoena to Produce.3 The term is routinely misused, however, leading recipients to claim compensation to which they may not necessarily be entitled.
Compensation for Production Expenses
By contrast, no mention is made in UCPR 33.6 of the entitlement of parties to compensation for compliance with a Subpoena to Produce. Despite this, it is now common practice for producing parties to seek compensation for their ‘loss and expense’ incurred in complying with a Subpoena, even before any documents have in been produced.
Courts have consistently affirmed that compliance with Subpoenas to Produce cannot be avoided by recipients on the basis that insufficient compensation has been paid.4 Pursuit to UCPR 33.11(1), a court “may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena,” this is purely a discretionary power that is only enlivened upon application and after compliance with the Subpoena. Courts will be inclined to order such payment prior to compliance only where:
(a) production will be particularly burdensome, taking into account the resources of the producing party; and/or
(b) there is doubt as to the ability of the issuing party to “meet an order for recovery of expenses of such a substantial amount”.5
Conclusion
There is no automatic entitlement of recipients of Subpoenas to Produce to compensation for their compliance under the UCPR. There is therefore a strong argument that such payments should not be awarded as of right to recipients, but considered on an individual basis. The basis for claiming such costs is also becoming less justifiable in light of the recent introduction of electronic submission of documents under Subpoenas in civil matters in NSW.6 This innovation is reducing the time and administrative cost borne by producing parties, and these savings ought to be passed along to issuing parties.
1 Uniform Civil Procedure Rules 2005 (NSW) reg 33.1.
2 Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 881 (23 September 2003) [10] (Campbell J).
3 Hall v Donlon [2011] NSWSC 1088 (31 August 2011) [4] (Brereton J); Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253 (5 April 2006) [12] (Austin J); See also UCPR reg 33.11(3)(b).
4 Re Bauhaus [18]; Mathews v Uniting Church in Australia Property Trust (NSW) [2011] NSWLEC 198 (15 November 2011) [23] (Craig J).
5 Re Bauhaus [16].
