Typically, a cheque for a nominal sum of money for compliance costs is included with the subpoena. We have previously written about how a subpoenaed party cannot refuse compliance for receipt of insufficient amount of money; subpoenas are court orders after all. However, this does not mean that a subpoenaed party is left without redress if they incur significant costs in complying with a subpoena.
An often-forgotten reality is that the complying party is entitled to seek their "reasonable loss or expense incurred" in compliance with the subpoena. In the case of Allstar Capital Pty Limited v FIP Holdings Victoria Pty Limited  NSWSC 693, the Supreme Court of NSW considered this issue.
What followed was extensive correspondence between solicitors regarding defects in the subpoena, its scope, and other procedural issues. After compliance with the subpoena, McCabe Curwood sought their costs of compliance with the subpoena. After an extensive period of time of non-responsiveness from FIP Holdings, a motion was filed to seek the recovery of costs.
It is well established that a subpoena recipient can also recover their costs associated for filing a motion to recover their costs of compliance with the subpoena. Rather than seek to go through the time and expense of a costs assessment, the applicants sought a fixed sum costs order for the costs of compliance with the subpoena and for prosecuting the motion.
In unusual circumstances, the respondent sought to appear through a "friend" of the director. Davies J ultimately granted leave for this friend to appear, but noted in his judgment his reluctance to do so. However, his Honour was convinced to exercise his discretion to ensure that the matter was not further delayed.
His Honour outlined the authorities on the recovery of costs for a subpoena, and considered the relevant facts of the present case. His Honours findings can be summarised as follows:
Litigants should also remember that they have an obligation to pay the third party's costs of compliance, which includes an obligation to attempt to reach agreement as to those costs. As in this case, where agreement on reasonable costs of compliance with a subpoena cannot be reached, the complying party may seek to recover those costs through the courts.
If you are served with a subpoena, it may be necessary for you to seek legal advice, both as to your obligations and your ability to recover costs. McCabe Curwood is experienced in advising its clients on their rights and obligations in relation to document production.