When a party is summonsed to produce documents they are
entitled to recover reasonable costs for the production of those
What is the process when parties cannot agree on what is
The Administrative Appeals Tribunal provides an avenue for
parties to have their reasonable costs determined.
The Tribunal issued a summons to Dr L (General Practitioner) at
the request of TNT Australia Pty Ltd (TNT) for the
production of documents, specifically the medical records of the
Documents were produced to the Tribunal and Dr L issued an
invoice to TNT for the amount of $1,066.04. Dr L produced
approximately 750 pages of material in electronic format.
Discussions ensued, but the parties were unable to reach an
agreement as to Dr L's reasonable costs.
A summonsed party is entitled to recover reasonable costs for
the production of the thing they are summonsed to produce, pursuant
to regulation 13(6) of the Administrative Appeals Tribunal
Regulations 2015 (Cth) (the Regulations).
Because TNT and Dr L could not come to an agreement as to
reasonable costs, TNT recommended to Dr L that he contact the
Tribunal to request that an assessment of reasonable costs be
undertaken pursuant to regulation 13(7) of the Regulations, which
"If a person was summoned at the request of a party to
the proceeding, the person may apply to the Tribunal for a
determination of the amount of fees or allowances payable under
subsection (3), (4) or (6) in relation to compliance with the
summons, if the person and the payer cannot agree on the
On 17 March 2016, Dr L requested that the Tribunal undertake an
assessment of his invoice pursuant to regulation 13(7). The
Tribunal advised that this was the first use of the costs
assessment provisions relating to summonses in the Regulations.
The Tribunal issued its determination on 18 April 2016, making
reference to its own Practice Direction in respect of the Taxation
of Costs. The Practice Direction provides at clause 3.1 that
reasonable and proper disbursements are payable. There is no
definition of "reasonable" within the Practice
In determining costs, the Tribunal had regard to Schedule 3 of
the Federal Court Rules 2011 (Cth) (the
Rules), which the Practice Direction provides may be used
for determining professional costs.
Rule 24.22 of the Rules provides that the Court may order the
issuing party to pay the amount of any reasonable loss or expense
incurred in complying with the summons, the procedure of which is
contained within Schedule 3 of the Rules. The Tribunal assessed
costs as being payable under the following items in Schedule 3:
Item 6 – Electronic Document Management
Expenses under this item are in relation to the imaging of
documents, including rendering to PDF, and are payable at the rate
of $11 per 6 minute unit. The Tribunal allowed one hour under item
6, being $110 inclusive of GST.
Item 8 – Collation, Pagination and Indexing
Expenses under this item, including the ordering or assembling
of documents, are also payable at the rate of $11 per 6 minute
unit. The Tribunal allowed two hours for collation, being a total
of $220 inclusive of GST, with no allowance made for pagination or
Item 9 – Copying
Expenses under this item are discretionary. Given the documents
were produced electronically, no allowance was made for
In accordance with Regulation 13(7), and having regard to the
Regulations, the Practice Direction and the Rules, the Tribunal
determined that Dr L's reasonable expenses for complying with
the summons to produce were $330.00 inclusive of GST.
Overall, the process was quick and inexpensive, and the result
much more reasonable that the original invoice.
As Item 9 (copying) of Schedule 3 was not applicable in the
circumstances, it will be of interest to see what the Tribunal
considers a reasonable rate per page for copying, where physical
documents are produced.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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