Niass v State of New South Wales [2020] NSWSC 707

Supreme Court New South Wales

Medium Neutral Citation: Niass v State of New South Wales [2020] NSWSC 707 Hearing dates: 4 June 2020 Date of orders: 09 June 2020 Decision date: 09 June 2020 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Paragraphs 3, 7 and 9 of the subpoena (as modified by agreement between the parties) issued by the plaintiff upon Family and Community Services on 20 September 2019 are set aside.

(2) The plaintiff is to pay the defendant's costs of and associated with the notice of motion.

(3) The proceedings are to be included in the Sexual Assault Case Management list conducted by Garling J.

(4) The proceedings are listed for directions before Garling J in that list on Friday 26 June 2020. Catchwords: CIVIL PROCEDURE — subpoenas — application to set aside — abuse of process — scope of subpoena impermissibly wide — broader than forensic purpose articulated in submissions — question of whether legitimate forensic purpose exists — no legitimate forensic purpose for documents sought in paragraphs 3 and 9 — whether production of documents is oppressive to a party — evidence adduced as to time, costs and resources involved in production — time and costs associated with production not determinative of oppression — drafting of subpoena — party seeks adjournment to redraft paragraph 7 — wording of subpoena confusing —paragraphs 3, 7 and 9 set aside

COSTS — party/party — general rule that costs follow the event — defendant entirely successful in the notice of motion Legislation Cited: Child Welfare Act 1939 (NSW) Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Ombudsman Act 1974 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Commissioner for Railways v Small (1938) 38 SR NSW 564 National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372 R v Saleam [1999] NSWCCA 86 Rinehart v Rinehart [2018] NSWSC 1102 Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 Texts Cited: New South Wales, Royal Commission into the NSW Police Service, Final Report, Volume V: The Paedophile Inquiry, (1997) at 1038 Category: Procedural and other rulings Parties: Barry Niass State of New South Wales Representation: Counsel: K Balendra (Plaintiff) N Newton (Defendant)