Supreme Court New South Wales Medium Neutral Citation: POS-NP Pty Ltd v Resource Pacific Pty Ltd [2021] NSWSC 406 Hearing dates: On the papers Date of orders: 21 April 2021 Decision date: 21 April 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Notice to produce set aside Catchwords: PRACTICE AND PROCEDURE – notice to produce – whether seeks production of documents referred to in affidavits – whether seeks production of a specific document – whether seeks discovery – whether tends to subvert operation of Practice Note SC Eq 11 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: New Cap Reinsurance Corporation Ltd v Daya [2008] NSWSC 64 Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598 Re Force Corp Pty Ltd (Recs and Mgrs Apptd) (In Liq) [2018] NSWSC 896 Re Octaviar Ltd (recs and mgrs apptd) (in liq) [2012] NSWSC 1027 Rinehart v Rinehart [2015] NSWSC 205 The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 Category: Procedural rulings Parties: POS-NP Pty Ltd (Plaintiff/Respondent) Resource Pacific Pty Ltd (Defendant/Applicant) Representation: Counsel: S Scott (Plaintiff/Respondent) Solicitors: MinterEllison (Plaintiff/Respondent) Henry William Lawyers (Defendant/Applicant) File Number(s): 2019/380613 Judgment 1. On 23 February 2021, the plaintiff served on the defendant a Notice to Produce, purportedly under Uniform Civil Procedure Rules 2005 ("UCPR") r 21.10. 2. By notice of motion filed on 24 March 2021, the defendant seeks an order setting aside that notice to produce. 3. UCPR r 21.10 provides for a notice seeking production of: 1. any document "referred to" in, relevantly, an affidavit served by the other party; and 2. any other "specific document" clearly identified in the notice that is relevant. 1. The Notice to Produce seeks 21 categories of documents, all of which are described at a high level of generality. 2. Fifteen of the 21 paragraphs seek documents "as referred to" in affidavits served on behalf of the defendant. 3. In order that a document be "referred to" in, relevantly, an affidavit for the purpose of UCPR r 21.10, the affidavit must make a direct allusion to a document. [1] 4. In my opinion, none of the paragraphs of the identified witnesses makes a direct allusion to the documents, the production of which is sought. 5. For example, paragraph 2 of the Notice to Produce requires production of: "Any Applications to ship coal or "Shipment Contracts" in respect of RSP as referred to in paragraph 17.1 of the affidavit of Benjamin Grant Farrar affirmed 30 July 2020." 1. In paragraph 17.1 of his affidavit, Mr Farrar said: "The [Ship or Pay] Agreement operates in the following manner: 17.1 Each Authorised User is authorised to submit an Application to ship coal under the agreement from its source mines to the [Port Waratah Coal Services Limited] Terminals, which upon acceptance by [Port Waratah Coal Services Limited] becomes a Shipment Contract;" 1. In this paragraph, Mr Farrar does not refer to any "Applications" or "Shipment Contracts". He merely describes a contractual process. 2. Another example is paragraph 10 of the Notice to Produce, which seeks the following documents: "All documents which refer to or concern the decision to request additional capacity of 2.8 million tonnes per annum for the Ravensworth Load Point as referred to in paragraph 24 of the affidavit of Benjamin Grant Farrar affirmed 30 July 2020;" 1. In paragraph 24 of his affidavit, Mr Farrar said, relevantly, that Glencore Coal (NSW) Pty Ltd: "…also requested additional capacity of 2.8 million tonnes [of coal] per annum for the Ravensworth Load Point …" 1. Mr Farrar did not "refer to" any documents in this paragraph. 2. The remaining six paragraphs of the Notice to Produce do not refer at all to any affidavit (or other document) served by the defendant, nor to any "specific documents". 3. For example, paragraph 9 seeks production of: "All documents (including invoices) which set out or otherwise explain the amounts charged to RSP by Glencore in respect of the Ravensworth Load Point." 1. In effect, by serving the Notice to Produce, the plaintiff is seeking discovery from the defendant, but without complying with the requirements of Practice Note SC Eq 11, which provides: "4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure. 5. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings. 6. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out; the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings; the classes of documents in respect of which disclosure is sought; and the likely cost of such disclosure." 1. In The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd, [2] I said: [3] "Practitioners should assume that the Court will not permit the clear object of the Practice Note to be thwarted by the service of Notices to Produce rather than the making of an application for disclosure in accordance with the Practice Note. The Court will be ready to "otherwise order", or impose cost sanctions, or make such other orders as are appropriate to discourage any such practice from arising." 1. Other judges of this Division have expressed the same view. [4] 2. The plaintiff's submissions refer to Baseline but not the passage I have set out above. This appears to me to be a clear case where the Court should order "otherwise" under UCPR r 21.11. 3. I order that the Notice to Produce served on the Defendant by the Plaintiff on 23 February 2021 be set aside and that the Plaintiff pay the Defendant's costs of the Defendant's Notice of Motion of 24 March 2021. 4. I order that the matter be listed for further directions on 30 April 2021. ********** Endnotes 1. Eg New Cap Reinsurance Corporation Ltd v Doya [2008] NSWSC 64. 2. [2012] NSWSC 502. 3. At [27]-[28]. 4. For example, Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598 at [347] (Hallen J); Re Octaviar Ltd (recs and mgrs apptd) (in liq) [2012] NSWSC 1027 at [18]-[19] (Black J); Rinehart v Rinehart [2015] NSWSC 205 at [32] (Darke J); Re Force Corp Pty Ltd (Recs & Mgrs Apptd) (In Liq) [2018] NSWSC 896 at [49] (Gleeson JA). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2021