Joseph v Spencer (No 2) [2021] NSWLEC 130

Land and Environment Court New South Wales

Medium Neutral Citation: Joseph v Spencer (No 2) [2021] NSWLEC 130 Hearing dates: 29 October and 11 November 2021 Date of orders: 11 November 2021 Decision date: 11 November 2021 Jurisdiction: Class 2 Before: Moore J Decision: See orders at [8] Catchwords: SUBPOENA - subpoena to produce documents - inadequate compliance - further orders for compliance - whether orders for costs of attendance to explain non-compliance and for further cost of compliance appropriate - costs orders not appropriate Cases Cited: Joseph v Spencer [2021] NSWLEC 99 Category: Procedural rulings Parties: Michael Joseph (Applicant) Ricardo Spencer (First Respondent) Jennifer Spencer (Second Respondent) Representation: Counsel: Mr M Joseph (in person - Applicant) Ms J Spencer (Second Respondent in person and agent for the First Respondent) File Number(s): 174119 of 2021 Publication restriction: No

EXTEMPORE Judgment 1. HIS HONOUR: The Applicant in these proceedings, Mr Joseph, filed a Subpoena to Produce with the Court on 22 July 2021 addressed to the Proper Officer of Rabebi Pty Ltd trading as PRD Architects. The issuing of that subpoena and its validity was affirmed by me as a consequence of proceedings which subsequently took place (Joseph v Spencer [2021] NSWLEC 99, at Annexure B(1)]. 2. The subpoena required the production of documents in response to items that were listed in the schedule to the subpoena on pages 3 and 4 of that document. Material was provided to the Court, a list of which was appended to Mr Joseph's affidavit of 6 October 2021, at folio 31, listing the subpoena response packet downloads. Mr Joseph was not satisfied with that response and believed it to be inadequate and to be incomplete. He subsequently applied to me for leave to issue a subpoena to Mr Peter Rasa, the principal of the firm. 3. On 29 October 2021, Mr Joseph sought leave from me, which I granted, to issue a subpoena to Mr Rasa to attend and give evidence. Mr Joseph did so in response to an affidavit which had been deposed by Mr Rasa in response to directions made by Duggan J as to production. That affidavit was affirmed on 25 October 2021 and has been read in these proceedings by me this morning. 4. I have had Mr Rasa give evidence and be cross‑examined by Mr Joseph concerning the extent to which the recipient of the subpoena, being the Proper Officer of Rabebi Pty Ltd trading as PRD Architects, has responded to the terms of the subpoena. 5. I am satisfied, on the basis of the evidence given by Mr Rasa this morning, that there has been non‑compliance with the terms of the subpoena and that that non‑compliance was occasioned by Mr Rasa forming opinions, based on his professional experience as an architect, as to what documents he was or was not required to produce to the Court pursuant to that subpoena and as to what documents he considered were or were not relevant to matters in dispute in these tree dispute proceedings that are currently before the Court. 6. Those exercises of discretion on behalf of Mr Rasa are not properly his to undertake. The question of whether matters are relevant or not is, as I observed during the course of the hearing, a matter for the trier of fact in these proceedings when they eventually go to hearing in February next year. 7. Mr Rasa indicated that he seeks his costs of participation this morning. Mr Joseph has indicated, Mr Rasa informed me, that if I concluded that it was appropriate to order that Mr Rasa's professional costs of attendance this morning should be paid by Mr Joseph, Mr Joseph would accept the nominated sum that would arise from that. 8. I am satisfied that this morning I should make the following orders: 1. That the Proper Officer of Rabebi Pty Ltd trading as PRD Architects is to comply with the terms of the subpoena filed on 22 July 2021 and served on the firm; 2. That all further documents to be provided in response to the terms of the subpoena are to be provided to the Registrar of the Court no later than a fortnight from the date of the service of these orders on Mr Rasa; 3. The matter is to be listed before the Registrar for that purpose on Monday 29 November 2021 for the purposes of further return of the subpoena; 1. With respect to Mr Rasa's cost of attendance this morning, I am satisfied that the necessity of him attending and giving evidence arose from his purported exercise of discretion not to comply with the terms of subpoena. It is therefore not appropriate to order Mr Joseph to pay for Mr Rasa's cost of attendance this morning. There will therefore be no order for costs of Mr Rasa's attendance this morning; and 2. Equally, I am satisfied that the failure to comply with the subpoena as originally served on PRD Architects and the failure of that company to satisfy the subpoena, in the terms in which it was served, does not warrant the making of any further costs of compliance order in favour of PRD Architects for compliance with the provision of additional documents.