Land and Environment Court New South Wales Medium Neutral Citation: Sader v Elgammal [2023] NSWLEC 1064 Hearing dates: 08 February 2023 Date of orders: 09 February 2023 Decision date: 09 February 2023 Jurisdiction: Class 4 Before: Froh R Decision: The orders of the Court are: (1) Mr Elgammal is awarded costs of his motion filed on 21 November 2022 as agreed or assessed and payable within 28 days of these orders. Catchwords: Notice of Motion – subpoenas Legislation Cited: Civil Procedure Act 2005 s 98 Uniform Civil Procedure Rules 2005 Pt 33, r 21.7 Cases Cited: Darcy Peter Smith and D.P. Smith (Homes) Pty Ltd v Wyong Shire Council [2007] NSWLEC 395 Category: Procedural rulings Parties: Mark Sader (First Applicant) Sandra Sader (Second Applicant) Yasser Elgammal (First Respondent) Abdul Hammoud (Second Respondent) The State of New South Wales (Third Respondent) Representation: Counsel: J Farrell (Applicants) L Nurpuri (First Respondent) Solicitors: Davidson (Applicants) One Group Legal (First Respondent) File Number(s): 2022/36734 Publication restriction: No JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. The motion listed before me yesterday morning concerned an application by the First Respondent in the substantive proceedings to set aside two subpoenas issued by the Applicants. The first issued to Georges River Council and the second was issued to the State of NSW. Both subpoenas were filed in the Court on 11 November 2022. 2. The motion seeking to set those subpoenas aside was filed on 21 November 2022. 3. The motion was listed for hearing before me and was heard on 8 February 2023. 4. By letters to Georges River Council and the State of NSW, the Applicants withdrew both subpoenas on 2 February 2023. Six days before the hearing of the motion and a little under 3 months from when the subpoenas were filed. 5. Counsel for the First Respondent sought to move on the motion, but that motion was restricted to seeking an order for costs now that the subpoenas were withdrawn. 6. The First Respondent relied on the decision of Talbot J in Darcy Peter Smith and D.P. Smith (Homes) Pty Ltd v Wyong Shire Council [2007] NSWLEC 395 in which his Honour ordered one party to pay the other party's costs of the motion in relation to a subpoena being withdrawn. 7. Guided by his Honour's decision and my delegated powers to exercise the functions of this Court concerning costs under s 98 of the Civil Procedure Act 2005 and Pt 33 of the Uniform Civil Procedure Rules 2005 (UCPR), I consider there to be power to award costs applied for by the First Respondent. 8. The First Respondents claim for costs is made on the basis that the withdrawal of the subpoenas amounts to a capitulation and that there has been an abuse of process in that the subpoenas served had no legitimate forensic purpose. 9. In support of this the First Respondent relied on the Applicant's written submissions filed on 27 January 2023 which state that the reason the subpoenas were issued was to identify whether the First Respondent has breached orders made by the Court. 10. It was submitted to me by the Applicants that this information would go to the Courts discretion in the costs hearing which is set down in April 2023. 11. It is important to also note at this point that in December 2022, the Applicant commenced another set of proceedings. In those new proceeding, subpoenas were issued on similar terms seeking the documents sought under the subpoenas issued in these proceedings. 12. It was submitted to the Court that the documents sought under subpoena in these proceedings have now been obtained in the new proceedings. 13. It was put to me by the Applicants that, it is for this reason, the subpoenas have been withdrawn. 14. I reject that submission. Rule 21.7 of the UCPR and the Applicants own written submissions states: "…documents obtained in one set of proceeding cannot (without leave of the Court) be used in another set of proceedings" 1. My view is that the withdrawal of the subpoena is correctly characterised as a capitulation by the Applicants. The First Respondent has expended resources filing and moving its motion to set aside the two subpoenas and I consider it appropriate for him to be awarded his costs of the motion. 2. The orders of the Court are: 1. Mr Elgammal is awarded costs of his motion filed on 21 November 2022 as agreed or assessed and payable within 28 days of these orders. S Froh Registrar of the Court ********** Amendments 13 February 2023 - Counsel changed from S Thompson to J Farrell 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: 13 February 2023