M & S Investments (NSW) Pty Ltd v Carbone [2023] NSWLEC 87

Land and Environment Court New South Wales

Medium Neutral Citation: M & S Investments (NSW) Pty Ltd v Carbone [2023] NSWLEC 87 Hearing dates: 28 April 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Class 5 Before: Pain J Decision: The Court orders: (1) Pursuant to r 33.4 of the Uniform Civil Procedure Rules (NSW) that the Subpoena for Production issued at the request of the Prosecutor, M & S Investments Pty Ltd dated 14 March 2023, to Optus Mobile Pty Ltd is set aside; and (2) Costs are reserved. Catchwords: PROCEDURE – Subpoena to produce documents issued to telecommunications company set aside Legislation Cited: Telecommunications Act 1997 (Cth) Uniform Civil Procedure Rules (NSW), r 33.4 Category: Procedural rulings Parties: M & S Investments (NSW) Pty Ltd (Applicant) Domenic Carbone (Respondent) Representation: Counsel: Tripodi (Applicant) Boncardo (Respondent)

Solicitors: Watson Stafford Zipkis (Applicant) Sparke Helmore (Respondent) File Number(s): 2021/261169-007

EX TEMPORE JUDGMENT

Judgment on Notice of Motion 1. I am going to rule now on a notice of motion filed on 4 April 2023. It is seeking an order pursuant to r 33.4 of the Uniform Civil Procedure Rules (NSW) (UCPR) that the subpoena for production issued at the request of the prosecutor, M & S Investments Pty Ltd, dated 14 March 2023, to Optus Mobile Pty Ltd is set aside and further orders. I note that costs are sought. 2. That notice of motion was supported by an affidavit of Ms Morton, sworn 4 April 2023. And essentially, helpfully, Mr Carbone identifies that presently Pepper J is reserved in a motion filed by Mr Carbone and the other four defendants - of which there are five in total - relating to charges brought by the prosecutor on the basis these are filed out of time and that presently Her Honour is reserved in the judgment in relation to that matter. I do not think it is appropriate for me to in any way second guess what Pepper J may resolve on those issues. 3. A further affidavit was also provided by the prosecutor - that is, Mr Zipkis - dated 24 April 2023 and I note also that was supplemented by a further affidavit of 27 April 2023 attaching an affidavit of Mr Balaba, sworn 26 March 2021. I should note that I have resisted and it was not appropriate, I think, to provide all of the submissions that were otherwise before Pepper J. It is simply inappropriate that I be provided with that kind of material on this motion. It is important that I not second guess Her Honour. 4. The other aspect of this process currently before Pepper J is that there is, depending on the outcome of the time bar strikeout application by all the defendants, whether an abuse of process strike out motion will be heard. I am told that Her Honour will proceed to that, depending on the consequences of the time bar application. In that regard, I note paragraph 19 of Mr Zipkis' affidavit dated 24 April identifies that the motions will be strongly opposed and also suggesting that the prosecutor is going to put on his own motion, alleging that the abuse of process motions of the defendants are also an abuse of process. 5. The point of recording all that history is that there is still a way to go in the preliminary matters which Her Honour is considering, depending on the outcome of which there will be no prosecutions available to proceed. On that basis alone, I think this subpoena is premature and, for that reason alone, I would dismiss it. 6. I also, given the quite lengthy submissions I have heard, want to make some comments about the broad nature of the subpoena. As is clear, it has the capacity to seek a vast number of telephone records from people who could have no role to play whatsoever in this proceeding. Far more should have been provided to the Court in relation to privacy issues in the context of Telecommunications Act 1997 (Cth) records. There was still a complete lack of clarity, by the end of argument, as to precisely what records the subpoena would cover. That is a concern to me. 7. I would set aside the subpoena, on the grounds that it is too broad and given those issues have not been adequately identified. 8. I uphold the motion. I will be making the order that this subpoena dated 14 March 2023 is set aside. 9. That leaves the question of costs (tcpt 28 April 2023 p36(15-42)): BONCARDO: Your Honour, before Mr Tripodi rises, just so I don't lead your Honour into error, these proceedings are governed by s 257C of the Criminal Procedure Act, which regulates when professional costs may be awarded to the accused-- HER HONOUR: Actually, in criminal matters, generally, we don't make any costs orders, now I think about it. BONCARDO: That's so, your Honour, and I should have perhaps addressed this at the outset. I apologise for not doing so. The appropriate order in respect of costs today would simply be that they be reserved in circumstances where the Court only has jurisdiction to grant costs to an accused if the proceedings are dismissed or withdrawn. … HER HONOUR: The appropriate order is that costs are reserved.