Supreme Court New South Wales Medium Neutral Citation: Metro Environmental Logistics Pty Ltd v Newcastle Port Corporation [2023] NSWSC 1097 Hearing dates: 8 September 2023 Date of orders: 8 September 2023 Decision date: 08 September 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Application to set aside subpoena dismissed; save for two subcategories Catchwords: CIVIL PROCEDURE – subpoenas – application to set aside Category: Procedural rulings Parties: Metro Environmental Logistics Pty Ltd (Plaintiff/Respondent) Newcastle Port Corporation (Defendant) Holcim (Australia) Holdings Pty Ltd (Interested Party/Applicant) Representation: Counsel: A Lyons (Interested Party/Applicant) D Tynan (Plaintiff/Respondent) Solicitors: Marque Lawyers (Interested Party/Applicant) McCullough Robertson Lawyers (Plaintiff/Respondent) File Number(s): 2022/101288 EX TEMPORE JUDGMENT (REVISED) 1. By Notice of Motion dated 25 May 2023, Holcim (Australia) Holdings Pty Ltd seek to set aside a subpoena served on it by the plaintiff. 2. Very sensibly, the legal advisers of the parties have had discussions which have reduced the ambit of the dispute between the parties. Holcim no longer seeks to set aside the subpoena but seeks to raise three disputes. 3. The first is in relation to categories 2, 3, 4, 7, 8 and 10 and 10 (a), which call for documents held by Holcim by reference to the definition of "fine sand" in the subpoena. That definition is drawn very precisely by reference to particle size, colour compliance with a nominated standard and other matters. Holcim's position is that it has nothing to produce in relation to those categories by reason of the fact that it does not sell, "fine sand", so defined. 4. The plaintiff, on this application, seeks to contest the factual question of whether Holcim does or does not in fact sell such "fine sand." 5. It is not appropriate that the Court embark on an enquiry into that matter, in the course of an application to set aside a subpoena. 6. What I will do is to note that Holcim's response to those nominated categories is that it has nothing to produce. 7. The second dispute relates to the regime that is sought to be put in place to preserve the confidentiality of the documents that Holcim is to produce. There is no dispute from the plaintiff that a confidentiality regime ought to be established. The parties have spent time negotiating the form of appropriate undertakings to be given to the Court and inter-parties. 8. The parties agree that the documents should only be available to the legal advisers of the plaintiff and to the expert retained by the plaintiff, Mr Dugald Gray. What divides the parties is to what extent a director of the plaintiff, Mr Arthur Psaltis, should have access to the documents. 9. Holcim proposes that documents in four identified categories be made available only to the party's legal advisers and Mr Gray, and that Mr Psaltis not have access to those documents. 10. Mr Tynan, for the plaintiff, has explained that Mr Psaltis is vitally involved in the conduct of these proceedings for the plaintiff and is a witness who will be called by the plaintiff in relation to its claim. 11. Holcim does not suggest that Mr Psaltis would act otherwise than properly, but apprehends that it may be impossible for Mr Psaltis properly to confine, in his mind, the use to which he might make of the material that will be disclosed in response to the subpoena. There is always the fine line to be drawn between the need to have all documents produced in proceedings which are relevant to the issues and the need for the party's expert to have its expert properly informed about documents so produced. 12. However, I think in this case the appropriate course for the moment is to require that the documents be produced on the basis of the undertaking proposed by Holcim but to grant liberty to the plaintiff to apply for some kind of access to be given to Mr Psaltis to the documents if: 1. Mr Gray identifies particular instructions that he would need from Mr Psaltis in order to deal with the documents and; 2. Mr Gray identifies precisely what questions he would direct to Mr Psaltis about those matters. 1. My conclusion, therefore is, that the confidentiality undertaking that the plaintiff must give, before having access to the documents produced, is as Holcim proposes on pages 9 to 17 of the short minutes, but with the plaintiff having that liberty to apply. 2. The final dispute relates to the paragraph in the subpoena which calls for the documents: c. any email in the period July 2017 and the present (inclusive) between a Holcim Representative and a representative of the company that owns or operates a sand quarry in relation to the (i) supply or potential supply of Fine Sand into the [Greater Sydney Area]; or (ii) [an identified Expression of Interest or "EOI"]; and d. any meeting note dated or created in the period July 2017 and the present (inclusive) of a meeting between a Holcim Representative and a representative of the company that owns or operates a sand quarry in relation to the: (i) supply or potential supply of Fine Sand into the [Greater Sydney Area]"; or (ii) EOI. 1. Holcim objects to the breadth of those paragraphs, insofar as they seek the nominated documents, "in relation to the supply, or potential supply, of fine sand into the 'Greater Sydney' region," as defined in the subpoena. It may well be that the documents called for on those pages of the subpoena are relevant, but the ambit of the subpoena in this respect is very broad and, in my view, oppressive. 2. I only require Holcim to comply with the categories in 12(c) and (d) insofar as they refer to the "EOI," which is also defined in the subpoena. 3. The Notice of Motion of Holcim (Australia) Pty Ltd of 25 May 2023 is otherwise dismissed. 4. I order that the plaintiff pay Holcim's costs of today but otherwise there will be no other order to the costs of the motion. ********** 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: 08 September 2023