Supreme Court New South Wales Medium Neutral Citation: Metro Environmental Logistics Pty Ltd v Newcastle Port Corporation (No 3) [2024] NSWSC 21 Hearing dates: On the papers; submissions received 22 and 28 December 2023 Date of orders: 30 January 2024 Decision date: 30 January 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Motion for contempt dismissed with no order as to costs Catchwords: COSTS – motion for contempt following service of subpoena – subpoena complied with following service of motion for contempt – whether recipient of subpoena showed wilful disobedience of subpoena such as to warrant costs order Cases Cited: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 Category: Costs Parties: Metro Environmental Logistics Pty Ltd (Plaintiff/Applicant) Newcastle Port Corporation (Defendant) Holcim (Australia) Holdings Pty Ltd (First Respondent) Fred Adams (Second Respondent) Jessica Blomfield (Third Respondent) Representation: Counsel: A Lyons (First Respondent) Solicitors: McCullough Robertson Lawyers (Plaintiff/Applicant) Marque Lawyers Pty Ltd (First Respondent) File Number(s): 2022/101288 JUDGMENT 1. The plaintiff, Metro Environmental Logistics Pty Ltd, brings these proceedings against Newcastle Port Corporation arising out of an Agreement for Lease made in December 2018 concerning the use of a facility at Glebe Island port in Sydney for the storage, processing and dispatch of bulk sand by sea. 2. The Port Corporation terminated that Agreement for Lease in March 2019. Metro alleges that the Port Corporation engaged in unconscionable conduct that has caused it loss and damage. 3. The matter has reached a stage where directions have been made for Metro to serve its expert evidence. 4. To assist it to give instructions to its expert, Metro served two subpoenas on a third party, Holcim (Australia) Holdings Pty Ltd. The headquarters of the "Holcim Group" are in Switzerland. 5. In January 2023, Metro served Holcim with the first subpoena seeking documents in relation to Holcim's sand operations. The parties engaged in negotiations in relation to that subpoena. As a result of those negotiations, at a hearing before me on 8 September 2023, the ambit of this subpoena was narrowed and a confidentiality regime imposed. 6. On 29 September 2023, Metro served on Holcim a second subpoena. 7. On 8 November 2023, Metro filed a Notice of Motion seeking the following declarations: 1. that Holcim is guilty of contempt of court in that having been served with a subpoena to produce dated 29 September 2023, Holcim failed to comply with the terms of the subpoena; 2. that: 1. Fred Adams, the General Manager of Aggregates for NSW at Holcim, is guilty of contempt of court in that Holcim having been served with the subpoena, he failed to cause Holcim to comply with the terms of the subpoena; and 2. alternatively, Jessica Blomfield, the General Counsel at Holcim, is guilty of contempt of court in that Holcim having been served with the subpoena, she failed to cause Holcim to comply with the terms of the subpoena. 1. It is common ground that since then, Holcim has complied with the second subpoena and that Metro's Notice of Motion of 8 November 2023 should be dismissed. 2. What remains in dispute is the question of the costs of the motion. 3. The parties have exchanged written submissions and agree that I may deal with this question on the papers. 4. Metro seeks an order that Holcim pay the costs of the motion on an indemnity basis. It does not seek any orders against Mr Adams and Ms Blomfield. [1] Indeed, it is hard to see upon what basis Metro sought to have those individuals dealt with for contempt. The second subpoena was not directed to them. They are not directors of Holcim, although Ms Blomfield is the company secretary. Further, as to Mr Adams, he is not involved in giving instructions in relation to the second subpoena nor kept up to date on communications with Metro concerning the subpoena. 5. There was delay by Holcim in complying with the second subpoena. Holcim complied with the second subpoena only after Metro's contempt motion was foreshadowed and then served. 6. But an explanation has been given for this. That explanation is not disputed. 7. Holcim, by its solicitor, considered the second subpoena oppressive and sought to negotiate a more confined scope of the documents to be produced. 8. The solicitor for Holcim, Mr Nathan Mattock, has deposed: "The Second Subpoena replicated many of the categories from the First Subpoena, except broadened those categories so they now applied to 'Sand' rather than only 'Fine Sand'. I understand this was to overcome the fact that Holcim had nothing to produce in response to certain categories of the First Subpoena on the basis that Holcim did not produce Fine Sand as defined." 1. During those negotiations, the return of the second subpoena was listed and stood over on five occasions. Representatives of Holcim did not attend those listings as on four occasions Holcim's solicitor understood that Metro would stand the subpoena over by consent and on one occasion were not aware of the listing of the subpoena. Metro, through its solicitor, did not indicate it considered Holcim to be in breach of the orders of the Court until 30 October 2023 when it foreshadowed the bringing of a contempt motion. 2. However, there was then a telephone conversation between the solicitors for Metro and Holcim. Mr Mattock has given this evidence in relation to that conversation: "I am informed by Ms Clapoudis [a solicitor in Mr Mattock's employ], and verily believe the following. (a) On around 2 or 3 November 2023, Ms Clapoudis received a telephone call from Mr Wilton of McCullough Robertson, in respect of the Second Subpoena. (b) During that telephone call, Ms Clapoudis informed Mr Wilton that Holcim intended to comply with the Second Subpoena, similar to the First Subpoena, and that there were difficulties obtaining instructions from Holcim on a proposed regime in respect of the Second Subpoena (to confine the documents captured by it). Ms Clapoudis confirmed that Holcim had no intention of setting aside the Second Subpoena and asked Mr Wilton whether his client would accept a proposed regime, similar to the regime agreed between the parties in respect of the First Subpoena. (c) Mr Wilton informed Ms Clapoudis that, in short, yes, Metro Environmental would agree to a regime, subject to the proposal and that Metro Environmental did not require all of the documents captured by the Second Subpoena. Mr Wilton also informed Ms Clapoudis that the documents captured by categories 1 to 6 of the Second Subpoena were required for Metro Environmental's expert evidence and that categories 7 to 9 of the Second Subpoena were 'less important'." (Emphasis in original.) 1. Mr Mattock gave this evidence in response to service by Metro of the Notice of Motion of 8 November 2023: "In light of the parties' agreement to standing over the First Subpoena on multiple occasions, sometimes without express agreement, and in light of the communications concerning the Second Subpoena set out above, until 30 October 2023, I had no idea that Metro Environmental did not regard the previous standovers of the Second Subpoena as being by consent and, rather, regarded Holcim as being in breach of court orders. Further, I understood from Ms Clapoudis' report of her telephone conversation with Mr Wilton and from Ms Clapoudis' email of 6 November, that Metro Environmental was aware of Holcim's difficulties in complying with the Second Subpoena, and in obtaining instructions, and was content to work with Holcim to agree a workable proposal in relation to the Second Subpoena. That is, I understood that, although Metro Environmental had threatened to file a contempt application on 30 October, negotiations between the parties had moved on since that point." 1. Thereafter, the parties stood Metro's Notice of Motion of 8 November 2023 over by consent while Holcim worked to comply with both subpoenas. Holcim completed its compliance with the first subpoena between October and December 2023 and with the second subpoena on 27 November 2023. 2. In those circumstances, my conclusion is that Metro has not shown that Holcim engaged in conduct that would have warranted a finding of civil contempt. There was no "wilful disobedience" [2] of the command of the Court represented by the subpoena such as would be necessary to support such a finding; particularly in view of the agreement between Ms Clapoudis and Mr Wilton on 2 or 3 November 2023, to which I have referred. It was not necessary for Metro to file the Notice of Motion of 8 November 2023. 3. In those circumstances I see no basis to order that Holcim pay the costs of the Notice of Motion, let alone on an indemnity basis. 4. As I have said, Metro does not seek a costs order against the individuals named in its Notice of Motion. 5. I order that the plaintiff's Notice of Motion of 8 November 2023 be dismissed with no order as to costs. ********** Endnotes 1. Metro's submissions, 28 December 2023 at par 28. 2. See, for example, Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [25] (Gibbs CJ, Mason, Wilson and Deane JJ). 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