Land and Environment Court New South Wales Medium Neutral Citation: Contara Pty Ltd v Sydney Metro; Alogdellis v Sydney Metro [2024] NSWLEC 38 Hearing dates: 19 March 2024 Date of orders: 18 April 2024 Decision date: 18 April 2024 Jurisdiction: Class 3 Before: Pain J Decision: The Court orders: (1) Pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW), each of the subpoenas issued to CFT No 8 Pty Ltd and Telado Pty Ltd filed on 16 June 2023 in proceedings 2023/00080464 and 2023/00080465 be set aside. (2) Costs reserved. Catchwords: CIVIL PROCEDURE – application to set aside subpoenas to produce documents – subpoenas lacking legitimate forensic purpose – oppression CIVIL PROCEDURE – application to set aside subpoenas to produce documents – subpoenas lacking legitimate forensic purpose – oppression Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55 Supreme Court Rules 1970 (NSW), Pt 37 r 9 (repealed) Uniform Civil Procedure Rules 2005 (NSW), rr 33.4, 33.11 Cases Cited: Azzi v Volvo [2006] NSWSC 283 Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 ICAP Pty Ltd v Moebes [2009] NSWSC 306 Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Rinehart v Rinehart [2018] NSWSC 1102 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Secretary, Department of Planning and Environment v Kelendi Farms Pty Ltd [2022] NSWLEC 151 Southern Pacific Hotels Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82 Trade Practices Commissioner v Arnotts Ltd (No 2) (1989) 88 ALR 90; [1989] FCA 340 Category: Procedural rulings Parties: Contara Pty Ltd (Applicant 2023/80464, Respondent on motion) Sydney Metro (Respondent 2023/80464, 2023/80465) Nick Alogdellis (First Applicant 2023/80465) Barbara Alogdellis (Second Applicant 2023/80465) Telado Pty Ltd (Interested party, First Applicant on motion 2023/80464, 2023/80465) CFT No 8 Pty Ltd (Interested party, Second Applicant on motion 2023/80464, 2023/80465) Representation: Counsel: R Hall SC with T Poisal (Applicant 2023/80464, Respondent on motion) No appearance (First Applicant 2023/80465) No appearance (Second Applicant 2023/80465) No appearance (Respondent 2023/80464, 2023/80465) A Stafford with S Hanscomb (Interested party, Applicants on motion 2023/80464, 2023/80465) Solicitors: Speed and Stracey Lawyers Pty Limited (Applicant 2023/80464, Respondent on motion) No appearance (First Applicant 2023/80465) No appearance (Second Applicant 2023/80465) No appearance (Respondent 2023/80464, 2023/80465) Beatty Legal Pty Limited (Interested party, Applicants on motion 2023/80464, 2023/80465) File Number(s): 2023/80464-002, 2023/80465-002 JUDGMENT 1. Sydney Metro has acquired a number of properties on Bligh Street and O'Connell Street Sydney for the Sydney Metro project to enable the construction of a metro station and related development. Contara Pty Ltd, Mr Alogdellis and Ms Alogdellis the Applicants have commenced separate Class 3 proceedings seeking compensation for the compulsory acquisition of their interests in land pursuant to ss 54, 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) being two strata lots on 37 Bligh Street by Sydney Metro. They have issued subpoenas in each proceeding to two adjoining property owners Telado Pty Ltd at 44-48 Hunter Street and CFT No 8 Pty Ltd at 28-34 O'Connell Street (also acquired by Sydney Metro and known collectively as the subpoenaed parties' former properties) seeking various categories of documents. The subpoena recipients (third parties to the litigation) have filed a notice of motion in each proceeding dated 12 July 2023 seeking orders that the subpoenas be struck out and for these motions to be heard together. The applicants on the notices of motion will be referred to as the subpoenaed parties. It is agreed the subpoenaed parties are members of the Coombes Property Group (CPG). The parties agreed that the evidence and submissions in one motion can apply equally in the other motion. 2. The physical relationship of the four properties the subject of the subpoenas is shown on the map below tendered as an Exhibit in the proceeding: 3. The subpoenaed parties object to these subpoenas on the grounds they are oppressive and an abuse of process and should be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). 4. Negotiations about the scope of the subpoenas has been on-going. The Applicants have modified what they seek and attached a revised version Annexure A to their written submissions which they now press. If successful they will seek leave of the Court to have subpoenas in the terms in Annexure A issued. The original subpoenas contained nine categories. The Applicants no longer press categories 2 and 8 and have modified categories 3, 6, 7 and 9 to various degrees. The subpoenaed parties addressed the revised version. 5. The revised version now pressed is extracted below. In addition to specified categories the proposed subpoenas contain a section which identifies 28 terms for which a definition is supplied: Set out below are the issuing parties' amendments to the subpoenas (with additions in underline and deletions in strikethrough): 1. All Documents dated, created or received from 1 January 2017 to 12 May 2021 date which evidence, record or refer to any negotiations or discussions which had or were being or were proposed to be undertaken with any one or more of the owners of 37 Bligh Street (including the owners of the individual strata lots in 37 Bligh Street) in connection with the possible purchase of 37 Bligh Street, the strata lots in 37 Bligh Street, or the airspace rights above 37 Bligh Street by CFT No.8 or a related body corporate (or Helene Coombes or Peter Constantine Coombes or Michael Peter Coombes or a corporate entity in which they are a director or shareholder), including the Acquisition Offers. … 3. All correspondence, reports, papers (including budgets, costs, expense and profit estimates and analyses) and other documents dated, created or received from 1 January 2017 to 12 May 2021 date which were prepared for or submitted to or received from the owners of CFT No.8, the board members of CFT No.8 or members of the Senior Management of CFT No.8 to assist with the consideration of by external investors, developers, actual or possible joint venture partners or builders which refer to: (a) the Acquisition Offers; (b) the feasibility of or likely return on investment of any Proposed Works or any Amalgamated Works; (c) the value estimated to be added to 44-48 Hunter Street or 28-34 O'Connell Street by (or the profits estimated to be generated by) any Proposed Works or any Amalgamated Works; (d) the estimated market value of 44-48 Hunter Street and 28-34 O'Connell Street together with one, either or both of 33 Bligh Street and 37 Bligh Street following any Proposed Works or any Amalgamated Works; (e) any Amalgamated Works in terms of the heights at which offices might be located, the views that such offices might enjoy, the sunlight and setbacks such a development might enjoy, the street frontages and site exposure involved, the development proposal's overall aesthetic appeal or the impact such Proposed Works would have on neighbouring properties; or (f) the advantages and disadvantages of any Amalgamated Works in comparison to any Proposed Works (including in terms of total available floorspace area, floor space ratios or building heights); (g) whether or not the works involved in the construction of a commercial, office, residential or mixed use building at 44-48 Hunter Street or 28-34 O'Connell Street and potentially utilising one, either or both of 33 Bligh Street and 37 Bligh Street (including as part of any Proposed Works or any Amalgamated Works) should be undertaken; (h) the market value of 37 Bligh Street; (i) the market value of the airspace rights above 37 Bligh Street; (j) the acquisition or possible acquisition of 37 Bligh Street (or lots in 37 Bligh Street) or of the airspace rights above 37 Bligh Street; (k) the price which might be justifiably paid for or might be needed to be paid to secure 37 Bligh Street or the airspace rights above 37 Bligh Street; or (l) any negotiations or discussions which had or were being or were proposed to be undertaken with any one or more of the owners of 37 Bligh Street (including the owners of the individual strata lots in 37 Bligh Street) in connection with the possible purchase of 37 Bligh Street, the strata lots in 37 Bligh Street, or the airspace rights above 37 Bligh Street by CFT No.8 or a related body corporate (or Helene Coombes or Peter Constantine Coombes or Michael Peter Coombes or a corporate entity in which they are a director or shareholder). 4. All Costs Summary Reports, Feasibility Studies and Quantity Surveying Reports (both in draft and final form) dated, created or received from 1 January 2017 to 12 May 2021 date which consider, assess or analyse: (a) any Proposed Works; or (b) any Amalgamated Works. 5. All correspondence and other documents dated, created or received from 1 January 2017 to 12 May 2021 date created by, addressed from, created for or addressed to external investors, developers, actual or possible joint venture partners, builders, architects, costs consultants or quantity surveyors in which the feasibility or likely return on investment of any Proposed Works or any Amalgamated Works is considered, assessed or analysed. 6. All Town Planning Reports and Architectural Reports dated, created or received from 1 January 2017 to 12 May 2021 date which consider, assess or analyse: (a) the existing planning controls applicable to 37 Bligh Street or 33 Bligh Street; (b) the floorspace ratios or gross floorspace area that would or might apply to 44-48 Hunter Street or 28-34 O'Connell Street for any Proposed Works; (c) the floorspace ratios or gross floorspace area that would or might apply to 33 Bligh Street, 37 Bligh Street, 44-48 Hunter Street or 28-34 O'Connell Street for any Amalgamated Works; (d) the height to which 44-48 Hunter Street or 28-34 O'Connell Street might feasibly or sensibly be developed pursuant to any Proposed Works; (e) the height to which 44-48 Hunter Street or 28-34 O'Connell Street might feasibly or sensibly be developed pursuant to any Amalgamated Works; (f) any Proposed Works in terms of the heights at which offices might be located, the views that such offices might enjoy, the sunlight and setbacks such a development might enjoy, the street frontages and site exposure involved, the development proposal's overall aesthetic appeal or the impact such Proposed Works would have on neighbouring properties (including in terms of limiting their development potential relative to any Amalgamated Works); (g) any Amalgamated Works in terms of the heights at which offices might be located, the views that such offices might enjoy, the sunlight and setbacks such a development might enjoy, the street frontages and site exposure involved, the development proposal's overall aesthetic appeal or the impact such Amalgamated Works would have on neighbouring properties; or (h) the airspace rights associated with 37 Bligh Street. 7. All correspondence and other documents dated, created or received from 1 January 2017 to 12 May 2021 date created by, addressed from, created for or addressed to an external town planner or architect in which any one or more of the following is considered, assessed or analysed: (a) the existing planning controls applicable to 37 Bligh Street or 33 Bligh Street; (b) the floorspace ratios or gross floorspace area that would or might apply to 44-48 Hunter Street or 28-34 O'Connell Street for any Proposed Works; (c) the floorspace ratios or gross floorspace area that would or might apply to 33 Bligh Street, 37 Bligh Street, 44-48 Hunter Street or 28-34 O'Connell Street for any Amalgamated Works; (d) the height to which 44-48 Hunter Street or 28-34 O'Connell Street might feasibly or sensibly be developed pursuant to any Proposed Works; (e) the height to which 44-48 Hunter Street or 28-34 O'Connell Street might feasibly or sensibly be developed pursuant to any Amalgamated Works; (f) any Proposed Works in terms of the heights at which offices might be located, the views that such offices might enjoy, the sunlight and setbacks such a development might enjoy, the street frontages and site exposure involved, the development proposal's overall aesthetic appeal or the impact such Proposed Works would have on neighbouring properties (including in terms of limiting their development potential relative to any Amalgamated Works); (g) any Amalgamated Works in terms of the heights at which offices might be located, the views that such offices might enjoy, the sunlight and setbacks such a development might enjoy, the street frontages and site exposure involved, the development proposal's overall aesthetic appeal or the impact such Amalgamated Works would have on neighbouring properties; or (h) the airspace rights associated with 37 Bligh Street. … 9. All Architectural Render Images, Floor Plans, FSA Plans, Landscape Plans, Photomontages, Section Plans, and Setback Plans, Site Plans, and Survey Plans (both in draft and final form) that have been dated, created or received from 1 January 2017 to 12 May 2021 date which relate to any: (a) Proposed Works; and/or (b) Amalgamated Works. Definitions … Acquisition Offers mean: (a) The expressions of interest to acquire 37 Bligh Street on 25 March 2020 and sent on the letterhead of Corrs Chambers Westgarth; and/or (b) The expressions of interest to acquire 37 Bligh Street on 14 December 2020 and sent on the letterhead of Cushman & Wakefield; and/or (c) The expression of interest to acquire the airspace rights over 37 Bligh Street in 2019 Amalgamated Works means any and all Redevelopment works proposed for, or at any time from 1 January 2017 2015 to date considered as a possibility for 44-48 Hunter Street or 28-34 O'Connell Street involving the construction of an office, commercial, residential and/or mixed use building (or buildings) – to be undertaken in conjunction with either or both of 33 Bligh Street and 37 Bligh Street. Architectural Render Image means a 3D image of the exterior architecture of a proposed development. Architectural Report means a report prepared by an architect. … Feasibility Study, also referred to as a feasibility analysis or a viability study, means a document that assesses the practicality of constructing a proposed development with the intention to establish whether a proposed development is likely to succeed and is worth proceeding with. They typically assess: (a) whether or not the proposed development is viable; and (b) what site remediations may need to be made in order to complete a proposed development; … Proposed Works means any and all Redevelopment works proposed for, or at any time from 1 January 2017 2015 to date considered as a possibility for 44-48 Hunter Street or 28-34 O'Connell Street involving the construction of an office, commercial, residential and/or mixed use building (or buildings) – other than any Amalgamated Works. … Redevelopment includes demolition, development, redevelopment and refurbishment affecting 20% or more of the existing structures on the applicable site. … Town Planning Reports means a report prepared by a town planner and includes scheme design reports. … Evidence 1. Extensive correspondence between the parties' solicitors which resulted in the amended version was in the affidavit evidence read by the parties and appeared to be relied on to show that the Applicants have acted reasonably in reducing the scope of the subpoenas. As the amended version is opposed in its entirety by the subpoenaed parties the fact of amendment can be noted but does not assist the Court in determining the parties' arguments except in relation to an aspect of oppression, as I discuss below in [69]. 2. Mr Zurek the subpoenaed parties' solicitor prepared an affidavit dated 12 July 2023 (Zurek Affidavit 1) outlining the provision of search terms to an external IT service provider to identify documents likely to be subject to the subpoenas. A keyword search of correspondence received by Mr Michael Coombes in relation to matters referenced in the subpoenas resulted in over 14,000 documents being identified with costs to produce calculated at approximately $55,000 plus legal costs of about $20,000 quoted on the basis of 5,000 documents being reviewed. The estimated time to collate and review the documents was eight weeks. 3. On 18 July 2023 Mr Speed the Applicants' solicitor sent a letter in response to the subpoenaed parties' notices of motion and Zurek Affidavit 1. Mr Speed questioned how the categories were burdensome and offered to limit the production of all categories to documents dated, created or received before the date of the compulsory acquisition of the subpoenaed parties' former properties and to limit production to not catch correspondence to or from external legal representatives of recipients of the subpoenas. On 26 July 2023 Mr Wisken solicitor for the subpoenaed parties sent an email to Mr Speed offering to produce documents with a more limited scope, as follows: For the period 1 January 2017 to 12 May 2021, all external communications and documents received by Mr Michael Coombes concerning the proposed re-development of, specifically, land at 28 O'Connell Street and 48 Hunter Street with land at 37 Bligh Street. 1. Mr Zurek swore an affidavit dated 6 September 2023 (Zurek Affidavit 2) outlining the steps taken by an external IT service provider to identify documents in accordance with the reduced search terms outlined in the 26 July 2023 email. This resulted in approximately 800 documents being identified with costs to produce calculated at approximately $13,125 plus legal costs. The estimated time to collate the 800 documents was approximately five and a half days. 2. Mr Speed prepared a lengthy affidavit dated 28 September 2023 referring to pars 14-19 of the points of claim (POC) filed by Contara Pty Ltd in which Mr Speed identified that the key issue in determining market value is the highest and best use of 37 Bligh Street. The highest and best use is as a redevelopment site having regard to its location within a 'tower cluster' site with the subpoenaed parties' former properties and 20-26 O'Connell Street (also known as 33 Bligh Street). His affidavit at par 48 purported to outline the case his client intends to make at the substantive hearing based on redevelopment of adjoining sites in various combinations or individually. Mr Speed provided his opinion of how poorly directed search inquiries conducted by the subpoenaed parties resulted in the identification of excessive numbers of unresponsive or irrelevant documents. In his opinion these inquiries failed to filter documents according to steps he set out in his affidavit. Mr Speed annexed to his affidavit tables with specific search terms in accordance with his steps which could better identify documents in his opinion. Large parts of the affidavit were submissions and should not have been included in my view. They were allowed to be read in the interest of time and treated as submissions. 3. Mr Zurek prepared a further affidavit dated 26 February 2024 (Zurek Affidavit 3) purporting to address Mr Speed's criticisms. Further searches were undertaken by the external IT service provider in accordance with a table of search terms prepared in line with Mr Speed's methodology with some modifications. This search resulted in over 13,000 documents being identified with costs to produce calculated at approximately $50,800 (excluding legal costs of review). The time to locate, collate and review the documents was estimated to be 7.4 weeks. 4. On 11 March 2024 Mr Speed sent an email to the subpoenaed parties' solicitors contending the searches failed to align with the methodology set out in his affidavit. In his opinion over 13,000 documents was an inaccurate guide as to the real number of documents and therefore the costs likely to be involved in complying with the subpoenas. Mr Speed offered to delete category 2 of the subpoenas and to amend category 3 as set out in a schedule to the letter. Acquisition offers 1. Another basis underpinning the subpoenas are two (of three) acquisition offers as defined. The two offers are in letters dated March 2020 and December 2020 from two different solicitors' firms which do not identify who is making the offer. Zurek Affidavit 3 stated: 20. I have since further reviewed these offers and I have made enquiries of both Mr Marriott and Mr Michael Coombes. I have been informed that the December 2020 offer and the March 2020 offer were in fact made on the instructions of Mirvac but with the knowledge and consent of CPG. 1. The third acquisition offer as defined is an expression of interest to acquire airspace rights over 37 Bligh Street in 2019. The subpoenaed parties accepted such an expression of interest was made by (one of) them. On 5 July 2019 Mr Michael Coombes sent an email to Mr Dummer acting on behalf of the 37 Bligh Street owner's corporation regarding a conditional offer to purchase airspace rights. On 23 August 2019 Mr Dummer responded that they were not yet able to evaluate the offer. On 23 August 2019 Mr Michael Coombes forwarded this exchange to two senior executives of the CPG, Mr Peter Coombes and Mr Bobilier with the comment 'I think they want to get taken out. Doesn't suit us though'. On the same day Mr Bobilier responded 'I agree there is limited exponential benefit to the scheme for the substantial cost they would be seeking for their building'. Points of claim 1. The POC filed in the proceedings commenced by Contara Pty Ltd and Mr and Ms Alogdellis respectively are nearly identical. Any further reference to the POC regards that of the Contara Pty Ltd proceeding, as follows: The Property … 4. As at the Acquisition Date, 37 Bligh Street, Sydney (37 Bligh): (a) was located at the north-western side of the intersection of Bligh and Hunter Streets; (b) comprised an area of approximately 626sqm; (c) was improved with a 13-level commercial strata building (plus basement) circa 1973 comprising 68 lots; (d) was adjoined to the north by 20-26 O'Connell Street (identified as Lot 1 in DP 626651), which was also known as 33 Bligh Street, with a total area of 2,042sqm (20-26 O'Connell); (e) was adjoined to the west by 44-48 Hunter Street (identified as Lot 1 in DP 59871 and Lot 2 in DP 217112) with a total area of 260sqm (44-48 Hunter); (f) was proximate to 28-34 O'Connell Street (identified as Lot 1 in DP 217112, Lot 1 in DP 536538 and Lot 1 in DP 1107981), which adjoined 44-48 Hunter to its west, with a total area of 797sqm (28-34 O'Connell); (g) was zoned B8 Metropolitan under Sydney Local Environmental Plan 2012 (SLEP); (h) was identified as a "Tower Cluster Area" on the Locality and Site Identification Map under the SLEP; (i) had a maximum allowable floor space ratio (FSR) control of 8:1 but was eligible for various additional FSR allowances which could increase the FSR to 13.75-15.4:1; and (j) had a maximum height of building control of 235m. … 6. On 5 November 2021, the Respondent compulsorily acquired 20-26 O'Connell from Alpha Distribution Ministerial Holding Corporation for the purpose of the TA Act and, more specifically, either: (a) the Sydney Metro City and South-West Project (City and South-West Project); or (b) the Sydney Metro West Project (West Project). 7. Irrespective of the purpose to which 20-26 O'Connell was acquired (or who owns 20-26 O'Connell), that land was still in existence at the date of the acquisition of Lot 5. 8. On the Acquisition Date, the Respondent compulsorily acquired: (a) 37 Bligh (including Lot 5 from the Applicant); (b) 44-48 Hunter from Telado Pty Ltd (Telado); and (c) 28-34 O'Connell from CFT No 8 Pty Ltd (CFT). 9. Telado and CFT are part of the Coombes Property Group. … Highest and Best Use 14. As at the Acquisition Date: (a) 37 Bligh; and (b) 20-26 O'Connell; and (c) 44-48 Hunter; and (d) 28-34 O'Connell were ripe for redevelopment. … 16. The highest and best use of 37 Bligh as at the Acquisition Date was a redevelopment site amalgamated with 20-26 O'Connell, 44-48 Hunter and 28-34 O'Connell (Primary H&B Use). 17. For the purpose of the Primary H&B Use: (a) it is likely that 75% of the owners would have agreed on the collective sale or redevelopment of 37 Bligh if they were given an appropriate financial incentive. So much is conceded in the Valuer General's Valuation Report for Lot 5 at clause 3.3 which states "should there be a compelling financial incentive from a developer (i.e. a financial offer for whole building acquisition or equivalent equity participation in a joint scheme) it is reasonable to assume the necessary quorum could be achieved from each of the parent building's strata scheme holders"; (b) in March 2020 (which was repeated in December 2020), Coombes Property Group made an offer to purchase 37 Bligh for $130 million apportioned based on unit entitlement; (c) 20-26 O'Connell was unlikely to be redeveloped on its own because: (i) with any site-specific planning proposal to permit floor space ratios in addition to those provided for tower cluster areas in the SLEP, there is a requirement to demonstrate best endeavours to amalgamate with surrounding sites; (ii) it would result in a less visually prominent and less premium building; (iii) it would isolate 37 Bligh, 44-48 Hunter and 28-34 O'Connell, which could not on their own (or collectively) take advantage of the tower cluster benefits; and (iv) it would be antithetical to the vision by the City of Sydney that these tower cluster sites were created to provide for employment growth; and (d) irrespective of the public purpose of the acquisition of 20-26 O'Connell, the Respondent or subsequent owner would likely seek to maximise the development potential of that land. 18. In the alternative to the Primary H&B Use, the highest and best use of 37 Bligh was its existing commercial strata building use with the sale of airspace rights above the building (Alternative H&B Use). 19. For the purpose of the Alternative H&B Use, in about June or July 2019, Coombes Property Group made an offer to purchase the airspace rights above the building on 37 Bligh for $7 million. Compensation Market Value 20. Lot 5 is valued at $5,700,000 based on the Primary H&B Use on the following bases: (a) Lot 5 is redeveloped as part of an amalgamated site comprising 37 Bligh, 20-26 O'Connell, 44-48 Hunter and 28-34 O'Connell (Amalgamated Site); (b) the Amalgamated Site had the potential for an increased FSR under the City of Sydney Guideline for Site Specific Planning Proposal in Central Sydney; (c) 37 Bligh, as part of the Amalgamated Site, had the potential to achieve a gross floor area (GFA) of 16,262m² or FSR of 25.85:1; … 21. In addition, the Coombes Property Group or the Respondent would have paid an adjoining owner premium in the order of 10% equating to $570,000 to secure 37 Bligh. 1. Points of defence (POD) filed by Sydney Metro in the Contara Pty Ltd proceeding stated in part: 4. In response to paragraph 4 of the PoC, the Respondent: … h. in relation to sub-paragraph (h); says that 37 Bligh is in a Tower Cluster Area for the purposes of Clause 6.21E of SLEP 2012 but a minimum site area of 2000m2 is required to access potential additional floor space ratio (FSR) up to 50% above the allowable mapped FSR and accommodation floor space; i. in relation to sub-paragraph (i), the Respondent says that: i. 37 Bligh had a maximum allowable mapped floor space control of 8:1 pursuant to clause 4.4 of the SLEP plus up to an additional 10% FSR (design excellence bonus); ii. 37 Bligh was eligible for additional FSR allowances which could increase the FSR to 13.75:1 for commercial development and 15.4:1 for hotel development subject to other provisions of the SLEP including but not limited to the maximum height of 55m for sites less than 1000m2 (clause 6.16); and iii. otherwise does not admit paragraph (i); j. in relation to paragraph (j) says that the height of a building at 37 Bligh is not to exceed 235m pursuant to clause 4.3 of the SLEP and that 37 Bligh was subject to Division 3 of the SLEP 'Height of buildings and overshadowing', including clause 6.16 Erection of Tall Buildings in Central Sydney which limits buildings in Central Sydney to a maximum height of 55m where the site is less than 1000m2, clause 6.17 'Sun Access Planes' and clause 6.19 'View Planes and otherwise does not admit paragraph (j) … Highest and Best Use 14. The Respondent denies paragraph 14 of the PoC. … 16. The Respondent denies paragraph 16 of the PoC and says that: a. the highest and best use of 37 Bligh was for its strata use existing as at the Date of Acquisition and the highest and best use of Lot 5 was as a retail strata lot; b. the amalgamation of 37 Bligh with any or all of 20-26 O'Connell, 44-48 Hunter and 33 Bligh Street as at the Date of Acquisition was not commercially, practically or otherwise feasible; … Subpoenaed parties' submissions 1. The subpoenas lack legitimate forensic purpose. Alternatively large parts lack legitimate forensic purpose. Large parts of the subpoenas are also oppressive. Forensic purpose is to be identified by consideration of the pleading and what is sought must have apparent relevance, see Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown) at [68]-[69] (Bell P as his Honour then was with Brereton and McCallum JJA agreeing). In the POC the highest and best use of 37 Bligh Street is pleaded as an amalgamated redevelopment with the subpoenaed parties' former properties and 33 Bligh Street. 2. The Applicants bear the onus of proving the subpoenas have a legitimate forensic purpose, NSW Commissioner of Police v Tuxford [2002] NSWCA 139 (Tuxford) at [20], [22] (Browne AJA with Spigelman CJ and Ipp AJA agreeing). Documents must be likely to materially assist an identified issue, see Rinehart v Rinehart [2018] NSWSC 1102 (Rinehart) at [43] (Ward CJ in Equity as her Honour then was). An identified issue must be drawn from the pleadings here the POC, ICAP Pty Ltd v Moebes [2009] NSWSC 306 at [33] (Nicholas J). 3. It is apparent in the above cases that there is some intermingling of the notions of 'legitimate forensic purpose' and 'oppression' in relation to an impugned subpoena. In some cases it will be obvious that a lack of legitimate forensic purpose leads to oppression, while in others it is easy to imagine a subpoena that requires only a modest production (quantitatively) of material is nevertheless oppressive where the call is more plainly unrelated to the identified issues. 4. The only identified issue against which the subpoenas should be measured is that which is identified in Mr Speed's affidavit as pars 14-19 of the POC. The POC identifies on a broad basis an aspirational potential amalgamation of four sites, or in the alternative the existing use of 37 Bligh Street with the sale of airspace rights above as highest and best use. The basis on which these paragraphs, particularly pars 16 and 18, are pleaded is that the acquisition offers were made by the subpoenaed parties. Regarding the offers (a) and (b) as defined made in March 2020 and December 2020 they did not disclose on whose behalf they were made and the evidence demonstrates these offers were made by Mirvac with the knowledge and consent of CPG, see Zurek Affidavit 3 par 20. CPG did not make the offers and that assumption cannot found the subpoenas. 5. Acquisition offer (c) as defined refers to an offer to purchase airspace rights above 37 Bligh Street. This offer was made by CPG but was not proceeded with as identified in the emails dated 23 August 2019 summarised above in [14]. 6. 'Proposed Works' are defined in the subpoenas to be any redevelopment works proposed for each of the subpoenaed parties' properties. 'Amalgamated Works' are defined in similar terms but by reference to potential amalgamation of the sites with either or both of 33 Bligh Street and 37 Bligh Street. Relevance between the issues in the POC relying on amalgamation of all four sites and any category of the subpoenas referring to Proposed Works is not made out. While Mr Speed attempts in his affidavit at par 48 to explain the inclusion of the Proposed Works, each of the proposed bases ultimately returns to the issue of amalgamation with 37 Bligh Street. 7. References to 33 Bligh Street, wherever appearing in the subpoenas, should be struck out and the category in which they appear be limited accordingly. Although the POC do refer to 33 Bligh Street there is absolutely no basis beyond speculation for the Applicants to assert any connection between the subpoenaed parties, the subpoenaed parties' former properties, and the amalgamation of 37 Bligh Street with 33 Bligh Street. 8. The onus is on the Applicants to draft an appropriately worded subpoena. 9. It follows that the subpoenas should be set aside for want of a legitimate forensic purpose. To the extent the documents called for might be said to relate to the thinly identified issue of an amalgamation between 37 Bligh Street and the subpoenaed parties' former properties, that relationship is speculative. The Court should find that the purpose of the subpoenas is more likely to belatedly strap up a case which the Applicants have determined to plead (and could otherwise try to prove themselves in the usual way) by extracting from the subpoenaed parties what are only imagined to be potentially helpful documents. 10. Oppression will occur where production of documents places excessive requirements on a producing party and where the documents are not sufficiently relevant, Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 (Spencer) at 926G (Waddell J). The operation of r 33.11 of the UCPR which allows the Court to order the issuing party to pay the amount of any reasonable expense incurred in complying with the subpoena does not overcome such oppression, Spencer at 928C (referring to the former Supreme Court Rules 1970 (NSW) (SCR) Pt 37 r 9). Generally speaking, a failure to properly particularise the documents sought to be produced under a subpoena will render it oppressive. The call for production is oppressive because of the sheer volume of material potentially called up as identified in Zurek Affidavit 3 and the time and costs to produce documents. Further, the drafting of all the categories is unduly broad to simply address the highest and best uses pleaded. Separate categories 1. Category 1 although not determinative calls for an unduly broad range of documents across a wide date range which captures matters wholly irrelevant to the identified issues. The Applicants have no more than marginal evidence on whether such documents are relevant to the issue of highest and best use. A subpoena which calls for 'all documents relating or referring to' an identified issue may be liable to be set aside. 2. Category 3 should be set aside in its entirety as it is wholly speculative and drafted very broadly so that it is more like discovery. The category calls for an unduly broad range of documents and would only have marginal relevance to the identified issues. Various subcategories are duplicative or would usually be dealt with under expert evidence. 3. Categories 4 and 6 are oppressive insofar as they call for both final and draft documents when there is no obvious basis for why the subpoenaed parties should identify drafts. 4. Category 4 is too broad as many documents may fall under the type of reports identified, it is potentially duplicative of other categories and the scope of relevance is only speculative. 5. Category 5 is entirely speculative and should be set aside in its entirety. Any apparent relevance is defeated by vague or oppressive drafting. The category calls for an unduly broad range of materials without any real connection to the identified issues. To the extent that relevant material could reasonably be the subject of a call for production it is captured by other categories. 6. Category 6 is speculative as the Applicants have not provided evidence of the existence of the town planning and architectural reports called for. The term 'consider' is vague and would potentially capture a broad range of documents which only have to 'touch' on the identified issues. 7. Category 7 is oppressive, lacks legitimate forensic purpose and should be set aside in its entirety. It calls to produce imagined correspondence on the basis that it might capture information which is not otherwise captured under the imagined reports in category 6 as well as an unduly broad range of additional materials. Applicants' submissions 1. Contrary to the subpoenaed parties' submissions various parts of the POC underpin the issues which the Applicants wish to pursue and which in turn underpin the subpoenas. The Court should find that the subpoenas serve a legitimate forensic purpose. The following matters are in contest between the Applicants and Sydney Metro in the Class 3 proceeding and must be the subject of proof by the Applicants: 1. The potential for strata renewal or collective sale of 37 Bligh Street (POC par 17(a), POD par 15); 2. In the context of (a), the existence and response of the owners of 37 Bligh Street to prior (3) offers for collective sale (POC par 17(d), 19 – airspace offer); 3. The relationship of 37 Bligh Street to its neighbours particularly in the context of potential amalgamation or re-development (POC pars 4, 6, 8); 4. The relevance, in the context of the planning controls applicable to the site, and particularly the 'tower cluster development' controls, of amalgamation, lot size, and the avoidance of the creation of orphaned or isolated development sites (POD par 16); 5. The potential for an adjoining owner(s) to pay an adjoining owner premium to secure 37 Bligh Street (POC par 21); 6. The feasibility of amalgamation of the four adjoining or proximate sites as the highest and best use underpinning the market value of the Applicants' interests in the land (POC pars 16, 17, 20, POD par 16(b)); 7. In the context of the immediately preceding paragraph, the history of attempts by developers, including developers who were the owners of one or more of those sites, to effect such consolidation (POC pars 17(b), 19); and 8. Actual plans that had been developed in the past by developers considering such re-development (POC pars 17(b), 19, 20, 21). 1. Legitimate forensic purpose will be satisfied if the documents called for 'could possibly throw light on the issues in the main case', Brereton J in Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 (Portal Software) at [24], quoting Beaumont J in Trade Practices Commissioner v Arnotts Ltd (No 2) (1989) 88 ALR 90; [1989] FCA 340 at 103. This is interchangeable with terms including 'that it is on the cards that the documents sought will materially assist on an identified issue' and 'a reasonable basis beyond speculation that it is likely … to assist', Rinehart at [47]. The threshold of apparent relevance is a low bar, Blacktown at [71]; Secretary, Department of Planning and Environment v Kelendi Farms Pty Ltd [2022] NSWLEC 151 at [9]. There is necessarily an imbalance of information between the parties seeking production and the party in possession of the documents which will necessitate some degree of imprecision in formulation of the categories. The prohibition against fishing is to prevent a party that cannot point to any reasonable apprehension that documents in a particular category will exist. An issuing party is not required to know with precision the context and identity of documents. 2. There is strong forensic relevance to exploring what plans for amalgamation and what plans for development have been held by the neighbouring developer in the immediate period before the announcement of the compulsory acquisition. The subpoenas are not oppressive 1. There is a link between relevance and 'oppression'. The more directly relevant the documents are likely to be, the more reasonable it is to impose some burden on the subpoenaed party to search for and collect documents, Southern Pacific Hotels Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 (Southern Pacific Hotels) at 719-720 (Clarke J), Azzi v Volvo [2006] NSWSC 283 at [6] (Brereton J). The costs prejudice to a party complying with the subpoena may be mitigated, Southern Pacific Hotels at 720. There is no rule that a call for 'all documents relating or referring to …' is oppressive, see Waddell J in Spencer at 929E‑F. 2. The subpoenas are not oppressive. The Zurek affidavits do not provide any evidence as to the actual number of documents likely to be required to be produced pursuant to the subpoenas either globally or by individual categories of the subpoenas. Nor do the Zurek affidavits lead any evidence as to whether there were any and if so, the stage reached by, any Proposed Works or Amalgamated Works in relation to the subpoenaed parties' former properties. 3. For the reasons set out in Mr Speed's affidavit, initial searches undertaken by the subpoenaed parties were fundamentally flawed. 4. The reduced search proffered by the subpoenaed parties giving rise to 800 documents would deprive the Applicants of the key documents relating to the redevelopment of the subpoenaed parties' former properties separately and independently from 37 Bligh Street which goes to the issuing parties' airspace rights claim. 5. The additional searches undertaken by the subpoenaed parties remain fundamentally flawed and unreliable. A letter from Mr Speed to the subpoenaed parties dated 11 March 2024 sets out in detail how searches conducted by the subpoenaed parties diverged from the proposals made by Mr Speed in his affidavit resulting in an expanded scope of the search beyond what was required to meet the subpoenas. Firstly, the table in Zurek Affidavit 3 included 'Hunter' and 'O'Connell' as terms in one column and, secondly, another column unnecessarily included internal correspondence within CPG. The subpoenaed parties' evidence also fails to indicate whether the total number of 13,845 items includes duplicate items and there is no evidence that the searches integrated a de-duplication step. It is therefore impossible for the Court to assess which, if any, of the categories are oppressive. 6. The subpoenaed parties have proposed an excessive four-tiered approach to review the documents prior to production to the Court. [The meaning of 'four-tiered approach' is unclear. Zurek Affidavit 1 at par 15 refers to the need to review whether any emails are covered by legal professional privilege, common interest privilege or are commercially confidential in nature]. To address any concerns the subpoenaed parties may have in respect of confidentiality, the Applicants are willing to accept a confidentiality regime. The categories in dispute 1. The relevance of Proposed Works in light of the matters from the POC is clearly established. The feasibility and the commercial attractiveness of developments on a sub-set of the four sites is an important step in proving the likelihood that the highest and best use proposed by the Applicants is correct. A party who wishes to prove that the hypothetical purchaser for its land would have been prepared to pay a premium to consolidate that land with neighbouring allotments is entitled to demonstrate that there was not a readily obtainable, equally or more attractive development in contemplation that did not require consolidation. The Applicants are entitled to know what an actual developer had or had not contemplated in the immediately preceding period before the announcement of the acquisition. 2. Category 1 is specific and goes squarely to the highest and best use. It goes only to negotiations or discussions relating to the possible purchase by CPG of 37 Bligh Street, strata lots within it, or airspace above it. The term 'Coombes Property Group' is used as the Applicants do not know the precise relationships that exist between the companies in that group or the identified members of the Coombes family who control it. Category 1 does not involve extensive searches as the subpoenaed parties must know what offers they made, the negotiations they entered into and by whom. 3. Category 3 is confined by date and the identity of the recipient. It is central to the issue of whether participants in a hypothetical sale would have seen redevelopment as feasible and consolidation as the most attractive method of realising the re-development potential. There is ample evidence suggesting the existence of documents caught in category 3 as a significant number of external architects, town planners, Mirvac and other persons are identified as 'relevant contacts' by Mr Zurek in his proposed search terms. 4. Category 4 is precise in identifying types of reports. The Applicants accept that categories 4 and 6 could be read as calling for 'final form, or last existing draft' of the documents. The Applicants do not wish to exclude anything that was in draft but never finalised because of the compulsory acquisition announcement. Where a final version is available the Applicants do not require earlier drafts. 5. Category 5 is not speculative. The subpoenaed parties accept in their evidence that they were working with unrelated third parties in the formulation of offers made to acquire 37 Bligh Street (Zurek Affidavit 3 par 20). Where it is known that a joint approach of two developers to an acquisition was being advanced it is reasonable to infer that communications between them will address the commercial viability of the contemplated development. While category 5 has a broader list of persons it is narrow in its definition of documents, being only documents in which the feasibility or likely return of investment of Proposed Works or Amalgamated Works is considered, assessed or analysed. 'Considered' (which is also used in category 6) does not introduce breadth or uncertainty. Even if so, the Court should adopt a 'blue pencil' approach and strike out the term. 6. Category 6 goes squarely to the issue of highest and best use. It is the potential for amalgamation and its extent which releases potential floor space ratio or gross floor space. The burden imposed on the subpoenaed parties is limited because of the specific description of the relevant town planning and architectural reports. 7. Category 7 is narrow and discreet. External town planning or architectural input considering the potential for planning controls of floor space ratio and height achievable with and without amalgamation with 37 Bligh Street goes squarely to matters in issue. The category is maintained in case there are no reports matured to meet the description in category 6. 8. Category 9 is similar to category 7, is narrowly confined and does not appear to be the subject of any specific objection. Consideration 1. According to the POC the ultimate issue in the substantive proceeding is the highest and best use of land underpinning its market value. This generally requires consideration of an informed hypothetical purchaser and vendor as expressed by Griffith CJ in the classic test in Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82 at 432 as 'what would a [person] desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?'. 2. The Applicants bear the onus of establishing that the subpoenas have a legitimate forensic purpose, Tuxford at [20], [22]. The failure to establish this can amount to an abuse of process, Portal Software at [28]. The parties agree the subpoenaed parties bear the burden of demonstrating oppression. 3. Whether the subpoenas demonstrate a legitimate forensic purpose arises, Blacktown states at [68], [80]: Apparent relevance and fishing [68] There is a plain difference between "apparent relevance" and "fishing", the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215. The word "apparent" admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena. … [80] My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can: "(i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case" at least in civil matters, an inability to demonstrate that it is "on the cards" that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings. … Legitimate forensic purpose not demonstrated 1. Whether documents have apparent relevance can be determined by looking at pleadings, see Blacktown at [68], here POC par 16 (amalgamation of four sites) and alternatively par 18 (airspace rights). While other parts of the POC were referred to by the Applicants these essentially provided background information about the physical relationship of the various parties' properties and the operation of planning laws the Applicants will allege can apply, and do not further articulate the nature of the Applicants' claim otherwise identified in POC pars 16 and 18. The expression of interest in the purchase of airspace rights over 37 Bligh Street the subject of POC par 18 will be considered separately below. Key terms 1. The subpoenas are based on several key defined terms and these must be considered in light of the POC. Proposed Works 1. The use of the term Proposed Works in the categories as defined does not serve any forensic purpose in the context of the case articulated in the POC at par 16 referring only to the amalgamation of four sites including 37 Bligh Street. What individual owners may have intended to do on their individual properties is irrelevant to the Applicants' case as disclosed in the POC. To the extent that Mr Speed sought to explain the basis of the Applicants' claims beyond the amalgamation of all four sites in par 48 of his affidavit to justify information about the possible development of a combination of any one or more of the four named sites, that is immaterial to the claim in the POC and in any event is speculative. As the subpoenaed parties submitted the only paragraph in the POC underpinning a claim of highest and best use is par 16, and the alternative highest and best use in par 18. Mr Speed's justification for why this information is relevant cannot assist in expanding a case which does not appear in the POC and appeared largely speculative in any event. 2. The parts of the subpoenas referring to Proposed Works are categories 3(b), (c), (d), (g), 4(a), 5, 6(b), (d), (f), 7(b), (d), (f) and 9(a). Amalgamated Works 1. The definition of Amalgamated Works includes redevelopment works (separately defined) proposed for either of the subpoenaed parties' former properties with either or both 33 Bligh Street and 37 Bligh Street. This would include the possible development of either of the subpoenaed parties' former properties in conjunction with any one or more of the other three properties. The Applicants' primary case is the amalgamation of all four sites. Why other development combinations across the four sites specified in POC par 16 are relevant is not apparent from the POC. Further 'redevelopment' is very widely defined in the subpoenas being any building or demolition work affecting 20% or more of existing structures which potentially captures a wide range of possible development. This definition does not reflect to a significant degree the case identified in POC par 16 and to that extent the case lacks legitimate forensic purpose. 2. The parts of the subpoenas referring to Amalgamated Works are categories 3(b), (c), (d), 4(b), 5, 6(c), (e), (g), 7(c), (e), (g) and 9(b). 3. Linked to the definition of Amalgamated Works is the Applicants assuming that two acquisition offers had been made by the subpoenaed parties, as I discuss below. Acquisition offers 1. Three acquisition offers (as defined) are submitted to provide a basis for the records sought explicitly in categories 1, 3(a) and by implication the Amalgamated Works. The assumption underpinning the offers identified at (a) and (b) of the definition in the subpoenas is that these were made by the subpoenaed parties. As identified by the subpoenaed parties the Applicants have not provided evidence that the two offers (a) and (b) were by CPG and submitted they did not make the offers, referring to Zurek Affidavit 3 at par 20. 2. The Applicants' counsel Mr Hall asserted in oral submissions that CPG had a greater level of involvement in the two acquisition offers than admitted by the subpoenaed parties. Mr Hall asserted that as Mirvac made the offer with the knowledge and consent of CPG according to Zurek Affidavit 3 par 20 that consent would not have been required unless the offer involved CPG consenting in the scheme underpinning the offer. Further the Applicants are seeking to establish that CPG had plans that involved the development of 37 Bligh Street in conjunction with the neighbouring properties. CPG also made the airspace offer for 37 Bligh Street from which it can be inferred that such an offer was for the purposes of a scheme of developments in contemplation at the time. Further the search terms (table) in Zurek Affidavit 3 identifies Mirvac. This implies Mirvac was working with CPG in some capacity. 3. The assertion from the bar table about Mirvac and a purported relationship with CPG was unsupported by evidence and these submissions were essentially speculation. The subpoenaed parties' counsel Mr Stafford advised his instructions were that Mirvac was included in the search terms because they were effectively the owner of 33 Bligh Street. The basis for relying on these two offers is not established by the Applicants and these offers cannot be used to provide a legitimate forensic basis to underpin the subpoenas. No apparent relevance established in other contexts 1. There is no material before the Court identifying a basis for asserting that the 33 Bligh Street owners were interested in amalgamating with neighbouring properties. No basis to call on the subpoenaed parties to provide such information exists. This affects categories 3 (d), (g), 6(c), 7(c). 2. Evidence of land value in compulsory acquisition cases which requires consideration of a hypothetical transaction is generally obtained from expert valuers informed where necessary by other experts such as town planners and quantity surveyors inter alia. As the subpoenaed parties submitted it is not clear whether the Applicants have taken their own steps, in the usual way, to engage experts in the proceeding to give an opinion about the highest and best use of 37 Bligh Street in an amalgamation with the subpoenaed parties' former properties. As the subpoenaed parties submitted the relevance of much of the material sought in category 3 in a compulsory acquisition compensation claim is not apparent. The market value of neighbouring properties (d) and what those property owners think about the market value of 37 Bligh Street (h) is irrelevant. Similarly the price that might be paid (k), other than airspace rights, is also not apparently relevant. 3. I agree with the subpoenaed parties that much of the material sought is based on speculation about a possible case the Applicants wish to run. Category 5 seeks feasibility studies or likely return on investment of any Proposed Works or Amalgamated Works from a wide variety of persons with no indication provided that such material might exist. Similarly, category 6 seeks town planning reports and architectural reports, both defined terms, in relation to floor space ratios or gross floor areas, heights of buildings, setbacks, and overall aesthetic appeal on neighbouring properties for development which might be feasible or sensible in relation to the subpoenaed parties' former properties inter alia. In the same vein, category 7 seeks correspondence broadly defined in relation to similar topics to category 6 from any external town planner or architect. The same observations apply to category 9 seeking architectural render images inter alia. Given my finding on Proposed Works and Amalgamated Works these categories lack apparent relevance in any event but the drafting is indicative of an approach which is difficult to reconcile with the hypothetical case which would generally underpin a compulsory acquisition compensation claim. 4. My finding that the above defined terms (other than airspace rights in acquisition offers) do not have apparent relevance to the Applicants' case as pleaded means that most of the categories are not permissible, and the information sought amounts to 'fishing' in that the documents sought do not have any apparent bearing on the case as pleaded. It may be that the definition of Amalgamated Works can be confined to the case pleaded in POC 16 to underpin another subpoena but as I observe below it is not the Court's function to draft a subpoena. Oppression established Volume of documents 1. The subpoenaed parties bear the burden of demonstrating oppression and relied on Mr Zurek's evidence to do so. His affidavits identified the wide scope of documents potentially caught by search terms used to comply with the subpoenas. Mr Speed's speculative opinions of the inadequacy of the searches conducted on behalf of CPG whereby over 14,000 documents were identified, revised to over 13,000, are difficult to attribute any weight given he cannot be aware of CPG's circumstances. The assertions made by him as to where records were likely to exist and the likelihood that there are duplicates so that the documents responsive to the subpoenas must be limited in scope are speculative. Even if for argument's sake the number of documents identified in Zurek Affidavit 3 was halved, that would still mean thousands of documents being produced. The search terms identified by Mr Zurek which modify to a limited extent those proposed by Mr Speed are not obviously deficient. 2. As part of the extensive negotiation between the respective solicitors to reduce the subpoenas' scope it is useful to refer to a revised description provided in Zurek Affidavit 2, see above in [8]-[9]. This was identified by CPG as likely to result in 800 documents being produced which is still a very large number of documents and also required substantial cost and time to provide the material. 3. I do not accept the Applicants' criticism that oppression has not been established because actual documents were not identified by the subpoenaed parties' evidence. Drafting generally 1. Related to the volume of possible material identified in Mr Zurek's evidence is the drafting of specific categories. The terms used are broad and vague, more in the nature of discovery than a targeted subpoena, see Blacktown at [45] citing Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100. In category 1 'all documents which … evidence, record or refer to any negotiations or discussions...' casts a very wide net. Similarly the chapeau to category 3 is very widely drafted, once again more in the nature of discovery than a targeted subpoena. 2. Category 4 refers to documents in both draft and final form. The basis for seeking draft documents is not clear. The Applicants clarified in submissions that if final documents existed they did not also seek drafts of those documents. The subpoenas are not so limited in their terms. Categories 5 and 6 are also widely and vaguely drafted. 3. Mr Zurek identified the substantial amount of time and cost involved in answering the subpoenas both unamended and amended, as detailed above in [7], [11]. That the provision of reasonable costs as provided by r 33.11 of the UCPR would ameliorate the extent of the burden imposed by the subpoenas, the Applicants relying in this regard on Southern Pacific Hotels at 720 (referring to former SCR Pt 37 r 9), cannot be sustained given the absence of legitimate forensic purpose demonstrated for virtually all of the categories. 4. In conclusion, I consider the subpoenas are oppressive in scope, seek material with no apparent relevance to the case identified in the POC and/or the potential usefulness is minimal apart from airspace rights. 5. It is not the Court's role to draft subpoenas, Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [25] (Basten JA with Emmett JA agreeing). The substantial problems with the amended version considered in this judgment means that this cannot be permitted. Consequently the four subpoenas in dispute should be set aside in full. An order to that effect will be made. Airspace rights 1. The alternative highest and best use identified in POC par 18 relates to an offer to purchase (by an expression of interest) the airspace over 37 Bligh Street by CPG which is admitted. According to the email dated 23 August 2019 referred to above in [21] the airspace offer was abandoned by CPG. If on consideration of the emails summarised above in [14] the Applicants wish to press for documents in a way that is relevant and appropriate that will have to be done in a new subpoena. Costs 1. The subpoenaed parties seek payment of their costs as agreed or assessed if successful. The Applicants wish to reserve their ability to make submissions about costs. How costs will be approached will be discussed with the parties. Costs will be reserved. Orders 1. The Court orders: 1. Pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW), each of the subpoenas issued to CFT No 8 Pty Ltd and Telado Pty Ltd filed on 16 June 2023 in proceedings 2023/00080464 and 2023/00080465 be set aside. 2. Costs reserved. ********** 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: 22 April 2024