CITATION: Skiwing Pty Limited v Trust Company of Australia Ltd (No 2) [2003] NSWADT 243 DIVISION: Retail Leases Division APPLICANT PARTIES: Skiwing Pty Limited RESPONDENT Trust Company of Australia Ltd FILE NUMBER: 035036, 035053, 035066 HEARING DATES: 03/11/03 SUBMISSIONS CLOSED: 11/03/2003 DATE OF DECISION: 11/03/2003 BEFORE: Donald BG - Judicial Member APPLICATION: Amend directions - Set aside summons MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal (General) Regulation 1998 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Retail Leases Act 1994 CASES CITED: Z v. University of A [2001] NSW ADT 110 APPLICANT REPRESENTATION: A I Tonking, barrister RESPONDENT Mr Hassan, solicitor ORDERS: 1 Summons to be complied with as specified in par 38 of decision by end 10 November 2003; 2 The Respondent to file and serve an outline of its grounds of Defence by end 10 November 2003; 3 The Applicant to file and serve all lay and expert affidavits on which it intends to rely by end 17 November 2003; 4 Further Notices to Produce and Summons to Produce to be filed by both parties on or before 28 November 2003; 5 The Respondent to file and serve all lay and expert affidavits by 28 November 2003; 6 The Applicant to file and serve an outline of it submissions by 2 December 2003; 7 The Respondent to file and serve an outline of its submissions by 2:00 pm 5 December 2003; 8 Matters listed for Directions on 27 November 2003 at 9.30 am 1 The Applicant Lessee seeks variation of the directions setting out the timetable in this matter up to the hearing commencing 8 December 2003. 2 The Respondent Lessor seeks to set aside Summons dated 20 October 2003 issued at the request of the Lessee to the Lessor returnable on 29 October, or alternatively seeks orders in relation to compliance. 3 The Tribunal had given directions ex parte on 30 October 2003 both as to the Summons and the timetable as follows:- The Directions made on 18 September 2003 were varied as follows: 1A. Summons to be complied with as amended by 7 November 2003. 1. The Applicant to file and serve all lay affidavits on which it intends to rely by 14 November 2003. 2. The Respondent to file and serve an outline of its grounds of Defence by 7 November 2003. 3.The Applicant to file and serve all expert affidavits by 14 November 2003. 3A. Further Notices to Produce and Summons to Produce to be filled by both parties on or before 28 November 2003. 4. The Respondent to file and serve all lay affidavits on whish it intends to rely by 28 November 2003. 5. The Respondent to file and serve any expert affidavits by 28 November 2003. 6. The Applicant to file and serve an outline of its submissions by 2 December 2003. 6A. The Respondent to file and serve an outline of its submissions by 2:00 pm 5 December 2003. 4 Compliance with items 2 and 3 of the Summons was limited by the Tribunal by a requirement for confidentiality to advisers and experts. 5 There was a misunderstanding as to the availability of the lawyers for the Lessor at the directions hearing by phone and the Lessor was not represented on that day. Accordingly the Tribunal has acceded to the request by the Lessor for the directions to be reconsidered and on the hearing today both parties appeared by lawyers. 6 The Lessor formulated its detailed grounds to set aside the Summons and vary the directions, providing this both to the Tribunal and the Lessee in today's hearing. 7 This decision has been prepared urgently as both parties confirm to the Tribunal that if possible they wish to hold the allocated hearing dates of 8-10 December 2003. Outline of Grounds of Defence. 8 The first issue is whether the directions should be varied to require the Lessor to provide an outline of its grounds of defence before the lessee puts on its evidence and in time for the Lessee to have regard to that in gathering its evidence. The Lessee requested this to assist in ensuring it dealt in its evidence with both the case as formulated by it and also the case it would be likely to have to meet. 9 The Tribunal had made a direction requiring this because, as this Tribunal is not a court of pleadings and as such an outline would not be a binding and complete submission, I agreed that an outline would be helpful and would be unlikely to require further substantial work by the Lessor given the history of the matter. 10 The Lessor contends that it should not be required to address and respond to the allegations made against it until the entire case and evidence of the Lessee has been served. 11 Just as in courts a defence is usually required to be filed before the filing of evidence, I consider it is appropriate and likely to assist the speedy preparation of the matter in the month remaining until the hearing for an outline of grounds of defence to be formulated now. 12 As the Tribunal is not a court of pleadings, the Lessor will not be excluded from amending the basis of its defence in light of the evidence and what transpires at the hearing, subject to the Tribunal ensuring the Lessee has adequate opportunity to deal with that case. 13 Therefore I propose to make the direction subject only to a slight variation as to time set out in the complete directions below. Summons 14 This seeks 4 categories of documents:- All documents (as defined in the Evidence Act , 1995) comprising or recording: 1. Originals or office copies of correspondence between or notices given by the respondent to the applicant in the period 1 January 1998 to 31 December 2002. 2. Offers of rent reductions (including agreements to provide financial assistance in connection with fit out) to the following tenants or prospective tenants: Double Bay Clothing Warehouse Successfully Dressed Gloria Jeans Café Abysss Sweet City Including in addition the occupants of shops P8-11, P15/16, P20-23, P40-41, C12-15 and C16-17, in the period from January 2001 to the present. 3. Rent payable to the respondent by the tenant of the outlet known as "Easy.DVD.com.au". 4.Traffic flow counter records for the Imperial Arcade for the period 1st July, 2001 to the 31st December, 2002. 15 The Tribunal agrees that the relevant principles governing summonses are as set out in Z v. University of A [2001] NSWADT110, namely that the material sought must be relevant, must be readily particularised and identifiable and must not be oppressive in terms of scope. The request must not be fishing. 16 The Lessor contends all four items fail these principles and that the Summons must be set aside. 17 The Lessor also contends the Summons was not properly served on its registered or head office as required by s. 138 of the ADT Act 1997 but on its lawyer and further that there is no obligation to comply until conduct money is provided pursuant to s.141 of the Act and the regulations. Service. 18 In circumstances where the Lessor is the Respondent appearing by its lawyer in a matter with a history of service on the parties' lawyers, I am satisfied the Lessor has been duly served; I also note ss.138 (3). Conduct money. 19 The relevant regulations (Administrative Decisions Tribunal (General) Regulation 1998 cl 7 and Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 - Schedule 1, cl 20) specify that expenses under the District Court scale are to be tendered at service. However I am advised that there is no relevant District Court scale for expenses for production of documents. 20 The Lessee contends that expenses are only payable under s.141 for third party summonses notwithstanding that this Tribunal's procedures and summons form and notes make no distinction between summonses to parties (in the nature of discovery) and third party summonses. The Tribunal discussed with the parties whether expenses in inter partes summonses should be treated as for discovery, with costs governed by ordinary rules. The problem here is that costs are not generally awarded in this jurisdiction. 21 In the short time for preparing this decision I have not found a decision by the Tribunal on the point. The Act and the form of summons do in terms require expenses and despite the absence of a scale, the practice of this Tribunal generally has been to require reasonable expenses to be met. However as the regulations apparently do not prescribe a scale, the strict legal position must be that this practice is pursuant to the Tribunal's general powers and not strictly under s.141. 22 Therefore in my view the service of the Summons in this case is not legally defective for failure to tender expenses but it is within the power of the Tribunal to apply its general practice and order expenses. However I propose that reasonable expenses be determined having regard to the actual cost of compliance with the Summons as required to be met below and that compliance not be subject to prior payment. 23 I do so because I apprehend that identification and production of the files containing the relevant documents in all items and selection from those files of the particular categories in Item 2 (being limited to agreements for rent reduction or financial assistance with fit out for no more than 8 shops), is not likely to be a major exercise. The speedy management of this case so as not to lose the allocated hearing date in the interests of both parties in my view supports an exercise of discretion for expenses to be assessed after compliance. 24 A further reason for postponing expenses is that in the absence of a prescribed scale, it may sought to be argued that the Tribunal does not have power to require payment of reasonable expenses. This can be argued at the next directions hearing if required. It is of course a matter for the Lessee as the party requesting the Summons whether it presses compliance of all or any items having regard to not knowing its precise expense exposure. Validity of the Items in the Summonses 25 Item 1. The Lessor contends this is onerous in scope, too general and at least before May 2000 clearly not relevant; further the Applicant should already have all these documents. 26 The Lessee says the documents relating only to one tenancy will be likely to be confined in scope, that it seeks to ensure a complete record of the correspondence and that correspondence prior to May 2000 is relevant to both the 'balcony claim' under 'Claim One' and the breach of covenant claims under 'Claim Two' even though all such claims it now contends are confined to events after the lease was entered into. 27 Determination of relevance for interlocutory discovery purposes is not a final determination of admissibility of evidence. Both claims involve both alleged breaches of the lease and misleading conduct under s.52 of the Trade Practices Act flowing from conduct after the commencement of the lease but alleged by the Lessee to be in the context of continuing conduct of the Lessor from prior to the lease. I think a sufficient basis of relevance is established for the purposes of inspection of documents. 28 There may well be an argument as to the power of this Tribunal to entertain claims under s.52 of the Trade Practices Act but this was raised by the Tribunal with the parties rather than by the Lessor at this stage so such a possibility should not defeat the orderly preparation of the case. 29 As the file to be produced relates only to the subject tenancy, it is likely to be readily located and so production of the file is not likely to be oppressive or expensive even though it covers a number of years. The Lessor is not asked to extract documents from the file. The fact that it may contain many documents of which the Lessee already has copies is not of itself a reason that it not be produced. 30 For these reasons I think Item 1 should be produced. 31 Item 2. The Lessee contends that the total number of shops in this item does not exceed 8, there being overlap between the named and numbered shops. The Lessee has undertaken to confirm that in writing. The Lessee is willing to confine the item to 'Agreements for rent reduction etc…' and to state December 2002 as the cut off date. The Lessee contends these are relevant at least to its claim within Claim Two that discrimination between tenancies in rent reductions is part of the conduct constituting misleading conduct and breach of lease covenants. (In this regard the Lessee acknowledges that pars 13 and 14 of Claim Two require clarification to include a reference to par 12.) 32 The Lessee accepts that these documents should be subject to a confidentiality limitation as set out above. 33 Subject to that I consider that the relevance of the documents in Item 2 for interlocutory purposes is established and that so confined Item 2 is not likely to be oppressive or undefined in compliance. Therefore I consider those documents should be produced on a confidential basis. 34 Item 3. This item is on my suggestion confined by the Lessee to the parts of the lease or agreement for lease with the named tenant which state the rent and its determination. The Lessee also accepts the confidentiality limitation set out. Its relevance is based on the same contentions as for Item 2. So confined and limited I think this should be produced. 35 In relation to both Items 2 and 3, the Tribunal indicated to the parties that the documents appeared likely to be relevant to assessing appropriate compensation from any breach or misleading conduct if that were ultimately held to be established and to entitle the Lessee to a remedy. This is a further factor in my view justifying production. 36 Item 4. The Lessor attacks this item as fishing. The Lessee contends the relevance of the pedestrian traffic in the Arcade for this 18 month period is that it will inform expert evidence as to alleged loss from the conduct of the Lessor allegedly in breach of the lease and s.52.The Tribunal accepts this for interlocutory purposes and considers this category is precisely defined and unlikely to be oppressive in production. Accordingly I think this item should be produced. 37 Given the time taken to deal with these interlocutory issues, the timetable will be slightly adjusted. The Tribunal makes the directions on both timetable and summonses as follows. 38 The Summons filed 20 October 2003 is to be complied with in the following terms and subject to the confidentiality limitations stated:- All documents (as defined in the Evidence Act , 1995) comprising or recording: 1. Originals or office copies of correspondence between or notices given by the respondent to the applicant in the period 1 January 1998 to 31 December 2002. 2. Subject to being kept confidential to advisers and experts , agreements for rent reductions (including agreements to provide financial assistance in connection with fit out) to the following tenants or prospective tenants of the Imperial Arcade: Double Bay Clothing Warehouse Successfully Dressed Gloria Jeans Café Abysss Sweet City including in addition the occupants of shops P8-11, P15/16, P20-23, P40-41, C12-15 and C16-17, in the period from January 2001 to December 2002. 3. Subject to being kept confidential to advisers and experts, parts of the lease or agreement for lease with the tenant of the outlet in the Imperial Arcade known as "Easy.DVD.com.au" which state the rent and its determination. 4.Traffic flow counter records for the Imperial Arcade for the period 1st July, 2001 to the 31st December, 2002. 5. Reasonable expenses of compliance with Summons to be paid by the Applicant as agreed or as determined by the Tribunal. 39 The Directions made on 30 October 2003 are varied as follows: 1. Summons to be complied with as specified in par 38 of decision by end 10 November 2003. 2. The Respondent to file and serve an outline of its grounds of Defence by end 10 November 2003. 3. The Applicant to file and serve all lay and expert affidavits on which it intends to rely by end 17 November 2003 4. Further Notices to Produce and Summons to Produce to be filed by both parties on or before 28 November 2003. 5. The Respondent to file and serve all lay and expert affidavits by 28 November 2003. 6. The Applicant to file and serve an outline of its submissions by 2 December 2003. 7. The Respondent to file and serve an outline of its submissions by 2:00pm 5 December 2003. 8. Matters listed for Directions on 27 November 2003 at 9.30 am 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.