Land and Environment Court of New South Wales CITATION: Paterson Bowkett Holdings Pty Limited V Abbas Karroobee [1999] NSWLEC 48 PARTIES Applicant Paterson Bowkett Holdings Pty Limited Respondent Abbas Karroobee NUMBER: 40147 of 1998 CORAM: Cowdroy A J KEY ISSUES: :- Subpoena - application to set aside - records listed in subpoena not relevant to principal issue but relevant to issue of discretionary relief - conditions to preserve commercial confidentiality LEGISLATION CITED: Subpoena - application to set aside - records listed in subpoena not relevant to principal issue but relevant to issue of discretionary relief - conditions to preserve commercial confidentiality DATES OF HEARING: 02/24/1999 DATE OF JUDGMENT DELIVERY: 03/11/1999 Applicant Mr I Hemmings (Barrister) Solicitors Beilby Poulden Costello LEGAL REPRESENTATIVES: Respondent Mr J Hannaford (Solicitor) Solicitors Wilshire Webb JUDGMENT: Background 1. By Notice of Motion dated 18 February 1999, a corporation known as 2B Mona Road Leasehold Pty Limited ("the Corporation") has made application to the Court pursuant to the Land & Environment Court Rules Part 6, Rule 1 which adopts Part 37 Rule 8 of the Supreme Court Rules to set aside a subpoena for production dated 20 January 1999 issued by the Respondent. Simultaneously, Paterson Bowkett Holdings Pty Limited, the Applicant in the proceedings, has filed a Notice of Motion seeking the same relief in respect to a subpoena addressed to it. The Applicant and the Corporation are hereafter referred to collectively as "the Corporations". 2. The Amended Application Class Four filed in the proceedings seeks a declaration that the Respondent Abbas Karroobee is using premises known as Room 602, 2B Mona Road Darling Point for a use other than that of a hotel room which is its permissible use. Consequential orders are sought to restrain such use. 3. The subpoenas issued to the Corporations require them to produce:- "All leases, agreements, contracts, invoices, receipts, booking records and any other documents or records relating to the occupation of the strata units of Strata Plan No. 49621 for 2B Mona Road, Darling Point currently or previously under the control of Paterson Bowkett Holdings Pty Limited from 14 November 1995." 4. The Corporations submit that such documents are irrelevant to the issue which is raised in the Application, namely the alleged illegal use of the premises by the Respondent. Further, it is submitted that the Respondent has an ulterior purpose in seeking production of the documents namely, to ascertain the identity of the clientele of the Corporations so that the Respondent may, in pursuance of his alleged illegal commercial activities, gain a commercial advantage. Upon these grounds it is alleged that the subpoenas addressed to the Corporations constitute an abuse of process. 5. In reply, the Respondent has alleged that he was granted permission to operate as a hostel or lodging house by Woollahra Municipal Council in 1958 and that he is entitled to existing use rights. The purpose of the subpoena is accordingly to establish, by documentary evidence, the use of the premises in order to make good his defence of "existing use." 6. The Respondent further submits that discretionary grounds will be involved in the ultimate determination of the issues. He says that if the evidence establishes that persons, including the Respondent, have been using the premises other than as a hotel room, namely as a full-time residence or even for commercial purposes, the Court would be obliged to consider, whether as a matter of discretion, it would in effect "single out" the Respondent and grant relief as sought by the Applicant. For this reason it is said that the subpoenas are required to produce evidence of relevance to the issue of discretion. 7. The subpoenas are limited in time requiring production of documents from the 14 November 1995 to date. The existing use rights (if such exist) could be not established by the production of documents for such a limited time. Accordingly, upon this ground alone, neither subpoena could be justified as requiring production of documents which are relevant to an issue, and are liable to be set aside in accordance with the principles referred to by Powell J (as he then was) in Botany Bay Instrumentation and Control Pty Limited (1984) 3 NSWLR 98 at pp 100-101. 8. There remains the question of whether production of any of the documents could ultimately be relevant to the issue of the Court's discretion. The Court will be required to determine, upon all of the evidence, whether relief claimed by the Applicant should be granted. One consideration could be the circumstance that the Applicant has permitted other persons to occupy its premises upon the same basis as the Respondent. Whilst the illegal use of premises would almost certainly warrant intervention by the Court, the nature of the relief might vary if it is established that other persons are similarly using rooms in the building. In short, the question may arise concerning the type of relief that might be awarded. For this reason, the documents required in the subpoena could relate to the issue of discretion. 9. The Corporations have raised the issue of commercial confidentiality. In the circumstances as outlined during the hearing, such concern can be addressed by the orders proposal hereunder. Orders 11. The Court orders:- 1) The Applicant and 2B Mona Rd Leasehold Pty Limited produce the documents referred to in the subpoenas addressed to each of such Corporations subject to the conditions:- A) that the solicitor for the Respondent provide in writing to each of such Corporations prior to the production of such documents his undertaking that the documents:- I. will not be inspected by any other party other than himself and counsel instructed by him in proceedings; II. that the identity of parties referred to in any of the documents inspected and the terms on which any person occupies any portion of the building will not be revealed to the Respondent; III. that the identity of any space which may be referred to in any document shall not be revealed to the Respondent; B) that the documents shall be made available for inspection by the Corporations at the office of the solicitor for the Applicant and that such documents shall be held in the custody of the solicitor for the Applicant until the first hearing day when such documents shall be produced to the Court. 2) Grant liberty to the Respondent to make any application upon the hearing of the matter to the presiding Justice to determine whether the orders referred to above pertaining to commercial confidentiality should be maintained or varied. 3) Order of the costs of this application be costs in the proceedings. I HEREBY CERTIFY THAT THIS AND THE PRECEDING THREE PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM ASSOCIATE 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.