Land and Environment Court of New South Wales CITATION : Commonwealth of Australia v Randwick City Council [2000] NSWLEC 171 APPLICANT: Commonwealth of Australia PARTIES : RESPONDENT: Randwick City Council FILE NUMBER(S) : 10072 of 2000; 10073 of 2000 CORAM: Talbot J KEY ISSUES: Evidence :- Practice & Procedure - subpoena - application to set aside - amounts to discovery - oppressive - abuse of process LEGISLATION CITED: Arhill Pty Ltd and Ors v General Terminal Co Pty Ltd and Ors (1990) 23 NSWLR 545; Botany Bay Instrumentation & Control Pty Ltd and Anor v Stewart and Anor [1984] 3 NSWLR 98; Deposit & Investment Co Ltd (Receivers Appointed) and Ors v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267; CASES CITED: Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555; Re Westinghouse Electric Corporation Uranium Contract [1978] AC 547; Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921; Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710; The Commissioner of Railways v Small (1938) 38 SR(NSW) 564 DATES OF HEARING: 21/07/2000 DATE OF JUDGMENT: 08/07/2000 APPLICANT: Mr M Wright (Barrister) SOLICITORS: Minter Ellison LEGAL REPRESENTATIVES: RESPONDENT: Mr W R Davison SC SOLICITORS: Bowen & Gerathy JUDGMENT: IN THE LAND AND Matter No. 10072-3 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 7 August, 2000 Commonwealth of Australia Applicant v Randwick City Council Respondent REASONS FOR JUDGMENT 1. These are class 1 proceedings whereby the Commonwealth of Australia appeals against the deemed refusal of a development application to subdivide certain land at Randwick. 2. On 22 June 2000 the respondent council issued 13 separate subpoenas on various third parties, 11 of whom are consultants engaged by the applicant to advise or to give expert evidence in the proceedings. 3. By notices of motion dated 30 June 2000, 11 of the recipients of the subpoenas seek that the relevant Subpoena for Production be set aside. Further, that pursuant to Pt 37 r 9 of the Supreme Court Rules 1070 the respondent pay all expenses and losses incurred by the recipient as a consequence of or related to the service of the subpoena and costs of the notice of motion. 4. A separate notice of motion dated 30 June 2000 has been filed by the applicant seeking that each of the 13 subpoenas issued to third parties be set aside. 5. The subpoenas were returnable on 30 June 2000. 6. The recipients of the subpoenas are:- Egis Consulting Australia Pty Limited Context Landscaping Design Hill Thalis Architecture and Urban Design Ecotone Ecological Consultants Pty Ltd Richard Heggie Associates Pty Limited Traffix Cardno MBK (NSW) Pty Ltd Australian Wetland Pty Limited Fitzwater & Associates Pty Limited BBC Consulting Planners Wallis & Moore Pty Ltd CH 2M Hill Australia Pty Limited Pells Sullivan Meynink Pty Limited 7. Australian Wetlands Pty Limited and Pells Sullivan Meynink Pty Limited have not filed a notice of motion to have the subpoenas addressed to them set aside. 8. The documents the subject of the subpoenas in each case are generally described as:- All documents including but not limited to files, correspondence, memoranda, notes, reports, plans, photographs and any other documents whether original or copy being, evidencing or recording: (a) the preparation, consideration and assessment by your firm of the proposed subdivision of lots 2 and 3 in deposited plan 1009660 (a copy of which is attached to this subpoena) known as land at Bundock and Avoca Streets, Randwick owned by the Commonwealth of Australia shown in development applications 1374 and 1377 of 1999 ("the development"). 9. In some cases additional descriptions have been added to identify particular subject matter. Issues 10. The applicant in the proceedings ("the Commonwealth") and the persons who have filed separate notices of motion seek to have the subpoenas set aside on the grounds that they are a fishing exercise, they effectively require discovery from third parties, their terms are too broad and imprecise, and they are oppressive. 11. Mr Wright appears for the Commonwealth and each individual applicant in the notices of motion ("the applicants"). 12. The applicants do not say that the subpoenas cannot be complied with. Rather, they submit that they will be subjected to "an unduly burdensome task marshalling the documents to comply" . Further, the applicants have provided sworn evidence in support of the notices of motion that most documents will be required for the purpose of providing ongoing advice or the preparation of evidence, so that unless the documents are copied in their entirety the preparation of statements of evidence for the class 1 proceedings and other ongoing work will be impeded. 13. In a letter to the Commonwealth's solicitors dated 27 June 2000 challenging the alleged costs of complying with the subpoenas, the respondent's solicitors refer to both "current files" and "non-current files" . The respondent's solicitors question the basis for the recipients of the subpoenas to retain copies of material on non-current files. 14. Mr Wright argues that such a reference to "current" and "non-current" files demonstrates that the respondent is asking the recipients of the subpoenas to make a judgment as to what documents are relevant to the class 1 proceedings. 15. Mr Davison SC submits on behalf of the respondent that the subpoenas are not an abuse of process. He asserts that the applicants have misunderstood the subpoenas and that the respondent is not requesting the recipient to identify documents that might be relevant, but rather, the subpoenas request all documents which relate to the project the subject of the class 1 proceedings, namely, the proposed subdivision of lots 2 and 3 in DP 1009660 shown in development application 1374 and 1377 of 1999 ("the development"). 16. In relation to the Commonwealth's notice of motion, Mr Davison submits it has no standing to move on the alleged oppression of third parties as recipients of subpoenas. 17. The respondent says that an analysis of the Schedules to each of the subpoenas demonstrates that there is adequate identification of particular items that are called for. 18. On 3 July 2000 the hearing dates for the class 1 proceedings were vacated. Prior to this date the class 1 proceedings were to commence on 31 July 2000 for an estimated period of six weeks. 19. Mr Davison claims that the only evidence of oppression was the impending class 1 proceedings. He argues that there is no reason why the interests of both parties cannot be accommodated between now and the ultimate hearing of the class 1 proceedings. Any argument based upon the Commonwealth's experts requiring particular files for preparation for the hearing is no longer helpful as there is now adequate time for both parties to access documents and prepare. 20. The applicants contend that compliance with the subpoenas will incur significant costs and that these should be borne by the respondent. 21. Prior to the filing of the notices of motion to set aside the subpoenas, the respondent made an offer to the applicants to undertake an informal inspection of the documents so as to avoid incurring significant costs. This offer was not accepted. 22. Mr Davison submits that at this stage of the proceedings costs cannot arise because Pt 37 r 9 of the Supreme Court Rules applies only after costs have been incurred. In this instance the applicants have chosen to move to set aside the subpoenas and not to comply with them. Accordingly, no issue of costs of complying with the subpoena can arise. In other words, the applicants are not entitled to have the subpoenas set aside as well as the costs of compliance. I agree this question can be deferred. The principles 23. A subpoena will be set aside if it is used for the purpose of "fishing" or discovery which requires the recipient of the subpoena (or a party to the proceedings) to make a judgment as to which of the documents relate to the issues in the proceedings. This represents an abuse of process ( The Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573). At 575 Jordan CJ made the following point:- In the absence of special circumstances, e.g. Griebart v. Morris [1920] 1 KB 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of "fishing," i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: Hennessy v. Wright (1890) 24 QBD 445 at 448, or to discover the nature of the other side's evidence: Griebart v Morris. 24. In addition to any objection on the grounds of discovery is the claim that a subpoena is too widely or oppressively drawn. 25. As Lord Denning MR said in Re Westinghouse Electric Corporation Uranium Contract [1978] AC 547 at 562:- The description should be sufficiently specific to enable the person to put his hand on the documents or the file without himself having to make a random search - in short, to know specifically what to look for. 26. In Small the Chief Justice also commented on the number of documents required to be produced at 574 - 575 as follows:- Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced … Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant. 27. The principle can be applied more surely when the subpoena is addressed to a third party. 28. Notwithstanding the provision in Pt 37 r 9 for the recovery of an amount to make good the loss or expense incurred by a person in answering a subpoena, Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 928 was nevertheless persuaded that where the identification and collection of the documents will clearly involve many hours of work by employees who will be unable to attend to other business this is a burden which is over and above the loss and expense for which the rule provides. 29. Although dealing specifically with the ambit of the entitlement to recovery of actual costs, including the cost of photocopying and loss in having persons engaged in the task of responding to a subpoena, Bainton J in Deposit & Investment Co Ltd (Receivers Appointed) and Ors v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267 recognised the complexity of issues arising in modern litigation wherein subpoenas "in dragnet form" , such as the subject subpoenas, have become common. 30. The issue is whether the task of producing the documents places an unreasonable burden on the recipient. The test was expressed by Smithers J in Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555 at 570:- Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia , of the desirability that justice be administered effectively. The capacity of a party to collect and produce the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organized and well staffed. What may be burdensome to lesser entities may be of small significance to a large one. 31. Along the same lines, Clarke J identified the task of the Court in determining whether a subpoena requires the person to perform an onerous task in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 719 - 720 in the following way:- … [I]f a court is called upon to rule that a subpoena is an abuse of process in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld.… In determining whether the subpoena offends, the court will, as I have said, need to consider all the circumstances. Quite apart from the terms of the subpoena are the identity of the recipient and his connection with either the parties or the matters in issue, the extent of the burden which may be apparent from the subpoena itself or from evidence adduced for this purpose, and the possible relevance between the documents called for and the dispute before the court. 32. In Arhill Pty Ltd and Ors v General Terminal Co Pty Ltd and Ors (1990) 23 NSWLR 545 Rogers CJ at Comm D took another look at the factors to be taken into account after noting the many changes in court procedure since Clarke J decided South Pacific Hotel . 33. In Arhill the definition of documents in the subpoenas led to the result that a multiplicity of copies of the same document may be needed. Rogers J asked, for example, why all copies including drafts were necessary. His Honour noted that the subpoenas required production of documents which have nothing to do with any element of the dispute and that the demand "as it trawls may snag a variety of documents of no value in the resolution of the dispute" . 34. After embracing the criteria in the Rules of the Supreme Court (UK) which provided that no order for production of documents for inspection or to a court shall be made "unless the court is of the opinion that the order is necessary, either for disposing fairly of the cause or matter, or for saving costs" Rogers J then said at 556:- That, it seems to me, should be the criteria whereby courts should approach applications in relation to setting aside subpoenas, discovery and inspection. There should only ever be the one true guide. Obviously, if a document is not relevant, it cannot be necessary for disposing of the cause. Obviously, if the document does not open up a new line of inquiry, it cannot be necessary. But merely because it is relevant, or opens up a new line of inquiry, does not make it necessary. Do the subpoenas amount to discovery? 35. The essence of discovery is that the party required to make it must decide whether documents in its possession are relevantly related to an issue in the proceedings. 36. The subpoenas do not impose an obligation upon the recipient to undertake this task. They identify the documents as those which evidence or record "the preparation, consideration and assessment by" the recipient of the proposed subdivision which is particularised. They clearly seek production of documents that relate to a particular subject. It is not necessary to decide whether individual documents are relevant to an issue in the proceedings. All the person served with the subpoena is required to do is decide whether the documents are "evidencing or recording" the "preparation, consideration and assessment" of the proposed subdivision. 37. The subpoenas should not be set aside on this ground. Are the subpoenas oppressive? 38. Mr Davison identifies the relevance of the documents as essential to the preparation for cross-examination of witnesses, being material made available to the consultants or brought into existence by them for the purpose of the development application. 39. It is reasonable to expect that the response to the subpoenas may give the respondent information as to the contents of documents, thereby facilitating cross-examination of the Commonwealth's expert witnesses. It also goes to the ability of the respondent to take appropriate advice and to collect and complete expert evidence in support of its own case. Both these aspects are appropriate in class 1 proceedings where the understanding and preparation of critical expert evidence is important. 40. In my view therefore the documents are relevant and necessary for fairly disposing of the matter. 41. The subpoenas in this case are not too wide in the context of the relationship between the Commonwealth, the applicants and the assessment of the development. The latter is the fundamental subject of the dispute. 42. The applicants are in the fortunate position that their knowledge of the subject matter of the proceedings is enhanced by the relationship between them as expert consultants and the Commonwealth which engaged them. 43. I have not been satisfied that either the description of the documents is too wide or that the task of collecting the documents must be regarded as so onerous it outweighs the public interest of allowing the respondent to properly advance its case. Standing 44. Although in the light of the Court's decision it is not strictly necessary to decide the question of whether the Commonwealth has standing as a party to move for the subpoenas to be set aside, it is nevertheless appropriate to deal with the point raised by Mr Davison. 45. In Botany Bay Instrumentation & Control Pty Ltd and Anor v Stewart and Anor [1984] 3 NSWLR 98 Powell J, notwithstanding that his own research failed to locate any considered authority for the proposition that a party to litigation may apply to set aside a subpoena directed to another, reached the conclusion that an application to set aside a subpoena which is an abuse of process may be made not only by the person to whom the subpoena is directed but also by a party to the litigation and any other person who might be shown to have a legitimate interest in having the subpoena set aside. With respect, I adopt the reasoning of Powell J subject to preventing any injustice that might arise by incurring two sets of costs. 46. Furthermore, Pt 37 r 8 would appear to be wide enough to embrace a party as having a sufficient interest to set aside the subpoena in circumstances where prejudice could result to the party. 47. In the present case, the Commonwealth has a close relationship to each of the recipients as a consultant and potential expert witness. That in my view gives it a direct interest in the process. 48. Furthermore, I agree with Mr Wright that the scope of the documents sought has direct consequences for the costs of the litigation and the manner in which it is conducted. 49. Although when the notices of motion were filed there may have been a legitimate complaint that there was not sufficient time to complete the task demanded by the subpoenas by the relevant date, that element of hardship has been removed by the affluxion of time and the vacation of the hearing dates. Orders 50. Each of the notices of motion is dismissed. 51. The appropriate order for costs is that the Commonwealth should pay the whole of the respondent's costs of the notices of motion. 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