> Land and Environment Court of New South Wales CITATION : Williams v Homestake Australia Limited And Ors. [2003] NSWLEC 250 APPLICANT: Williams PARTIES : RESPONDENTS: Homestake Australia Limited And Ors. FILE NUMBER(S) : 40010 of 2002 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- setting aside subpoena LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/03/2002 EX TEMPORE JUDGMENT DATE : 03/19/2002 APPLICANT: Mr A Oshlack, Agent SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr C Ireland, Solicitor SOLICITORS Blake Dawson Waldron JUDGMENT: IN THE LAND AND Matter No. 40010 of 2002 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 19 March 2002 N. WILLIAMS Applicant v HOMESTAKE AUSTRALIA LIMITED ACN 007 857 First Respondent BARRICK CORPORATION Second Respondent THE DIRECTOR-GENERAL NATIONAL PARKS AND WILDLIFE SERVICE Third Respondent JUDGMENT Bignold J: 1. The Court has before it a Notice of Motion filed on 12 March 2002 by the Applicant in class four proceedings seeking a number of orders in relation to a subpoena for production served by the first respondent upon Mr Alan Oshlack who acts as the authorised agent of the Applicant in class four proceedings brought by the Applicant against the first respondent and others seeking declaratory and injunctive relief in respect of exploratory mining activities being conducted by the first respondent on land known as the Lake Cowal Gold mine site. 2. The motion sought a number of orders but ultimately the Applicant has limited the relief claimed to the setting aside of the subpoena addressed to Mr Oshlack or the alternative claim that the subpoena need not be complied with because it is suggested that the amount of ten dollars which it is agreed is the amount of conduct money tendered with the subpoena was not a reasonable amount of conduct money in the circumstances of the case. 3. The matter has proceeded in this fashion, Mr Oshlack has informed the Court that if the subpoena were to stand, then in response to the first respondent's calling upon the subpoena today the response is that there are no documents to produce. The documents sought in the subpoena are specified in the schedule, "firstly any academic transcript or university record of any testamur, certificate or degree, or any undergraduate degree or higher degree held by you, Mr Alan Oshlack, and secondly all your mobile phone accounts and statements including schedules showing individual telephone calls from the period 1 January 2000 to the present". As I have said, Mr Oshlack has informed the Court that if the subpoena were to stand the answer is that there are no documents to produce in response thereto. However, the matter is taken further in as much as the Applicant's motion seeks to have the subpoena set aside. 4. I note that the motion indicates that it is the Applicant Mr Williams who is claiming the orders but I think in reality, it is Mr Oshlack claiming the orders. Certainly in relation to the tender of what is alleged to be an unreasonable amount of conduct money does not lie in the mouth of an Applicant when the subpoena has been served upon another person, to seek that relief. However, a claim for relief by setting aside the subpoena would be available to the Applicant as much as the person to whom the subpoena is addressed (in this case Mr Oshlack, the Applicant's authorised agent in this litigation). I do not stay to develop this matter since I am content to determine the question of whether the subpoena should be set aside (that matter having been the matter argued before me today). In seeking the setting aside of the subpoena, Mr Oshlack has argued that the subpoena (i) is irrelevant to any issues in the proceedings; (ii) that it is a fishing expedition; and (iii) that it is related to an attempt to impugn his credit as a witness in the proceedings (he having been called to the witness stand in an interlocutory phase of the proceedings namely in respect of the first respondent's application for security for costs). 5. On behalf of the first respondent, it has been put that the subpoena ought not be set aside, that it clearly called for documents which are relevant to the issue arising in the interlocutory proceedings being the part heard security for costs application brought against the Applicant by the first respondent and that it is likely to have some vital relevance to the case particularly in the evaluation of the evidence that was given by Mr Oshlack as a witness called by the first respondent, and in the evaluation of the testimony of Mr Williams who was cross-examined on a number of his affidavits filed in the proceedings, particularly in relation to the question of whether Mr Williams was bringing the proceedings in some representative capacity on behalf of the Mooka Traditional Owners' group. In my view the subpoena should be set aside, principally because it offends what is described in section 102 of the Evidence Act 1995as the "credibility rule". That section provides that evidence that is relevant only to a witness's credibility, is not admissible. 6. In my view the documents called for clearly relate to matters raised in the testimony given by Mr Oshlack when called as a witness by the first respondent and the only purpose of the documents having any conceivable bearing and relevance in the case would be to seek to undermine the credibility or credit of Mr Oshlack in giving the answers that he gave in his evidence-in-chief as a witness called by the first respondent. 7. An allied reason and one that perhaps should have been invoked when Mr Oshlack was called to the witness stand without notice during the hearing of the part heard security for costs motion, was that objection ought to have been taken pursuant to section 120 of the Evidence Act which provides in subsection (1) that evidence is not to be adduced if on objection by a party who is not represented in the proceedings by a lawyer, the Court finds that adducing the evidence would result in disclosure of a confidential communication between the party and another person or be the contents of a confidential document that was delivered or not that was prepared either by or at the direction or request of the party for the dominant purpose of preparing for or conducting the proceedings. 8. The evidence of Mr Oshlack called as a witness by the first respondent went to those very matters as to what his instructions were from Mr Williams, whether he had received instructions from the Mooka Group etc and regrettably, attention was not called to the restrictions flowing from the Evidence Act, s 120 and that evidence most probably ought to have been objected to. Be that as it may, any attempt to go behind that evidence, not only offends the credibility rule in the manner that I have indicated but also probably would involve a violation of the Evidence Act, s 120. For those reasons even though the matter has been debated upon the basis that there are no documents to produce in response to the subpoena, the preferred response of the Applicant and Mr Oshlack to the subpoena is that it ought to be set aside and I so order that the subpoena be set aside. That decision relieves me from considering the question of whether the subpoena need not have been complied with because of the suggestion that the amount of $10 conduct money was insufficient, and in view of my decision to set aside the subpoena and the basis for that decision, no worthwhile purpose would be served by my considering that matter. 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.