Land and Environment Court of New South Wales CITATION : Darcy Peter Smith and D.P. Smith (Homes) Pty Ltd v Wyong Shire Council [2007] NSWLEC 395 FIRST APPLICANT Darcy Peter Smith PARTIES : SECOND APPLICANT D.P. Smith (Homes) Pty Ltd RESPONDENT Wyong Shire Council FILE NUMBER(S) : 40381 of 2007 CORAM: Talbot J KEY ISSUES: Costs :- Subpoena withdrawn pursuant to agreement. Whether too broad abuse of process; no legitimate forensic purpose. Commissioner of Railways v Small (1930) 38 SR(NSW) 564; CASES CITED: Commonwealth of Australia v Randwick City Council [2000] NSWLEC 171; Re The Minister For Immigration and Ethnic Affairs Of The Commonwealth Of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 DATES OF HEARING: 13/06/07 DATE OF JUDGMENT: 29 June 2007 APPLICANT Mr Eastman (Barrister) SOLICITORS D.C. Balog & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr Robertson SC SOLICITORS Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 29 June 2007 40381 of 2007 Smith Darcy Peter and DP Smith (Homes) Pty Ltd v Wyong Shire Council JUDGMENT 1 Talbot J: In these interlocutory proceedings the respondent council challenged a subpoena issued by the applicant seeking production of a wide range of documents relating to the Bateau Bay Landfill and its rehabilitation and associated activities. After preliminary argument and an adjournment the subpoena was withdrawn pursuant to an agreement. The question of costs is not resolved and the council seeks its costs in relation to the subpoena. 2 The subpoena was issued on 11 May 2007. Despite the respondent producing 8 boxes of documents subject to resolution of questions of privilege some documents were made available for inspection by the applicant. However at all times the council's solicitor maintained an objection that the terms of the subpoena were too broad and oppressive. 3 By Notice of Motion dated 31 May 2007 the council sought orders setting aside certain paragraphs of the subpoena on the following grounds: (a) the subpoena is an abuse of process; (b) the subpoena does not describe the documents sought with reasonable particularity; (c ) many of the documents sought can have no conceivable relevance to the proceedings, and the subpoena lacks any legitimate forensic purpose; and (d) the subpoena is oppressive. 4 The principles for setting aside a subpoena are well known (Commissioner of Railways v Small (1930) 38 SR (NSW) 564). 5 The applicant has never identified a legitimate forensic purpose for production of the documents which, was required before points of defence have been filed and issues joined. Moreover on its face the terms of the subpoena were too broad, lack specificity and required value judgments to be made. Accordingly the prospect is that the subpoena would have been set aside in significant respects. 6 The applicant relied on the inherent capacity of the council, as recipient of the subpoena, to produce documents within the various categories referring to or relating to the management of waste collection and disposal in its area. That fact does not relieve the applicant of the responsibility to be sufficiently concise to identify the relevance to the proceedings. (Commonwealth of Australia v Randwick City Council [2000] NSWLEC 171). 7 The findings by McHugh J in Re The Minister For Immigration and Ethnic Affairs Of The Commonwealth Of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 at 624-625 are particularly apposite to the present circumstances. 8 The council was most likely to be successful in its challenge to the subpoena. In my view the applicant acted unreasonably by not explaining the purpose of the subpoena or narrowing its terms to make them more concise. The evidence shows that the council acted reasonably by attempting to resolve the dispute in a co-operative fashion. 9 Notwithstanding that the subpoena was withdrawn pursuant to an agreement it is nevertheless appropriate and reasonable that the applicant pay the council's costs in relation to the Notice of Motion to set it aside. The costs of actually complying with the subpoena will ultimately be costs in the cause. 10 The formal orders are: 1. The first applicant pay the costs of the respondent in relation the Notice of Motion to set aside the subpoena dated 31 May 2007. 2. All other costs reserved. 3. Exhibits may be returned. 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.