Lesvos Pty Ltd & 1 ors v Penrith Whitewater Stadium Ltd [2006] NSWSC 820

New South Wales Supreme Court

CITATION : Lesvos Pty Ltd & 1 ors v Penrith Whitewater Stadium Ltd [2006] NSWSC 820

HEARING DATE(S) : 23/6/06

JUDGMENT DATE : 17 August 2006

JUDGMENT OF : Bell J at 1

DECISION : 1. Set aside the subpoena addressed to Penrith Whitewater Stadium Limited issued on 9 November 2005 returnable on 29 November 2005.

CATCHWORDS : Application to set aside subpoena

CASES CITED : Commissioner for Railways v Small (1938) 38 SR 564 NSW Commissioner of Police v Tuxford [2002] NSWCA 139

Lesvos Pty Ltd (ACN 078 840 338) (1st Plaintiff) PARTIES : Koffee Pty Limited (ACN 056 318 882) (2nd Plaintiff) Penrith Whitewater Stadium Ltd (ACN 083 662 140) (1st Defendant) Penrith City Council (2nd Defendant)

FILE NUMBER(S) : SC 20147/02

COUNSEL : A. Street SC / D. Baran (1st and 2nd Plaintiff) M. Jacobs QC / P.J. Bambagiotti (1st and 2nd Defendant)

SOLICITORS : Andresakis & Associates (1st and 2nd Plaintiff) Gadens (1st and 2nd Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Thursday 17 August 2006

20147/02 Lesvos Pty Ltd (ACN 078 840 338) & 1 ors v Penrith Whitewater Stadium Ltd (ACN 083 662 140)

JUDGMENT 1 BELL J: By notice of motion filed on 28 November 2005 the first defendant, Penrith Whitewater Stadium Limited (PWS), applied for orders including that the subpoena dated 9 November 2005 directed to Penrith Whitewater Stadium Ltd (the subpoena), or such part or parts thereof as the Court thinks fit, be set aside. 2 Mr Jacobs QC, who with Mr Bambagiotti appeared on behalf of PWS, read the affidavit of Kate Elizabeth Godhard, sworn 31 January 2006, and the affidavit of Peter Flowers, sworn 9 March 2006 in support of the motion. The plaintiffs led no evidence in support of the subpoena. An affidavit by the plaintiffs' solicitor, Angelo Andresakis, sworn on 5 December 2005, was tendered in PWS's case, together with a copy of the report of Chris Katehos, an accountant with Furzer Crestani Services (the Katehos report), which has been served by the plaintiffs in the proceedings. 3 The subpoena requires production of the following documents or things: 1. Copies of the Penrith Whitewater Stadium's weekly café update sheet or data in respect to the number of visitors i.e. rafters and tour groups from the date the facility opened until 31 August 2004. 2. Copies of the data, reservation books, memorandum, notes, correspondence, record books which set out details of the number of visitors or bookings for people or groups of people to use to Penrith Whitewater facility. 3. Notes, correspondence, memorandum booking sheets, schedules etc of all major events including estimates or actual figures of the number of visitors attending each event from the date the Penrith Whitewater opened for business until 31 August 2004. Without limiting the generality of the meaning of the word "documents", where that word appears in this notice it includes letters, correspondence, electronic mails, facsimile transmissions, file notes, memoranda, accounting records, statements, order forms, invoices, receipts, drawings, plans and specifications, minutes of meetings and notes of meetings, deeds, dealings, authorities and consents. 4 PWS's solicitors wrote to Mr Andresakis on 21 November 2005, contending that the subpoena was an abuse of process in that it was a fishing exercise and had not been served for the bona fide purpose of obtaining relevant evidence. Complaint was also made that the subpoena was being employed as a substitute for discovery, and that discovery had not yet been ordered. The width of the description of the documents was challenged and it was said that it imposed an unduly onerous obligation on PWS. 5 Peter Flowers is a Manager in the employ of PWS. He details the arrangements made by PWS for the storage of documents after they are no longer required for daily use. Financial documents of various types; risk agreements, booking forms and documents relating to particular PWS events are stored off-site in a shipping container. On 9 March 2006 Mr Flowers counted the number of boxes stored by PWS at this facility. There were 92 boxes containing documents falling within the range of dates specified in the schedule to the subpoena. Mr Flowers calculates that there are approximately 282,348 pages of documents contained within these boxes. Each document would have to be examined in order to determine whether it was required in answer to the subpoena. 6 Mr Flowers states that PWS has nine full time employees. He considers that it would be necessary to employ casual staff to carry out the inspection of the documents subject to the supervision of a senior member of staff. He estimates that the costs of carrying out this exercise, without making provision for the cost of supervision, would be of the order of $54,102.94. 7 In his affidavit of 5 December 2005 Mr Andresakis states that on or about 28 October 2005 he had a conversation with Chris Katehos in relation to an expert's report and that in this conversation he was informed that the documents set out in the schedule to the subpoena would be material that would assist him in preparing his economic loss report. The Katehos Report is dated 22 June 2006 and contains an assessment of the plaintiffs' alleged damages. Mr Katehos states therein (at [3.3]): In assessing the plaintiffs' claims and allegations, the following information may have been of assistance: (a) From the plaintiffs, a copy of the plaintiffs' income tax returns and detailed profit and loss statements for the years ended 30 June 1998 to 2002; and (b) from the defendants, a copy of detailed financial statements including profit and loss statements and balance sheets for the Whitewater Terrace Café from 1 July 2000 to date, summarised on a financial year basis. 8 Mr Jacobs' grounds for challenging the subpoena were that it is an abuse of process in that it is without legitimate forensic purpose and that it is oppressive. 9 Mr Street SC, who with Mr Baran appeared on behalf of the plaintiffs, submitted that Mr Flower's affidavit was expressed in terms of considerable generality and did not identify how many of the documents in the storage facility related to the number of visitors to the Stadium. He pointed out that the subpoena was addressed to a party and that no order for discovery had been made. It was his submission that it was not unreasonable for the plaintiffs to seek to obtain material in support of their case by means of subpoena or notice to produce as an alternative to "open-ended discovery".