New South Wales Supreme Court CITATION : Hamod v State of New South Wales (No 8) [2008] NSWSC 125 HEARING DATE(S) : 22 February 2008 JUDGMENT DATE : 22 February 2008 JUDGMENT OF : Harrison J EX TEMPORE JUDGMENT DATE : 22 February 2008 1. Notice to Produce filed 23 November 2007 issued to the First Defendant is set aside. DECISION : 2. Order the First Plaintiff to pay the First Defendant's costs of its Notice of Motion filed 11 December 2007. 3. Notice to Produce filed 23 November 2007 issued to the Second Defendant is set aside. 4. Order the First Plaintiff to pay the Second Defendant's costs of its Notice of Motion filed 13 December 2007. CATCHWORDS : CIVIL PROCEDURE – notices to produce - setting aside - oppressive - relevance - notice to produce should not be used to seek further discovery LEGISLATION CITED : Uniform Civil Procedure Rules 2005 CATEGORY : Procedural and other rulings AAPT v Cable and Wireless Optus [1999] NSWSC 454 Azzi v Volvo [2006] NSWSC 283 CASES CITED : Foord v Brock [2005] NSWCA 156 Norris v Kandiah [2007] NSWSC 1296 The News Corporation Ltd v Lenfest Communications Inc [1996] NSWSC 474 Anthony Hamod (First Plaintiff) PARTIES : Hamock Investments Pty Ltd (Second Plaintiff) State of New South Wales (First Defendant) UBS Australia Limited (Second Defendant) FILE NUMBER(S) : SC 20147 of 2003 COUNSEL : M T Hutchings (First Defendant) M R Speakman SC (Second Defendant) In person (First Plaintiff) SOLICITORS : I V Knight, Crown Solicitor (First Defendant) Allens Arthur Robinson (Second Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 22 February 2008 20147 of 2003 Anthony Hamod & Hamock Investments Pty Ltd v State of New South Wales & UBS Australia Limited JUDGMENT – EX TEMPORE 1 Each of the defendants moves by notice of motion for orders setting aside a notice to produce dated 19 November 2007 served upon them by the first plaintiff. The notices to produce are different in each case but the submissions of the defendants concerning them are similar. Notice to produce served on first defendant 2 The notice to produce from the first plaintiff directed to the first defendant is in all 21 pages long and contains 138 separate paragraphs of documents or categories of documents which the first plaintiff requires to be produced. The schedule to the notice to produce defines "records" to mean "all documents, letters, written correspondence, written records, email records, forms, memorandums, notes, files, lists, statements, agreements, affidavits, tape recordings, registers, electronic records, video recordings, audio recordings, financial records and statements, bank statements, bank cheque and deposit books, invoices, letters of credit, bank drafts, facsimiles, file notes, warrants, reports, notes of complaints, photographs, plans, certificates, electronic discs, books, written complaints, legal advice and journals". "Relevant period" is defined to mean the period from 1 September 1994 to November 2007. Notice to produce served on second defendant 3 The notice to produce served upon the second defendant is only 13 pages long but contains 80 paragraphs describing documents or categories of documents. The schedule and the period is the same as in the first notice to produce. Discovery 4 Each of the defendants has given discovery in accordance with categories of documents notified to them to the first plaintiff in 2006 or 2007. Each of the defendants has provided a list of documents to the first plaintiff and the first plaintiff has made no application in either case for further discovery nor has he otherwise complained about that process. Discussion 5 The first plaintiff's notices to produce were presumably served on the defendants under the Uniform Civil Procedure Rules 2005. Rules 21.10 and 21.11 are respectively as follows: " 21.10 Notice to produce for inspection by parties (1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced. 21.11 Production under notice to produce (1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce: (a) produce for party A's inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B's possession, and (b) serve on party A, in respect of any document that is not produced, a notice stating: (i) that the document is a privileged document, or (ii) that the document is, to the best of party B's knowledge, information and belief, in the possession of a person identified in the notice, or (iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document. (2) For the purposes of subrule (1): (a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and (b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time." 6 In Norris v Kandiah [2007] NSWSC 1296, Brereton J at par [4] said this: "[4] Part 21 r 10 authorises service of a notice to produce, in respect of documents referred to in originating processes, pleadings, affidavits and witness statements, and "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by Young CJ in Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. As his Honour explained, the rule was not intended to subject a recipient to any kind of general discovery obligation. The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required." 7 At par [7] his Honour also made the following comments: "[7] Where the sustainability on grounds of relevance of a notice to produce is called into question, the issuer bears at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case. A document relates to a fact in issue if it bears on the probability of that fact." 8 In Azzi v Volvo [2006] NSWSC 283, Brereton J made the following comments at pars [4] and [9]-[14] inclusive: "[4] It is now established that a notice to produce of this type may be set aside in circumstances and on grounds equivalent to those applicable to the setting aside of subpoenas [ Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136, Highfields Preparatory and Kindergarten School Pty Ltd v Simpson (NSWSC, Master Greenwood, 22 August 1985, unreported); Portal Software Pty Ltd v Bodsworth [2005] NSWSC 1115, [10]]. Those grounds include, relevantly that the subpoena seeks discovery or further discovery from a party [ Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372; Finnie v Dalglish [1982] 1 NSWLR 400]; that the subpoena is oppressive [ Commissioner for Railways v Small ; Senior v Holdsworth ; Ex parte Independent Television News Ltd [1976] QB 23; Finnie v Dalglish ], or that the subpoena calls for production of documents which have no apparent relevance to the issues in the proceedings [ Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; Hatton v Attorney-General (2000) 158 FLR 31; Portal v Bodsworth [20]-[21]]. The grounds which I have stated are far from exclusive, and are all but instances of the court's power to control its process, the power to set aside a subpoena being an instance of the court's inherent jurisdiction to control its process in the case of an abuse of process. The traditional categories of cases in which subpoenas might be set aside are not the only cases in which the court will intervene, but particular examples of a broad class of case in which the court will set aside a subpoena as an abuse of process [ Botany Bay Instrumentation Pty Limited v Stewart (1984) 3 NSWLR 98, 100 – 101]." ***** "[9] Formerly, an affidavit of discovery was, save for limited exceptions, conclusive [ Mulley v Manifold (1959) 103 CLR 341; Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359], including as to the whether the deponent had any relevant documents other than those listed in his or her possession, custody or power [ Gardner v Irvin (1878) 4 Ex D 49 (CA); Jones v Monte Video Gas Co (1880) 5 QBD 556 (CA); Compagnie Financier et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 (CA); Hall v Truman, Hanbury & Co (1885) 29 CLD 307, 319] and as to the relevance of such documents for the purposes of discovery [ Budden v Wilkinson [1893] 2 QB 432 (CA); Mogul Steamship Co v McGregor, Gow & Co (1886) 2 TLR 752; Hastings Corporation v Ivall (1873) LR 8 Ch App 1017]. It was, therefore, not permissible to go behind an affidavit of discovery by issuing a subpoena for production of documents which ought to have been the subject of discovery, on the basis that the affidavit of discovery was incomplete; to issue a subpoena in those circumstances was one of the classic cases of use of a subpoena as an abuse of process [ Commissioner for Railways v Small, 574]. The proper remedy for an inadequate affidavit of documents was a motion for further and better discovery or, when the rules provided for it, a motion for particular discovery. [10] Since the amendments to the rules, not only the recent Uniform Civil Procedure Rules but also the more recent versions of the Supreme Court Rules , the right to general discovery has been limited, and the rules have provided for discovery by reference to classes. The relevant rule is now to be found in UCPR rule 21.2, which provides that the court may order that one party give discovery to the other of documents within a class or classes specified in the order. The purpose of adopting this approach to discovery was to reduce the burdens of unlimited general discovery, by confining its scope through requiring that the classes of documents of which discovery would be required be identified by the parties and agreed by them and, if not, then determined by the court. [11] However, in my opinion, this does not affect the previous rule that a subpoena which seeks documents which could have been the subject of discovery is an abuse of process. The fundamental purpose of the amendments to the rules which limit discovery to classes was to avoid parties having excessively burdensome discovery obligations imposed on them, by excluding from discovery those documents which were outside the classes which were agreed or determined to be appropriate for discovery. If it remained open to a party to subpoena classes of documents which had been excluded from discovery, that would completely defeat the purpose of the rules in limiting discovery to specified classes. It would amount to using a subpoena to obtain discovery. [12] In this case, orders were made for discovery on several occasions, and classes for discovery were identified. So far as I can tell at this stage, the plaintiff specified classes of documents of which it sought discovery. Either the documents now sought fall within those classes and, if they exist, ought to have been discovered, or they fall outside the specified classes. [13] If the plaintiff contends that documents falling within one of the classes which it specified and in respect of which an order for discovery was made have not in fact been discovered, the only proper remedy is for it to seek further and better discovery, upon proof that there has been a failure to give proper discovery in that class. The defendant, of course, should be alert that if it transpires that it has not given proper discovery of documents in classes which were identified for discovery, then that will have been a serious default on its part. I do not suggest for a moment that that is in fact the case, but in view of the debate which has taken place and in view of the arguments which have been advanced about the subpoena, it should not be assumed that a conclusion that it was not permissible to subpoena these documents involves any conclusion as to whether or not there has been sufficient compliance with the order for discovery in the first place. [14] If, on the other hand, the plaintiff contends that it now seeks documents which were not covered by the order for discovery, then the proper approach would have been to make an application for further discovery by adding a further class to the documents for discovery. It seems to me that 28 February, a couple of days before the commencement of the trial, is rather too late to take that course, at least in the absence of a compelling explanation as to why it could not have been or was not taken earlier [cf Small , 574]." 9 In Foord v Brock [2005] NSWCA 156, Bryson JA said this at par [61]: "[61] Well known limitations on the use which may be made of subpoenas appear from many decisions of the Court; significantly in Commissioner for Railways v Small (1938) 38 SR NSW 564, and a recent example in NSW Commissioner of Police v Tuxford [2002] NSWCA 139. In a similar way a Notice to Produce to another party should not be used oppressively; in proceedings conducted with pleadings where discovery and inspection are available there can be little use for a Notice to Produce except for production of documents which have been identified earlier in the proceedings." Submissions 10 Mr Hutchings of counsel who appeared for the first defendant submitted that the notice to produce served upon the first defendant was oppressive, lacked specificity, was in the nature of discovery in circumstances where discovery had already occurred and was otherwise, but also for these reasons, an abuse of process. He submitted that the notice to produce appeared to have been prepared without reference to the issues referred to in the sixth amended statement of claim or to the fact that discovery had been given without complaint from the first plaintiff. He submitted that a notice to produce was not a substitute for discovery. In this respect I was referred to The News Corporation Limited v Lenfest Communications Inc [1996] NSWSC 474 and AAPT v Cable and Wireless Optus [1999] NSWSC 454 at pars [15]-[18]. Finally, it was submitted that the notice to produce was in the circumstances incapable of salvation to the extent that it contained portions which were defensible. In this respect it was submitted that the very nature of the document was such as to make any attempt to separate the good from the bad itself oppressive. 11 Mr Speakman of Senior Counsel who appeared for the second defendant contended that the notice to produce served upon the second defendant was liable to be set aside upon any one of the following grounds. First, the document failed to comply with Rule 21.10(b) in as much as it was insufficiently specific. Secondly, the categories referred to in the document overlapped with discovery, which had already been given and amounted therefore to an impermissible attempt to obtain further discovery. Thirdly, and similarly, the document was an attempt to obtain additional discovery beyond the categories originally provided. Fourthly, none of the documents of which production was sought could be shown to be relevant to a fact in issue in the proceedings. Finally, the document was so broad in its terms as to be oppressive. 12 The first plaintiff with commendable frankness acknowledged that the notices to produce had been served upon the defendants, in effect, to give to them an opportunity to say whether or not they had the documents in their possession. The first plaintiff also concedes that a significant proportion of the material referred to in the notices was either in his possession or was the subject of subpoenas to be issued by him to third parties for production in due course. The first plaintiff also indicated some enthusiasm for a further amendment to his sixth amended statement of claim to which in part the documents sought in the notices to produce were said to be relevant. Conclusion 13 The breadth and length of each of the notices to produce make reproduction of them in these reasons inconvenient and impractical. There is no doubt that any attempt to comply with the notices would be an extremely time consuming, costly and onerous task. There is similarly no doubt that much of the material of which production is sought will have fallen within the categories of documents which the defendants have already discovered. 14 I consider that the notices to produce in each case are vexatious and oppressive and are an abuse of process. The first plaintiff, who now appears for himself, is not legally trained and confesses a less than perfect understanding of the rules of court. His litigation, however, has been on foot in this Court and in the Federal Court for some time and he is not inexperienced to the point where he is unable adequately to represent his own interests. The notices to produce in this case are so plainly flawed that they are incapable of withstanding even the most sympathetic scrutiny having regard to the first plaintiff's present lack of professional legal representation. 15 In my opinion each of the notices to produce should be set aside. Accordingly I make the following orders: 1. Notice to produce filed 23 November 2007 issued to the first defendant is set aside. 2. Order the first plaintiff to pay the first defendant's costs of its notice of motion filed 11 December 2007. 3. Notice to produce filed 23 November 2007 issued to the second defendant is set aside. 4. Order the first plaintiff to pay the second defendant's costs of its notice of motion filed 13 December 2007. ********** 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.