Supreme Court New South Wales Medium Neutral Citation: Pevey v Jones Lang Lasalle (NSW) Pty Ltd [2016] NSWSC 45 Hearing dates: 2 February 2016 Date of orders: 02 February 2016 Decision date: 02 February 2016 Jurisdiction: Common Law Before: Garling J Decision: 1. Counsel to bring in short minutes of order. 2. Order the first defendant to pay the second defendant's costs of the Motion. Catchwords: PROCEDURE – civil – Notice of Motion to set aside subpoena to produce documents – whether the documents sought are relevant to a fact in issue – whether the scope and reach of the subpoena are oppressive COSTS – general rule that costs follow the event – whether the first defendant should pay the second defendant's costs of the Motion Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Jennifer Pevey (P) Jones Lang Lasalle (NSW) Pty Ltd (D1) Fabcot Pty Ltd (D2) Representation: Counsel: S Maybury (P) C Purdy (D1) A J Bowen (D2) Solicitors: Law Partners (P) Vardanega Roberts (D1) Meridian Lawyers (D2) File Number(s): 2014/202571 Publication restriction: Not Applicable _________________________________________________________________ EX TEMPORE Judgment 1. The substantive proceedings in this matter are constituted by an Amended Statement of Claim filed in the District Court on 28 November 2014. The plaintiff in that claim alleges that on 18 May 2012, whilst visiting the Greystanes Shopping Centre at Merrylands Road, Greystanes, she was returning to her car parked in an outdoor car park attached to the shopping centre when, as she walked through that car park, she tripped and fell to the ground and suffered serious personal injury. 2. The plaintiff sues the first defendant, Jones Lang Lasalle (NSW) Pty Limited, as the managing agent for the shopping centre, alleging that it had the day‑to‑day care, control and management of the shopping centre, and that it owed her a duty to take reasonable care to make the premises safe for the use of all lawful entrants. 3. The allegations in the particulars of negligence relate to the existence of an unsafe tripping hazard in the car park which was not addressed adequately either by repair and maintenance, or barricading the area so as to prevent pedestrians coming to harm when using the car park and, as well, failing to warn the plaintiff of the presence of the tripping hazard. In addition, the plaintiff alleges that the first defendant failed to have any, or any appropriate, lighting in the car park. 4. The plaintiff also claims against the second defendant that because it was the owner of the centre and was entitled to exercise care, control and management of the centre, and was an occupier of the centre, it owed her a duty to take reasonable care. 5. The plaintiff pleads against the second defendant the same particulars of negligence as against the first defendant and, in addition, pleads that the second defendant failed to give any proper direction, or any direction at all to the first defendant, to repair the car park and install appropriate lighting. 6. The first defendant has filed a cross-claim against the second defendant seeking indemnity or contribution pursuant to the provision of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. That cross-claim relies upon the particulars of negligence pleaded by the plaintiff. 7. On 9 November 2015, the first defendant caused to be issued a subpoena to produce documents addressed to the second defendant seeking the production of a significant number of documents. Thereafter, discussions ensued between the parties with the result that the first defendant offered to modify the schedule to the subpoena in particular ways and pressed for that modified schedule to be taken as the relevant subpoena. 8. By Notice of Motion filed on 9 December 2015, the second defendant moved the Court for orders to set aside the subpoena to produce in its modified form. It is appropriate then that I refer in the course of this judgment to the modified form of the subpoena, which is to be found in the text of a letter from the solicitors for the first defendant, Vardanega Roberts, to the solicitors for the second defendant, Meridian Lawyers, dated 27 November 2015. 9. There are two relevant paragraphs in the subpoena. One refers to the subject matter of lighting, and the other refers to the subject matter of the surface of the car park. Each of these paragraphs is discrete in terms of its subject matter, and ought be considered separately. 10. Putting it shortly, the second defendant, which is the applicant on the Motion, argues that the modified categories should not be allowed because the documents caught by each of the paragraphs do not relate to a fact in issue, constitute an exercise of fishing and that the scope and reach of the documents sought are oppressive. 11. As well, the second defendant submits that the phrasing, in part, of paragraph 3 of the subpoena is either imprecise or, if taken at face value, is too broad. 12. The shopping centre at which the subject accident occurred is, as I have said, located at Greystanes not far from, and within a few kilometres of, the Pemulwuy Marketplace, which is another shopping centre owned by the second defendant and located at Butu Wargun Drive, Pemulwuy. It is alleged by the first defendant that erected at the Pemulwuy Centre is one or more light towers of a kind which would have been appropriate to install at the Greystanes Shopping Centre. 13. The principles upon which this Court determines whether to strike down a subpoena are very well known and do not need to be elicited here in any detail. There is no room for dispute about those principles. The question is how, if at all, those principles should be applied to these proceedings. 14. I turn first to deal with the question of lighting. Initially, the paragraph of the subpoena, as modified, was said to relate to a fact in issue, namely: "Whether [the second defendant] through its ownership and construction of numerous other shopping centres across New South Wales, including its ownership of the Pemulwuy Marketplace mere kilometres from the Greystanes Shopping Centre, would have known the standards of lighting required at outdoor car parks such that it ought to have known the lighting then in existence at Greystanes Shopping Centre car park was inadequate." 1. In the course of submissions on whether or not that was a relevant issue, and in particular in light of the contents of the expert architectural report of Dr John Cooke dated 20 November 2015, which was obtained by the first defendant and served on both the plaintiff and second defendant, I attempted to determine whether there was any real dispute between the parties, or else any live issue between the parties, as to whether the second defendant knew or ought to have known of the standards of lighting required at outdoor car parks. Paragraph 15 of the expert report of Dr Cooke says this: "Applicable Standards. Advice on levels of illuminance for outdoor car parks is set out in table 2.5 and table 2.9 of AS/NZS 1158.3.1: 2005 Lighting for Roads and Public Spaces Pt 3.1: Pedestrian area (category P) lighting heightened performance and design requirements. This is the applicable standard." 1. The Australian Standard, or that part of it, is annexed as Appendix D to the report. 2. I am informed by counsel that the second defendant has not served any expert opinion which contradicts that statement. Counsel for the second defendant informs me that the second defendant has re-served the expert report of Dr Cooke on both the plaintiff and the first defendant. 3. I enquired of counsel for the second defendant whether there was any real issue about whether the applicable standard was as described by Dr Cooke. Counsel obtained instructions and informed the Court that the second defendant admitted that it knew or ought to have known of the relevant and applicable Australian Standard described in paragraph 15 of Dr Cooke's report at all relevant times. That concession and acceptance is to be found in the transcript of the submissions made on this application. 4. In light of that, it seems to me that the paragraph of the subpoena dealing with lighting cannot be sustained as going to the nominated relevant fact in issue, namely, the state of knowledge, actual or constructive, of the second defendant of the standards of lighting required at outdoor car parks. Putting it briefly, the first defendant's expert sets out what the standard is and counsel for the second defendant informs me that his client accepts that that is the applicable standard and that, at all relevant times, the second defendant knew, or ought to have known, of that standard. 5. Confronted with this change in the forensic landscape, counsel for the first defendant submitted that there was a further basis upon which paragraph 2 of the subpoena could be justified. In order to understand that submission, I will set out the modified version of paragraph 2. It reads: "Any file notes, letters, memos, emails, expert reports (builder, architect, lighting consultant, building certifier, engineer or town planner), quotations or invoices regarding erection/installation of lighting towers being car parks at shopping centres owned by [the second defendant] or constructed by or for [the second defendant] from 2009 to 2013." 1. A later letter from the solicitors for the first defendant sought to reduce the scope of that paragraph by limiting the shopping centres to seven in number, all located in Sydney and all located within a reasonable proximity of the subject shopping centre. As the submission developed, counsel for the first defendant submitted that a relevant fact in issue was the feasibility, or put differently, the reasonableness, of a suggested method of ensuring adequate illumination of the car park, namely, the erection and use of lighting towers to provide adequate light. It seems to me that in light of paragraph 28 of he expert report of Dr Cooke, the effect of which is that the cost at the time he wrote his report in November 2015 of the fabrication and installation of light towers, including fittings and wiring, would be in the order of $10,000, the first defendant is entitled to add to that statement other relevant evidence on the feasibility of the solution being suggested. 2. I have used "feasibility" as a term to express a slightly more expanded concept. In order to prove a breach of duty, it is incumbent on a party to demonstrate that the precaution that they submit ought to have been taken so as to address the relevant risk of harm was a precaution that was reasonably open to the other party to take. Whether a precaution was reasonably open or available to a party to take can be proved in a number of ways; one way is to point to the fact that the party had taken such a precaution at a relevant time prior to the incident in question. 3. I am persuaded that it would be relevant to a fact in issue, namely, whether a light tower was available and capable of being erected at the Greystanes Shopping Centre which carried an appropriate level of illumination, for the first defendant to be able to access documents relating to the Pemulwuy Marketplace and the erection, installation and operation of lighting towers within the car park at that shopping centre, which is in geographical proximity and, on the basis of the material before me, had lighting towers erected at a time relevant to the issues in these proceedings. However, I do not think that it is necessary or reasonable to require the second defendant to produce documents relating to the other six shopping centres, let alone the other 65 shopping centres around NSW which it previously built in the relevant time. 4. Accordingly, I would not be prepared to permit paragraph 2 of the subpoena as it is presently constituted to stand, but I would be prepared to allow a subpoena requiring production of documents relating to the erection, installation and operation of lighting towers within the car park at the Pemulwuy Marketplace in the period from 1 January 2009 to 31 December 2012. 5. The second part of the subpoena, namely paragraph 3, related to the surface of the car park. The modified paragraph is in the following form: "A copy of all documents including but not limited to all contracts, agreements, invoices, receipts, memoranda, letters, emails, contracts, deeds, work orders, schedules, rosters, diagrams, plans, photographs and schematics relating to any and all work undertaken in relation to the renovation, repair or refurbishment of the car park at the Greystanes Shopping Centre, Merrylands Road, Greystanes from the period 1 January 2009 to 31 December 2012." 1. Counsel for the first defendant submitted that the state of the floor of the car park in the area where the plaintiff fell, and generally in the car park, was relevant to several facts in issue, namely: the knowledge of the second defendant with respect to the state of the surface of the car park; the consideration, if any, it gave to repairing the surface of the car park; the investigations, if any, it made with respect to the surface of the car park; and generally the moneys that were expended and the nature of work undertaken, if any, with respect to the surface of the car park. Accordingly, he submitted that the terms of the subpoena were appropriate. 2. The second defendant submitted that the car park attached to the Greystanes Shopping Centre consisted of two floors: one was an external or outdoor floor generally on the level of the shops or shop in the centre; the other was an underground or perhaps a basement car park which was, or at least ought to be viewed as, an entirely separate car park from that where the plaintiff fell, which was the outdoor car park. Accordingly, the first submission was that the Court would not allow a subpoena which was not confined to the outdoor car park because the other part of the car park was not relevant at all, let alone to a fact in issue. 3. The second defendant also submitted that the breadth of documents required was significant and would throw up many irrelevant documents including, for example, the painting of an exit sign on a wall or perhaps the painting of numbers for car parks or other entirely irrelevant work. 4. Counsel for the first defendant made it plain that the fact in issue which was sought to be addressed by the subpoena was the existence of, and the second defendant's response to, defects in the surface of the car park or potholes in the surface of the car park at the relevant times. 5. I am satisfied that a relevant fact in issue, and matters relevant to that fact in issue, include the surface of the car park described as the outdoor car park where the plaintiff fell. I am also satisfied that relevant to that fact in issue is the state of the surface of the other basement car park attached to the centre. It does not seem to me that the mere fact that there are two floors of car parking and the plaintiff only fell in one floor means that the other floor of car parking is wholly irrelevant to the proceedings. This is a car park which consisted of two floors, in the same building, owned by the same owner. The state and condition of the surface of the car park on both levels is either a fact in issue or relevant to a fact in issue. I would not be prepared to set aside paragraph 3 of the subpoena on the basis that the word "car park" is used to describe an area including an irrelevant part of the overall premises. 6. However, I accept the submission that the paragraph, insofar as it travels into areas outside the surface of the car park, is not relevant to a fact in issue. I would, however, be prepared to allow a paragraph in the subpoena which was limited to the surface of the car park at the Greystanes Shopping Centre, thereby excluding other unrelated works which may have taken place in the car park in the relevant time. 7. The second defendant submitted that, in an overall sense the subpoena was oppressive because it required the second defendant to search for a large number of documents over a lengthy time period I accept that submission with respect to the subpoena as it was originally framed, but it seems to me that, limited in the ways I have adumbrated, there is no real oppression falling on the second defendant to produce the relevant documents. 8. What I propose to do is to stand the Motion over for a short period of time to enable the parties to bring in short minutes of order, and it would be appropriate if those short minutes of order included as an annexure the subpoena which the first defendant now desires to issue, and which complies with the remarks in this judgment. 9. Having delivered judgment with respect to the Notice of Motion, an issue has arisen as to whether the first defendant ought to pay the second defendant's costs or whether each party should pay its own costs. The second defendant submits that it has been in substance successful and that it was compelled to bring the Notice of Motion to set aside the subpoena in its original form because of the attitude of the solicitors for the first defendant expressed in a letter of 27 November 2015 in the following terms: "We will not engage in further correspondence in (sic) this issue as it is inefficient from a costs' perspective as your client will no doubt appreciate. We put you on notice that if you file a notice to set aside the subpoena and you are not successful, we will seek costs." 1. The second defendant submits that in light of the terms of that correspondence, it was left with no alternative but to bring the Notice of Motion which it did, and that it has been largely successful. Accordingly, it submits that costs should follow the event. 2. The first defendant submits that largely by reference to a letter of 27 January 2016, which was sent on a "Without Prejudice" basis, it has achieved a result as good as, if not better than, what was set out in its proposal of 27 January 2016, and that accordingly, whilst it would be entitled to an order for costs, it is appropriate to order that each party bears its own costs of the motion. 3. The Court has the power to make any order for costs which it considers just and appropriate in the circumstances. Ordinarily, the Court would order an unsuccessful party to pay the costs of a successful party, i.e. ordinarily, costs would follow the event. 4. In this case, it seems to me that the following matters are relevant to the exercise of the Court's discretion. 5. First, that the terms of the original subpoena when issued were undoubtedly excessively broad and could not be sustained by reference to the issues in the proceedings. Secondly, although there was some attempt to narrow the scope of the documents being sought, by the end of November 2015 that process had been brought to an end, and the solicitors for the first defendant indicated in the letter of 27 November 2015 that it had narrowed the subpoena as far as it was prepared to, and that if the second defendant was not content to accept that position it should file a motion to set aside the subpoena. Finally, an offer was made very late in the piece, 27 January 2016, to further confine the subpoena, but even then that offer was not entirely bettered by the outcome of these proceedings. 6. In all of the circumstances, I am of the view that the second defendant has been largely successful. An order will be made that the subpoena be set aside in the terms in which it was first issued. Any subpoena to be substituted for that subpoena will not be in the terms contended for in the correspondence leading up to 27 November 2015, nor in the terms of any offer made very late in the piece on 27 January 2016. Counsel will need to bring in short minutes of order to reflect the conclusions in this judgment. 7. As I say, the second defendant has been substantially successful and it is appropriate that I order that the first defendant pay the second defendant's costs of the Motion. ********** 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. Decision last updated: 10 February 2016