Supreme Court New South Wales Medium Neutral Citation: Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465 Hearing dates: 20 September 2018 Decision date: 20 September 2018 Jurisdiction: Common Law Before: Leeming JA Decision: 1. Paragraphs 1, 2, 4, 5 of the amended notice to produce dated 20 September 2018 set aside. 2. Order that the plaintiff/respondent pay the costs of the defendant/applicant of paragraph 2 of its amended notice of motion originally dated 6 September 2018. Catchwords: PRACTICE – notice to produce – application to set aside – failure to "specify" documents – Uniform Civil Procedure Rules 2005 (NSW), r 34.1 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 34.1 Cases Cited: Commissioner for Railways v Small (1938) 38 SR NSW 564 Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 Category: Consequential orders (other than Costs) Parties: Loulach Developments Pty Ltd (Plaintiff/Respondent) Roads and Maritime Services (Defendant/Applicant) Representation: Counsel: T Hale SC (Plaintiff/Respondent) N Kidd SC (Defendant/Applicant) Solicitors: Madison Marcus (Plaintiff/Respondent) Makinson d'Apice Lawyers (Defendant/Applicant) File Number(s): 2015/167414 Publication restriction: Nil Ex Tempore Judgment 1. HIS HONOUR: Pursuant to an amended notice of motion originally filed on 6 September 2018, the defendant ("RMS") moves to set aside four paragraphs of an amended notice to produce dated 13 February 2018. RMS is the successor to the Roads and Traffic Authority ("RTA"). 2. Those four paragraphs are as follows: "1. All correspondence, documents, and records used for or referred to in the preparation and drafting of the letter from the RTA to Blueprint Property dated 19 August 2008. 2. All correspondence, documents, and records used for or referred to in the preparation and drafting of the letter from the RTA to Parramatta City Council dated 30 January 2009. 4. All correspondence, documents, and records used for or referred to in the preparation and drafting of the letter from the RMS to Maclarens Lawyers dated 5 November 2013. 5. All correspondence, documents and records used for or referred to in the preparation of the letter from the RMS to Maclarens Lawyers dated 8 July 2014." 1. The only evidence on the application is the four letters referred to in each of those paragraphs. 2. Mr Kidd SC for the defendant/applicant makes essentially two submissions. The first is based upon the uniform form of each of the paragraphs. Those paragraphs call for all correspondence, documents and records ("documents" is predictably broadly defined) which were either "used for" or "referred to" in the "preparation and drafting" of the four specified pieces of correspondence. 3. Mr Kidd submits that that requires the recipient of the notice to interrogate the author, or authors, of each piece of correspondence about the material he or she used or referred to in drafting each item of correspondence between 3 and 10 years ago. He submits that this in substance amounts to a form of interrogation, which goes outside what is authorised by the power relied upon by the plaintiff, namely, UCPR r 34.1. 4. Secondly, in relation to paras 4 and 5, he submits that those paragraphs have no apparent relevance. The claim in these proceedings concerns representations said to have been relied upon originating from the RTA and leading to a consent granted by Parramatta City Council which was acted upon and construction was completed in around July 2012. He says that documents which were used for or referred to in the preparation and drafting of letters in November 2013 and July 2014 cannot be relevant to any of the issues in this litigation. 5. Mr Hale SC for the plaintiff/respondent defends each of the paragraphs. He says that each sufficiently "specifies" the documents as required by r 34.1, and emphasises that there is no evidence of any oppression or difficulty in achieving compliance with what is required. He points to the fact that the first and second documents are singled out in the pleading which contains an allegation, in the case of the first document, that before the letter was sent "The RTA did not read Government Gazette No 1967." That allegation is denied in RMS's defence. There are similar allegations and denials in relation to the second document. Mr Hale's submission in substance is that the material which was before the author of each of those two pieces of correspondence is directly relevant to a central disputed allegation in the litigation. 6. In relation to the third and fourth contested paragraphs, Mr Hale submits that although the correspondence post-dated the completion of the construction by more than a year, the request for production will call for documents which are capable of shedding light upon the consideration by RMS and its predecessor RTA at relevant times for the proceedings. 7. It is accepted by Mr Hale that each of the paragraphs bears the construction outlined by Mr Kidd, namely, requiring an interrogation of the author or each of the letters of the documents he or she used and referred to in the course of drafting each letter. 8. True it is, as Barrett J said in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [13]-[14] that a subpoena or, relevantly, a notice to produce under UCPR r 34.1, may permissibly call for, for example, "all documents recording oral communications between A and B within a stated period", on the basis that such a request satisfies the requirement stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR NSW 564 at 573 that a document (in that case in the subpoena) be "specified with reasonable particularity." Barrett J went on to say, however, that: "What is impermissible, again using the words of Jordan CJ, is that a person be required to search for or produce all such documents as he or she may have in his or her possession or power relating to a particular subject matter." 1. Barrett J continued at [15] as follows: "[T]he recipient of a subpoena or r 34.1 notice to produce must not be put into a position of having to judge the legal effect of a document or its capacity to prove something." 1. Common to both articulations of principle, and deriving from the requirement in r 34.1 of the notice to require production of "any specified document or thing," is the need for the notice with reasonable particularity to identify what it is which is the subject of the requirement for production. There are a number of familiar ways in which that can occur. One is by requiring production of a nominated file on a particular matter. Another is to call for particular documents which are capable of being identified on their face. 2. The difficulty with each of the four paragraphs in this notice to produce is that it would be difficult if not impossible for there to be compliance with any of the paragraphs without an attempt being made to identify the processes of preparation and drafting, and in the case of some of the documents, obtaining approval by a superior officer, of the documents. That is to say, on the face of each of the four challenged paragraphs, it is impracticable if not impossible to attempt to achieve compliance without taking efforts to obtain instructions from the authors of the document. 3. In my view, that takes each of these four paragraphs outside of the proper role for a notice to produce under UCPR r 34.1, which in substance replicates the power to order a subpoena to a third party, and places each of those four categories more in the position of calls for discovery of documents. It is well established that a r 34.1 notice cannot be used as a substitute for discovery. 4. There may be another vice, which is that each of the paragraphs refers disjunctively to "used for or referred to" in the preparation and drafting of each of the four pieces of correspondence. Presumably, the point of those additional words is to expand the scope of the meaning. It follows from the drafting of each of the paragraphs that it is sufficient to fall within the paragraph and therefore to be the subject of compulsory production for a document either to have been used or to have been referred to, in the preparation or drafting of each of the letters. 5. That serves to emphasise both the breadth of the call and also how it is that each of those four paragraphs falls within the category of discovery rather than production pursuant to r 34.1. Even if a document was not used in the preparation of drafting the letter but nonetheless had been referred to in the course of preparation and drafting it would seem on the ordinary construction of the paragraph to be called for. 6. In light of those conclusions it is not necessary to address Mr Kidd's second argument. However, my preliminary view is that on a fair reading of the 5 November 2013 and 8 July 2014 letters, it has not been established that the production called for is likely to result in documents which could be relevant to any issue in the proceedings. The letter dated 5 November 2013 refers to the fact that in March 2010 the relevant section of Pennant Hills Road was declared as a secondary road, and its classification as a main road was revoked. The fact that the 2013 letter refers to the events of three years earlier does not of itself entail that documents used for or referred to in its preparation and drafting will go further back than the public gazettals to which express reference is made. 7. Perhaps appreciating this, submissions before me focussed upon the second paragraph of the letter on p 2, which referred to a meeting held on 20 August 2013 at which representatives of the plaintiff were advised that RMS "does not need lot 12 for any current or future road works and is not the responsible acquiring authority." Once again it seems that although this is drafted as the reiteration of advice earlier given, it is unlikely that the documents which were used in the preparation and drafting of the matter will go back to the relevant times which are years earlier. The letter dated 8 July 2014 is fortiori. However, it is not necessary to express a concluded view on this. 8. It follows that I will order that paras 1, 2, 4, and 5 of the amended notice to produce dated 13 September 2018 be set aside. 9. [Discussion as to costs] 10. I order that the plaintiff/respondent pay the costs of the defendant/applicant of para 2 of its amended notice of motion originally dated 6 September 2018. ********** 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: 28 September 2018