Aversa v Roads and Maritime Services - [2021] NSWSC 1047

Supreme Court

New South Wales

Medium Neutral Citation: Aversa v Roads & Maritime Services [2021] NSWSC 1047
Hearing dates: 11 June 2021, written submissions, and 6 September 2021
Date of orders: 10 September 2021
Decision date: 10 September 2021
Jurisdiction: Equity
Before: Lindsay J
Decision:
(1) Dismissal of the first defendant’s motion for an order that a notice to produce served by the plaintiffs be set aside.
(2) Costs of the Motion to be the parties’ costs in the proceedings, unless otherwise determined upon written submissions filed and served within the next week.
(3) Directions to be given for determination of foreshadowed questions about public interest immunity, legal professional privilege and the terms of access to documents to be produced in answer to the notice to produce.

Catchwords:
CIVIL PROCEDURE — Notices to produce — Before hearing — Application to set aside on the grounds of oppression and lack of legitimate forensic purpose — Application dismissed

Legislation Cited:
Conveyancing Act 1919 NSW
Conveyancing (General) Regulation 2018 NSW
Land Acquisition (Just Terms Compensation) Act 1991 NSW
Real Property Act 1900 NSW
Roads Act 1993 NSW
Supreme Court Act 1970 NSW
Transport Administration Amendment (RMS Dissolution) Act 2019 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
Cappello v Roads and Maritime Services (2019) 100 NSWLR 259
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Lazarus Estates Pty Ltd v Beasley [1956] 1 QB 702
Spencer v Commonwealth (1907) 5 CLR 419
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Category: Procedural rulings
Parties:
First Plaintiff: Rosario Aversa
Second Plaintiff: Antonia Aversa
First Defendant: Roads & Maritime Services, now known as Transport for New South Wales
Second Defendant: Registrar General
Representation:
Counsel:
Plaintiffs: S Prince SC and MT Keene
First Defendant: LM Johnston
Second Defendant: F Harris, solicitor (on 6 September 2021)
Solicitors:
Plaintiffs: Stacks Law Firm
First Defendant: NSW Crown Solicitor
Second Defendant: Office of the Registrar General

File Number(s): 2019/00314755

Judgment

INTRODUCTION

Before the Court is an amended notice of motion filed on 9 April 2021 by the first defendant (Roads & Maritime Services, “RMS”, by its statutory successor, Transport for NSW, “TfNSW”) seeking to set aside, in part, a “Notice to Produce to Court” (governed by Part 34 of the Uniform Civil Procedure Rules 2005 NSW) served on the first defendant on 8 March 2021 by the plaintiffs (owners of land acquired by the first defendant).
In proceedings commenced by a Summons (filed on 9 October 2019) and continued on pleadings, the plaintiffs claim relief in the nature of an award of damages or an account of profits for (to use a neutral expression) the “appropriation” of two underground levels of their residential land (held under the “Torrens Title” provisions of the Real Property Act 1900 NSW) at Haberfield by the first defendant for the purpose of the construction and operation of a tunnel to service a tollway known as “WestConnex”.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 1047
Decision Date: 10 September 2021

CaseChat Overview and Summary

The appeal was brought by Aversa against Roads and Maritime Services in the Supreme Court of New South Wales. The dispute revolves around an application to set aside a notice to produce documents, which was made prior to a hearing. The application was dismissed by the lower court, and the appellant sought to challenge that decision. The legal issues before the court were whether the lower court had correctly exercised its discretion in dismissing the application to set aside the notice to produce documents and whether the grounds of oppression and lack of legitimate forensic purpose were sufficient to warrant setting aside the notice.

The court considered the principles surrounding the setting aside of notices to produce, focusing on the discretion of the lower court and the applicable legal standards. The court emphasised that a party seeking to set aside a notice to produce must demonstrate a compelling reason, such as oppression or a lack of legitimate forensic purpose. The appellant argued that the lower court had erred in dismissing the application, but the court found that the grounds presented were insufficient. The court held that the lower court had not erred in exercising its discretion and that the reasons provided by the appellant did not meet the threshold for setting aside the notice. Consequently, the court dismissed the appeal.

Orders