Darren Katz v Frederico Alberto Bettini

[2024] NSWDC 668

District Court

New South Wales

Medium Neutral Citation:

Darren Katz v Frederico Alberto Bettini [2024] NSWDC 668

Hearing dates:

11 April 2024

Date of orders:

11 April 2024

Decision date:

11 April 2024

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1)   Notice of Motion allowed; the whole of the subpoenae filed by the defendants addressed to the plaintiff, Grushkin Enterprises Australia Pty Ltd, Bernie Cohen & Associates Pty Ltd and Waverley Council be set aside.

(2)   The defendants are to pay the plaintiff’s costs of the Notice of Motion and the hearing today.

Catchwords:

PRACTICE AND PROCEDURE – claim for negligence pursuant to s 177 of the Conveyancing Act 1919 (NSW) for failure to take reasonable care not to damage the adjoining property – subpoenae issued by defendants to the plaintiff and council for work carried out by plaintiff on his own property many years beforehand – whether parties entitled to issue subpoenae against each other as opposed to seeking discovery or issuing Notice to Produce – whether subpoenae fishing in nature – subpoenae set aside

Legislation Cited:

Conveyancing Act 1919 (NSW), s 177

Civil Liability Act 2002 (NSW), s 35A

Uniform Civil Procedure Rules 2005 (NSW) r 21.5

Cases Cited:

Hancock v Rinehart [2013] NSWSC 1998

Angel v Hawkesbury City Council [2008] NSWCA 130

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Texts Cited:

Peter Taylor SC, Ritchie’s Uniform Civil Procedure New South Wales

Category:

Procedural rulings

Parties:

Darren Katz (Plaintiff)
Frederico Alberto Bettini (First Defendant)
Christelle Celine Marie-Francoise Santelli (Second Defendant)

Representation:

Counsel:
Mr S Philips (Plaintiff)
Ms J Thornton (First and Second Defendants)

Solicitors:
Sher Lawyers (Plaintiff)
Addisons (First and Second Defendants)

File Number(s):

2024/00477060

Publication restriction:

Nil

Judgment

The application before the court

1. The plaintiff and defendants are neighbours engaged in litigation concerning damage to the plaintiff’s property claimed to result from work carried out on their property by the defendants’ workmen. The plaintiff, by Notice of Motion filed on 21 March 2025, brings an application to set aside the contents of a series of subpoenae for unrelated works carried out by the plaintiff many years ago to construct a swimming pool.

2. The orders that are sought are set out in the Notice of Motion as follows:

1. The whole of the subpoena filed by the defendants on 11 March 2025 and addressed to the plaintiff to be set aside.

2. The whole of the subpoena filed by the defendants on 11 March 2025 and addressed to Grushkin Enterprises Australia Pty Ltd be set aside.

3. The whole of the subpoena filed by the defendants on 11 March 2025 and addressed Bernie Cohen & Associates Pty Ltd be set aside.

4. The whole of the subpoena filed by the defendants on 11 March 2025 and addressed to Waverley Council be set aside.

5. The defendants pay the costs of this motion.

The evidence before the Court

3. The plaintiff’s application is supported by an affidavit of Mr Darren Katz, the plaintiff. It attaches, from pages 3 onwards, documents described as “dilapidation reports”, prepared by a firm of consulting engineers, which Mr Katz states are evidence of the damage. These dilapidation reports are not documents prepared for the purposes of expert evidence for this litigation, in that they do not contain an expert’s report or Code of Conduct, but instead basically set out photographs of the damage that is caused, the plaintiffs say, as a result of the work carried out by the defendants on their adjoining property.

4. There is no affidavit material or evidence in reply from the defendants. I assume that this was a decision taken late by the defendant, in that there is a short outline of submissions that was provided to me this morning which has the line saying “The defendants rely on the documents annexed to these submissions” crossed out.

5. It is common ground that there have been no expert reports filed in these proceedings and that the defendants, who were given the opportunity to file affidavit or other evidence in reply for the purposes of this motion, have elected not to do so.

The circumstances leading to the litigation

6. The claim as set out in the pleadings should be briefly summarised. The plaintiff’s Statement of Claim refers to a development application (‘DA’) being lodged by the defendants with Waverley Council on 4 March 2016, which was approved subject to modifications on 5 February 2018. A condition of the DA is that the defendants must implement practices or procedures to avoid or minimise structural damage to adjoining properties and that, if excavation below the level of the footings of the building occurs, there must be certain protective steps taken.

7. The work in question commenced in February 2023. It is asserted that the carrying out of the works caused the plaintiff’s home and property to suffer the quite substantial damage listed in paragraphs (a) to (ii) of paragraph 10 of the Statement of Claim.

8. As the plaintiff’s claim is brought pursuant to s 177 of the Conveyancing Act 1919 (NSW), the statement of claim recites that the defendants owed the plaintiff a duty of care to take reasonable care not to do anything that would damage or otherwise affect the plaintiff’s property, as is set out in paragraph 11 of the Statement of Claim. The Statement of Claim goes on to set out the risk of property damage and the foreseeability of that risk, as well as particulars of negligence followed by particulars of damage.

9. The defence is a bald denial of the claim. As is pointed out by Mr Philips for the plaintiff, there is no plea of contributory negligence, although there does appear to be some form of rebuttal in relation to s 177 of the Conveyancing Act, the precise nature of which I do not entirely understand from the pleadings. I have not given any consideration to the question of whether contributory negligence is available, in part because it is clearly not pleaded. Nor is any claim for proportionate liability made under s 35A of the Civil Liability Act 2002 (NSW). I should stress that these are not topics on which I was addressed. It is one of those curiosities of the inter-relationship between the provisions of the Civil Liability Act and claims for negligence that rights and entitlements should not be assumed.

10. Nevertheless, whether available or not, nothing could be clearer than that there is no claim for contributory negligence or proportionate liability, which is surprising given that the defendants say what they really want to know (and require these subpoenae to find out) is whether the plaintiffs were themselves responsible for the damage in question. Their submission is that the plaintiff is simply seeking, in a frankly dishonest way, to pass on the cost of repairs that were necessary to the plaintiff’s premises for other, and unrelated, causes, which are asserted to have been pre-existing (to the plaintiff’s knowledge). This pre-existing damage has, the defendants assert, wrongfully been sheeted to the claim brought against the defendants in circumstances where, in fact, their cause is something entirely different. The plaintiff submits that, without evidence, this is a fishing expedition.

Subpoenae issued inter partes

11. The first issue to which I must have regard is not the question of how to interpret the question of “apparent relevance” in accordance with the principles set out in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [89] per Brereton JA and [68] at per Bell P (as the Chief Justice then was) but, rather, is the question of whether a subpoena may be issued at all inter partes.

12. I also bear in mind that, essentially, although all but one of the subpoenae are issued to third parties, these are issued for, essentially, the same documents that are sought from the plaintiff in circumstances where the plaintiff has been issued with a subpoena as opposed to an application for discovery.

13. These are proceedings where discovery would be available as a means of requiring production of documentation. It has been pointed out in a number of judgments, of which Hancock v Rinehart [2013] NSWSC 1998 is one of many that the difference between a subpoena and the discovery process is but one, that the UCPR rules on this issue are designed to protect the parties who find themselves in a situation where discovery would be appropriate, but the benefits of limitations on discovery imposed by the courts would be lost if a subpoena was issued in place of discovery.

14. Brereton JA, in Hancock v Rinehart at [4] and [5], notes that general discovery was for many years available as of right in most kind of litigation (excluding personal injury). However, increasingly discovery has become a form of assistance to the parties to bring only relevant material before the Court, which means that categories for discovery are available only by order, such order to be made only when the Court is of the view that discovery on a disputed topic is “necessary” (at [4]), meaning necessary to achieve justice between the parties. In more recent times, his Honour goes on to emphasize, at [5] of his judgment, the impact of the rules of court having further limited discovery to classes of documents specified by orders, rather than by all documents relevant to all facts in issue in the proceedings. It is thus preferable to proceed by discovery of this kind between the parties, because not only the purposes for a subpoena, but also the manner in which failure to comply with a subpoena can be enforced, are substantially different from the very real benefits that would be available to a party who had been required to give discovery, such as legal professional privilege, relevance, or oppression and the like.

15. Secondly, Brereton J goes on to note that orders for discovery in the form of a subpoena overlook what his Honour called “the quite different obligations that attend a respondent to an order for discovery and those that attend the recipient of a subpoena” (at [17]). His Honour adds to this (at [21]) that it is important to appreciate that subpoenae play a different role, and have a different effect, to an order for discovery, in that a subpoena may be issued at the request of a party as a matter of course, and that party does not have to justify the relevance at the outset and undergo an application of the kind that is brought here.

16. Another example is that a subpoena may be brought to obtain production of documents that relate only to the credit of a witness (Secretary of the Department of Planning, Industry and Environment v Blacktown City Council at [65]). That is a very significant factor, because it is contrary to the general rule, in relation to discovery, that documents relating only to credit may not be sought.

17. Thirdly, a subpoena should not impose on a party the obligation of making a judgment as to whether the documents called for relate to a fact or issue in the proceedings, whereas that is exactly what the obligation is for an order for discovery. The mere fact that request is made of the plaintiff in such circumstances as this are, in my view, inappropriate.

18. I note that similar points are made about the difference between a discovery and notice to produce are set out in the notes to the Uniform Civil Procedure Rules 2005 (NSW) in Ritchie’s Uniform Civil Procedure New South Wales at [21.10] and [21.15]. Notices to produce can be used inter partes in certain circumstances, but it is not suggested that this would be appropriate here.

“Apparent relevance” and “a fishing expedition”

19. The plaintiff’s principal complaint is that the antiquity of these documents and their lack of relevance to the defendants’ work demonstrate that this to be a fishing expedition. I have been taken to the correspondence from Messrs Addisons, which has been tendered, setting this out.

20. The defendants offer no evidence in reply and simply rely on the plaintiff’s dilapidation report photographs. I have, in fact, been asked to look at the whole of the report, which I note in the written submissions is referred to in its entirety in footnote 6, being described as “Page 3 ff”, which means I am being asked to look at everything in Exhibit A (except Mr Katz’s affidavit) between pages 3 and 101. I am asked to look at many photographs and to form the view that unspecified photographs where cracks look a bit suspicious, or old, or both, and to use these to draw my own conclusions as to there being a forensic issue.

21. The desirability of a judge determining “apparent relevance” by looking at photographs of this nature, which I note are not even produced pursuant to an expert report, where there is no discussion of what to look for, or assistance offered to me in relation to interpreting the photographs, is contrary to the procedure recommended by the New South Wales Court of Appeal in Angel v HawkesburyCity Council [2008] NSWCA 130 and I do not propose to do so.

Application of these principles to this case

22. The plaintiff’s submissions in relation to the setting aside of these subpoenae on the grounds of lack of apparent relevance may be summarised as follows:

1. There is no pleaded issue in the defence which in any way identifies anything in relation to these matters.

2. There is no expert evidence in relation to this and my interpretation of the photographs that are attached to reports that were, in fact, obtained by the plaintiff and not the defendant is the sole basis for this application.

3. The legitimate forensic purpose, even putting it at its highest in the letter from Addisons, is that these documents “might” be of some relevance, and this is, it is submitted, a classic fishing expedition.

4. There is no affidavit or other evidence relied upon by the defendants in this application and, of course, as is already noted, they have elected not to produce any documentary material to put before me.

23. This is a very clear case of the test in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council not being met.

24. The defendants submitted that some parts of the subpoena could be saved. The Court’s power to set aside a subpoena in whole, as well as in part, is part of the regulated subpoena process. To intervene in a case of abuse of its process, as Brereton JA sets out in Hancock v Reinhart at [88], there needs to be “apparent relevance”.

25. The difference between apparent relevance and fishing can be ascertained by examining the description of the documents sought in light of the issues as presented on the pleadings and in particulars or in affidavits. None of those steps are available to me here because there is nothing in the pleadings, particulars, or expert reports, and there are no witness statements. All I have is some photographs taken for the purpose of demonstrating the current state of the damage.

26. The absence of any apparent relevance will suggest strongly that there is a lack of legitimate purpose and that alone may be sufficient ground to set aside a subpoena, where the documents subpoenaed do not meet the threshold. That is what I find to be the case here.

27. It is also put to me that there is “pre-existing damage to the plaintiff’s property prior to the defendant’s works”. This is the very topic on which I am unprepared to venture any views since the sole evidence before me is the whole of the contents of the exhibit to Mr Katz’s affidavit. That is not something that I can do on the material before me. Not only is the evidence deficient, but there is also no evidence that this was, in fact, pre-existing to the works being carried out. Even if I look at the dates and try to work out whether some of these could have been before as opposed to after, this is an impossible job for me to undertake as the judge hearing this application.

28. The real difficulty the defendants have is that this is an application which is premature. It may well be that, when they have expert evidence, that expert will say that the kind of damage that can be seen here is damage that is of many years’ standing. It may be that the expert can say that a particular kind of damage could not have arisen from the work in question and must have some other source. That is the sort of evidence that I would expect to see if there were difficulties in obtaining this kind of material requiring the issuing of a subpoena, but it is not a matter which I should run the risk of permitting an abuse of process of the kind explained by Brereton JA and Bell P in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council.

29. I am satisfied that the subpoenae in question have been issued as part of a fishing expedition, and I propose to grant the relief sought in the Notice of Motion. I will then hear from the parties on costs.

30. [The parties addressed on costs.]

31. Accordingly, the orders I make are:

1. Notice of Motion allowed; the whole of the subpoenae filed by the defendants addressed to the plaintiff, Grushkin Enterprises Australia Pty Ltd, Bernie Cohen & Associates Pty Ltd and Waverley Council be set aside.

2. The defendants are to pay the plaintiff’s costs of the Notice of Motion and the hearing today.

3. Time for the defendants to produce documents sought under a notice to produce, served on 10 March 2025, is extended to 16 April 2025.

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Decision last updated: 02 May 2025