Dexus CPA Pty Ltd v Sydney Metro

[2020] NSWLEC 71

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dexus CPA Pty Ltd v Sydney Metro [2020] NSWLEC 71
Hearing dates:	28 May 2020
Date of orders:	22 June 2020
Decision date:	22 June 2020
Jurisdiction:	Class 3
Before:	Moore J
Decision:	See orders at [91]
Catchwords:	NOTICE TO PRODUCE TO THE COURT - Notice to Produce to the Court issued in Class 3 compulsory acquisition compensation proceedings - recipient of Notice seeks to have it set aside - recipient of Notice accepts some elements to be unobjectionable - Notice amended during course of hearing - recipient accepts amendments are ameliorative but presses objections to the Amended Notice - consideration of whether Amended Notice oppressive - objected to paragraphs of the Amended Notice are oppressive - judicial amendment not possible - striking out does not preclude service of a further notice when all the recipient’s evidence filed and served - objected to paragraphs struck out
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 Civil Procedure Act 2005, ss 56 and 64(1) Uniform Civil procedure Rules 2005, Pt 21 r 21.10, Pt 34 r 34.1
Cases Cited:	Commissioner for Railways v Small (1938) 38 SR 564 Elanor Investors Limited v Sydney Zoo Pty Limited (No 4) [2019] NSWLEC 191 Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 Norris v Kandiah [2007] NSWSC 1296 Rinehart v Rinehart [2018] NSWSC 1102 Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90
Category:	Procedural and other rulings
Parties:	Dexus CPA Pty Ltd (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: Mr A Galasso SC/Mr R White, barrister (Applicant) Mr C Norton, barrister (Respondent)   Solicitors: King & Wood Mallesons (Applicant) Ashurst (Respondent)
File Number(s):	135872, 103347, 103348 and 103349 of 2019
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The Notices to Produce

Dexus's Notice of Motion

The hearing

The evidence

Amendment of the Notice

Time for compliance

Elements not objected to by Dexus

The form of the Amended Notice

The three broad bases for Dexus's objections

The relevant provisions of the Uniform Civil Procedure Rules 2005

The flow of the hearing

Submissions for Dexus

Submissions for Sydney Metro

The relevant legal framework

Introduction

From the perspective of Sydney Metro’s motives

The burden potentially placed on Dexus

Oppression

Introduction

The extent of informal production

What further would be involved in answering the Amended Notice

The cost of compliance with the Notice

Submissions for Dexus on oppression

Submissions for Sydney Metro on oppression

Consideration

Additional observations

The possibility of amendment

Speculation

One paragraph contains an absurdity

Paragraphs not pressed

Costs

Orders

Judgment

Introduction

1. This is an interlocutory decision concerning a Notice to Produce to the Court served by Sydney Metro on Dexus CPA Pty Ltd (Dexus). The substantive proceedings involve four claims for compensation by Dexus arising as a consequence of acquisitions by Sydney Metro of a variety of time‑limited property interests in a Sydney CBD property. The various interests were acquired compulsorily by Transport for New South Wales (as, relevantly, Sydney Metro was then known), with Dexus having an entitlement to compensation pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act). For the purposes of this interlocutory process, the provisions of that Act play no part. Those property interests have been acquired for the purposes of the construction of the Martin Place Station for the Sydney Metro project. It is not necessary to explain the nature of the acquired interests.

2. Dexus was not content with the quantum of compensation determined by the Valuer General for the acquisition of each of the time‑limited property rights compulsorily acquired and, as a consequence, has exercised its right under the Land Acquisition Act to have this Court determine the quantum of compensation to which it is entitled.

3. It is to be noted that the substantive hearing of Dexus's compensation claims has been set down for November 2020.

The Notices to Produce

4. Sydney Metro served a Notice to Produce to the Court on Dexus. That notice to produce was dated 9 April 2020. It was not filed with the Court.

5. On 30 April 2020, Sydney Metro served a substituted Notice to Produce to the Court (the Notice) on Dexus. The Notice was, it is to be understood, in replacement of the earlier notice because Dexus had served a copy of an unsworn affidavit from Ms Alexandra Brownlee, the relevant senior officer of Dexus able to give information concerning the property subject to the limited acquisitions. Dexus also served three expert reports.

Dexus's Notice of Motion

6. On 14 May 2020, Dexus filed a Notice of Motion seeking to have the Notice set aside. This “set aside” application was heard by me on 28 May 2020.

The hearing

7. Dexus was represented by Mr Galasso SC and Sydney Metro by Mr Norton, barrister. Because of the restrictions necessarily imposed on hearings in this Court as a consequence of the COVID-19 pandemic, the hearing was conducted by telephone, with both advocates and their instructing solicitors (and potentially others) being able to hear everything which took place during the course the hearing (including exchanges by me with counsel).

The evidence

8. The evidence on this “set aside” application on behalf of Dexus was:

1. An affidavit from Mr Michael Causer, a partner at King & Wood Mallesons, Dexus's solicitors;

2. A bundle of documents exhibited to Mr Causer’s affidavit. These documents were provided in electronic form, a form able to be accessed by me in the courtroom. The documents were admitted without objection and became Exhibit A;

3. A letter from Ms Darke, a senior associate at King & Wood Mallesons to Mr Anthony Hill, the solicitor on the record for Sydney Metro, became Exhibit B. This letter was dated 22 May 2020;

4. A copy of the unsworn affidavit of Ms Brownlee was tendered and became Exhibit C. No objection to the tender of this document was made by Mr Norton as the tender was on the basis of the existence of what was said in the unsworn affidavit, rather than as to the truth of the propositions contained therein; and

5. A copy of the index to the documents exhibited to Ms Brownlee's unsworn affidavit was also tendered to provide a list of the material referred to by Ms Brownlee in that document. This index became Exhibit D. None of the supporting documents referred to in Exhibit D were tendered.

9. The evidence on behalf of Sydney Metro comprised:

1. An affidavit of Mr Anthony Hill, a partner of Ashurst, the solicitors for Sydney Metro;

2. A folder of documents that was exhibited to Mr Hill's affidavit was tendered, without objection, and became Exhibit 1; and

3. A version of the Notice (amended during the course the hearing in the fashion later discussed) was also tendered and became Exhibit 2.

10. No oral evidence was required.

Amendment of the Notice

11. Both Mr Galasso and Mr Norton provided written submissions in advance of the hearing. I will later return to consideration of them. However, an element of Mr Norton's written submissions related to a proposed amended version of the Notice that was the subject of Dexus's Notice of Motion. This proposed Amended Notice arose in the context of the content of [90] of Mr Norton's written submissions. It is appropriate, at this point, to repeat that material. It was in the following terms:

90   Metro’s current position is as follows:

a)   Metro does not consider the Notice to Produce should be set aside.

b)   Metro will not call upon the following paragraphs of the Notice to Produce as it is satisfied that informal production has been adequate:

1, 5, 6, 8, 9, 12,13, 20

c)   Metro will formally call upon the following paragraphs which Dexus has addressed informally, in order to satisfy itself that production has been complete. However, Metro does not ask Dexus to produce again any documents already produced. This means there may be no further documents to produce.

2, 3, 4, 7, 10, 11, 27

d)   The following paragraphs are those which Metro considers remain contentious. Metro presses the paragraphs, albeit with the revised wording proffered, in an attempt to narrow the paragraphs. If they are allowed by the Court, Metro will call upon them.

14-19, 21-26, 28, 29

12. The proposed amendments to the Notice were amendments seeking to make changes to the various paragraphs of the Notice set out in [90](d) of Mr Norton's submissions. It is not necessary to consider any of the detail of those changes as part of my consideration of the broader issues pressed on behalf of Dexus concerning the Notice in the format that was the subject of the challenge and in the proposed (and permitted as discussed below) amended form of the Notice.

13. At the commencement of the hearing, I enquired of Mr Norton as to whether he was seeking to have me exercise the power available pursuant to s 64(1) of the Civil Procedure Act 2005 (the Civil Procedure Act) to amend the Notice to reflect the form of the draft attached to his written submissions. He indicated that he sought that this course be adopted.

14. I also enquired of Mr Galasso as to whether or not Dexus objected to that course being followed. He indicated that Dexus did not oppose the amendment as, in some respects, the amendments were ameliorative (but, in his submission, only to a very limited and insufficient extent) of the concerns that Dexus had about some of the paragraphs in the Notice. However, he informed me that this Amended Notice, in Dexus’s submission, would suffer from the same fundamental defects (later discussed) warranting it being rejected. He also noted that this amendment would, effectively, constitute the third version of such a notice proposed by Sydney Metro for Dexus's compliance.

15. I therefore exercised the power under s 64(1) of the Civil Procedure Act to amend the Notice in the terms proposed. As a consequence, I will refer to the Amended Notice for the purposes of future discussion.

Elements not objected to by Dexus

16. Mr Galasso indicated that, although Dexus's Notice of Motion sought the setting aside of the entire (now) Amended Notice, there were a number of elements (paragraphs (1) to (10)) to which Dexus did not object and in response to which informal satisfaction had been effected by bilateral production. He conceded that, even if the complaints made about the contested paragraphs were upheld, the appropriate remedy was not to set aside the Amended Notice, but to strike out those contested paragraphs. I have, therefore, proceeded to consider the Amended Notice on this basis.

Time for compliance

17. The original version of the (now challenged) Notice, as filed with the Court on 30 April 2020, mandated compliance with its terms by 14 May 2020. As that date had come and gone, I raised the question with the advocates of what should be the further date for compliance. The common position was that the length of extension for compliance would depend on the extent to which I considered that the Amended Notice should survive with respect to contested paragraphs (11) to (29).

18. Although the conclusion I have reached rejects all of the contested paragraphs and Dexus has informally produced, on a bilateral basis, material responsive to those elements not in contest or has indicated that there are no documents to produce with respect to other elements, it remains appropriate to extend the time for formal compliance (by producing to the Court, the informally produced relevant material). Therefore, the orders I make at the conclusion of this decision extend the time for compliance with the Amended Notice until the close of business on Friday 3 July 2020 and set the Amended Notice down for the Registrar’s List on Tuesday 7 July 2020.

The Amended Notice

19. I did not require the formal filing of the Amended Notice in the form for which leave had been granted as I concluded, tentatively, at the time I granted leave to amend that it would be appropriate to annex to this decision a copy of the form of the proposed Amended Notice which had been attached to Mr Norton's written submissions, as this document was in “track changes” form and would provide a reader of this decision with an understanding of not merely what had been proposed in the original form of the Notice, but the nature of the amendments for which leave had been granted.

20. During the course of preparation of this decision, I concluded that my tentative view was the correct one. A copy of the “track changes” form of the Amended Notice is, therefore, reproduced as Annexure A to this decision.

The broad bases for Dexus's objections

21. The submissions made by Dexus on a general basis to compliance with those contested elements of the Amended Notice were that the Amended Notice was:

• oppressive as to the extensive scope of the effort and cost that would be necessary to be undertaken by Dexus for compliance with it;

• one which was effectively “trawling”, to use the word advanced by Mr Galasso, and thus seeking information impermissibly within the processes permitted by the relevant provision of the Uniform Civil Procedure Rules 2005 (the UCPR). This objection is, therefore, on the conventionally described basis that it is “fishing”;

• one where elements were infected with uncertainty and/or imprecision; and

• premature - in that the entirety of Dexus's evidence (particularly its “before and after” valuation expert report) had not yet been filed and served.

The relevant provisions of the Uniform Civil Procedure Rules 2005

22. It is to be noted that there are two varieties of Notices to Produce provided for by the UCPR. To be noted first is the Notice to Produce to the Court, a form of notice which requires, as its title suggests, the production of documents by a party to proceedings to the Court rather than directly to the opposing party.

23. Documents produced to the Court in satisfaction of such a notice can, at the time it is called upon by the issuing party, be subject to argument as to whether or not the Court should be satisfied that the produced documents (any or all of them) should be made available to the party which had issued the notice in the first instance. A notice to produce of this type is provided for in Pt 34, r 34.1 of the UCPR. This rule is in the following terms:

34.1   Notice to produce to court

(1)   A party may, by notice served on another party, require the other party to produce to the court, or to any examiner—

(a)   at any hearing in the proceedings or before any such examiner, or

(a1)   at any time fixed by the court for the return of subpoenas, or

(b)   by leave of the court, at some other specified time,

any specified document or thing.

(2)   The other party must comply with a notice to produce—

(a)   by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or

(b)   by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.

24. The second form of Notice to Produce provided for by the UCPR is simply entitled a Notice to Produce. Such a notice requires the bilateral formal production of documents specified in it direct to the party which has issued the notice. The relevant provision in the UCPR, Pt 21, r 21.10 making provision for this form of notice is in the following terms:

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.

25. As can be seen, there are differences in the terms of these two provisions, a matter to which Mr Norton took me during the course of his submissions. Although these differences play no role of any significance in the broad conclusion which I have reached, it is appropriate to have noted Mr Norton as having made a submission of this nature. The relevant point of distinction, for present purposes, between the two types of Notice to Produce is explained below at [34].

The hearing

Submissions for Dexus

26. Mr Galasso took me through each of the contested elements of the Amended Notice, explaining to me the basis of objection by Dexus to attempting to comply. I use the word “attempting” deliberately, given that part of Dexus's objection to many of the contested elements was that what was sought by that element of the Amended Notice was uncertain or imprecise and required Dexus to make an inappropriate judgement as to what would be required to be found and produced in response to it.

27. In addition to this detailed analysis of the contested elements of the Amended Notice, Mr Galasso also made submissions proposing that, on the basis of the detailed objections to the contested elements, I should conclude that all the general bases as to why the contested elements were objectionable had each been established and that, therefore, those elements should be struck out.

28. During the course of his detailed submissions, he took me to various elements of Exhibit C in which Ms Brownlee had given her own evidence relevant to that element and/or had included in the bundle of documents that had been exhibited to that unsworn affidavit (the index to which, as I earlier noted, was in evidence as Exhibit D).

29. He also referenced elements of correspondence between the legal representatives of the parties together with paragraphs of the affidavits of Mr Causer and of Mr Hill relevant to Mr Galasso's analysis of the elements of the Amended Notice.

30. In addition to addressing, later, the question of whether or not the Amended Notice should be set aside as to its contested elements, it will also be appropriate to make a number of supplementary observations concerning some aspects of the present terms of the Amended Notice.

Submissions for Sydney Metro

31. Mr Norton's submissions followed, in general terms, the structure adopted by Mr Galasso. Mr Norton, too, took me through the various contested elements of the Amended Notice. I observe that, toward the end of his submissions, he indicated that, if [27], [28] and [29] of the Amended Notice were not ones I held were liable to be struck out, Sydney Metro did not propose to call on those elements.

32. Mr Norton also addressed matters of general principle which, he submitted, provided the legal framework within which I needed to consider the objections pressed by Dexus, and the application of those derived principles to Dexus's objections to the contested elements, thus, he submitted, establishing why all those objections were unfounded.

33. During the course of the portion of his submissions dealing with the individual contested elements, I questioned him closely concerning a number of aspects of various of those elements (particularly, in a number of those elements, as to the justification of the date range proposed for the production of documents in satisfaction of that element).

The relevant legal framework

Introduction

34. In Norris v Kandiah [2007] NSWSC 1296, Brereton J explained, at [3], why a Notice to Produce to the Court, being a notice provided for in Pt 34, r 34.1 of the UCPR was akin to a Subpoena to Produce. The consequence is that this Notice falls to be examined, as to its appropriateness or otherwise, in a similar fashion to a subpoena.

From the perspective of examining Sydney Metro’s activities

35. In Rinehart v Rinehart [2018] NSWSC 1102, at [43] to [54], Ward CJ in Equity set out the relevant legal principles applicable considering the question of legitimacy of purpose for a subpoena by examining the reasons behind it from the perspective of the motives of the party issuing it. Her Honour said:

43)   As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose:

… it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.

44)   Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]):

… the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise.

45)   In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306).

46)   More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]).

47)   Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA).

48)   Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said:

A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition".

49)   Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena is oppressive and/or constitutes "fishing".

50)   In Universal Press Pty Limited v Provest Limited [1989] FCA 402, Hill J stated (at [9]-[10]):

Like Clark J, as his Honour then was, in Southern Pacific Hotel Inc v Southern Pacific Hotel Corporation (1984) 1 NSWLR 710 at p 717, I am of the view that there are two separate grounds for setting aside a subpoena that are often confused. The first, to which I have already referred, is the ground that the subpoena is so widely framed as to be burdensome and oppressive and therefore an abuse of process. The second, often linked with the first, is that the subpoena requires the addressee, being a third party to the litigation, to produce all documents which may afford evidence of the matters in dispute between the parties, is thus used as a way of obtaining discovery against a person not party to the litigation and so should be set aside (cf Small's case supra).

Where the objection to a subpoena is that it is a misuse of the process of the Court for the purpose of discovery, what is usually meant is that it is an abuse of process to require a person not a party to litigation to form a judgment as to what is relevant to the issues joined in a proceeding to which he is not a party: National Employers' Mutual Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at p 382. It does not follow that a subpoena, issued in circumstances where the person requesting its issue is uncertain whether any documents exist which fall within the description in the subpoena, that description being otherwise precise, will be bad…

51)   It is well recognised that a subpoena may be set aside as an abuse of process where it is used as a substitute for discovery or discovery against a third party (see Associated Dominions Assurance; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed)).

52)   In Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 428; [2005] FCAFC 115 (Tyco), Hill J considered (at [34]) that it would clearly be an abuse of process for an applicant for pre-action discovery to issue a notice to produce the very documents sought by the action for pre-action discovery and said (at [46]) that such an applicant "will not have given the notice to produce in good faith, but rather, will have acted in a way that is an abuse of process". In Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393 just such a conclusion was drawn by Slattery J (see at [28]):

Hill J's statement of principle in Tyco directly covers the present application. The documents being sought by the subpoenas are identical to the documents sought in the application for preliminary discovery under UCPR, r 5.3. Indeed the documents sought under the subpoenas are somewhat more extensive. The essence of the abuse of process in these circumstances is that the delivery of the documents to Yes Family in response to the subpoenas would set at nought the whole preliminary discovery application, the purpose of which is to determine whether or not Yes Family should have those documents before action. Granting the application would allow Yes Family to bypass the requirements of UCPR, r 5.3. [my emphasis].

53)   More recently, it has been said that a subpoena will be an abuse of process where it is used as a means of obtaining disclosure of documents which, in accordance with para 4 of Practice Note SC Eq 11, could only be obtained before the service of evidence in exceptional circumstances necessitating disclosure (see New Price Retail Services Pty Ltd v Hanna [2012] NSWSC 422 at [19]; considered in The Owners - Strata Plan No 76902 v Roads and Maritime Services [2017] NSWSC 528 per Ball J).

54)   That said, in Tyco, Hely J said (at [54]):

… at least prima facie, it would be an abuse of process for an applicant for preliminary discovery to seek to compel production of documents by notice to produce, when the production of those documents is sought under O 15A, r 6. But it does not follow, for example, that a subpoena sought to be issued by an applicant for preliminary discovery against a third party would necessarily be an abuse, depending upon the scope and purpose of the subpoena. [my emphasis]

36. When a paragraph in a notice such as this amounts to no more than a “fishing” expedition, it is to be disallowed: Commissioner for Railways v Small (1938) 38 SR 564 at 574-575.

37. The various elements discussed above by her Honour set out the potential faults which Mr Galasso submits actually arise in the context of the second of the bases of Dexus's objections to the Amended Notice set out in [21] earlier.

From the perspective of the burden potentially placed on Dexus

38. There is, however, a "flip side" to such an examination of Sydney Metro’s motives. This involves consideration of the burden that would be placed on Dexus if compliance with the Notice was required.

39. In Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90, at [42], Beaumont J quoted from the decision of Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 where their Honours observed, at 502 (citations omitted), that:

The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are 'seriously and unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustified trouble and harassment’.

40. Mr Galasso submitted for Dexus that requiring compliance would be unacceptably burdensome as to effort and cost - the “flip side” aspect set out above. Mr Galasso further submitted that the extent of the burden on Dexus (both as to effort and as to cost) that is established by Mr Causer's evidence demonstrates that requiring compliance by Dexus with the Amended Notice would be oppressive. Such a conclusion, he submitted, would require the setting aside of the paragraphs to which Dexus raises objection.

41. Beaumont J continued, explaining in [43] and [44], that this aspect of enquiry required consideration from the perspective of the recipient of the subpoena (here, the Notice).

42. In this context, an examination is necessary of, and determination made concerning, what is required of Dexus if the Amended Notice is permitted to stand.

43. As I have concluded that this objection is well-founded and that the Amended Notice (as to the objected to paragraphs) is oppressive (resulting in the striking out of those paragraphs), it is appropriate that I explain why I have reached this conclusion. Given that this conclusion is also entirely sufficient to lead to the outcome noted above, it is also unnecessary to address any of the other broader bases advanced by Dexus in its challenge to the Amended Notice.

Oppression

Introduction

44. On my understanding, it is not contested that the first notice (which was not filed) was withdrawn and replaced with the unamended version of the Notice largely as a consequence of the service of Ms Brownlee’s unsworn affidavit (Exhibit C). It is to be observed that Ms Brownlee's affidavit sets out, amongst other things, the steps that Dexus has taken to respond informally to the Notice. It is unnecessary to set those steps out in detail. I do, however, note that substantial volumes of material have been supplied, after review by Dexus's lawyers, to Sydney Metro in that response.

45. It is, however, also appropriate to note that it is obvious from Ms Brownlee's affidavit, and the material later reproduced from Mr Causer's affidavit, that there has been considerable effort by Dexus and Dexus's legal representatives (and expense to Dexus) in the activities already undertaken through the informal production process earlier noted.

The extent of informal production

46. The written submissions on behalf of Dexus set out the following with respect to the extent to which informal production had been undertaken of documents falling within various of the categories of the Notice to Produce. This was set out at [8], [9] and [10] of Mr Galasso's written submissions. These paragraphs were in the following terms:

8   The Applicant has produced documents which fall into categories 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 20, 24 & 27. Documents sought in one of the requested categories (category 4) do not exist; however the information sought in that category can be identified within documents that have been produced in category 5. Many of the documents requested are commercially sensitive; the Applicant therefore requested that the Respondent provide an assurance that it would treat the documents in confidence. That assurance was provided on 19 May and, as a result, documents in the categories identified in this paragraph have been produced.

9   These documents consist of the Applicant’s ‘Valuation Information Packs’, which comprise the following:

(a)   The Tenancy Schedules;

(b)   Heads of Agreements and other documents relating to draft variations of lease documents;

(c)   Valuation financials spreadsheets;

(d)   Outgoings information, including audited statements;

(e)   NABERS and Building Energy Efficiency Certificates

(f)   Car parking registers and parking plans;

(g)   Lease documentation (including leases, agreements for lease, fitout and incentive deeds and other collateral documents);

(h)   Surveys;

(i)   Information in relation to Development Approvals; and

(j)   A Valuation Information Coversheet which provides notes to the external valuer.

10   There has therefore been substantial production of documents on this voluntary basis, in particular where specific documents have been requested. The disputed categories are 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 28 & 29. As set out below, these categories are so broadly drafted that they cannot legitimately be requested pursuant to a NP, or, alternatively, are irrelevant to any issue likely to arise in the proceedings.

47. Although I note that, as was observed by Mr Galasso in his written submissions at [7], Dexus will continue to produce documents on an informal, bilateral basis, this is a factor which cannot weigh in favour of permitting the Amended Notice to stand.

What further would be involved in answering the Amended Notice

48. I have earlier noted that Dexus relied upon an affidavit from Mr Michael Causer, a partner at Dexus's solicitors. His affidavit was read without objection. Mr Causer was not required for cross-examination.

49. His evidence as to the extent of the activities undertaken (and costs incurred) to date, and those necessary to be undertaken in future (if the Amended Notice is permitted to stand), is, therefore, uncontested. His affidavit set out the actions undertaken to assess what would be required to satisfy the (then unamended) Notice (including what has been done and what further would need to be done).

50. The relevant portions of his affidavit, at [70] to [81], concerning future activities necessary to satisfy the Amended Notice, if the contested paragraphs were to remain, were in the following terms:

70   On 30 April 2020 Ms Peacock telephoned Ms Alexandra Brownlee, a portfolio manager at Dexus who is responsible for the management of the Property. I am informed by Ms Peacock that the purpose of the telephone call was to discuss the scope of the Notice to Produce and seek initial instructions regarding voluntary production.

71   I was also informed by Ms Peacock that the outcome of the conversation was that documents would likely fall into the following categories:

(a)   documents that did not exist at the time but would have to be generated and brought into existence from software;

(b)   documents that existed and were annexed to the Applicant's evidence already served on the Respondent;

(c)   documents that we had not yet briefed to Mr Preston however that may be briefed to him in any event and so could be prepared for the Respondent at that time;

(d)   documents that were irrelevant to the facts in issue; and

(e)   documents that were too difficult to easily identify and collate due to the broad drafting of the request to produce and would require a significant amount of time and resources to compile.

72   On 4 and 5 May 2020 I caused Ms Peacock to speak with our internal Applied Legal Technology (ALT) team regarding the Notice to Produce. Our ALT team advise on the collation of evidence and strategy with the document review process, categorise and organise evidence and data in a central, secure repository; and manage the production of data in response to discovery orders and other orders to produce documents. I am informed by Ms Peacock that she spoke with Mr Linesh Maharaj, Director Sydney ALT on 4 May 2020 and Ms Vikki A'Vard, Director Melbourne ALT on 5 May 2020.

73   I am informed by Ms Peacock that she received the following advice from the ALT team:

(a)   some of the categories of the Notice to Produce were drafted quite broadly, and as these requests were not limited to specific custodians, to potentially review ‘all' documents within a category would require the review of the inbox and hard drives of a number of custodians which result in large amount of data;

(b)   the ALT team, based on its experience with large litigation, estimated that the production of 5,000 documents, and their review by a junior solicitor, would cost approximately $20,000 to $25,000 and the production of 15,000 documents (and their review) would cost approximately $60,000 to $75,000 (based on an estimation of the review of ~45 documents per hour);

(c)   prior to providing the documents to King & Wood Mallesons for review, the ability to collate data depends on a number of factors, including:

(i)   the number of systems being used and customisations of those systems;

(ii)   the document retention policies of the client and whether or not back-up data needs to be obtained;

(iii)   the location of that data (physical location);

(iv)   volume of material; and

(v)   in-house resources and expertise;

(d)   due the coronavirus conditions, many clients are experiencing delays in collection of data and are seeking extensions to document requests, due to remote working conditions which impacts directly on timing; and

(e)   As a result of (d), Ms A'Vard, in her 18 years' of experience at King & Wood Mallesons in an applied technology services roles, advised that ordinarily she would expect clients to take 1-2 weeks to collate data, but that clients taking up to 4 weeks, due to the change in working conditions.

74   On 5 May 2020 I caused Ms Dean to telephone Ms Brownlee to discuss the scope of the Notice to Produce, the categories of documents that the Application [sic] would be in position to provide voluntarily, and a way forward to commence the searching for and obtaining of documents. I am informed by Ms Dean that expected time frames for the production of specific documents was also discussed, as well as further inquiries for categories of documents that would need to be made within the Applicant's organisation.

75   Among other things, I am informed by Ms Dean that Ms Brownlee noted the following:

(a)   where the Notice to Produce requires that 'all documents' be produced, this is particularly difficult for the Applicant given its document filing system in place (which I explain in more detail below);

(b)   the Applicant recently created (in the past year) a SharePoint filing system in relation to each property. This file contains leases, current Net Lettable Areas of the Property, stack plans and important emails in relation to the Property. It does not record all emails or documents generated for the Property;

(c)   in order to find all emails/documents generated for the Property, Ms Brownlee would be required to ask the people involved in the Property to search their files/emails for any relevant documents. This task is complicated by the fact that the two previous asset managers for the Property have since concluded their employment with the Applicant. Any-searching of their files would require the Applicant’s Information Technology Team to retrieve their inboxes, and then carry out a search;

(d)   it is common practice for employees of the Applicant to delete emails from their personal inbox in relation to minor matters including in relation to matters such as leasing proposals and marketing. There is no central system that retains deleted files and further investigation would need to be undertaken to recover these documents from back-up files;

(e)   Ms Brownlee had conducted a thorough search of her files when preparing her Affidavit; and

(f)   a number of the items requested in the Notice to Produce could be located in the exhibit to Ms Brownlee's affidavit.

76   I am informed by Ms Dean that Ms Brownlee informed Ms Dean on 7 May 2020 that she was required to involve a number of other employees of the Applicant to assist her in producing the documents.

77   I am informed by Ms Brownlee that Ms Brownlee together with other employees of the Applicant have agreed (upon the request of the Applicant in response to the coronavirus pandemic) to take one day of annual leave per week, so that they will be working four days per week during the month of May 2020, commencing 4 May 2020 (rather than five). This has created further time constraints for the Applicant.

78   I am informed by Ms Brownlee that, as at 11 May 2020, she and two other employees of the Applicant have collectively spent approximately 25 hours conducting searches of their systems to obtain documents within the categories that the Applicant has indicated it would voluntarily provide in relation to the Notice to Produce. Ms Brownlee anticipates that at least a further 9 hours will be required to obtain the remaining documents that the Applicant intends to produce voluntarily in response to the Notice to Produce. This time will need to be accommodated for in conjunction with Ms Brownlee's usual workload, and that of the two employees assisting her. This estimate does not include the time that would be required for the Applicant to comply with the entire Notice to Produce.

79   On 11 May 2020, I am informed that Ms Peacock had a further telephone call with Ms Brownlee. Mr Thomas Gould, a member of the Applicant's information technology team and Ms A'Vard were also on the call. The purpose of the call was to discuss compliance with the Notice to Produce and how long production would take if the notice was not to be narrowed or withdrawn. Among other things, I am informed by Ms Peacock and I believe that, Ms Brownlee noted the following:

(a)   the current coronavirus pandemic has increased workloads within the Applicant. In addition to business as usual, the Applicant is also currently dealing with customer inquiries, coronavirus risk, site access risk, increased cleaning of properties and requests for rent assistance;

(b)   employees of the Applicant managing assets are working remotely which created further difficulties to data collection;

(c)   it has been quite time-consuming locating documents the subject of the Notice to Produce. To date, a number of employees of the Applicant have been involved in the production of documents; and

(d)   Ms Brownlee would need to conduct further investigations but estimates that there are potentially up to 15 custodians of the documents listed in the Notice to Produce.

80   Among other things, I am informed by Ms Peacock that Mr Gould noted the following:

(a)   in order to fully comply with the Notice to Produce, the Applicant may need to obtain back up data as explained above at paragraph 75(d). Mr Gould was making inquiries as to the location of where the data is stored as he understood that different sources of data are stored in a number of different physical sites;

(b)   it is possible to access the backup data for emails for employees who no longer work for the Applicant, but accessing that data is not straight forward and would time some time to obtain; and

(c)   in relation to (b), at the time of swearing this affidavit, I am not in a position to advise of the time and cost of taking these steps as further investigation needs to be undertaken.

81   As at 13 May 2020, 19 hours (at a total cost of approximately $9,500) of King & Wood Mallesons' solicitor time has been spent co-ordinating the searching for and retrieval of documents to be provided voluntarily by our client in response to the Notice to Produce. This includes seeking instructions, interpreting the Notice to Produce, co-ordinating and collating documents, reviewing documents and providing advice to our client as to privilege.

The cost of compliance with the Notice

51. Mr Causer then set out an analysis, by inference from costs in unrelated proceedings, of what he anticipated would be the costs of compliance with the Notice. His affidavit said, at [82] to [86]:

82   In the unrelated Land and Environment Court Proceedings no. 2018/387485 of Tiffany & Co. (Australia) Pty Ltd and Sydney Metro, the Applicant in the current proceedings, and Dexus Funds Management Limited, were issued with two subpoenas (collectively) (Original Subpoena A and Original Subpoena B) drafted on similar terms to the Notice to Produce. A true copy of Subpoena A issued to Dexus CPA Pty Ltd (the Applicant in the current proceedings) is shown to me and marked Tab 41. A true copy of Subpoena B issued to Dexus Funds Management Limited is shown to me and marked Tab 42.

83   The Original Subpoena A and Original Subpoena B were subsequently narrowed and revised versions of the same were filed by Sydney Metro on 14 June 2019 (Revised Subpoena A and Revised Subpoena B).A true copy of the Revised Subpoena A issued to Dexus CPA Pty Ltd (the Applicant in the current proceedings) is shown to me and marked Tab 43. A true copy of Revised Subpoena B issued to Dexus Funds Management Limited is shown to me and marked Tab 44.

84   I am informed by Mr Astrid Alfaro, a consultant of the ALT team at King & Wood Mallesons, and I believe, that 11,446 documents were collectively produced to the Court in response to both the Revised Subpoena A and Revised Subpoena B. The documents were uploaded into the discovery review program, Ringtail, and then reviewed by paralegals and junior solicitors to determine whether the documents were captured by the scope of the two Revised Subpoenas and to identify those documents that were potentially subject to professional legal privilege. Approximately 30 percent of the documents produced were reviewed prior to being instructed to stop the review.

85   In order to produce the documents in response to the subpoenas:

(a)   approximately 61 hours of King & Wood Mallesons' solicitor time was required at a total cost of $27,089 (exclusive of GST); and

(b)   approximately 54 of time was spent by King & Wood Mallesons ' ALT team at a cost of $12,468 (exclusive ofGST).

86   This amounts to a total of 115 hours at a cost of $39,557 (exclusive of GST), in order to respond to the subpoenas and review approximately 30 per cent of the documents produced. Only 30% of the documents produced were reviewed in accordance with an agreement reached with Sydney Metro obviated the need for all the documents to be reviewed and sorted so that they were provided in response to specific categories of the Revised Subpoena B. In the event that all of the documents had been reviewed, these costs would have been significantly higher.

52. Although Mr Norton submitted that I should not have regard to these costings as they did not arise from the present proceedings, I accept them as being sufficiently representative of potential costs that might arise if the contested paragraphs were permitted to stand. I therefore do not reject them on the basis of relevance.

Submissions for Dexus on oppression

53. Mr Galasso's written submissions, in addition to canvassing and summarising the various matters set out above in Mr Causer's affidavit, also added two separate, interrelated points concerning timing for compliance. These were set out in [24] of his written submissions and were also addressed in Mr Causer's affidavit at [77] earlier reproduced. If the question of timing of satisfaction of the Amended Notice had been the sole basis upon which oppression was pressed, that would have been a matter able to be addressed by the provision of additional time for compliance (potentially, indeed, significant additional time), given that the hearing is not until November 2020. There are no other matters of specificity in Mr Galasso's written or oral submissions that warrant further discussion at this point.

Submissions for Sydney Metro on oppression

54. Mr Norton's submissions addressing the issue of oppression were set out, relevantly, at [16] to [23] of his written submissions. These paragraphs were in the following terms:

16   The time and costs required to deal with the Notice to Produce are discussed in Causer [70]-[81] and A Subs [21]-[28].

17   Causer [82]-[87] refers to work done in different proceedings regarding subpoenas served on Dexus in those proceedings. Little weight should be given to those paragraphs as the relevant work required to comply with those subpoenas in other proceedings has no direct bearing on the work required to comply with the Notice to Produce.

18   The question of oppression is addressed in a twofold way. One is the width of the request for documents, their apparent relevance and whether they are sought for a legitimate forensic purpose (addressed from the perspective of the issuing party). The other is the nature of the burden or prejudice on the recipient (addressed from the perspective of the recipient).

19   The amount at stake in the proceedings should be taken into account in evaluating the relative burden of compliance with a notice to produce. Dexus' claim under ss 55(a) and (f) in these proceedings, considered collectively, is currently in the sum of $14.5M. An additional sum is sought in respect of disturbance.

20   In addition, Dexus has significant resources. The Dexus Group (of which Dexus is a member company) is a Top 50 entity by market capitalisation on the Australian Stock Exchange, with $31.8 billion of funds under management, and $15.6 billion of office and industrial properties.

21   Further, these proceedings are class 3 proceedings and the usual position is that the acquiring authority pays the costs of the dispossessed owner of the proceedings. In the ordinary event, these would include the reasonable costs of complying with notices to produce.

22   The degree of oppression must be relative. A Notice to Produce that may be considered oppressive in the context of proceedings with a relatively low amount at stake, served upon a small family company with limited resources, is likely to be significantly less burdensome to a large, well-resourced entity such as Dexus. It is also significant that Dexus is not a third party subpoena recipient, which has no stake in the proceedings, but is a party with a substantial interest in the outcome. If the Court finds that the documents sought are adequately identified, and are sought for a legitimate forensic purpose, the Court would give little weight to the time and cost required to comply.

23 The manner in which Metro’s need for the documents arises is also significant. As is discussed in more detail below, the need for at least some of the documents arises because Dexus’ lay witness, Ms Brownlee, has exhibited to her affidavit a substantial selection of correspondence, minutes and other documents relating to a range of subjects, as set out in Hill [55]. Some of this material has then been relied upon by Dexus’ experts, leading Mr Hill to believe that Dexus may raise issues along the lines of those listed at Hill [59]. The consideration of oppression requires a degree of balance between the relevance of the documents sought to the party seeking production, and the burden cast on the producing party. Where the producing party seeks to put into evidence a selection of documents from amongst its files on a particular issue, there is potential for unfairness to occur if that party’s opponent is denied the ability to review other documents in that party’s hands that may throw a different light on the selected documents. It would not be in the interests of justice for a party to raise an issue with a carefully curated selection of documents, but then rely upon oppression to prevent that issue from being further investigated when further documents providing evidence on that issue are sought.

55. During the course of his oral submissions, Mr Norton appropriately took me through aspects of these elements of his written submissions and responded to what Mr Galasso put in support of the oppression objection raised by Dexus.

Consideration

56. Oppression, of course, must be assessed contextually. Matters such as the scale of the litigation and complexity of matters in dispute; the relative power and strength of the parties to the litigation; and issues of timing, all potentially require consideration in an assessment of whether a notice requiring production of documents might be adjudged to be oppressive.

57. Although, in the present circumstances, both the issuing and recipient party are organisations of substance and might be regarded as litigators possessed of equal resources (and, likely, similar litigation familiarity), that position merely removes that factor as an element in my contextual assessment.

58. There are, in my view, three matters that weigh, significantly, in favour of finding that the Amended Notice (as to the objected to paragraphs) is oppressive. These matters are the extent of that which would be necessary for compliance, coupled with two matters relating to timing (the timing matters being later explained). It is also necessary to explain why one aspect of Mr Norton’s submissions on oppression warrants specific rejection - his submission as to the costs of compliance.

59. The primary reason, sufficient in itself, is the scope of the effort needed for, and cost of, compliance as earlier outlined by Mr Causer's uncontested evidence on this point. I do not need to summarise that evidence - the elements of Mr Causer's affidavit earlier set out explain clearly the extent of what would be required for Dexus's compliance with the Amended Notice if the contested paragraphs are permitted to stand.

60. In this regard, it is to be noted that, as can be seen from Annexure A to this decision, the amendments made to the original Notice (this notice being the foundation for Mr Causer's evidence) have been proposed in a fashion that are modestly ameliorative rather than being ones which would involve significant reframing of the obligations that would be imposed on Dexus if the Amended Notice was permitted to stand. Although the amendments made have had what Mr Galasso conceded was some ameliorative effect, I am satisfied that those amendments are, for the purposes of my overall assessment on the issue of oppression, insignificant when compared to what can reasonably be expected to be the demands (both as to effort and cost) that would be imposed on Dexus if the Amended Notice was permitted to stand as to paragraphs (11) to (29).

61. I am therefore satisfied that the Amended Notice (as to its contested paragraphs) is oppressive.

62. The two timing matters warranting comment are ones which inform me not as to the absolute extent of the effort and cost of compliance with the Amended Notice, but as to the fact that it is not plainly unjust to Sydney Metro to reach the conclusion, at this time, that the Amended Notice is oppressive.

63. First, although the terms of the Amended Notice as to its contested paragraphs are clearly oppressive in absolute terms, my finding in that regard does not act as an absolute bar to Sydney Metro seeking to pursue, at an appropriate time in the future, some more limited (and better framed) notice being addressed to Dexus. This is a factor to be taken into account in weighing the competing interests.

64. The second timing matter to be taken into account is an aspect of the first – namely, that Dexus’s valuation evidence has not yet been filed and served.

65. As was acknowledged by Mr Galasso, striking out of any or all of the contested paragraphs in the Notice on the present basis of oppression does not preclude Sydney Metro from filing and serving a further notice on Dexus if some proper basis can be established for doing so after the completion of provision of Dexus's evidence.

66. Indeed, given that the hearing of this matter (originally scheduled for August 2020) has been deferred until November 2020, there is no obvious timing barrier (on the assumption that the present evidentiary timetable is maintained) that would cause Sydney Metro any disadvantage if it later needed to file and serve some further Notice to Produce on Dexus.

67. Finally, I turn to explain why I reject Mr Norton’s submission that I should not have regard to the costs of compliance if the Amended Notice was to be upheld in its entirety. Although Mr Norton proposed, in [21] and the final sentence of [22] of his written submissions, that the costs of compliance should not be a matter taken into account in my consideration of whether or not the Amended Notice should be regarded as oppressive, there are two observations be made in this regard.

68. First, at one level, cost is also an indicator of the scope of effort required to satisfy the Amended Notice. In this regard, it is a relevant matter assisting my understanding of the burden that would be imposed on Dexus if compliance with the contested paragraphs was to be required.

69. Second, although Mr Norton submitted, in [21], that the financial burden of compliance is likely to fall on Sydney Metro rather than on Dexus (whether as a consequence of these being Class 3 proceedings or as a matter of general principle being irrelevant), such an attitude as to costs is contrary to the overarching objective governing all civil litigation, as set out in s 56 of the Civil Procedure Act - that is, to facilitate the just, quick and cheap resolution of all the issues genuinely in dispute between the parties. In that context, it is simply inappropriate to suggest that questions of the costs of compliance (particularly given that those costs, on Mr Norton's own submissions, are likely to be borne by the taxpayers of New South Wales) are irrelevant. This proposition is to be rejected.

Additional observations

The possibility of amendment

70. I note that Mr Norton had taken me to the decision by Duggan J in Elanor Investors Limited v Sydney Zoo Pty Limited (No 4) [2019] NSWLEC 191 as illustrative of an approach which was potentially available to me – namely, to make such amendments as I considered were appropriate to render relevant paragraphs in Sydney Metro’s Notice to be in acceptable form.

71. During the course of Mr Norton's submissions, I pressed him on the appropriateness of the starting date (principally) or other detailed aspects of various of the paragraphs of the Amended Notice.

70. In several instances, my query resulted in Mr Norton conceding that the relevant element of a paragraph warranted amendment to make the terms of the particular paragraph appropriate.

71. I do not propose to give specific examples of where the necessity to amend a paragraph, “on‑the-fly” as it were, would have been necessary in order merely to render the circumstances proposed by that paragraph as appropriate.

72. I have considered whether it might be appropriate for me to do so and have concluded that, in light of the broad conclusions I have reached concerning the overall unacceptability of the terms of the Notice (even in its now amended form) that it would not be appropriate for me to undertake such tinkering as the scope of the Amended Notice, at a broad level of generality, is incurable.

Speculation

75. During the course of his oral submissions, Mr Galasso also took me to [94] of Mr Hill's affidavit (Mr Hill, it is to be remembered, is the partner having carriage of this matter at Ashurst, Sydney Metro's legal representatives). This paragraph was in the following terms:

94   I anticipate, based on the Brownlee Affidavit and the Bolt Report, that Dexus will claim the timing of such works, and accordingly the associated expenditure and potential rental income, has been affected by the Project and is relevant to determination of the market value of the Property on a before and after basis.

76. In addition, Mr Hill said, at [59], the following:

Based on my review of the Brownlee Affidavit and the expert reports of Messrs Bolt, Cooper and Corne and having regard to the Points of Claim, it appears to me that the Applicant intends to contend at the hearing that the carrying out of the public purpose for which the Temporary Easements were acquired, being the Project, has caused a decrease in the value of the Property as at the Acquisition Dates for the purposes of section 55(f) of the Just Terms Act for reasons including:

77. It is unnecessary to set out the six elements that Mr Hill speculated were what were the intended contentions of Dexus will be when the matter proceeds to hearing. That hearing, necessarily, will be conducted on the basis of the evidence advanced on behalf of the parties, including, particularly, the as yet unfinalized (and, obviously, unfiled and unserved) valuation evidence being prepared on behalf of Dexus.

78. Had it been necessary to deal with the “fishing” complaint advanced on behalf of Dexus concerning the contested paragraphs of the Amended Notice, these paragraphs in Mr Hill's affidavit constitute acknowledgement by him, with respect to the elements of the Amended Notice for which they were intended to provide support, that those elements were ones seeking material on a speculative basis and would, therefore, be impermissible as falling foul of the prohibition on “fishing”.

79. To the extent that Mr Norton relied on the second of the above quoted paragraphs for his comment in [23] of his written submissions concerning oppression, such a speculation could not provide any proper basis for this.

80. If the speculation proves to be well-founded, as demonstrated by Dexus’s evidence when filed and served, Sydney Metro will have an opportunity to revisit these matters at that time.

One paragraph contains an absurdity

81. Sydney Metro’s Notice included, as paragraph (19), the following:

19   All documents created on or after 1 January 2017 that evidence or records:

(a)   The negotiation of the new lease of the former Momo Brasserie premises with Veranda;

(b)   The negotiation of any change or potential change in arrangements for the leases with the Identified Tenants and any actual change of such leases;

(c)   Complaints made or issues raised by the Identified Tenants.

82. Although it is not a matter to which I need to give weight, given my conclusion that, on a broad basis, the Amended Notice is oppressive as to its contested paragraphs, it is appropriate to note that, in at least one instance, one element of the Amended Notice (that in paragraph (19)(a) reproduced above) was based on a self-evident absurdity. This can be seen from what I set out in the following paragraphs.

83. The relevant portion of Ms Brownlee's proposed affidavit dealing with the fact that the brasserie operator proposed to vacate the premises was in the following terms (at [77] to [79]):

77   On 16 November 2018, John Ubaldi, the owner of Momo Brasserie, a café at street level of the Property facing Elizabeth Street, emailed Ms Vranjes regarding their tenancy within the building. Mr Ubaldi gave Dexus one month’s notice to end the tenancy. Shown to me and marked Tab 41 is a true copy of that email. I recall when I spoke with Ms Vranjes about this email, she recounted words to the effect of “Mr Ubaldi indicated that he had lost a portion of his customer base since 39 Martin Place had been emptied out that he did not want to stick around for a disruptive construction period”.

78   On 28 December 2018, Momo Brasserie vacated its premises upon expiry of their lease. Dexus commenced advertising the space shortly after. The vacancy was marketed in the same manner as set out in paragraph [62] above.

79   After a period of down time of 12 months, Verandah Bar & Restaurant (Veranda) took Momo Brasserie’s space for $100,000 per year. The Heads of Agreement for the new lease with Verandah is dated 4 April 2019, and the tenancy begun [sic] 1 January 2020. Verandah took over both the former Momo site and an area of the foyer, for which they pay $40,000 per annum. Shown to me and marked Tab 42 is a true copy of the Head [sic] of Agreement with Verandah for the new lease which contains those details.

84. As I pointed out to Mr Norton during the course of his submissions, the fact that the brasserie operator notified Dexus on 16 November 2018 for the first time of his intention to vacate the premises he was leasing rendered it an absurdity to suggest that Dexus would hold any documents from the period between 1 January 2017 and the date of this first notification of intention to vacate these premises.

85. Mr Norton's response was to indicate that Sydney Metro would seek to amend, further, the Amended Notice to reflect the date of the first giving of the notice of that intention to vacate.

86. Given my general conclusion and my rejection of tinkering, I need do no more than record this as an instance of sloppiness in preparation of the Notice.

Paragraphs not pressed

87. Mr Norton subsequently advised me, in light of the matters which had been raised by Mr Galasso with respect to paragraphs (27) to (29) of the Notice, that he was instructed that Sydney Metro no longer pressed these elements of its Notice. By necessary implication, I took this as an invitation that there would be no resistance if I was satisfied that it was appropriate to strike out those three paragraphs alone.

88. For the overall reasons set out in this decision, such a limited striking out of the paragraphs which Dexus had contested could not conceivably have been sufficient to warrant preservation of the other elements to which Dexus had raised objection (even on the assumption that I was prepared to contemplate such wholesale tinkering as would have been necessary to endeavour to cure defects in those remaining objected to paragraphs).

Costs

89. These are interlocutory proceedings in which costs will ordinarily follow the event. Although Dexus originally sought to have the entirety of the Notice to Produce to the Court set aside, it was subsequently indicated for Dexus that it did not seek the setting aside of paragraphs [1] to [10] of Sydney Metro’s Notice as these had either already been satisfied, informally, or there were no documents meeting the description to be produced. As can earlier be seen from the extract of [90] of Mr Norton's written submissions, those paragraphs were ones no longer put in contest by Sydney Metro for the purposes of this application.

90. The effective consequence of this is that Dexus has had complete success on all of the aspects in contention on this application. It therefore follows that Sydney Metro should pay Dexus's costs of the application. However, as it is possible that one or other of the parties may wish to propose some alternative costs order, provision for that is made, on a contingent basis, in the orders set out below.

Orders

91. It follows from what I have earlier set out that the orders of the Court, in each matter, are:

1. The application is granted in part;

2. The time for compliance with paragraphs (1) to (10) of the Notice to Produce to the Court dated 30 April 2020 (as amended by order of the Court on 28 May 2020) is extended until 4.30 pm on Friday 3 July 2020;

3. Paragraphs (11) to (29) of the Notice to Produce to the Court in (2) are struck out;

4. The Notice to Produce to the Court in (2) is listed before the Registrar on Tuesday 7 July 2020;

5. Unless a party notifies my Associate by 4.30 pm on 3 July 2020 that it wishes to be heard to propose some different costs order, the Respondent is to pay the Applicant's costs of the motion as agreed or assessed; and

6. The exhibits are returned.

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Annexure A - marked-up NTP (173656, pdf)

Decision last updated: 22 June 2020