Expandamesh Pty Ltd v Sydney Metro (No 2)

[2022] NSWLEC 109

Land and Environment Court

New South Wales

Medium Neutral Citation:

Expandamesh Pty Ltd v Sydney Metro (No 2) [2022] NSWLEC 109

Hearing dates:

24 August 2022

Date of orders:

31 August 2022

Decision date:

31 August 2022

Jurisdiction:

Class 3

Before:

Moore J

Decision:

See orders at [69] and [70]

Catchwords:

COSTS - application to vary costs orders made in decision on challenges to two subpoenas and a Notice to Produce - scope of subpoenas not appropriate - limited period to be covered by subpoenas established by the evidence - limitation period imposed on the subpoenas - subpoena modified to delete irrelevant matter and subpoenas limited in time - limited period to be covered by Notice to Produce established by the evidence - limitation period imposed on Notice to Produce - Notice to Produce modified to delete irrelevant matter and limited in time - conclusion on costs that partial success of opposing parties warranted no order for costs being made - party issuing subpoenas and Notice to Produce now seeks order that it have its costs of the challenge proceedings - presumption that costs follow the event - in the application to set aside the subpoena to Infrastructure NSW, an offer of compromise had been made to narrow the scope of what was required to be produced - no response to the offer from Infrastructure NSW - appropriate to vary the costs order concerning this subpoena - Company to have its costs of the application to set aside the Infrastructure NSW subpoena - Company entitled to one third of its costs of the challenge to this subpoena - no basis demonstrated as to why the result concerning the subpoena to the Department and the Notice to Produce to Sydney Metro should be disturbed - costs motion seeking variation to outcomes of Sydney Metro's challenges dismissed

COSTS - costs of costs Notice of Motion - costs follow the events - no basis to depart from conventional position - apportionment of costs of costs motion - costs of costs motion apportioned based on the success/failure on the costs motion - Infrastructure NSW to pay portion of Company’s costs motion - Company to pay costs of Sydney Metro of costs motion

Legislation Cited:

Civil Procedure Act 2005, s 98(1)

Uniform Civil Procedure Rules 2005, r 36.16 and Sch 1

Cases Cited:

Aslan v Stepanoski (No 2) [2022] NSWCA 89

Expandamesh Pty Ltd v Sydney Metro [2022] NSWLEC 43

James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Sze Tu v Lowe (No 2) [2015] NSWCA 91

Category:

Costs

Parties:

Expandamesh Pty Ltd (Applicant)
Sydney Metro (Respondent)

Representation:

Counsel:
Mr T Hale SC (Applicant)
Mr L Waterson, barrister (Respondent)

Solicitors:
ClarkeKann Lawyers (Applicant)
Crown Solicitors Office (Respondent)

File Number(s):

179897 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The Notices of Motion

The procedural challenges’ decision

Outcomes

Costs

Company’s costs application

Representation

The costs’ application hearing

The evidence

Relevant statutory provisions

Introduction

The Civil Procedure Act

The UCPR

The submissions of the parties

Consideration

Introduction

The Notice to Produce to Sydney Metro

The subpoena to the Department

The subpoena to Infrastructure NSW

Conclusion

Orders

Judgment

Introduction

1. Expandamesh Pty Ltd (the Company) owns a property at 175‑177 Botany Road, Waterloo (the site). On 11 October 2019, a substratum of the site was compulsorily acquired by Sydney Metro for the purpose of constructing tunnels to serve the Sydney Metro City and Southwest Project. The Valuer General of New South Wales (the Valuer General) has determined that the amount of compensation to be paid to the Company by Sydney Metro (the Respondent) for the compulsory acquisition of the substratum through which the tunnel will run is nil.

2. The Company has commenced proceedings pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act) disputing the Valuer General's determination.

3. In order to seek documents regarded by the Company’s lawyers as necessary for the purpose of establishing their case, a Notice to Produce (the Notice to Produce) was served on the Company's behalf in December 2021 on Sydney Metro. Subpoenas were also issued on the Company's behalf to the Secretary of the Department of Planning, Industry and Environment (the Department) and to Infrastructure NSW (the subpoenas).

The Notices of Motion

4. On 25 January 2022, Sydney Metro filed a Notice of Motion seeking to set aside the Notice to Produce addressed to it and the subpoenas issued to the Secretary of the Department and to Infrastructure NSW. The orders which Sydney Metro sought through its Notice of Motion were:

Subpoena to produce issued to the Department of Planning, Industry and Environment

1 The Subpoena for production issued to the Department of Planning, Industry and Environment on 9 December 2021 on behalf of the applicant, returnable on 22 December 2021 (“DPIE Subpoena”), be set aside generally pursuant to Part 33 Rule 33.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”) on the ground that the Subpoena lacks a legitimate forensic purpose to require production of the documents described therein.

Subpoena to produce issued to Infrastructure NSW

2 The Subpoena for production issued to Infrastructure NSW on 9 December 2021 on behalf of the applicant, returnable 22 December 2021 (“Infrastructure NSW Subpoena”), be set aside generally pursuant to rule 33.4(1) of the UCPR on the ground that the Subpoena lacks a legitimate forensic purpose to require production of the documents described therein.

Notice to Produce for inspection served on Sydney Metro

3 The Notice to Produce for inspection served on Sydney Metro by the applicant on 8 December 2021 (“Notice to Produce”) be set aside generally pursuant to rule 21.11(1) of the UCPR on the ground that the Notice to Produce lacks a legitimate forensic purpose to require production of the documents described therein.

4 In the alternative, the Notice to Produce be set aside generally pursuant to rule 21.11(1) of the UCPR on the ground that the Notice to Produce does not seek the production of a “specific document or thing that is clearly identified in the notice and is relevant to a fact in issue”, as required by rule 21.10(1)(b) of the UCPR.

5   In the alternative, Sydney Metro be excused from producing any material that is properly the subject of a claim for public interest immunity.

Further orders

6   The applicant pay the costs of this Motion.

5. On 25 January 2022, Infrastructure NSW also filed a Notice of Motion seeking to set aside the subpoena issued to that body. The orders which Infrastructure NSW sought through its Notice of Motion were:

1   The Subpoena for production issued to the applicant on 9 December 2021 on behalf of Expandamesh Pty Ltd, returnable 8 February 2022, be set aside on the basis that it is oppressive.

2   In the alternative, the applicant be excused from producing any material that is properly the subject of a claim for public interest immunity.

3   The respondent to this Motion, Expandamesh Pty Ltd, pay the costs of this Motion.

The procedural challenges’ decision

Outcomes

6. The two Notices of Motion were heard by me on 17 March 2022. I handed down my decision on 27 April 2022 (Expandamesh Pty Ltd v Sydney Metro [2022] NSWLEC 43 (my 27 April 2022 decision)). I made the following orders with respect to the Notices of Motion there considered:

Orders

87   For the subpoena to Infrastructure NSW, the orders of the Court are:

(1)   The subpoena is limited to production of documents in the period between 1 July 2016 and 31 December 2017;

(2)   The revised subpoena is returnable before the Registrar on 24 May 2022;

(3)   The Notice of Motion is otherwise dismissed; and

(4)   No order for costs.

88   For the subpoena to the Department of Planning, Industry and Environment, the orders of the Court are:

(1)   Paragraph 2(c) of the subpoena is deleted;

(2)   The subpoena is limited to production of documents in the period between 1 July 2016 and 31 December 2017;

(3)   The revised subpoena is returnable before the Registrar on 24 May 2022;

(4)   The Notice of Motion is otherwise dismissed; and

(5)   No order for costs.

89   For the Notice to Produce to Sydney Metro, the orders of the Court are:

(1)   Paragraph 2(a) of the Notice to Produce is deleted;

(2)   The Notice to Produce is limited to production of documents in the period between 1 July 2016 and 31 December 2017;

(3)   The revised Notice to Produce is returnable before the Registrar on 24 May 2022;

(4)   The Notice of Motion is otherwise dismissed; and

(5)   No order for costs.

7. As can be seen, in each instance the scope of that which was sought by the Company from the recipient served with the procedural requirement to deliver documents to the Company was limited by my 27 April 2022 decision.

Costs

8. At [85] and [86], I dealt with the costs of these procedural challenges in the following terms:

85   Given the determinations which I have made with respect to the three elements of the Notice of Motion on behalf of Sydney Metro, I am satisfied that the appropriate costs order on that motion, in order to reflect the mixed outcome achieved by Sydney Metro, should be that each party should bear its own costs of that motion.

86   A similar outcome has also been achieved by Infrastructure NSW in that there has been no alteration to the scope of the documents for which it is required to search and produce, but there has been a significant temporal limitation now imposed on the scope of that search. As a consequence, I am also satisfied that there should be no order for costs concerning Infrastructure NSW's Notice of Motion.

9. As can be seen, these costs’ outcomes were reflected in the orders set out above at [6].

Company’s costs application

10. On 10 May 2022, the Company filed a Notice of Motion seeking to vary the costs’ outcomes which I had ordered in my 27 April 2022 decision. The Notice of Motion sought the following orders in substitution for the costs orders which I had made:

1. Pursuant to Rule 36.16 of the UCPR, and in respect to the judgment delivered on 27 April 2022, that Order 4 in paragraph 87, that there be no order for costs, be set aside and in lieu thereof, the Court order:

(a)   That the Respondent pay the Applicant's costs of and incidental to the Respondent's Notice of Motion filed on 25 January 2022; or

(b)   That Infrastructure NSW pay the Applicant's costs of and incidental to Infrastructure NSW's Notice of Motion filed on 25 January 2022;

(c)   Further and other orders as the Court sees fit.

2. Pursuant to Rule 36.16 of the UCPR, and in respect to the judgment delivered on 27 April 2022, that Orders 5 in paragraphs 88 and 89, that there be no order for costs, be set aside and in lieu thereof, the Court order:

(a)   That the Respondent pay the Applicant's costs of and incidental to the Respondent's Notice of Motion filed on 25 January 2022; or

(b)   In the alternative, the Applicant's costs of the Respondent's motion be the Applicant's costs in the cause.

Representation

11. Mr L Waterson, barrister, represented Sydney Metro and Infrastructure NSW. Mr T Hale SC represented the Company. Each of the advocates provided written submissions with Mr Hale providing brief reply submissions.

The costs application hearing

12. The hearing of the Company's costs motion was conducted efficiently by the advocates and took significantly less than half a day of the Court's time.

The evidence

13. Affidavit evidence on the Company’s costs motion was given for the Company by Ms C Howard, a solicitor employed by the Company’s legal representatives. Her affidavits were dated 6 May 2022 and 25 July 2022.

14. Affidavit evidence on the Company’s costs motion was given on behalf of Sydney Metro and Infrastructure NSW by Mr B Grierson, a solicitor at the Crown Solicitor’s Office. His affidavit was dated 15 July 2022.

15. Ms Howard’s affidavit dated 25 July 2022 and that of Mr Grierson largely dealt with historical correspondence between the parties that does not require consideration in these proceedings. However, Mr Grierson's affidavit does acknowledge receipt of the letter from the Company's legal representatives of 14 March 2022, being a letter appended to Ms Howard's 6 May 2022 affidavit and later discussed in the context of the subpoena served on Infrastructure NSW.

16. However, there are two matters arising from Ms Howard's affidavit of 6 May 2022 which warrant being addressed. The first of them arises from paragraphs 5 to 7 of this affidavit. These paragraphs were in the following terms:

5.   If the Respondent had sought to negotiate to reduce the scope and time period of the documents sought by the Applicant in the Subpoenas and Notice to Produce by:

(a)   limiting the production of documents to the period between 1 July 2016 and 31 December 2017; and

(b)   deleting paragraph 2(c) and 1(a) in the Subpoena to DPIE and Notice to Produce respectively;

I would have advised the Applicant to agree to reduce the scope of the documents in accordance with paragraphs 5(a) and 5(b) in order to avoid the cost and uncertainly of the Motions.

6.   Following provision of that advice, I would anticipate receiving instructions from the Applicant to limit the scope and time period of the documents sought in the way the Court ultimately determined.

7.   Similarly, if the Respondent or Infrastructure NSW had suggested any other sensible amendments to the Subpoenas and Notice to Produce, I anticipate I would have received instructions to agree to those amendments in order to avoid the costs of the hearing of the Motions.

17. There are two observations to be made with respect to the contents of this affidavit. The first is that the above putative conclusions were made with the benefit of hindsight, after the receipt of my reasons for my 27 April 2022 decision. They are, in my view, to be accorded no weight as a consequence.

18. The second matter arising from this affidavit is an element of the letter of 14 March 2022 from the Company's legal representatives to the legal representatives of the State entities. The letter, at Annexure CH-2 to this affidavit, contains three short paragraphs under the heading “Subpoena to Infrastructure NSW”. These paragraphs are in the following terms:

Subpoena to Infrastructure NSW

We confirm that, pursuant to the affidavit of Helen Vickers affirmed 25 January 2022, Infrastructure NSW has identified 13 'hits' for documents which include the address of the Property.

Infrastructure NSW has not provided reasoning as to why the production of those 13 documents is oppressive.

We therefore press for the production of those 13 documents.

19. It will later be appropriate to return to the matters adverted to in this these paragraphs of this letter. It is to be noted that, although admittedly sent only several days’ prior to the hearing, there was no response from Infrastructure NSW’s legal representative; nor was any concession made concerning these 13 documents (being ones which specifically referred to the Company site) on behalf of Infrastructure NSW during the course of the hearing on 17 March 2022.

20. Affidavit evidence on the Company’s costs motion was given on behalf of Sydney Metro and Infrastructure NSW by Mr B Grierson, a solicitor at the Crown Solicitor’s Office. His affidavit was dated 15 July 2022.

21. The affidavit of Ms H Vickers, Legal Consultant to Infrastructure NSW (an affidavit read in the earlier proceedings) was tendered, becoming Exhibit A.

Relevant statutory provisions

Introduction

22. Provisions of the Civil Procedure Act 2005 (the Civil Procedure Act) and of the Uniform Civil Procedure Rules 005 (the UCPR) are relevant for consideration in the context of the Company's costs Motion.

The Civil Procedure Act

23. The relevant provision of the Civil Procedure Act is s 98(1). It is in the following terms:

98   Courts powers as to costs

(1)   Subject to rules of court and to this or any other Act—

(a)   costs are in the discretion of the court, and

(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

The UCPR

24. Only one provision of the UCPR is engaged. It is r 36.16, the rule pursuant to which the Company makes its application to vary the costs orders which I made in my 27 April 2022 decision. There is no dispute that the application made by the Company is permitted by the rule and that it was lodged within time. As a consequence, there is no necessity to set out this provision.

The submissions of the parties

25. Although I was provided with written submissions on behalf of the Company and on behalf of Sydney Metro and Infrastructure NSW setting out their respective positions in support of, or in resistance to, that which has been sought by the Company in this Notice of Motion, I am satisfied that it is only necessary to consider one specific element of those submissions in any detail.

26. In his oral and written submissions, Mr Waterson questioned whether the Company should be permitted now to canvass costs’ matters, notwithstanding the fact that the Company’s Notice of Motion was within the time permitted by r 36.16(3A) of the UCPR because no costs application had been made or foreshadowed by Mr Hale during the course of his written or oral submissions for the 17 March 2022 hearing.

27. Although Mr Waterson, in his written submissions, cited several authorities confirming that whether or not such an application should be entertained was a matter requiring my discretionary consideration, I am satisfied it is only appropriate to reproduce, on this point, one paragraph (paragraph 21) of his written submissions as his citation of the reproduced paragraphs of the decision of the Court of Appeal in Aslan v Stepanoski (No 2) [2022] NSWCA 89 does provide a proper basis upon which I can address this submission.

28. However, before doing so, it is appropriate that I set out Mr Hale's response to this complaint. His response was twofold. The first element was that he recollected raising, during the course of oral submissions on 17 March 2022, questions of costs on behalf of the Company. I indicated that I would examine the transcript of that hearing (as there was a copy on the court file) to ascertain whether his recollection was well‑founded. My examination of the transcript demonstrated that it was not.

29. However, Mr Hale also submitted that as the potential outcomes of the hearing on 17 March 2022 (as transpired was the case) might give rise to varied and potentially complex results, it was entirely appropriate of the Company to reserve its position on costs and only make some costs application after the Company and its legal advisers had had the opportunity to consider the outcomes I had determined were appropriate. Viewed in the context of those outcomes, Mr Hale submitted, taking advantage of the window of opportunity of 14 days provided by r 36.16(3A) of the UCPR was not unreasonable and had occurred within the 14‑day period there permitted.

30. Paragraph 21 of Mr Waterson’s written submissions was in the following terms:

21.   The same point was made in the recent case of Aslan v Stepanoski (No 2) [2022] NSWCA 89 where Macfarlan JA (with whom Gleeson JA and Payne JA agreed) stated at [5]-[7]:

“5. The respondents … submit that they are entitled to seek the special costs order now because the Court has the power to make it under rr 36.16(1) and 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (the “UCPR”), the respondents having filed their motion within 14 days of the judgment being entered. This submission does not however address the authorities indicating that, in light of the public interest in the finality of litigation, the Court should exercise great caution in making an order in exercise of such a power. As was said by the High Court in Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672; [1982] HCA 41 at 684, “[g]enerally speaking [the power to reopen to enable a rehearing] will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard”. Another circumstance which might warrant use of the power occurs “when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law” (Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 at 302).

6. The respondents have not identified any acceptable reason why an application for the special costs order was not made, or at least foreshadowed, at the hearing of the appeal. Ordinarily, questions of costs should be raised and addressed at the appeal hearing rather than parties making separate and subsequent applications (see Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [5]-[7]). As this Court said in Fuller v Albert (No 2) [2021] NSWCA 183 at [31]:

“If [parties] wish to make submissions on costs, they should either do so at the hearing of the appeal, addressing the foreseeable possible outcomes, or in special circumstances seek leave to make costs submissions after the outcome is known.”

(See also Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 at [34] (White JA)).

7. In some cases, there may be good reasons for deferring costs applications until after the principal judgment has been delivered. One example is a complex appeal in which there are numerous possible outcomes. The present is not such a case…”

31. In the present case, I am satisfied that the proposition in the last paragraph quoted above, that the seeking of costs might be deferred until the actual outcome was known from a range of multiple potential outcomes, is not unreasonable, as Mr Hale had earlier submitted.

Consideration

Introduction

32. As has earlier been noted, my orders concerning the period covered by the subpoenas and the Notice to Produce were made time‑limited, with that time limitation operating from shortly before the Company's planning consultant’s meeting with the Department and running for a period of almost 18 months thereafter.

33. As a consequence, the functional outcomes of my 27 April 2022 decision were a mixed result with some (but limited) success for the Company in requiring the production of material to it. On the other hand, those who sought to have the requirements for production set aside also had some success by my rejection of elements of what was proposed by the Company and my imposition of a temporal limit on elements that were permitted to stand.

34. There are three general observations appropriate to be made about matters that are presently relevant, but which occurred prior to me giving my 27 April 2022 decision. The first is that, in the second bullet point in [10], I noted, inter alia:

… Ms Howard's second affidavit [of 10 March 2022] annexed … a letter from the Company's legal representatives to the legal representatives of Sydney Metro. It is appropriate to reproduce portion of that letter as being relevant to matters requiring consideration on these Notices of Motion. The relevant portions of the letter were in the following terms:

…

The matter upon which we seek clarification is whether in these proceedings your client Sydney Metro accepts that:

(a)   our client’s property’s exclusion from the Waterloo's Precinct was caused by the proposal to carry out the public purpose (being the construction of the Sydney Metro on the acquired land);

(b)   on behalf of Sydney Metro, submissions were made to Infrastructure NSW that our client’s property be excluded from the Waterloo Precinct.

If Sydney Metro puts these matters in issue, then documents the subject of the Notice to Produce and the subpoena are relevant to a fact in issue in the proceedings. If, however, Sydney Metro accepts these matters, or does not put them in issue, our client will consider withdrawing the Notice to Produce and Subpoenas.

If these matters are put in issue, the fact that production is onerous cannot be a basis for setting aside the notice and/or the subpoena. Our client will, of course, consider suggestions that your clients might make to reduce the scope of the notice and the subpoena but which, at the same time achieve their purpose.

We look forward to any compromise your clients, as model litigants, might suggest.

35. At best, this can be regarded as an “invitation to treat”. It is certainly not an offer of compromise and, I am satisfied, no inference adverse to those entities to which the subpoenas and the Notice to Produce had been issued should be drawn from any failure to respond.

36. During the course of this costs hearing, Mr Waterson characterised the approach taken on behalf of the Company as being an offer that was, effectively, “We are open to a narrowed subpoena - please draft it for us”. This, he submitted, could not be regarded as a genuine proposal put forward by the Company to narrow the scope of the documents being sought.

37. Mr Hale submitted that the State entities had responsibilities, as model litigants, to respond positively to the Company’s attempts to seek documentation in support of its compensation claim and that, by resisting the Company’s attempts, the State entities had not acted in accordance with their model litigant responsibilities.

38. Certainly, in circumstances where one of the objections pressed on behalf of the recipients of the subpoenas and Notice to Produce was the breadth of them (both in scope of the material’s source and the time over which the requirement to produce historical documents extended), this invitation to treat provides no basis as to demonstrate why my conclusion, that there should be no orders for costs of the challenges to the Company's subpoenas and Notice to Produce, should be disturbed in the fashion now proposed for the Company.

39. The second matter to be noted is that, during the hearing, when I raised with Mr Hale and Mr Waterson the question of whether, in some fashion, it would be appropriate for me to conclude that a temporal limitation on whatever might be appropriate to be left within the scope of what the Company sought, Mr Hale's submission was one more temporally extensive than that which I found was reasonable in my subsequent decision.

40. As outlined in my 27 April 2022 decision, the event triggering the legitimacy of a request for the production of documents was the date of the meeting between Ms Bartlett, the Company’s planning consultant, and officers of the Department. This meeting took place on 17 August 2016, thus providing a relevant reference date for determining when might be the commencement of a temporally limited period with respect to which production of documents from the State entities might be required.

41. Finally, as can be seen from the scope of the orders which I made in my 27 April 2022 decision, not only did I conclude that a temporal limitation (shorter than that proposed by the Company when prompted to address the question of a temporal limitation) be imposed, but a number of elements sought to be brought within the scope of a requirement for production by Sydney Metro and the Department were also rejected by me for reasons which were described.

42. As r 42.1 of the UCPR does not apply to proceedings in the Land and Environment Court (by virtue of it being excluded by the operation of Sch 1 of the UCPR), the relevant legislative framework governing costs in proceedings such as these (including of this costs motion) is s 98(1) of the Civil Procedure Act. Although this provision leaves determination of questions of costs as a matter of discretion (a discretion to be exercised judicially), nonetheless, the position is, as the High Court decided in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, that, generally speaking, costs will “follow the event”.

43. Gleeson JA described “the event” for costs purposes, in Sze Tu v Lowe (No 2) [2015] NSWCA 91. His Honour said, at [39], (citation omitted):

39   How “the event” should be defined will depend upon the nature of the litigation. Generally the “event” refers to the event of the claim and may be understood as referring to the practical result of a particular claim.

44. It is necessary to consider, therefore, what might be regarded as “the event” for the purposes of understanding the costs’ determination I made in my 27 April 2022 decision and how that is to be understood for the purposes of my consideration of the Company’s present costs motion.

45. As can be seen from a reading of my 27 April 2022 decision, elements of what was sought by the Company were rejected with respect to the subpoena to the Department and the Notice to Produce addressed to Sydney Metro. The extent of the material that was required to be produced in response to the subpoenas and the Notice to Produce were significantly temporally limited and several elements were rejected. However, on the other hand, material was required to be produced by the parties to whom the subpoenas and Notice to Produce were issued (see my 27 April 2022 orders reproduced at [6] above).

The Notice to Produce to Sydney Metro

46. With respect to the Notice to Produce which had been issued to Sydney Metro, I explained, at [81] and [82] of my 27 April 2022 decision, how one element of what it was proposed by the Company that Sydney Metro be required to produce was so far beyond anything potentially to be dealt with in the merit proceedings when they occurred that that element (paragraph 2(a)) of the Notice to Produce was to be ordered to be struck out.

47. The relevant paragraphs of my 27 April 2022 decision were in the following terms:

81   As to the scope of the documents to be required to be produced, the Notice to Produce to Sydney Metro is to be constrained to those documents directly relating to the Company’s site and the boundaries of the Waterloo Precinct. As a consequence, paragraph 2(a) of the Notice to Produce is rejected (as it clearly extends significantly beyond matters potentially engaged - even on the broadest possible interpretation of apparent relevance by paragraph 11(c)(i) of the Company’s Amend Points of Claim filed on 4 March 2022).

82   Paragraph 2(a) of the Notice to Produce is, therefore, deleted.

48. This rejection of a specific element of what was sought by the Company to be required to be produced by Sydney Metro was separate from, and in addition to, the time restriction imposed on the period across which Sydney Metro required to search for and produce documents.

49. As should have been implicitly obvious from the costs’ outcome in this regard, in my 27 April 2022 decision, the clear (and obvious) inference was that the outcome was evenly balanced between Sydney Metro and the Company on this aspect of Sydney Metro’s motion with no costs order being justified.

The subpoena to the Department

50. In my 27 April 2022 decision, I set out, at [78], why I rejected to paragraph 2(c) of the subpoena addressed to the Department. The relevant portion of [78] is reproduced below:

78   … no basis of apparent relevance beyond speculation has been demonstrated on behalf of the Company with respect to paragraph 2(c) of the subpoena. Paragraph 2(c) is the element which seeks the production of documents relating to a Memorandum of Understanding said to have been entered into by the Department with the Council of the City of Sydney. This paragraph of the subpoena is to be deleted.

51. This rejection of a specific element of what was sought by the Company to be produced by the Department was separate from, and in addition to, the time restriction imposed on the period across which the Department required to search for and produce documents.

52. As should have been implicitly obvious from the costs’ outcome in this regard, in my 27 April 2022 decision, the clear (and obvious) inference was that the outcome was evenly balanced between Sydney Metro and the Company on this aspect of Sydney Metro’s motion with no costs order being justified.

The subpoena to Infrastructure NSW

53. With respect to the subpoena to Infrastructure NSW, what was limited was the period of time of what was required to be produced to the Company's legal representatives.

54. In my 27 April 2022 decision, I set out, at [28], the terms of the subpoena issued to Infrastructure NSW. It is not necessary to repeat the terms of what was sought by that subpoena. It is sufficient to note that, although the triggering event advanced by the Company for seeking the various documents was a meeting between a planning consultant engaged by the Company and relevant staff from the Department held on 17 August 2016 (some 14 months before the date of the compulsory acquisition of the subterranean strata from the Company), the subpoena to Infrastructure NSW was unlimited in the retrospective operation of the seeking of the documents. In my 27 April 2022 decision, at [9], I set out the evidence given on behalf of Infrastructure NSW by Ms Vickers, its legal consultant. In the course of that, I reproduced, here relevant, paragraphs 41 and 42 of Ms Vickers’ affidavit. These paragraphs were in the following terms:

Estimated cost of compliance with Subpoena

41   The likely cost of compliance with the Subpoena cannot be ascertained with any certainty at this point.

42   However, based on the number of hits on documents in Objective and the number of email records that would need to be searched, I estimate based on the two examples given that the cost of compliance may be at least in the range of $80,000 - $200,000. In this case, because the documents sought are not limited by date range, I estimate the cost of compliance is likely to be at the upper end of that range, or possibly higher.

55. In addition, in my description of Ms Vickers’ evidence on behalf of Infrastructure NSW, I also set out what she had described as the provenance of documents, which would need to be searched to satisfy the very broad scope of what had been sought on behalf of the Company as a consequence of the fact that this would entail searching the records of UrbanGrowth, a now‑disbanded New South Wales government agency of which Infrastructure NSW was the now‑successor in relevant functions.

56. Ms Vickers’ affidavit of 25 January 2022 (Exhibit A) set out information concerning a range of searches and the terms used for those searches that had been undertaken by Infrastructure NSW. That information was set out at paragraphs 17 to 23 of her affidavit, paragraphs in the following terms:

Preliminary searches of Objective

17.   In response to the Subpoena, I caused preliminary keyword searches in Objective to be carried out by Ms Anisha James, a Senior Information Officer within Infrastructure NSW, using the search terms "Waterloo", "Waterloo Precinct'', "Waterloo + boundary" and "Waterloo Metro Quarter".

18.   A "full text" search for the term "Waterloo" produced many thousands of "hits" on Objective records alter approximately 5 hours of automated searching. I therefore asked Ms James to limit her preliminary searches to the subject/title of the documents held in Objective, rather than the full text of those documents, using the same keywords. As the documents sought are limited by date range, I asked Ms James to conduct these searches for the period 1 January 2010 to 10 December 2021. I chose 1 January 2010 as the start date for those searches because at that time, I had not reviewed UrbanGrowth annual reports and I was not aware that UrbanGrowth first became responsible on 1 January 2012 for the Waterloo urban development.

19.   Annexed to this affidavit and marked "HJV-2" is a table setting out the results of those preliminary searches. These preliminary keyword searches produced a total of 11,074 "hits" on individual documents in Objective.

20.   I subsequently caused further keyword searches on the full text of documents held in Objective to be carried out by Rameshkumar Chandrasekaran, who works for Objective, excluding the general search term "Waterloo" but using the more restricted search terms "Waterloo Precinct", "Waterloo + boundary" and " Water loo Metro Quarter".

21.   These searches were limited to the date range 1 January 2012 to 1 July 2020, on the basis that:

a.   UrbanGrowth first became responsible for Waterloo urban development on 1 January 2012, following the introduction of the Redfern-Waterloo Corporation Repeal Act 2011, pursuant to which all assets, rights and liabilities and operations of the Redfern-Waterloo Authority and the Office of the Redfern-Waterloo Authority were transferred to UrbanGrowth; and

b.   On 1 July 2020, the assets, rights and liabilities of UrbanGrowth were transferred from Infrastructure NSW to multiple other agencies.

22.   Annexed to this affidavit and marked "HJV-3" is a table setting out the results of those further preliminary searches. These further keyword searches produced a total of 48,476 "hits" on individual documents in Objective.

23.   I subsequently caused further keyword searches on the full text of documents held in Objective to be carried out by Ms James using the search terms "175A Botany Road Waterloo" and "1718 Botany Road Waterloo". Annexed to this affidavit and marked "HJV-4" is a table setting out the results of those further preliminary searches. These further keyword searches produced a total of 13 "hits" on individual documents in Objective.

57. At [52] of my 27 April 2022 decision, I set out paragraphs 34 to 36 of Mr Hale's written submissions for the 17 March 2022 hearing. These submissions were filed on 10 March 2022 and can be assumed to have been served at about that date. The paragraph from my 27 April 2022 decision was in the following terms:

52   Mr Hale's written submissions also set out the terms of an offer made by the Company’s legal representative indicating a preparedness to narrow the scope of the Notice to Produce and the subpoena to Infrastructure NSW. The terms of paragraphs 34 to 36 of his written submissions are reproduced below:

Width of the Subpoena

34   Following receipt of Infrastructure NSW's motion, the Applicant's solicitor wrote to the Crown Solicitor's Office (who also represents Infrastructure NSW) on 31 January 2022 (Annexure B to the affidavit of Chloe Howard sworn 10 March 2022) seeking clarification on the Respondent's position in respect of the boundary as well as the following:

Our client will, of course, consider suggestions that your clients might make to reduce the scope of the notice and the subpoena but which at the same time achieve their purpose.

We look forward to any compromise your clients, as model litigants, might suggest.

35   The Respondent and Infrastructure NSW have failed to suggest any compromise and have continued to push for the Subpoenas and Notice to be set aside in their entirety. As the Applicant has made clear in the letter, it is happy to consider any compromise arrangement.

36   This is despite Infrastructure NSW, pursuant to the affidavit of Helen Jane Vickers affirmed on 25 January 2022 at paragraph 23, locating 13 'hits' for documents referencing the Applicant's property and the neighbouring property previously owned by DHA. There are no reasons why those documents cannot be produced.

58. As can be seen from paragraph 36 of Mr Hale’s there reproduced submissions, Mr Hale expressly drew attention to the element from Ms Vickers’ affidavit acknowledging that there were 13 documents which turned up from Infrastructure NSW's records, being documents which contain express reference to the Company's site.

59. The reproduced elements of Mr Hale's submissions reproduced above, together with the earlier set out paragraphs of the Company's legal representatives letter of 14 March 2022 referencing these 13 documents, clearly put Infrastructure NSW on notice of the reasons why there was a potentially likely basis for resolution of Infrastructure NSW's complaint about the subpoena served on it, a resolution which would not have had any of the onerous consequences about which Infrastructure NSW had earlier complained.

60. I am satisfied that the failure of Infrastructure NSW to engage with the offer made for the Company does warrant me revisiting that element of the orders made in my 27 April 2022 decision that determined, with respect to Infrastructure NSW maintaining the absolute position that the subpoena should be set aside, lacked proper foundation. As a consequence, I am now persuaded that it would be appropriate to order Infrastructure NSW to pay portion of the Company's costs of the 17 March 2022 hearing.

58. On an appropriately impressionistic basis, I am satisfied that the appropriate proportion is one‑third of the Company's costs of that hearing.

59. It also follows that, for this costs application, Infrastructure NSW should be ordered to pay one‑third of the Company's costs of this motion.

Conclusion

63. In appropriate cases, apportionment of costs may be considered (James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296) when success or failure on discrete issues warrants it, as is here the case. Although the costs conclusion in my 27 April 2022 decision was that I considered that the outcomes had resulted in a sufficiently evenly balanced measure of success/failure by the challenging parties and the Company that it was appropriate that there be no costs orders as the costs’ outcomes of the matters I was then required to determine, a different, nuanced position is revealed as a result of this application to be necessary.

64. Given that I have concluded that a responsible offer of compromise had been made to Infrastructure NSW and not acted upon, that Company-favouring conclusion must result in a costs order for the relevant proportion of the hearing on the substantive motion, and of this costs motion, being made in favour of the Company.

65. However, given that I have also concluded that there is no basis why my conclusion, with respect to the other contested elements dealt with in my 27 April 2022 decision and the costs conclusion which flowed from them warrants being disturbed, it is appropriate that the Company pay Sydney Metro’s costs with respect to the proportion of this costs application engaged in considering those matters.

66. It is not appropriate to endeavour to undertake any detailed parsing of the written or oral submissions to reach the appropriate conclusion on a costs’ apportioned basis. I have concluded, on the appropriate impressionistic basis, that Infrastructure NSW should pay one‑third of the Company's costs of the substantive motion and one‑third of the Company's costs of this costs motion. However, having concluded that there is no basis to interfere with the “no costs” element of my 27 April 2022 decision as to the comparative outcomes between the Company and Sydney Metro (Sydney Metro resisting both the Notice to Produce addressed to it and the subpoena to the Department), it is appropriate that the Company's costs motion now being dealt with be dismissed to the extent that it seeks a costs order against Sydney Metro. As a consequence, it is also appropriate that Sydney Metro should have its costs of this costs motion.

67. Complementing my impressionistic determination in the Infrastructure NSW outcome described above, it is appropriate that the Company be ordered to pay Sydney Metro’s costs of this costs motion (being two‑thirds of the overall costs of the State entities of this costs application).

68. In each instance, the appropriate costs orders are to be “as agreed or assessed”.

Orders

69. For the element of the Notice of Motion seeking a costs order against Infrastructure NSW, the orders of the Court are:

1. The application is upheld;

2. Order (4) of the orders in [87] of the orders of 27 April 2022 is vacated;

3. Infrastructure NSW is to pay one‑third of the Applicant’s costs of the hearing of 17 March 2022 as agreed or assessed;

4. Exhibit A is returned; and

5. Infrastructure NSW is to pay one‑third of the Applicant’s costs of this costs motion as agreed or assessed.

70. For the elements of this Notice of Motion seeking a costs order against Sydney Metro, the orders of the Court are:

1. The Notice of Motion is dismissed; and

2. The Applicant is to pay Sydney Metro’s costs of the costs motion as agreed or assessed.

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Decision last updated: 31 August 2022