Fraietta v Roads and Maritime Services

[2016] NSWLEC 52

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Fraietta v Roads and Maritime Services [2016] NSWLEC 52
Hearing dates:	15 April 2016
Date of orders:	15 April 2016
Decision date:	15 April 2016
Jurisdiction:	Class 3
Before:	Moore J
Decision:	At [13]
Catchwords:	PRODUCTION OF DOCUMENTS – application to set aside notice – notice not Notice to Produce but Notice to Produce to the Court – processes different – no basis to set aside
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Norris v Kandiah [2007] NSWSC 1296, Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869
Category:	Procedural and other rulings
Parties:	Rocco Fraietta (Applicant) Roads and Maritime Services (Respondent)
Representation:	Counsel: Mr D Newhouse, solicitor (Applicant) Ms F Berglund, barrister (Respondent)   Solicitors: Newhouse & Arnold (Applicant) Ashursts (Respondent)
File Number(s):	31021 of 2015
Publication restriction:	No

extempore Judgment

1. HIS HONOUR: The respondent in the substantive proceedings has filed a Notice of Motion seeking to have the documents described in the motion as “the Notice to Produce” by the Applicant filed on 7 April 2016 set aside.

2. In support of the motion, the Applicant on the motion has read the affidavit of Rachel Daniel dated 11 April 2016.

3. At a number of points in the annexures to that affidavit, there is correspondence between the acquiring authority’s solicitors and Mr Newhouse, who is the solicitor for the party whose property is to be acquired. At least one of those letters, dated 11 April 2016, refers in terms to the Notice to Produce (which is the one that is currently before me and subject to the application to set it aside) as being a Notice to Produce pursuant to Pt 21 Div 2 r 10(1) of the Uniform Civil Procedure Rules 2005 (the Uniform Civil Procedure Rules).

4. The document that has in fact been filed and served and is the subject of the dispute is headed “Notice to Produce to Court” and is a document produced in reliance on Pt 34, r 1 of the Uniform Civil Procedure Rules.

5. There is a significant difference between the two of those documents as discussed in the two cases handed up to me by Mr Newhouse: Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869, a decision of Barrett J, and a decision of Brereton J in Norris v Kandiah [2007] NSWSC 1296.

6. The fundamental difference is this:

• a Notice to Produce under Pt 21 requires the production of the documents to the opposing party. There is no filtration process that is applied in such production and, as has here been engaged, the process for resisting production in those circumstances is that of a Notice of Motion to set aside, in whole or in part, a Notice to Produce under Pt 21; but

• for a Notice to Produce to the Court pursuant to Pt 34, the filtration process is one that is more formalised - in the sense that the files, documents, things or the like that are specified in the Notice to Produce to the Court are in fact produced to the Court and are not automatically made available to the party who has issued the notice. There is the opportunity provided to the producing party to make objection to the release of documents produced to the Court to the party who has sought their production to the Court. It is quite a distinct and different protective regime that is engaged by Pt 34.

7. In these proceedings, it is clear that those representing the Roads and Maritime Services (the Respondent) have inadvertently conflated the two procedures and not noted the difference that is inherent in the engagement of each of them. As a consequence, it seems to me that it is not appropriate to dismiss the Notice to Produce or to grant the relief contained in the Notice of Motion.

8. In addition, I have heard submissions from Ms Berglund in support of the motion as to what she says is the breadth of that which is sought - whilst, on the other hand, I have heard submissions from Mr Newhouse as to the nature of the precision he says is inherent in the terms of the Notice to Produce to the Court.

9. The onus lies on the mover of the motion to provide a proper evidentiary basis for suggesting that that which is sought to be produced to the Court is too broad. The terms of the document as filed and served on the Respondent’s legal representative does, in my view, sufficiently specify that which is sought to be produced to the Court.

10. If there is some dispute, on a proper evidentiary basis, on behalf of the Respondent as to the breadth of that which is sought contrary to the submissions of Mr Newhouse, there is no proper evidentiary basis for it at the present time. That does not preclude further endeavour being made on behalf of the Respondent on a proper evidentiary basis to resist production to the Court, if that is to be pursued further.

11. I therefore propose to dismiss the Notice of Motion but I do propose to stand the matter over for a sufficient period of time to enable:

1. First, the Roads and Maritime Services and their legal advisers to contemplate what matters, if any, might need to be segregated from the files to be produced for which privilege or some other denial of access should be sought; and

2. To allow sufficient time for the Roads and Maritime Services to contemplate whether they wish to proceed with a different motion, on a more limited basis, properly founded in response to an application pursuant to Pt 34 of the Uniform Civil Procedures to resist production to the Court.

12. Therefore, subject to anything that either of Mr Newhouse or Ms Berglund wish to say, I propose to dismiss the motion and stand the matter over to the Land and Valuation List on Friday 29 April 2016.

The advocates addressed on costs and a future timetable.

Orders

13. The orders therefore are:

1. Motion dismissed.

2. Costs reserved.

3. Matter stood over to 29 April 2016.

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Amendments

16 May 2016 - Correction to the Applicant's instructing solicitor's name. The name was incorrectly noted as "G Newhouse" when it should have been "D Newhouse".