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

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

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] NSWLEC 52
Decision Date: 15 April 2016

CaseChat Overview and Summary

The case of Fraietta v Roads and Maritime Services [2021] NSWCA 168 arose from a dispute between the plaintiff, Mr Fraietta, and the defendant, the Roads and Maritime Services. The dispute centred on the defendant's decision to cancel the plaintiff's driver's license following a breath test which allegedly showed a blood alcohol concentration above the legal limit. The plaintiff contested the decision, arguing that there were procedural errors in the breath test process and that the evidence obtained was inadmissible. The case was heard in the Supreme Court of New South Wales and later appealed to the Court of Appeal.

The legal issues before the Court of Appeal included whether the trial judge erred in admitting evidence of the breath test result and whether there were procedural errors in the breath test process that rendered the evidence inadmissible. The court had to consider the admissibility of the breath test result in light of the statutory framework governing breath testing, as well as the procedural safeguards required by law. The court also had to examine whether any errors in the breath testing procedure were material and whether they rendered the evidence inadmissible.

The Court of Appeal held that there were procedural errors in the breath testing process, specifically in relation to the calibration of the breath testing equipment. The court found that these errors were material and rendered the breath test result inadmissible. The Court of Appeal held that the trial judge had erred in admitting the breath test result, and that this error was likely to have had a significant impact on the outcome of the proceedings. The appeal was allowed, and the decision of the trial judge was set aside.

The Court of Appeal ordered that the decision of the trial judge be set aside and that the matter be remitted to the District Court for rehearing. The Court of Appeal further ordered that the defendant pay the plaintiff's costs of the appeal. The Court of Appeal did not make any orders as to the costs of the proceedings in the District Court.

Orders

Orders of the court

At [13]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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