Mathews v The Uniting Church in Australia Property Trust (NSW)
[2011] NSWLEC 198
•15 November 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Mathews v The Uniting Church in Australia Property Trust (NSW) [2011] NSWLEC 198 Hearing dates: 20 October 2011 Decision date: 15 November 2011 Jurisdiction: Class 4 Before: Craig J Decision: (1) Order that paragraph 3 of the Schedule to the subpoena to produce issued by the Court on 7 September 2011 for service upon Michael Eugene Neustein be amended and read so as to require that any application of the kind referred to in that paragraph be restricted to such application or applications as was or were made between 1 January 2010 and 31 August 2011.
(2) Otherwise the applicants' notice of motion filed on 23 September 2011 is dismissed.
(3) Documents identified in the subpoena issued on 7 September 2011 addressed to Michael Eugene Neustein are to be produced to the Court in the manner stated in that subpoena not later than 9.30am on 30 November 2011.
(4) Order that the applicants notify Michael Eugene Neustein of the terms of Orders 1 and 3, such notification to be given by letter addressed to him at 209 Oxford Street, Bondi Junction and sent not later than 20 November 2011.
(5) The applicants are to pay the first respondent's costs of their notice of motion.
(6) Exhibit 1 together with the documents marked as "Exhibit MN1" to the affidavit of Michael Eugene Neustein affirmed 3 August 2011 may be returned.
Catchwords: PROCEDURE - setting aside or staying subpoena to produce - whether "conduct money" required for subpoena to produce documents - Uniform Civil Procedure Rules 2005 r 33.6(1) - addressee of subpoena entitled to loss and expenses incurred in producing documents - Uniform Civil Procedure Rules r 33.11 - tender of cheque as conduct money - relevance of documents to be produced - whether deponent of affidavit filed in proceedings is "stranger" to the proceedings - motion dismissed Legislation Cited: Cheques Act 1986 (Cth)
Environmental Planning and Assessment Act 1979
Government Information (Public Access) Act 2009
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005Cases Cited: Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 881
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253
In the matter of One.Tel Ltd (in liq) - SingTel and Optus Pty Ltd v Weston [2010] NSWSC 1491
National Employers Mutual General Insurance Association Limited v Waind [1978] 1 NSWLR 372
Portal Software v Bodsworth [2005] NSWSC 1115
Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710Category: Procedural and other rulings Parties: Celia Chater Mathews (First Applicant)
The Uniting Church of Australia Property Trust (NSW) (First Respondent)
Martin Welsh (Second Applicant)
The Methodist Church (NSW Property Trust) (Second Respondent)
Maitland & Butcher Pty Ltd (Third Respondent)
Maitland & Butcher Architect Pty Ltd (Fourth Respondent)
Hornsby Shire Council (Fifth Respondent)Representation: COUNSEL
Mr J R Dupree (Applicant)Ms Sandra Duggan SC (First Respondent)
Gadens (First Respondent)
Mr T Pickup (Solicitor) (Fifth Respondent)
SOLICITORS
Russo & Partners Solicitors (Applicant)
Storey & Gough Lawyers (Fifth Respondent)
File Number(s): 40673 of 2011
Judgment
By Notice of Motion filed on 23 September 2011, the applicants seek an order staying a subpoena issued at the request of the first respondent and directed to Michael Eugene Neustein. Alternatively, the motion seeks an order that the subpoena be set aside. On the hearing of the motion, the applicants pressed their application that the subpoena be set aside and requested that the application for stay be deferred.
The subject matter of the proceedings is an equestrian dressage ring located on land owned by the first respondent at Arcadia on the north western outskirts of the Sydney metropolitan area. The applicants are said to be the owners of adjacent land. The substance of their case seems to be that the dressage ring was constructed without development consent when such consent was required; that a development consent granted by Hornsby Council ( the Council ), the fifth respondent, for extension of the dressage ring is invalid and that the first respondent should be restrained from pursuing an application that has been made by it to the Council to modify that development consent. Each of these claims is said to constitute or arise from a breach of the Environmental Planning and Assessment Act 1979.
In compliance with directions given by the Court, the applicants have filed their points of claim and the supporting affidavit evidence upon which they intend to rely. One such affidavit has been affirmed by Mr Neustein who is a consultant planner retained by the applicants. His affidavit has been tendered for the purpose of determining the present notice of motion. Annexed to it is a report prepared by Mr Neustein in June 2011 and entitled "Report on use of the site for a dressage ring and horse training". In the report, Mr Neustein identifies documents obtained from the Council and from the applicant's solicitors for the purpose of preparing his report and expressing the opinions contained in it.
The applicants seek to set aside the subpoena addressed to Mr Neustein. In broad terms they claim that compliance is not required because conduct money was not tendered at the time of service. They also claim that the issue of the subpoena involves an abuse of process; that, in its terms, it is "fishing" and that it lacks any genuine forensic purpose.
The subpoena
The subpoena addressed to Mr Neustein was issued by the Court on 7 September 2011 ( the subpoena ). It was a subpoena to produce documents. The Schedule to the subpoena, identifying the documents to be produced, was in the following terms:
"The documents or things you must produce are as follows:
1. A copy of the 4-page document prepared by James Dupree, referred to on page 2 of correspondence to you or your company from Russo and Partners Solicitors dated 10 May 2011 as:
"( g ) James Dupree - 4 page presentation to Council prior to Council decision"
2. A copy of the document prepared by you to Russo and partners, responding to their request that you:
" provide an urgent report, after inspection if necessary, as to whether Mr Dupee's presentation, on principle, is correct"
as requested by them on page 2 of their letter to you dated 10 May 2011.
3. A copy of any applications made by you or your company to the Fifth Respondent (Hornsby Shire Council), or any applications in your or your company's possession, for access to Hornsby Shire Council's files in relation to any or all of the following properties:
(a) 7 Vision Valley Road, Arcadia
(b) Lot 2 DP 533150
(c) 21 Geelans Road, Arcadia (Lot 11 DP 217208,
(d) Lot 32 DP 538494
(e) Lot D2 DP 389003, and
(f) Lot 229 DP 752048
4. A copy of your files notes of any inspections of Hornsby Shire Council files or development consent register regarding the properties listed in paragraph 3 or files notes of copies of these files provided to you, undertaken to prepare your report dated June 2011 annexed to your affidavit of 3 August 2011 in these proceedings."
The subpoena would appear to have been served on Mr Neustein on 14 September 2011. At the time of service he was handed a cheque in the sum of $30 drawn on the account of "Gadens Lawyers Sydney Pty Ltd" held with a well-known Australian bank. The firm of solicitors who had entered an appearance on behalf of the first respondent and who had sought the issue of the subpoena was "Gadens Lawyers".
Mr Neustein's response to service of the subpoena upon him was immediate. By email communication on 14 September to the solicitor acting for the first respondent he made three observations. First, he indicated that "the nominal conduct money" provided to him was "insufficient to carry out the document production sought by the subpoena". Noting his charge-out-rate for time taken to locate the documents plus photocopying and courier charges, he sought confirmation "that a charge around $900 - $1,000" would be met by the firm "for the document production required by the subpoena". Second, he indicated that before production he would check with the solicitor for the applicant as to whether legal professional privilege was able to be claimed and third he sought clarification as to "when the proceedings will be held".
By letter dated 15 September, the solicitors acting for the applicants wrote to the first respondent's solicitors indicating that Mr Neustein had not been provided with sufficient conduct money and claiming that the subpoena addressed to him was "issued irregularly". It was said that the subpoena was a "fishing expedition" and that it "traverses the area of legal professional privilege". No claim of the last kind was the subject of any submission before me on the hearing of the motion.
Between 18 and 20 September there was an exchange of emails between Mr Neustein and the solicitors acting for the first respondent, all directed to the payment of Mr Neustein's costs associated with production of the documents sought by the subpoena. Production was required, in accordance with the subpoena, by 23 September.
For his part, Mr Neustein insisted that the solicitors accept responsibility for payment of the costs which he claimed before production occurred. He sought to impose a deadline for an agreement to that effect, given his intended absence from Sydney between 21 September and a date after the return date of the subpoena. Ultimately, it was indicated by the solicitors that "reasonable costs, capped at $1,000 (plus GST)" would be paid for production of the documents sought in the subpoena on Friday 23 September. The solicitors also advised Mr Neustein of his right to make an application to the Court for additional costs.
The documents sought by the subpoena were not produced. The subpoena has been stood over pending determination of the applicant's notice of motion to set it aside.
Conduct money
Mr J Dupree, who appeared for the applicants, submitted that the tender of adequate conduct money was an essential prerequisite to enforcing compliance with a subpoena. He relied upon the provisions of the Uniform Civil Procedure Rules 2005 ( UCPR ) Part 33 r 33.6(1) which relevantly provides as follows:
"(1) An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required."
The expression "conduct money" is defined in r 33.1(1) in the following way:
" conduct money means a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending."
Mr Dupree's submission under this ground for setting aside the subpoena was originally three-fold. First he submitted that a cheque does not satisfy the definition of "conduct money" because a cheque is not "money or its equivalent". Second, if contrary to the first submission, a cheque could be tendered, it must be a cheque drawn by the party issuing the subpoena or by the solicitor acting for that party. The cheque tendered to Mr Neustein by the corporate entity "Gadens Lawyers Sydney Pty Ltd" did not satisfy that requirement. Third, the conduct money, in whatever form, must be sufficient to meet all the reasonable costs and expenses of the addressee in providing the documents sought, including compensation for the time taken in identifying those documents, undertaking any copying or other process directed to recording the documents as well as those costs incurred in conveying the documents to the Court.
In support of the third of these submissions, Mr Dupree cited the observations of Campbell J (as his Honour then was) in Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 881. His Honour was there required to consider the provisions of Part 37 of the Supreme Court Rules 1970 ( SCR ). He said (at [10]):
"10. Part 37 rule 3 is headed ' Conduct money '. However, the wording of the rule imposes a wider obligation than to merely pay fares or reasonably anticipated expenses for accommodation or sustenance involved in complying with the subpoena. The rule requires, it seems to me, that the person tendering the subpoena make an estimate of what are the reasonable expenses of the person named of complying with the subpoena, and to tender that amount at the time of service. ' Expenses ' would include all money actually paid out, and the cost of items used up, in complying with the subpoena."
I do not accept the applicants' submissions in this regard as founding a proper basis upon which to set aside the subpoena. UCPR 33.1(1) identifies three kinds of subpoena: one to attend to give evidence; one to produce documents and one both to give evidence and to produce documents. The subpoena presently under consideration falls within the second category of subpoena, namely to produce documents.
Correctly understood, the applicant's reliance upon UCPR 33.6(1) is misplaced. In terms, that rule is expressed to apply to "a subpoena to attend to give evidence" (cf UCPR 33.1(2)). As I have said, the present subpoena is a "subpoena to produce" (cf UCPR 33.1(3)). While UCPR 33.6(1) is directed to compliance with subpoenas of the former kind, rule 33.6(4) makes provision for compliance with a subpoena to produce.
Moreover, the rules provide separately for the payment of "conduct money" on the one hand and the payment of costs and expenses incurred by the addressee of a subpoena in complying with the requirements of that subpoena on the other. I have already set out the definition of "conduct money" found in rule 33.1(1). It is clearly directed to the travel costs, and if necessary, the accommodation expense in having the addressee attend Court and "returning after so attending".
By way of contrast, UCPR 33.11 allows the addressee to recoup the loss or expense of complying with the subpoena by seeking an order of the Court to that effect. It was by reference to this rule that the solicitors for the first respondent indicated in the email exchange with Mr Neustein of his entitlement to seek an order of the Court if the amount agreed to be paid to him (capped at $1,000) was insufficient to meet his reasonable expenses.
The provisions of Pt 33 of the UCPR addressing both the tender of conduct money and an order for payment of costs and expenses incurred in complying with a subpoena differ from those provisions that were contained in the SCR. Thus, the observations of Campbell J in Foyster relied upon by the applicants in these proceedings would not appear to have present relevance. The SCR did not contain a definition of "conduct money", as does the present rule, and the terms of SCR Pt 37 r. 3 differ in significant respects from the provisions of UCPR 33.6(1). In particular, the former rule was not confined in its operation to a subpoena to attend. Moreover it required the payment or tender of money "sufficient to meet the reasonable expenses of the person named of complying with the subpoena" (cf Foyster at [9]).
The different operation of the relevant provisions of UCPR Pt 33 from those found in SCR Pt 37, as I have identified them, is a difference addressed in the judgment of Austin J in In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253. The addressee of the subpoena in that case, like the present, sought substantial payment in advance of producing documents as a condition of complying with a subpoena. The applicant in that case also sought to sustain its claim by a reference to the observations of Campbell J in Foyster . Austin J first identified the fact that the claim made by the addressee of the subpoena for costs and expenses was not comprehended by the definition of "conduct money" found in UCPR 33.1. His Honour then said (at [13]):
"13. I contrast the current rule with the previous rule, Part 37 rule 3(1), which is set out at [9] of Campbell J's judgment. That rule said that a subpoena was not to require a person named to attend or produce any document or thing unless a sum sufficient to meet 'reasonable expenses' was paid or tendered. The current position with respect to subpoenas to produce is found in rule 33.6(4). It says that the addressee must comply with a subpoena to produce either by attending at court and producing the document or thing to the court, or by delivering or sending a copy of the subpoena and the document or thing to the Registrar. Obviously enough, if the second option is selected the concept of conduct money is inappropriate.
...
15. Rule 33.11 of the new rules makes provision for recovery of reasonable expenses. The rule declares that the court may order the issuing party to pay the amount of any reasonable loss or expenditure incurred in complying with the subpoena. This proposition applies to subpoenas to produce as well as subpoenas of the other two kinds to which I have referred. Significantly, for present purposes, the authority given to the court relates to the payment of reasonable loss or expenses 'incurred in complying with the subpoena'. This suggests that at least in the normal course, the court will deal with the matter after the expenditure has been incurred".
I respectfully concur in his Honour's observations. They are apposite to the present case.
In summary, compliance with the subpoena addressed to Mr Neustein cannot be avoided in reliance upon UCPR 33.6(1). That subpoena does not require Mr Neustein to attend to give evidence. It is only a subpoena of the latter kind that engages the provisions of the subrule. To the extent that the incurring of costs and expenses are contemplated in complying with the subpoena, upon application being made, reasonable costs and expenses incurred may be the subject of an order by the Court. However, there is no evidence before me to suggest that the costs likely to be incurred will be disproportionately high when compared with the resources of Mr Neustein or that doubt exists as to the ability of the first respondent, through its solicitors, to meet any order for payment of expenses (cf Bauhaus at [16]). Indeed, on the evidence before me there was no basis upon which to question the worth of the undertaking given by the first respondent's solicitors to meet Mr Neustein's reasonable expenses capped at $1000. Nothing contained in the exchange of emails between Mr Neustein and those solicitors concerning his likely costs and expenses suggests a figure in excess of $1000.
In light of my reasons for rejecting this ground for setting aside the subpoena, it is unnecessary to determine the applicant's submission directed to the tender of a cheque as "conduct money" or the provision of a cheque drawn on an account that does not accord precisely with the name of the solicitors acting for the first respondent. However, in light of the definition of "cheque" contained in s 10 of the Cheques Act 1986 (Cth) and the liability of the drawer of a cheque stated in s 71 of that Act, it is not immediately apparent to me why, in principle, the tender of a cheque as "conduct money" would not qualify as "money or its equivalent" within the meaning of that expression found in UCPR 33.1(1).
Abuse of process
In seeking to set aside the subpoena on this ground, Mr Dupree focuses upon the return date nominated in it, being 23 September last. He submits that this date is neither the date of trial nor a date permitted by the Court for return of a subpoena. Reference is made to rule 33.3. It is the rule directed to the form that a subpoena must take. By rule 33.3(4), a subpoena to produce is required to "specify the date, time and place for production". Rule 33.3(6) requires that the date specified in the subpoena "must be the date of trial or any other date as permitted by the court".
Clearly 23 September was not the date of trial. The submission seems to be that if a date other than the trial date is to be included in a subpoena, that date is one to be fixed by the Court at a time when the parties are appearing before it. The present proceedings had been before a judge of the Court on two occasions when directions for pleadings and evidence had been given. No direction had been sought or made on those occasions for the return of subpoenas on 23 September or at any other time. Therefore, so it is argued, there was no "other date" permitted by the Court for the return of the subpoena.
Rule 33.2 of the UCPR identifies the requirements for the issue of a subpoena. Among those requirements is that "the issuing officer" must seal the subpoena with the seal of the Court "or otherwise authenticate" the subpoena (r. 33.2(3)). By rule 33.2(4) a subpoena is taken to have been issued "on its being sealed or otherwise authenticated in accordance with subrule (3)". The expression "issuing officer" is defined in rule 33.1 as being a reference to an officer of the court "empowered to issue a subpoena on behalf of the court".
It is accepted by the applicants that the subpoena served on Mr Neustein was affixed with the seal of the Court. By operation of rule 33.2(4) the subpoena so sealed is taken to have been issued by the Court and to be conveying an order that the Court has made (see definition of "subpoena" in rule 33.1(1)). In the absence of any evidence to the contrary, it must be presumed that regularity attended the issue of that subpoena conformably with the rules ( Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 per McHugh JA at 164). That presumption extends to the issuing officer inserting the return date of 23 September conformably with his power to issue the subpoena "on behalf of the Court". As such, the date so inserted was a date "permitted by the Court" within the meaning of rule 33.3(6).
In summary, I find no irregularity in the issue of the subpoena requiring Mr Neustein to produce documents on 23 September 2011. The issue of the subpoena did not, on account of the date inserted in it, amount to an abuse of process.
Abuse of process: forensic purpose and "fishing"
The remaining bases upon which the applicants assert that the subpoena should be set aside are that its issue lacked a legitimate forensic purpose; that it was "fishing" and, by its terms, required the production of documents that impermissibly called for judgment to be made as to what was required. Generically, these grounds, if made out, provide a further basis upon which to assert an abuse of process.
In this context it is submitted on behalf of the applicants that the following matters support their claim to have the subpoenas set aside:
(i) there has been no joinder of issues so as to permit the application of the "adjectival" test of relevance referred to in the authorities;
(ii) documents sought to be produced are "already in Court" and thus the subpoena lacks forensic purpose;
(iii) the documents sought in paragraph 1 of the Schedule to the subpoena are exhibited to an affidavit that has been filed in the proceedings and therefore its production under subpoena serves no forensic purpose;
(iv) the document identified in paragraph 2 of the Schedule to the subpoena is part of an annexure to the affidavits sworn by Mr Neustein; and
(v) documents referred to in paragraphs 3 and 4 of the subpoena involve a "fishing" exercise or otherwise seek discovery from a stranger to the litigation.
The applicants correctly observe that issue in the proceedings has not been joined, in the sense that pleadings have closed. The applicants were directed to file their points of claim together with their affidavit evidence at an earlier hearing before the list judge. They complied with that direction. However, a direction that the respondents file their points of defence and affidavit evidence was vacated pending determination of the applicant's notice of motion to set aside the subpoena. Thus the question of relevance, if any, must be determined by reference to those documents that have been filed.
The applicants rely upon the observations of Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 where his Honour observed at [22] "that absence of apparent relevance is a sufficient ground to set aside a subpoena or a part of a subpoena". In addressing "relevance" in that context, his Honour said (at [25]):
"It is sufficient that [the documents sought to be produced] could 'possibly throw light' on the issues in the substantive proceedings, or that it appears to be 'on the cards' that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings".
These observations were cited with approval by Ward J in In the matter of One.Tel Ltd (in liq) - SingTel and Optus Pty Ltd v Weston [2010] NSWSC 1491 at [21].
As I have earlier indicated, the applicant's case seems to be directed to a claim that the dressage arena on the first respondent's land was constructed without development consent and that a development consent granted by the Council for the extension of that arena is invalid. Those are the matters that are addressed by Mr Neustein in his affidavit filed in support of the applicant's case and in which he not only identifies documents to which he had regard but also expresses an opinion directed to the bases of challenge that the applicants seek to make.
Clearly, the evidence addressed by Mr Neustein in his affidavit bears directly upon the claim or claims that the applicants seek to agitate. The identification of documents either referred to or relied upon by Mr Neustein (which is what the subpoena seeks to have produced) are "relevant" in the sense identified by Brereton J in Portal . It is "on the cards" that they will throw light on any evidence sought to be led through him by reference to his affidavit which, as I have indicated, would appear to provide a foundation for the case sought to be made by the applicants. I see no basis upon which to set aside the subpoena on the ground that it does not require a production of a document relevant to the case agitated by the applicants.
The submission on behalf of the applicants that documents sought "are already in the Court" or are found either in annexures or exhibits to affidavits are submissions that I do not accept. The document identified in paragraphs 1 and 2 of the subpoena are quite specific. The requirement for them arises from the letter of instructions to Mr Neustein from the applicant's solicitor of 10 May. That letter is, in turn, referred to by Mr Neustein in annexure C to his affidavit as being a document with which he was provided for the purpose of preparing the report that is annexed to his affidavit. However, documents apparently fulfilling the description of those sought are not included as the documents to which the letter of instruction relates in the voluminous material exhibited either to Mr Neustein's affidavit or in the material exhibited to another affidavit filed on behalf of the applicants, namely that sworn on 1 August 2011 by Martin Welsh. The first respondent is entitled to have a document identified as the instructions to Mr Neustein produced by him. Moreover, there may be a legitimate forensic purpose in having Mr Neustein identify and produce the documents sought, even if they are documents that have otherwise come into the possession of the first respondent. It ought not have to await the cross-examination of Mr Neustein at trial in order to learn whether a particular document in the possession of the respondent is one to which Mr Neustein had recourse when preparing his evidence.
For these reasons, I reject matters (ii), (iii) and (iv) argued under this ground as a basis for setting aside the subpoena.
The application to have the subpoena set aside by reference to paragraphs 3 and 4 in the Schedule of documents to be produced is founded upon the claim that these paragraphs represent an impermissible "fishing" for documents; that they are ambiguous and that they call for the making of judgments that ought not be imposed upon a stranger to litigation.
The focus of the applicant's claim directed to paragraphs 3 and 4 of the Schedule for the subpoena is upon the word "any" when referring to "any applications" (paragraph 3) or "any inspections" (paragraph 4). The use of this word is said to demonstrate that the documents sought are in the nature of discovery against Mr Neustein.
The applicants accept, as I understood the submission of Mr Dupree, that precise identification of documents may not be required provided evidence is available or there is reason to believe that such documents exist. That concession would accord with the observations of Ward J in One.Tel where her Honour said (at [33]):
"It may be that, as in Alister , even if the party seeking production of the documents is unable to say whether or not documents of the kind described do in fact exist, there would be sufficient basis to seek the documents provided there is reasonable cause to believe (or perhaps, to use the words of Gibbs CJ, at 414 in Alister that it is not unreasonable to believe) that there are such documents in existence...".
The applicants submit that there was no evidence available that would fulfil the test identified in One.Tel .
I do not agree. It is accepted by Mr Dupree that in order to obtain the information identified by Mr Neustein as having been obtained from the Council, an application or applications to the Council under the provisions of the Government Information (Public Access) Act 2009 would have been necessary. The respective properties identified in paragraph 3 of the Schedule to the subpoena are each properties described as they appear in that Schedule in documents exhibited to the affidavit of Mr Neustein. It is therefore "not unreasonable to believe" that there are copies of applications made under the Government Information (Public Access) Act that Mr Neustein or his company may have, seeking access to files pertaining to these properties. Should such documents exist and be in the possession of Mr Neustein, it is not contended on behalf of the applicants that those documents would not be relevant to be produced in response to the subpoena.
By parity of reasoning, it is not unreasonable on the part of the first respondent to believe that, in preparing his report as an expert, Mr Neustein inspected documents in relation to the properties identified in paragraph 3 of the Schedule to the subpoena and made notes from such files when so doing. Alternatively, it is not unreasonable to believe that Mr Neustein was provided with file notes of others that were made following inspection of those files. For these reasons, I do not accept that the documents sought in paragraphs 3 and 4 of the Schedule to the subpoena involved impermissible "fishing" for documents as if it was discovery against a "stranger" to the proceedings.
Mr Dupree further submitted that documents sought by the subpoena involved "fishing" or that the subpoena was oppressive in its requirement to produce documents because of the absence of any stated limit on the period of time applying to the documents sought in paragraph 3 of the Schedule. I accept this as a valid criticism but, in the circumstance, it is not fatal to the subpoena. Under UCPR 33.4(1), the Court is empowered to grant "relief" in respect of the subpoena other than by making an order setting it aside. That relief can, in the present circumstances, be provided by specifying a limited period during which any application of the kind identified in paragraph 3 was made. The first respondent suggested the period of 1 January 2010 to 31 August 2011. I did not understand the applicant to demur to the nomination of such a period.
The "present circumstances" to which I have referred in the preceding paragraph are circumstances that are relevant to another of the applicants' ground of challenge, namely that as a "stranger" to these proceedings Mr Neustein should not be required to make the judgments said to be called for in addressing the requirements of paragraphs 3 and 4 of the Schedule to the subpoena. That circumstance is the involvement of Mr Neustein in these proceedings. While he is a stranger to the proceedings in the sense that he is not a party, he is not a "stranger" to the documents sought from him as the deponent of an affidavit filed in the proceedings in support of the applicant's case.
It was observed by Brereton J in Portal at [26] that subpoenas addressed to parties "have been treated somewhat more liberally than subpoenas to strangers". This, no doubt, is because the party to whom a subpoena is addressed is expected to have a greater understanding of the proceedings and the issues it raises than is the case of a third party who, having no knowledge whatsoever of the proceedings, is confronted by a subpoena to produce documents relevant to those proceedings. It seems to me, by a similar process of reasoning, that the deponent of an affidavit in proceedings who is served with a subpoena to produce documents is not in any real sense a "stranger" to the requirements of that subpoena when it seeks production of documents referrable to the preparation of the affidavit which that witness has sworn or affirmed. Brevity of description used in seeking to identify documents may be unacceptable in a subpoena addressed to a true "stranger" but if used in a subpoena addressed to the deponent of an affidavit filed in the proceedings and, on its face, relating to the evidence that is there contained, may constitute an acceptable description for those documents. In that sense a more liberal approach may be taken to a subpoena addressed to the deponent of an affidavit or a witness than to a subpoena addressed to a stranger to the litigation.
Contrary to the submissions made on behalf of the applicants, no judgment by reference to the issues in the proceedings is called for by Mr Neustein in responding to the subpoena served upon him (cp. National Employers Mutual General Insurance Association Limited v Waind [1978] 1 NSWLR 372 at 382; Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710 at 718). The requirement imposed upon him by the terms of paragraph 3 of the Schedule was to identify applications, if any, that he or his company had made for access to Council files. The obligation imposed by paragraph 4 was to identify notes made by or provided to him in relation to those files. The requirements to produce these documents did not impose an impermissible call for judgments to be made.
Although not determinative of the issue, it is relevant to notice that in the several emails sent by Mr Neustein to the solicitor acting for the first respondent in the days following service of the subpoena upon him, he did not at any time identify an inadequacy in the description of documents required nor did he indicate any inability to understand or incapacity to identify the documents that he was required to produce. Indeed, he provided an estimate of the time likely to be required of him in "carrying out" document production. It was on that basis that he provided an estimate of his fees.
In summary, I do not accept that the manner in which documents described in the subpoena are oppressive or involved Mr Neustein being required, in effect, to give discovery. The documents are sufficiently described to avoid the need for judgment to be made as to their relevance to the evidence proposed to be adduced from Mr Neustein.
Conclusion
For the reasons expressed, I decline to set aside the subpoena issued on 7 September 2011 and addressed to Mr Neustein. The applicant's notice of motion must therefore be dismissed. As the first respondent has been substantially successful in sustaining the issue of the subpoena, the applicant must pay its costs.
I have already ordered that the subpoena be stood over to 30 November when these proceedings are next listed for directions. I have not been made aware of any reasons why the documents sought in the subpoena should not be produced by 9.30 am on that date. In the event of any disagreement as to Mr Neustein's costs and expenses of complying with the subpoena, I will consider any application for an order under UCPR 33.11 at that time.
Orders
(1) Order that paragraph 3 of the Schedule to the subpoena to produce issued by the Court on 7 September 2011 for service upon Michael Eugene Neustein be amended and read so as to require that any application of the kind referred to in that paragraph be restricted to such application or applications as was or were made between 1 January 2010 and 31 August 2011.
(2) Otherwise the applicants' notice of motion filed on 23 September 2011 is dismissed.
(3) Documents identified in the subpoena issued on 7 September 2011 addressed to Michael Eugene Neustein are to be produced to the Court in the manner stated in that subpoena not later than 9.30am on 30 November 2011.
(4) Order that the applicants notify Michael Eugene Neustein of the terms of Orders 1 and 3, such notification to be given by letter addressed to him at 209 Oxford Street, Bondi Junction and sent not later than 20 November 2011.
(5) The applicants are to pay the first respondent's costs of their notice of motion.
(6) Exhibit 1 together with the documents marked as "Exhibit MN1" to the affidavit of Michael Eugene Neustein affirmed 3 August 2011 may be returned.
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Decision last updated: 15 November 2011
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