Metropolitan Petar v Mitreski

[2010] NSWSC 1186

CITATION:	Metropolitan Petar v Mitreski [2010] NSWSC 1186
HEARING DATE(S):	18 August 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	18 August 2010
DECISION:	Order for production of documents.
CATCHWORDS:	PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of Court – whether notice to produce should be set aside – Discovery – obligations of party giving discovery to have discovered documents readily available during hearing.
LEGISLATION CITED:	(NSW) Uniform Civil Procedure Rules 2005, r 34.2
CATEGORY:	Procedural and other rulings
CASES CITED:	IceTV Pty Ltd v Ross [2009] NSWSC 832 Tony Azzi Automobiles Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283
PARTIES:	His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia & New Zealand (first plaintiff) The Very Reverend Father Mitko Mitrev (second plaintiff) Lambe Mitreski (defendant) Pero Damcevski (second defendant) Boris Minovski (third defendant) Eftim Eftimov (fourth defendant) Mile Marcevski (fifth defendant) Macedonian Orthodox Community Church St Petka Incorporated (sixth defendant) Naum Despotoski (eighth defendant) Attorney-General for the State of NSW (ninth defendant)
FILE NUMBER(S):	SC 97/25609
COUNSEL:	Mr TGR Parker SC w Mr RE Steele (Ps) Mr M Leeming SC w Ms L Goodchild (D1-6, 8) Mr M Izzo (D9)
SOLICITORS:	Sachs Gerace Lawyers (Ps) McConnell Jaffray Lawyers (D1-6, 8) Crown Solicitor (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday, 18 August 2010

1997/25609 His Eminence Petar the Dicoesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand v Lambe Mitreski

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiffs have served on the defendants – it would seem at 18.40 last night, 17 August by facsimile – a notice to produce calling for production of the following documents at 10am this morning:

1. The “claims analysis” document provided to the Court in the judicial advice proceedings and referred to in Palmer J’s first judgment [2004] NSWSC 388 at [23]; and

2. In relation to the Opinion of Blake SC: (a) the Observations to counsel and index of material briefed; (b) any documents recording any further or supplementary instructions to counsel or supplementary material brief; (c) all material briefed (except for affidavits filed and served in the proceedings or documents annexed thereto).

2 The defendants move orally for what is either an order pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 34.2, that they need not produce the documents in accordance with the notice, or alternatively to set aside the notice on the grounds that it is an abuse of process. That application was made – one initially having been foreshadowed simply to extend time for compliance with the notice – it is fair to say following the court having indicated a tentative view that a notice to produce dated yesterday or today and returnable today is prima facie an abuse of process and liable to be set aside.

3 The argument that it is an abuse of process and liable to be set aside could be advanced on several bases. First, that a notice served in the course of proceedings allowing only a very short time for response is unreasonable and that the other party’s solicitors cannot be expected to drop their other activities in preparing for and in conduct for the trial simply to answer such a notice [see, for example, Tony Azzi Automobiles Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283, [4]; IceTV Pty Ltd v Ross [2009] NSWSC 832]. Secondly, that it seeks to go behind the discovery obligations of the defendants.

4 Both of those arguments might justify this notice being set aside, but they tend to overlook the substance of the matter as it has now emerged.

5 It is conceded that the documents of which the notice requires production are documents which either were, or ought to have been, discovered. The evidence of the plaintiffs’ solicitor Mr Sachs establishes that the documents in paragraph 2 are in the office of the defendants’ solicitors, and have been inspected by him there to the extent of his having placed a flag on them, although being subject to a claim for privilege he has not inspected their detail or contents.

6 A party who gives discovery is under an obligation, from the time the list of documents is served, to keep and arrange the documents in a way that makes them readily accessible and capable of convenient inspection by the other party, and to produce them for inspection by the other party. Such a list of documents also operates as an implied notice to produce them at the hearing. A party is expected to have its discovered documents readily available at the trial, so that they can be produced as required at the trial. It is just not acceptable for a party giving discovery to say that documents which are, or ought to have been discovered, cannot be produced to the court for several days. They ought to be at the court and available in the course of the proceedings.

7 On that basis, I think the appropriate course for me to take is simply to order that the documents be produced at court. Bearing in mind that the witness for whose cross-examination these documents are required is at present expected to be called on Monday, Mr Parker’s indication that close of business on Friday is the last safe moment for their production is reasonable. In those circumstances, I will allow until shortly before the court rises on Friday for that to occur.

8 It should be appreciated that that is an indulgence in respect of documents which ought to have been available at court in any event, and I have difficulty in seeing why such documents could not be available at least by tomorrow morning. Nonetheless, in light of the indication that without undue prejudice until Friday afternoon could be allowed, I will take that course.

9 I order that the defendants other than the ninth defendant produce at court by 3pm on Friday 20 August 2010 the documents referred to in paragraphs 1 and 2 of the notice to produce which is VD 19 in the hearing

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