Murray Investments Pty Ltd v Chief Executive, Department of Main Roads (No 2)

[2000] QLC 48

[2000] QLC 48

 

LAND COURT,

BRISBANE

4 August 2000

Re:     Application by Mr Norbert Calabro to set aside Subpoena -
  Land Act 1962 (as continued by s.521 of Land Act 1994) -
  Land Court Rules
(A99-56)

Murray Investments Pty Ltd
v.
Chief Executive, Department of Main Roads

DECISION ON APPLICATION FOR COSTS

On 11 April 2000, the Registrar of the Land Court issued a subpoena on the application of Hopgood Ganim, Lawyers, requiring that Mr Norbert Calabro produce all books, papers, deeds and documents, particularly those documents described in annexure 'A' to the subpoena, which may be in his possession or under his control, having any reference to the matter of Murray Investments Pty Ltd v. Chief Executive, Department of Main Roads.
           Mr Calabro, a chartered accountant, was the expert witness for the respondent in the abovementioned case concerning a claim for compensation under the Acquisition of Land Act 1967. At the date of issue of the subpoena, the case was part heard.
           Annexure 'A' to the subpoena read as follows:

"1.All written communications (including communications contained in letters, facsimiles, e-mails or stored in a computer and file notes or other memoranda of oral communications) from the Chief Executive, Queensland Department of Main Roads ("the Department") - including servants or agents of the Department - to you (and any reply thereto) to prepare an assessment or determination of value and/or compensation relevant to the proposed or actual acquisition (partial or total) by the Department for transport and/or incidental purposes associated with the Pacific Motorway Project of any interest in land including any business goodwill annexed to or forming part of such interest.

2.All file documents and computer stored information and records relating to the preparation of any report or opinion by you touching and concerning the value of the leasehold interest in land, including the good will of the Mobil Service Station business formerly located at Loganholme and operated by Murray Investments Pty Ltd, being situated at Lot 2 on RP 122922, County of Stanley, Parish of Mackenzie.  "

On 19 April 2000, I heard an application to set aside the subpoena by Mr S Guthrie, solicitor, on behalf of Mr Calabro.  Mr Guthrie made the following submissions: the subpoena was too wide in that it required his client to produce documentation which was irrelevant; some of the information was of a sensitive and commercial nature; the information sought might well be quite voluminous; in addition, the subpoena was oppressive in that it required his client to go to unusual lengths to comply with it. 
           Mr Guthrie further submitted that paragraph 2 of the subpoena was not sufficiently clear.  It required his client to make a judgment as to what was relevant.  The subpoena was not specific enough to allow his client to make a determination as to the documentation he was required to produce.  Furthermore, the documents were partnership documents but were directed to only one of the partners, whereas a subpoena for partnership documents should be addressed to all partners and not merely to one.
           Mr Guthrie said that while Mr Calabro was prepared to make some documents available, some of the documentation required by the subpoena had been archived and would require further time to be produced.

Mr Allan, counsel for the claimant, submitted that the argument on behalf of Mr Calabro had no foundation.  He argued that far from being oppressive, the subpoena was quite specific.  Mr Calabro had been engaged to prepare valuations or assessments of compensation for businesses on land resumed for the Pacific Motorway Project.  The method of valuation adopted in the valuation of those other businesses was particularly relevant in the present case.
           After hearing further argument, the terms of paragraph 1 were narrowed by omitting the word "communications" and inserting the word "instructions".  Because some of the documents were archived, the applicant was granted an extension of time to produce them.  Further submissions were made, particularly in respect of the form in which some of the information could be provided.

In the event, I ordered that the material required in paragraph 2 of annexure 'A' be produced that day and that the other material which had now been identified with some particularity, be produced on Wednesday, 26 April 2000.

The parties were given leave to make written submissions in relation to the costs of the application.

Mr Guthrie submitted that Mr Calabro was not a party to the action, but was put to expense locating various documents from his files for the purpose of complying with the subpoena.  He was put to additional expense of opposing the subpoena.  He went on to argue that     Mr Calabro was justified in disputing the subpoena on the basis that the request was too wide in requiring a large number of documents be produced, documents which did not appear to be sufficiently relevant to the proceedings.  Subsequently, it was ordered that the subpoena be amended to narrow the request. 

On the other hand, Murray Investments Pty Ltd sought an order for costs against Mr Calabro of the application.  The basis for that application was that the subpoena was issued on 11 April 2000 and required production of various records on Mr Calabro's files relating to the preparation of his reports in these proceedings and reports prepared by him in relation to other resumed sites, which were particularly relevant in the Murray Investments case.  The subpoena was duly served on Mr Calabro on 13 April 2000 and conduct money tendered.

In summary it was submitted that the subpoena was a proper one and did not amount to "fishing".  The Court ordered compliance with the subpoena and the claimants should be entitled to those costs.

I have considered the submissions on behalf of both parties.  This was an application in respect to a subpoena which, on one reading, could be interpreted as being too wide and therefore oppressive.  It was not until further explanation by counsel for Murray Investments Pty Ltd that the true intent of the subpoena became clear.

On the other hand, because Mr Calabro was the principal witness for the respondent in the compensation matter, much of the material subpoenaed was obviously relevant to the issues in that case.  Indeed, Mr Calabro had material available at the Court on the return day.  However, other relevant material had been archived and further time was needed to enable that material to be retrieved.

It is relevant to this matter of costs that counsel for the Department of Main Roads had also contested the requirements of another subpoena at the same time, so no further costs were incurred by Murray Investments Pty Ltd through Mr Calabro's application against the scope of the subpoena.  Mr Calabro was not served with the subpoena until Thursday, 13 April 2000.  He was required to respond to and comply with the subpoena by Wednesday, 19 April 2000.  The requirements of the subpoena required clarification.
           Therefore, neither party was entirely successful.  The subpoena was modified to some extent,  but on the other hand, it was ordered that the subpoena be complied with.

This matter was heard before the commencement of the Land Court Act 2000 and the Land Court Rules 2000.  The matter therefore came within the provisions of the Land Act 1962 as continued by s.521 of the Land Act 1994.

Section 41(9) of the 1962 Act provided that the Court may make such order as it thinks fit as to costs of or incidental to any matter that it has jurisdiction to hear and determine, including the costs of an adjournment or application made in a pending matter.  Costs are in the discretion of the Court. 

After considering all the circumstances in this matter, I have come to the conclusion that in the exercise of my discretion I should make no order as to costs.

President of the Land Court