Rezai v Build Tech Corp Pty Ltd

[2025] NSWSC 861

Supreme Court

New South Wales

Medium Neutral Citation:

Rezai v BUILD TECH CORP PTY LTD [2025] NSWSC 861

Hearing dates:

17 July 2025

Date of orders:

5 August 2025

Decision date:

05 August 2025

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1)   The Registrar’s 12 March 2025 order setting aside the 24 September 2024 subpoena addressed to Mr Rezai be discharged.

(2)   Unless the parties approach with short written submissions within 14 days, that Mr Rezai bear the defendants’ costs of the motion, as agreed or assessed.

Catchwords:

CIVIL PROCEDURE – subpoenas and discovery – personal injury claim – where the defendant issued subpoena requiring production by plaintiff – whether subpoena impermissibly requires discovery – where Registrar set aside the subpoena – Registrar’s order discharged

Legislation Cited:

Civil Procedure Act2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Workers Compensation Act 1987 (NSW)

Cases Cited:

Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498

Commissioner for Railways v. Small (1938) 38 SR (NSW) 564

Foley by her next friend Cook v Propix Pty Ltd t/as Jamberoo Action Park [2017] NSWSC 933

in Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245; [1981] HCA 35

Mulligan v Lancaster [1969] 2 NSWR 284

National Employers’ Mutual General Association Ltd v Waind (1978) 1 NSWLR 372

NSW Commissioner of Police v Tuxford [2002] NSWCA 139

Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors [2006] NSWSC 831

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Southern Pacific Motel Services Inc. v. Southern Pacific Motel Corporation Ltd. (1984) 1 NSWLR 710

Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

Category:

Procedural rulings

Parties:

Ezzatulla Rezai (Plaintiff)

Build Tech Corp Pty Ltd (First Defendant)
Workers Compensation Nominal Insurer (Second Defendant)

Representation:

Counsel:
D L Del Monte (Plaintiff)
J Sleight (First Defendant)

Solicitors:
W D Hunt & Associates (Plaintiff)

JTA Law (First Defendant)
Lee Legal (Second Defendant)

File Number(s):

2024/211616

JUDGMENT

1. In May 2019 Mr Rezai was injured while working at a construction site. He sues Build Tech as occupier of the site, alleging that it breached the duty of care which it owed him, as did his employer Sydney Wide Bricklaying & Tiling Pty Ltd, also a defendant. His claims are all defended and Build Tech also claims that Mr Rezai was contributorily negligent.

2. Build Tech served a subpoena on Mr Rezai before he served his evidentiary statement, which required the production of various documents. It was withdrawn, but a second subpoena was served which was set aside by Registrar Hedge. Build Tech now seeks to have the Registrar’s decision set aside.

3. That is resisted by Mr Rezai, who considers that the second subpoena was materially similar in scope to the first and that both subpoenas impermissibly sought discovery, that being regulated by Part 21 of the Civil Procedure Act2005 (NSW), which Build Tech had impermissibly sought to circumvent.

4. Such an order for discovery may be sought by motion supported by an affidavit. In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498 Garling J explained that the requirement for special reasons to be established is a restrictive one, intended to act as a limitation on the circumstances in which an order will be made: at [49].

5. The requirement is an inexact one, capable of some elasticity in interpretation. It requiring the applicant for the order to show that there is something unusual or different which takes the matter out of the ordinary course. With the material sought to be discovered relating to a fact in issue: at [50]-[52]. What will take a matter “out of the ordinary” being identified at [51] to be:

“(a)   an inability to obtain the requisite factual material without the exercise of the discretion;

(b)   that the applicant is in a position of some disability or disadvantage;

(c)   the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;

(d)   that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised.”

6. This special reasons requirement is not imposed by the Rues on the issue of a subpoena. It was Build Tech’s case that the subpoena it had issued did not seek discovery and was of a kind which defendants in personal injury cases ordinarily have come to serve.

7. Mr Rezai accepted that such a practice had developed. But he contended that it was one which did not accord with the intent of the Uniform Civil Procedure Rules 2005 (NSW) or the overriding purpose specified in s 56 of the Civil Procedure Act, namely, the just, quick and cheap resolution of the real issues in the proceedings. The Rules having been crafted to reduce costs in personal injury cases such as this by limiting the production which parties can pursue and that Build Tech was not entitled to use the issue of a subpoena to avoid the limits imposed, it thereby impermissibly pursuing discovery.

8. The cases advanced also suggested that there may also be non-compliance with other aspects of the Rules which seek to drive both settlements and timely hearing of personal injury claims.

Does the subpoena impermissibly pursue discovery?

9. That the subpoena impermissibly sought discovery was thus disputed. But there was no issue about the applicable principles.

The principles

10. It is rule 21.2 which provides for the making of orders for discovery of documents within specified classes. It requires that a class “must not be specified in more general terms than the court considers to be justified in the circumstances”: r 21.2.

11. Classes may be specified by relevance to one or more facts in issue; by description of the nature of the documents and the period within which they were brought into existence; or in such other manner as the Court considers appropriate in the circumstances: r 21.2(3).

12. It is rule 21.9(2) which specifies, in the case of a notice to produce before hearing, that “a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.”

13. By way of contrast, r 33.3 requires a subpoena to be in the approved form and to identify the document to be produced. It does not require that individual documents be identified, but that they can be identified by a sufficient description. Subpoenas are also not confined to the production of documents relevant to a fact in issue and can extend to documents relevant to credit and those capable of providing a legitimate basis for cross-examination: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [61]-[62]. It also need not be intended that subpoenaed documents be tendered in evidence, nor need they be admissible.

14. It is long settled that what a subpoena must do is specify, with reasonable particularity, the documents which are required to be produced: Commissioner for Railways v. Small (1938) 38 SR (NSW) 564 at 573 discussed in Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245; [1981] HCA 35 at [11]. A subpoena may not put the recipient into the position of having to judge whether the document has the capacity to prove anything, which is what discovery permits.

15. This being what distinguishes a subpoena from discovery, a subpoena not being able to require a person to assess whether documents are relevant to a fact in issue: Southern Pacific Motel Services Inc. v. Southern Pacific Motel Corporation Ltd. (1984) 1 NSWLR 710.

16. A subpoena must be interpreted in a broad, commonsense way from the perspective of the recipient: Southern Pacific Motel Services Inc at 720. But even a description of documents which ‘relate to’ a particular fact or subject matter may properly be required, provided the production is reasonably necessary and not oppressive: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 929.

17. Parties are generally not entitled to use a subpoena as a substitute or alternative to discovery: Small at 574. That involving an abuse of process: National Employers’ Mutual General Association Ltd v Waind (1978) 1 NSWLR 372.

18. It is the issuing party which bears the onus of establishing that there is a legitimate forensic purpose for the production sought: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20]-[22].

The parties’ cases

19. Build Tech contended that it had issued the subpoena bona fide, for the purpose of obtaining evidence, that being sufficient to establish the required legitimate forensic purpose: Blacktown City Council at [61].

20. Such a purpose being able to be established by showing that the documents will materially assist on an identified issue, or that it is likely that they will assist: at [65]. Documents relevant to cross-examination are also able to establish the required purpose: at [69].

21. Further, that apparent relevance should be able to be ascertained by an examination of the description of the documents sought, in light of the issues disclosed by the pleadings: at [68]. A subpoena requiring production of documents which by their nature have a bearing on the issues will not amount to fishing: at [69].

22. Build Tech thus did not serve any evidence to support its motion, relying on the pleadings and the terms of the subpoena itself to advance its case.

23. Rezai disputed that it had met the onus which fell upon it, contending that the class descriptions resulted in impermissible discovery being pursued.

24. There was no suggestion that the production the subpoena required was onerous, other than because there was a general difficulty with Mr Rezai providing instructions. That is because he does not speak, read, nor write English, nor does he read or write in his native language, with the result that his communications have to be interpreted.

25. But it was not suggested that this alone was a basis on which the subpoena could be set aside.

26. Mr Rezai rather contended not only that he had already produced some of the documents sought, as the Rules had required, but that the relevance of the other subpoenaed documents was not apparent.

27. Further, that the descriptions of the subpoenaed classes tasked him with assessing documents in order to decide whether they did or did not fall within the descriptions. Mr Rezai claiming that this effectively sought improperly to extract the benefits of discovery, without satisfying its prerequisites.

28. That was disputed.

Discovery was not impermissibly being pursued

29. I am satisfied that none of what Build Tech subpoenaed required impermissible discovery.

30. That is because each category itself adequately identified the documents which had to be produced and did not require Mr Rezai to do more than consider whether a document fell within the descriptions given. It not requiring him to assess whether any document was relevant to any fact in issue.

31. I am also persuaded that there was a legitimate forensic purpose for what was pursued, given the nature of the documents subpoenaed and the pleaded cases.

32. There is no issue between the parties that Mr Rezai was injured when he fell on the construction site. But there is an issue about his authority to be there.

33. On Build Tech’s case the categories it pursued, 2, 3 and 4, were relevant to the issue of liability and the defence advanced under s 151Z of the Workers Compensation Act 1987 (NSW). They provide:

“2.   All documents that refer to work health and safety training provided to you by Sydney Wide Bricklaying & Tiling Pty Ltd prior to 28 May 2019.

3.   All documents including email correspondence, sms, mms and other electronic messages sent or received in the period from 22 May 2019 to 27 May 2019 inclusive that refer to your attendance at, and access to, the construction site that is the subject of your Statement of Claim.

4.   All claim forms and reports of injury submitted to any insurer that refer to:

(a)   the injury that is the subject of your Statement of Claim; or

(b)   the circumstances in which you suffered that injury.”

34. Build Tech’s case, that these descriptions do not impose any burden on Mr Rezai, other than to look at documents to establish whether they fall within these descriptions, must be accepted. Given these simple category descriptions, it cannot sensibly be concluded that they impermissibly required him to consider whether any document was relevant to any fact in issue

35. Mr Rezai only had to consider whether they referred to the particular facts identified in the descriptions. Namely, the work health and safety training Sydney Wide had provided him; his attendance at and access to the site during the specified dates; or his injury and the circumstances in which it was suffered.

36. That some of the subpoenaed documents may also be in the possession of his employer, is no basis on which to conclude that impermissible discovery was being pursued.

37. Categories 5, 6 and 7 provide:

“5.   All group certificates, income tax returns and notices of assessment and for the financial years ending 30 June 2016 to 30 June 2024.

6.   All payslips, wage records and other documents evidencing income received by you in the period from 1 July 2023 to date.

7.   All statements, books of account, records, bank books and all other documents relating to bank accounts held in your own name or held by you in a joint name for the period from 1 June 2019 to date.”

38. Build Tech’s case that these documents were relevant to what is in issue in relation to the damages Mr Rezai pursues, particularly his economic loss, must also be accepted. Each of these categories also identify particular documents within given dates and also do not require him to consider whether any document is relevant to any fact in issue

39. If Mr Rezai does not possess any such documents, he can of course say so. If he has already produced the documents subpoenaed, that can also be indicated.

Do the Rules permit Build Tech to issue a subpoena?

40. It is the Court which issues a subpoena, on application by a party. It also has power to set such a subpoena aside, in whole or in part, in order to regulate its processes and, in particular, to intervene in a case of abuse of its process: Blacktown City Council at [88].

41. Rule 21.8, on which Mr Rezai relied, forms part of the particular regulation of personal injury damages claims under the Rules. That regulation including:

• Rule 15.12(2), which in such cases requires the plaintiff to serve, as soon as practicable after service of the statement of claim, a statement accompanied by specified documents, including “copies of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing”, including relevantly “letters from employers, wage records, income records and group certificates”.

• Rule 15.14(1) which requires that the statement and documents served must “be as final and complete as to the plaintiff’s case as they can, with the exercise of reasonable diligence” and they must be updated to be accurate and complete. If the plaintiff becomes aware they are no longer accurate and complete “the plaintiff must give to all active parties such advice as is necessary to make that information accurate and complete”: r 15.14(2);

• Rule 15.16, which after conducting a review or status conference empowers the Court to dismiss the proceedings or make other orders, if the plaintiff has not complied with those requirements;

• Rule 21.8, which only permits an order for discovery in personal injury cases, if the court, for “special reasons”, orders that discovery be given. Such an order is sought by motion;

• Rule 21.12, which in such cases only permits service of a notice to produce a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party, if the Court has ordered they be produced, for “special reasons”. Such an order may also be pursued by motion; and

• Rule 22.1(3) which, in the case of personal injury damages claims, only permits the Court to order a party to answer interrogatories if satisfied that “special reasons” exist that justify the making of the order.

42. The Rules also provide generally for service on another party of a notice to produce documents at a hearing, a time fixed by the Court for return of subpoenas, or by leave of the Court at some other time: r 34.1. This Rule makes no particular provision in respect of personal injury damages claims, but there is no issue that it can be relied on in such a case.

43. Nor do the Rules regulating the issue of subpoenas impose any limitation on their issue in personal injury cases: Part 33.

44. Rule 33.2 provides, relevantly, that the Court may order, by subpoena, the production of documents unless the Court has made an order, or there is a rule which has the effect of requiring that the proposed subpoena not be issued, or not be issued without the leave of the Court and that leave has not been given. There has been no such order in this case and there is no such rule in a personal injury case.

45. Rule 33 permits subpoenas to be issued and made returnable before the Registrar well before the date fixed for a trial, so that documents required for preparation may be procured: Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors [2006] NSWSC 831 at [6]. There is no suggestion that the Rules do not permit a subpoena to be served by one party on another. They even permitting, for example, a defendant’s insurer to serve a subpoena on a defendant in an appropriate case: Mulligan v Lancaster [1969] 2 NSWR 284.

46. Both a notice to produce and a subpoena attract a fee of $129, while a motion attracts a fee of $766.

47. It follows that it may be cheaper to pursue production of documents to which rr 15.12 and 15.14 apply by order sought at a review or status conference rather than by motion, notice to produce or subpoena, if a plaintiff has failed to serve them.

48. It was documents of this kind which were captured by category 5 and 6 of the subpoena. It follows that it would have been cheaper to have pursued their production at a review or status conference, but I cannot see that the Rules preclude their pursuit by subpoena.

49. Mr Rezai relied on the Rules which regulate discovery and notices to produce to which r 21.8 applies to contend that in a personal injury case a subpoena should not be issued to a plaintiff, even though the Rules do not make such a provision in r 33, relying on observations of Davies J in Foley by her next friend Cook v Propix Pty Ltd t/as Jamberoo Action Park [2017] NSWSC 933. His case being that the production which the subpoena sought was premature and did not accord with the regulatory regime.

50. Unlike this case, in Foley the plaintiff had “frankly admitted” that the subpoena there in issue was served in lieu of discovery for reasons explained at [19]. The result was that parts of the subpoena were set aside. At [57], his Honour observed:

“Finally, it is necessary to say something about the form of the orders sought by the Plaintiff given that I have not set aside all of those parts of the subpoena objected to by the Defendant. Prayer 3 in the Plaintiff’s Motion is based again on the misconception that a subpoena can be used in substitution for discovery. Ordinarily it is inappropriate for one party to issue a subpoena to another party for documents. That is what Notices to Produce under r 21.10 UCPR or 34.1 UCPR are concerned with. Generally speaking a Notice to Produce served at the stage the present proceedings have reached would be served under r 21.10 and would be limited by that rule. However, it would be possible for the Court to make a direction to enable a more general Notice to Produce under r 34.1 to be served. In neither case, however, is there a requirement that any list or affidavit be prepared as rules 21.3 and 21.4 require. The order sought is misconceived.”

51. Mr Rezai argued that these observations reflected that a party in a personal injury claim should not use a subpoena to obtain another party’s production of documents. Build Tech contended, however, that his Honour’s observations were rather directed to the impermissible use of a subpoena in order to obtain discovery, which it was not pursuing.

52. Build Tech arguing that the Rules permit one party to issue a subpoena to another to obtain documents required for timely preparation for trial. For example, in order to obtain expert evidence. They not contemplating that a defendant would be limited to the documents which a plaintiff had served or referred to in pleadings or an evidentiary statement or other evidence. Nor that a defendant would be restrained from the pursuit of relevant documents, until after service of the plaintiff’s evidence. The issuing of a subpoena permitting the pursuit of documents which could advance its case beforehand.

53. The cases which the parties advanced raised the question of whether there is a lacuna in the Rules, so far as the issue of a subpoena to a party in a personal injury case is concerned. Part 33 not making any reference to personal injury cases or the need to establish the ‘special reasons’ required in the case of discovery and some notices to produce.

54. What is in issue between the parties about the operation of the Rules must be approach in light of the overriding purpose specified in s 56 of the Civil Procedure Act, the just, quick and cheap resolution of the real issues in the proceedings. Section 56(2) requiring the Court to give effect to that purpose when it interprets the Rules.

55. So approaching the Rules I am not persuaded that they preclude the issue of a subpoena by one party to another in a personal injury case, if that does not impermissibly involve the pursuit of discovery.

56. The Rules could have imposed the special reasons limitation on the issue of a subpoena under r 33 or on issue of a notice to produce under r 34 in personal injury cases, but they do not. I am accordingly not persuaded that r 33 can sensibly be interpreted as if such a limitation had been imposed.

57. The issuing party must of course adhere to the obligations imposed by s 56 in the pursuit of any subpoena. A subpoena must thus be set aside if challenged, if it does impermissibly seek discovery, or has no legitimate forensic purpose. As I have explained, that was not here established.

58. The obligations which s 56 imposes should also result in any subpoena being carefully crafted and pursued only when its service does not result in unnecessary costs being incurred. This means that if documents have already been produced they should not become the subject of a subpoena. Nor should a subpoena be pursued if production of a document could more cheaply be obtained by an order made at a directions hearing.

59. It follows that there should be no need to pursue production of
    “letters from employers, wage records, income records and group certificates”, by subpoena, given that the Rules require they be served by plaintiffs and if they are not, contemplating that this can be ordered without the need for a motion.

60. But the Rules also contemplate that there will be circumstances where a subpoena may be legitimately served on another party in a personal injury case, that being the quick and cheap way in which to obtain production of relevant documents.

61. If a subpoena is served and production of a document is resisted because it impermissibly requires discovery to be given, or has no legitimate forensic purpose, a motion to have it set aside can be pursued. That some documents could be pursued by a notice to produce in only limited circumstances, does not preclude the pursuit of a subpoena for which there is a legitimate forensic purpose and which does not require discovery to be given.

Costs

62. The usual order under the Rules is that costs follow the event. In this case that is an order that Mr Rezai bear Build Tech’s costs of the motion.

63. Unless the parties approach with short written submissions within 14 days, that will be the Court’s order.

Orders

64. For these reasons I order that:

1. The Registrar’s 12 March 2025 order setting aside the 24 September 2024 subpoena addressed to Mr Rezai be discharged.

2. Unless the parties approach with short written submissions within 14 days, that Mr Rezai bear the defendants’ costs of the motion, as agreed or assessed.

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Decision last updated: 05 August 2025