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

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.
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.
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…

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.

Continue reading Rezai v Build Tech Corp Pty Ltd

Details

AGLC: Rezai v Build Tech Corp Pty Ltd [2025] NSWSC 861
Case: [2025] NSWSC 861
Decision Date: 05 August 2025

CaseChat Overview and Summary

The matter before the court involved Rezai, the plaintiff, and Build Tech Corp Pty Ltd, the defendant, in a personal injury case. Rezai was seeking damages for injuries sustained in an incident. The defendant issued a subpoena requiring Rezai to produce certain documents, which Rezai contested as an improper attempt at discovery. The court was tasked with determining whether the subpoena was permissible or if it constituted an impermissible discovery request. Ultimately, the Registrar set aside the subpoena, finding it to be an improper attempt at discovery. This decision was subsequently discharged by the court, indicating that the subpoena was not an appropriate means of obtaining the information sought by the defendant.

The primary legal issue before the court was whether the subpoena issued by the defendant was valid or if it constituted an impermissible attempt at discovery. In assessing this, the court considered the nature of the documents requested and the timing of the subpoena. It was established that the subpoena required the production of documents that were not merely in the possession of the plaintiff but were actively being used in the preparation of the plaintiff's case. This led the court to examine whether the subpoena was a disguised form of discovery, which is not permissible without explicit leave of the court. The court found that the subpoena was indeed an attempt to circumvent the proper procedures for discovery and thus was invalid.

The court's reasoning centred on the distinction between a subpoena and a discovery request. It noted that a subpoena could only be issued to obtain documents that were in the possession, custody, or power of the party to whom the subpoena is directed and were not being used in the preparation of their case. The court determined that the documents sought by the defendant were being actively used by the plaintiff, making the subpoena an improper attempt at discovery. The Registrar's decision to set aside the subpoena was based on this finding, as the subpoena did not comply with the requirements of the Civil Procedure Act. The court subsequently discharged the Registrar's order, indicating that the subpoena was not an appropriate means of obtaining the information sought by the defendant.

Orders