Silberstein v The Owners Strata Plan No 55468

[2022] NSWCATCD 207

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Silberstein v The Owners – Strata Plan No 55468 & Ors [2022] NSWCATCD 207

Hearing dates:

29 November 2022, on the papers

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Consumer and Commercial Division

Before:

R C Titterton OAM, Senior Member

Decision:

1. Paragraph 3 of the Schedule to the summons issued on 4 October 2022 at the request of the applicant to the first respondent is set aside.

2. If the respondents seek costs, they should file and serve submissions as to costs by 23 December 2023.

3. The applicant may respond by 23 January 2023.

4. The respondent may reply by 30 January 2023.

Catchwords:

PRACTICE AND PROCEDURE – application to set aside a summons to produce documents

Legislation Cited:

Strata Schemes Management Act 2015 (NSW) - ss 9(3), 37, 106(1), 260

Cases Cited:

Commissioner for Railways v Small (1938) 38 SR 564

Structerre Consulting Engineers (NSW) Pty Limited v Townend [2020] NSWSC 1476

Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd (No 2) [2019] NSWSC 758

Texts Cited:

The Hon J Bryson KC, Continuing Professional Education - The 2004 Judges Series. Practical Litigation in the Supreme Court and the Federal Court

Category:

Procedural rulings

Parties:

Jessica Hetty Silberstein (Applicant)
The Owners – Strata Plan No 55468 (First Respondent)
Michael Adamo (Second Respondent)
Peter Michael Hans Engelbert (Third Respondent)
William Paul O’Brien (Fourth Respondent)
Terrence Matthew Gagen (Fifth Respondent)
Strata choice Pty Ltd (Sixth Respondent)
Hecker Australia Pty Ltd (Seventh Respondent)

Representation:

Counsel:

Applicant: R Clark
Respondents: W Ilovski

Solicitors:

Applicant: Silberstein & Associates
Respondents: Bannermans Lawyers

File Number(s):

SC 22/05083

Publication restriction:

NIL

REASONS FOR DECISION

Introduction

1. This is an application by the respondents to set aside a summons issued on 4 October 2022 at the request of the applicant to the first respondent (Summons).

2. The content of the Schedule of the Summons is as follows:

A. Definitions

The following definitions apply:

'Document' includes:

a. any record of information mentioned in the definition of document in Part 1 of the Dictionary to the Evidence Act 1995; and b. any other material, data or information stored or recorded by mechanical or electronic means.

'OC' means The Owners - Strata Plan No. 55468.

Unit' means Unit 2202, [XXX] Elizabeth Street, Sydney NSW 2000.

'Works' means the rectification works conducted and to be conducted to any one of the four balcony areas in the Unit, in association with water ingress issues.

B. The documents and things you must produce are as follows:

1. Documents which record or evidence communications referring to, or in relation to, water ingress issues in the Unit and/or to the Works.

2. Documents which record or evidence any inspections, testing, reports, quotes, work orders, invoices, receipts (including drafts of any such Documents), in relation to water ingress issues in the Unit and/or the Works, including without limitation all building manager reports that mention the water ingress issues in the Unit and/or the Works.

3. Documents which record or evidence the OC's knowledge of:

a. the Applicant's husband's disability;

b. the Applicant's health status and her role as primary carer of her husband; and

c. the Applicant and/or her family's health issues associated with the water ingress issues.

But in respect of all 3 categories, documents which are included in the Applicant's Bundle of documents filed on 28 February 2022, or as referred to in her evidence in chief do not need to be produced.

3. The Tribunal had understood that the position of the parties at the hearing on 29 November 2022 was that the Tribunal would consider the question of “Category 3” of the Summons on the papers, and that the determination of Categories 1 and 2 would await the completion of the parties’ filing of evidence.

4. The respondents appear to have resiled from that position, as they now state in their submissions that it is appropriate to set aside the Summons in its entirety.

5. As it transpires, at least for the present, the applicant does not press production of the documents the subject of Categories 1 and 2.

6. In those circumstances, I will consider the documents the subject of Category 3, and whether that category of documents sought should be set aside.

7. At the conclusion of these reasons, for the benefit of the parties, I will make some observations about the documents the subject of Categories 1 and 2.

Submissions

8. Pursuant to directions of the Tribunal both parties filed submissions in relation to the application.

9. In summary, the respondent submits that Category 3 has not been expressed with reasonable particularity and should be set aside as being too broad and oppressive in scope or constituting impermissible “fishing”. The respondent submits that the following issues demonstrate the lack of reasonable particularity of the documents sought:

• how is it suggested that the first respondent obtained the relevant "knowledge"?

• what is meant by the "husband's disability" given the terms of paragraph 12 of the Amended Points of Claim?

• what is meant by "the Applicant's health status" and to what facts in issue does it relate?

• what is meant by "the Applicant and/or her families health issues" and to what facts in issue does it relate?

10. In summary, the applicant submits that:

1. the respondent’s awareness of Dr Silberstein's disability and of the applicant's health issues is relevant to establish:

1. the reasonable foreseeability of losses claimed;

2. the duty of care owed by the respondents to the applicant, and their breach of that duty; and

3. the respondents’ awareness that the water ingress caused the applicant's lot to become uninhabitable for her and her family;

2. it is unlikely that any respondent would lead evidence regarding, or as to his/its state of mind concerning, these matters;

3. the suggestion that the category is oppressive is not plausible;

4. as to the respondent’s submissions as to “fishing”, the applicant states that the submission is “faintly made”:

with no explanation provided for it. The [a]pplicant is not looking to fish out a case she does not have, she is looking to prove the case she has pleaded.

Consideration

The pleadings

11. The starting point is to examine the issues in dispute between the parties. The pleadings are 67 pages in length and consist of 197 numbered paragraphs.

12. By way of a very short summary, I note the following matters which are pleaded by the applicant, (which I group by topic):

The parties

1. the applicant is the owner of unit 2202 in strata plan number 55468;

2. the second to fifth respondents were office holders or committee members of the scheme’s strata committee;

3. the sixth respondent is the scheme’s strata managing agent;

4. the seventh respondent is the scheme’s building managing agent;

Silberstein family

1. unit 2202 is the principal place of residence for the applicant and her husband Dr Silberstein and their family of four daughters;

2. Dr Silberstein has Arthrogryphosis Multiplex Congenita (Dr Silberstein’s disability), which has, and will continue to, confine him to using a wheelchair to ambulate;

3. as a result of Dr Silberstein’s disability, Dr Silberstein requires care and assistance with all activities of daily living, including with personal and physical care needs;

4. at all material times, each of the respondents has been aware, or ought reasonably to have been aware, that:

1. Dr Silberstein had and has physical limitations and requires physical and personal care and assistance arising from Dr Silberstein's disability;

2. Dr Silberstein's disability required modifications to his place of residence, including modifications to access any place of residence;

3. the applicant:

1. is the primary carer of Dr Silberstein and requires Dr Silberstein to live in a location that has amenities that are suited to Dr Silberstein's disability, both in terms of home modifications and ready access to public transport;

2. is required to provide Dr Silberstein's care, including as described above; and C.

3. and Dr Silberstein have four daughters ranging in age from 8 to 17 years;

5. in view of Dr Silberstein's disability, all typical house running activities, including attending to the children's dependent needs, are undertaken by the applicant in addition to her providing the “lion[‘s] share” of personal attendant and physical assistance care to Dr Silberstein;

6. arising from, and/or impacted by the matters pleaded, the applicant suffers from spinal disc degeneration/protrusion at L4-5 and L5-S1 vertebrae causing early impingement of the L5 nerve root manifesting in chronic lower back pain and severe sciatica, causing unrelenting pain in her back which radiates down one or both of her legs, often visibly manifesting by her having difficulties walking, sometimes requiring the aid of a walking stick, unable to sit for short or extended periods of time, as well as difficulty lying supine resulting in difficulty sleeping for her. The applicant’s disabilities are exacerbated by heavy lifting, stress and anxiety.

7. further health issues and concerns of the applicant are set out at [21] to [25] of the pleadings;

Duties of the respondents

1. the first respondent has duties and responsibilities under various provisions of the Strata Schemes Management Act 2015 (NSW) (SSMA) including ss 9(3) and 106(1);

2. the second to fifth respondents owe duties to the applicant to carry out their functions for the benefit of the first respondent (SSMA, s 37) and owed the applicant a statutory duty and duty at general law to conduct themselves and carry out their duties as a member of officer of the first respondent with due and proper care, skill and diligence;

3. the sixth and seventh respondent owed the applicant a duty of care at general law to conduct themselves and carry out their duties as a member of officer of the first respondent with due and proper care, skill and diligence.

4. the applicant then sets out an exhaustive recitation of the various breaches of duty by each of the respondents;

5. the applicant then sets out particulars of her claims for damages.

13. At [192] to [197] the applicant then sets out the relief claimed being:

192. Ms Silberstein claims, as against the second to fourth respondents, that pursuant to s 238 of the Act they be removed from office holder positions of the first respondent.

193. Ms Silberstein claims, as against the second to fifth respondents, that pursuant to s 238 of the Act they be removed as members of the Strata Committee.

194. Ms Silberstein claims, as against the respondents to complete rectification of all remedial works in respect of all of the 2020 Water Issues and 2021 Water Issues as early as is possible required by the Tribunal, and to industry approved standards.

195. damages, including for costs already incurred by her as set out herein, ongoing costs until the completion of the remedial works, including the costs of moving back into the Unit.

196. interest.

197. costs

Consideration

Reasons for request for the Summons to be issued

14. I note by noting that in a document titled “Reasons for Request”, forming part of the applicant’s application to have the Summons issued, the applicant relevantly stated:

The dispute concerns claims by the Applicant for loss and damage pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW) (SSMA), in negligence and for relief pursuant to s 238 SSMA. The First Respondent is the owners corporation and the other four Respondents are or were strata committee members and/or office bearers.

The Respondents have either not admitted, or denied, that: (a) common property (being balcony structures accessible from the Applicant's unit) suffered from any defects; (b) such defects caused water ingress into the Applicant's property; (c) such water ingress caused the Applicant's apartment to be uninhabitable; and (d) such defects caused loss and damage to the Applicant arising from her apartment being uninhabitable (see Amended Points of Claim and Defence paragraphs 24, 27, 30-31, 51, 55, 68-69, 79-82). Further, there is a dispute as to whether rectification works which have been undertaken by the First Respondent have rectified the defects in the balcony structures (Amended Points of Claim and Defence paragraphs 50, 61). The Respondents have also put the Applicant to proof or put in dispute the state of mind of the Respondents regarding the water ingress issues (Amended Points of Claim and Defence paragraphs 20-23, 28-29 70-73, 83-86).

…

Of the loss and damage claimed by the Applicant, part of that loss and damage relates to losses arising from her husband's disability and her health (Amended Points of Claim paragraphs 8-12, 58a, 58c, 58e, 58g, 58, 581, 59, 60). Category 3 relates to documents which would expose the First Respondents' state of mind regarding these matters, in respect of which the Respondents have put the Applicant to proof or denied (Defence to Amended Points of Claim paragraphs 8-12, 58a, 58c, 58e, 58g, 58, 581, 59, 60). That state of mind is relevant to the reasonable foreseeability of those particular kinds of loss for the purposes of s106(5) SSMA, and to establish a duty of care and breach of duty for the purposes of the negligence claim. Further, the documents are relevant to establish the Respondents' awareness that the water ingress caused the Applicant's apartment to become uninhabitable because of the Applicant's families' health issues. …

Conclusion

15. The respondents’ submissions are summarised above. They submit that the documents sought are not defined with sufficient particularity, and that the entire exercise amounts to “fishing”.

16. I agree.

Insufficient particularity

17. The health of both the applicant and her husband are relevant to their claim for damages, or so I infer. So I place no substance on the respondents’ rhetorical questions what is meant by the "husband's disability" and "the Applicant's health status". This is clear from the extensive pleadings.

18. And I accept the applicant’s submission that evidence of these matters is relevant to her claim.

19. However, Bryson J, speaking extra-curially, has said that:

20 What is required is reasonable particularity (Small at 575). “Reasonable” is not a dogmatic word. In Waind v. Hill & National Employers Mutual General Insurance Association Ltd [1978] 1 NSWLR 372 at 382 Moffitt P for the Court of Appeal gave an exposition of what is meant by using a subpoena for the purpose of discovery. Moffitt P said: “The essential feature of discovery in this connection … is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. …a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment. It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of ‘discovery’.” In my understanding, even though the words in a subpoena are general and may require some decision by the recipient going further than simply recognising that the document is the one described, the use of a general description is not oppressive unless it requires the recipient to form a judgment about relevance to issues, or about some other matter which is so complex or difficult as to be oppressive. A call to an employer for all documents relating to the employment of and wages paid to the plaintiff during a stated period involves forming some judgment, but the exercise is probably not difficult, and can be fulfilled by getting out the personnel file and wages records. The question is, what is reasonable, and involves an appraisal of the task imposed.

21 There are limits to this. Once the requisitions in a subpoena stray into an expression like “all documents relating to” the ground is becoming a little shaky, but it is not necessarily quicksand. A subpoena may be oppressive, and may be set aside for that reason, if the exercise it requires the recipient to perform is simply too large and elaborate, even if it does not involve any real difficulty in the exercise of judgment and making decisions. There are reasonable limits. To take an example from Small’s case, a call for all files relating to falls from electric trains extending to back 10 or 11 years could not survive the challenge.

(emphasis added)

20. True it is, as submitted by the applicant, the first respondent to whom the summons is directed is not a stranger to the proceedings, and it can be taken that it understands the issues in the proceedings. Nevertheless, I can see difficulties to the first respondent responding to a summons which requires it to assess and then to produce documents relevant to Dr Silberstein’s disability, and real difficulties in producing documents in relation to the applicant’s “‘health status’ and her role as primary carer of her husband”, and the applicant’s “and/or her family's ‘health issues’ associated with the ‘water ingress issues’”.

21. In this respect, there is substance in the respondents’ questions as to what facts in issue does it relate, and what is meant by "the Applicant and/or her families health issues" and to what facts in issue does this relate?

Fishing

22. In my view, what the applicant is doing is clearly “fishing”.

23. As the Supreme Court noted in Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd (No 2) [2019] NSWSC 758 at [185]:

What constitutes a “fishing expedition” was explained by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 (i.e., where a party has no evidence that “fish of a particular kind are in a pool [but] desires to be at liberty to drag it for the purpose of finding out whether there are any there or not”).

24. As the Supreme Court further noted in Structerre Consulting Engineers (NSW) Pty Limited v Townend [2020] NSWSC 1476 at [17]:

A subpoena may not be used by a party to litigation for the purpose of endeavouring, not to obtain evidence to support the party’s case, but to discover whether they have a case at all: The Commissioner for Railways v Small (1938) 38 SR (NSW) at 564. A subpoena is “fishing” when issued in the hope of finding something to supply evidence necessary to support one’s case, there being no evidence that the subpoenaed party has such material but wishing to find out whether there is any material or not. …

25. I see no substance in the applicant’s submission that the applicant is not looking to “fish out a case she does not have, she is looking to prove the case she has pleaded’.

26. For these reasons paragraph 3 of the Summons should be set aside.

Category 1 and 2 documents

27. As noted above, the applicant does not currently press for production of the documents sought pursuant to Categories 1 and 2 of the Summons.

28. For the assistance of the parties, I make the following observations.

The respondent’s submissions

29. In summary, in relation to the documents sought in “Category 1” and “Category 2”, the respondent submits:

1. a subpoena cannot be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR 564 at 574);

2. Categories 1 and 2 are “exceptionally broad”;

3. the identifiers "referring to and "in relation to" are problematic and have the effect of requiring the respondents to “trawl through” their records to determine what does and what does not "refer to" or "relate to" the "water ingress issues";

1. the Tribunal does not have power to order discovery; by seeking discovery by way of a summons demonstrates the abusive nature the applicant's approach;

2. the last paragraph of the Schedule requires the first respondent to compare the results of its searches against the applicant's Bundle of Documents and Evidence in Chief in order to avoid duplication of production. This suggested approach only adds to, and clearly demonstrates, the oppressive nature of the complying with Categories 1 and 2.

The applicant’s submissions

30. In relation to Categories 1 and 2 the applicant submits:

1. categories 1 and 2 are directed towards documents establishing the nature of common property defects, the water ingress caused by those defects, works undertaken by or on behalf of the first respondent to rectify those defects, and the respondents' knowledge of, and state of mind, regarding those things;

2. the documents are relevant to establishing reasonable foreseeability of certain kinds of loss, duty of care and breach of that duty by the respondents, and whether the second to fifth respondents acted in good faith within the meaning of s 260(1) of the SSMA for the purposes of executing their functions and/or whether their conduct warrants the Tribunal ordering their removal from the strata committee;

3. although a summons shares some similarities with a subpoena, subpoenas are generally more limited because they are ordered against non-parties not familiar with the proceedings. In this case, the summons is issued to the first respondent which is well familiar with the facts and circumstances of the proceedings;

4. the applicant accepts that the evidence of the respondents: (a) may put less in issue than the defence currently does; and/or (b) may refer to documents otherwise captured by Categories 1 and 2, in which case those categories can be narrowed. To that end, the complaints in the respondent’s submissions, to the extent sustainable, would be better dealt with by amendment than dismissal of the Summons.

Preliminary views

31. In my preliminary view, there is considerable substance in the respondents’ submissions, in particular that a subpoena (here a summons) cannot be used as a substitute for discovery: Small at 574; that Categories 1 and 2 are “exceptionally broad” and that the identifiers "referring to and "in relation to" are problematic and have the effect of requiring the respondents to “trawl through” their records to determine what does and what does not "refer to" or "relate to" the "water ingress issues".

32. If the applicant wishes to press for production of documents the subject of Categories 1 and 2, she may care to consider amending the current terms of Categories 1 and 2, or withdrawing the summons and starting afresh.

Costs

33. If the respondents seek costs, they should file and serve submissions as to costs by 23 December 2023. Their submissions should identify the relevant costs rule and the reasons why costs should ordered.

34. The applicant may respond by 23 January 2023.

35. The applicant may reply by 30 January 2023.

36. The Tribunal proposes to consider any application for costs on the papers and without a hearing. If any party opposes that course they must address that issue in their submissions.

Orders

37. The Tribunal orders that:

1. Paragraph 3 of the Schedule to the summons issued on 4 October 2022 at the request of the applicant to the first respondent is set aside.

2. If the respondents seek costs, they should file and serve submissions as to costs by 23 December 2023.

3. The applicant may respond by 23 January 2023.

4. The respondent may reply by 30 January 2023.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

28 August 2023 - Formatting amendments.

Decision last updated: 28 August 2023