Taylor v Port Macquarie-Hastings Council
[2010] NSWLEC 158
•27 July 2010
Land and Environment Court
of New South Wales
CITATION: Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 158 PARTIES: APPLICANTS:
RESPONDENT:
John Henry Taylor and Mildred Joy Taylor
Port Macquarie-Hastings CouncilFILE NUMBER(S): 30623 of 2010 CORAM: Biscoe J KEY ISSUES: PRACTICE AND PROCEDURE :- notices of motion to set aside notices to produce - costs. LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991
Uniform Civil Procedure Rules, rr 20.26, 42.15DATES OF HEARING: 27 July 2010 EX TEMPORE JUDGMENT DATE: 27 July 2010 LEGAL REPRESENTATIVES: APPLICANTS:
Mr T S Hale SC with Mr J R Dupree
SOLICITORS
Russo & PartnersRESPONDENT:
Mr T Robertson SC with Mr J Lazarus
SOLICITORS
Donovan Oates Hannaford
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
27 July 2010
30623 of 2005
EX TEMPORE JUDGMENTTAYLOR v PORT MACQUARIE-HASTINGS COUNCIL
1 HIS HONOUR: On 1 July 2010 I published reasons for judgment in which I concluded that the applicants were entitled to compensation of $1.525 million (before interest) under the Land Acquisition (Just Terms Compensation) Act 1991. Costs were reserved. The proceedings were stood over to 3 August 2010 to determine the form of final orders and costs.
2 Meanwhile, this morning, I have heard two notices of motion by the applicants to set aside two notices to produce documents to the Court served by the respondent on the applicants:
(a) a notice dated 13 July 2010 requiring production of “the total costs and disbursements” that had been billed to the applicants and paid between various dates;
(b) an amended notice dated 27 July 2010 (superseding an earlier notice to produce dated 19 July 2010) requiring production of various documents relating to communications between lawyers and others and advices relating to the respondent’s offers of compromise, together with certain travel documents.
3 The first of those motions, relating to the notice to produce of 13 July 2010, has been resolved by agreement this morning save as to costs. By consent the orders that will be made are as follows:
1. Order that by noon on Thursday 29 July 2010 the applicants provide the respondent with a statement of the total costs and disbursements for each of the following periods:
- (a) 1 April 2005 to 23 May 2007
(b) 30 August 2005 to 16 February 2010
(c) 27 May 2007 to 16 February 2010
(d) 17 February 2010 to 1 July 2010
3. Note that the respondent has indicated that it will endeavour to make an offer of compromise as to costs by Friday 30 July 2010.
4 That brings me to the costs of the applicants’ notice of motion relating to that notice to produce. The respondent’s reason for seeking the information was to help it to form an offer of compromise as to costs.
5 The applicants seek costs of its notice of motion arguing that it is bad in form because it does not require the production of documents but the production of information, and that the respondent’s said reason for seeking information is not a legitimate forensic purpose.
6 The respondent submits that the costs of the notice of motion should be costs in the cause. The respondent points out that the applicants’ notice of motion was resolved by compromise during the course of the hearing today. The respondent points to the genesis of the dispute in a letter from the respondent’s solicitors to the applicants’ solicitors of 1 July 2010 seeking total costs and disbursements billed and paid in the four periods referred to in order 1 above. The letter concluded with a statement that if the applicants did not agree to provide that information then it would be necessary for the respondent to seek an order that the applicants provide it. The respondent also points out that in subsequent correspondence after service of the notice to produce, the applicants’ solicitors treated the notice as requiring the production of documents and that the respondent’s solicitors in a letter in reply also proceeded on that basis by indicating what was required was the production of bills.
7 The whole debate has turned full circle in that originally the respondent sought information which was refused but which ultimately today has been agreed to be provided. The form of the notice to produce is strictly bad because although it required the production of “the following documents or things” it then proceeded in numbered paragraphs to refer to information (rather than documents or things), namely “the total costs and disbursements...that have been billed to you and paid by you” in specified periods. However, the applicants’ solicitors appear to have treated it as referring to the production of documents. Given the various twists and turns in the story that I have recounted, I order that the costs of the applicants’ notice of motion filed on 20 July 2010 be the applicants’ costs in the cause.
AMENDED NOTICE TO PRODUCE 27 JULY 2010
8 I turn to the amended notice to produce filed on 27 July 2010 which was amended even further during the course of the hearing this morning. This notice required the applicants to produce all documents sent to counsel, a valuer and/or the applicants by the applicants’ solicitors or received by them from those persons, and file notes of conversations involving any of those persons recording or referring to any advice or other communication given or received concerning the respondent’s offer of compromise served upon the applicants and dated 15 February 2010, including but not limited to any documents referred to or recording the communications referred to by Mr Russo (the applicants’ solicitor) in his affidavit of 15 July 2010 (in certain paragraphs), created in the period from 15 February to 19 February 2010 inclusive.
9 This notice also required production of travel documents or records relating to flights taken by the applicants’ counsel, one of the applicants’ solicitors and the applicants’ valuer from Sydney to Port Macquarie on 18 February 2010 and returning on 19 February 2010.
10 The applicants object to production of the documents on the basis that the notice has no legitimate forensic purpose and there has been no waiver of privilege in relation to the advice, communications and conversations referred to in the notice. The applicants also challenge the relevance of the travel documents and records.
11 This notice to produce was ignited by an affidavit of Mr Russo, the applicants’ solicitor, of 15 July 2010 relating to the costs issue. In the affidavit Mr Russo records receiving an offer of compromise from the respondent on the afternoon of Monday 15 February 2010 after returning to his office. The offer of compromise was expressed to remain open until 19 February 2010. Mr Russo recounts communications or attempted communications that he had in the period 15 to 19 February 2010 with the applicants’ counsel, valuer and another solicitor in his office who had the day to day carriage of the matter.
12 These documents appear to be relevant to the reasonableness of the limited time for which the offer of compromise was expressed to be open: see r 20.26(7)(b) of the Uniform Civil Procedure Rules 2005. They also appear to be relevant to the discretion of the Court under r 42.15(2) to make an “otherwise” order where an offer of compromise is not accepted and the applicants obtain an order or judgment less favourable to the applicants than the terms of the offer: r 42.15(2). Any client legal privilege that might otherwise protect such communications from disclosure in the four day period to which the amended notice to produce refers appears to have been waived by reason of Mr Russo’s affidavit.
13 The travel documents referred to in the amended notice to produce appear to be relevant because Mr Russo in his affidavit has referred to the travel undertaken by counsel and others between Sydney and Port Macquarie where the Court undertook a view on 19 February 2010.
14 Accordingly, I order the applicants to produce to the Court the documents referred to in the amended notice to produce of 27 July 2010 by 10 am on Thursday 29 July 2010.
15 The respondent seeks its costs of the applicants’ notice of motion to set aside this amended notice to produce. The applicants oppose that order arguing that they won a bit and lost a bit. As the respondent submits, strictly the appropriate procedure would have been not to apply to set aside the notice to produce but to produce the documents and take the objection to their inspection on the ground of privilege. However, the parties have sensibly sought to address the substance of the matter. Looking at the substance of the matter, the respondent has had to heavily amend the notice to produce in order to bring about a result where some documents are produced. The amendments cut back very substantially on that which was originally sought. On the other hand, the applicants have not been wholly successful either.
16 On balance, I order that the costs of the applicants’ notice of motion filed on 27 July 2010 be the applicants’ costs in the cause.
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