United Crib Blocks Construction Pty Ltd v Asmaro

[2025] NSWSC 1156

Supreme Court

New South Wales

Medium Neutral Citation:

United Crib Blocks Construction Pty Ltd v Asmaro [2025] NSWSC 1156

Hearing dates:

1 August 2025

Date of orders:

3 October 2025

Decision date:

03 October 2025

Jurisdiction:

Equity

Before:

Bennett J

Decision:

(1)   The Notice of Motion filed on 29 November 2024 is dismissed.

(2)   The proceedings are listed before the Registrar in Equity on 20 October 2025.

(3)   The costs of the Notice of Motion be costs in the cause.

Catchwords:

CIVIL PROCEDURE — Notices to produce — Before hearing — Practice Note SC Eq 11 — Application to set aside — Whether practice notes have the status of statutory rules — Whether notice to produce issued by the plaintiff to the defendants subverts the operation of Practice Note SC Eq 11

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 15

Supreme Court Act 1970 (NSW), s 124

Interpretation Act 1987 (NSW), ss 40, 41

Uniform Civil Procedure Rules 2005 (NSW), rr 34.2(1), 42.7(1)

Cases Cited:

Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23

Bauen Constructions Pty Limited v New South Wales Land and Housing Corporation [2014] NSWSC 684

Baulderstone Hornibrook Pty Limited v HBO+DC Pty Limited [2001] NSWSC 821

Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410

Danihel v Manning [2012] NSWSC 556

Health Administration Corporation v Toll Global Forwarding Pty Ltd [2024] NSWSC 285

His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142

In the matter of Mempoll Pty Limited [2012] NSWSC 1057

In the matter of Regional Express Holdings Limited (Administrators Appointed) [2025] NSWSC 499

International Management Group of America Pty Ltd v Media Niugini Ltd (t/as EMTV) (No 2) [2021] NSWSC 919

Leighton International v Hodges [2012] NSWSC 458

Marcos Accountants Pty Ltd v Nigtol Pty Ltd [2019] NSWSC 909

Pallas v Lendlease Corporation Limited (No 2) [2025] NSWSC 7

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

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

Simson v Wotif.com Holdings Limited [2013] NSWSC 1809

Skytraders Pty Ltd v Meyer [2023] NSWSC 857

The Owners – Strata Plan No 76902 v Roads and Maritime Services [2017] NSWSC 528

The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502

Wang v Cai (No 2) [2021] NSWSC 1268

Welzel v Francis (2010) 77 NSWLR 92; [2010] NSWSC 75

Wilson v Gillies (No 2) [2020] NSWSC 658

Texts Cited:

Practice Note SC Eq 11

Category:

Procedural rulings

Parties:

United Crib Blocks Construction Pty Ltd (Plaintiff/Respondent)

Namir Asmaro (First Defendant/First Applicant)
Australian Retaining Technologies Pty Ltd (Second Defendant/Second Applicant)

Representation:

Counsel:
S McIntosh (Plaintiff/Respondent)
A Maroya (Defendants/Applicants)

Solicitors:
Diamond Conway (Plaintiff/Respondent)
Sorensen and Brown (Defendants/Applicants)

File Number(s):

2024/00186382

Publication restriction:

Nil

JUDGMENT

Introduction and Background

1. By a Notice of Motion filed on 29 November 2024, the first and second defendants and applicants on the Motion, Mr Asmaro and Australian Retaining Technologies Pty Ltd (together, the Applicants) have sought to set aside, pursuant to r 34.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the bulk of a Notice to Produce served on them by the plaintiff (the Respondent) on 15 October 2024 (the NTP).

2. Rule 34.2(1) provides that party must produce a document or thing in accordance with the notice to produce, “[u]nless the court orders otherwise”.

Substantive Proceedings

3. The substantive proceedings were commenced by Statement of Claim (SOC) filed on 20 May 2024. The Amended Defence (AD) was filed on 13 September 2024. For the purposes of this section only, I will refer to the Respondent as the plaintiff and the Applicants as the defendants, reflecting their roles in the substantive proceedings. The first defendant is a former employee of the Respondent, and a director of the second defendant.

4. In its SOC, the plaintiff seeks an order restraining each of the first and second defendants, and the servants or agents of the second defendant, from using confidential information of the plaintiff indefinitely or, in the alternative, for such period as determined by the Court (prayer 1). Prayer 18 also contains a materially similar order restraining the first defendant, second defendant, and any employee, officer or agent of the second defendant from using or continuing to use the confidential information of the plaintiff. The SOC also seeks:

1. declarations under the Corporations Act2001 (Cth) (Corporations Act) that the first defendant misused his position as an employee and information obtained as an employee to improperly gain an advantage for himself or the second defendant, in breach of ss 182-183 (prayers 2-4);

2. a declaration under the Corporations Act that the second defendant was either involved in the first defendant’s alleged breaches of ss 182-183 or itself breached those provisions (prayer 5);

3. declarations that the first defendant breached obligations to the plaintiff arising from the former’s contract of employment, fiduciary duties owed to the plaintiff by the first defendant and an equitable duty of confidence owed to the plaintiff by the first defendant (prayers 6, 7, 10);

4. a declaration that the second defendant knowingly assisted the first defendant in the alleged breaches of contract, his fiduciary duties and his duty of confidence (prayer 12);

5. orders for an inquiry and account to be taken of all the dealing and profits of the work, contracts or other benefits obtained by the second defendant from the use of the plaintiff’s confidential information or intellectual property, with compounding interest (prayers 8-9), or compensation pursuant to s 1317H of the Corporations Act (prayer 11); and

6. a payment in the sum of $192,928.16 (plus GST), justified on various alternative bases (prayers 13-17).

5. In broad terms, the SOC alleges the first defendant misused confidential information or breached duties owed in relation to that information that he obtained while he was an employee of the plaintiff, namely by giving that information to the second defendant (a corporate entity which the first defendant set up). The SOC also pleads that the first defendant and/or the second defendant solicited two clients of the plaintiff, Mainbrace Constructions (Mainbrace) and Burton Contractors Pty Ltd (Burton Contractors).

Online Court Orders and Commentary

6. Notwithstanding the proceedings having commenced on 20 May 2024, and the pleadings being closed by 13 September 2024, to date no order has been made for the service of evidence in the proceedings. The progression of the proceedings appears to be otherwise stalled until the determination of this interlocutory application. Correspondence and associated documents before the Court explain the circumstances in which this has occurred and provide the procedural context to the current Motion.

7. On 18 September 2024 at 3:47pm, the solicitor for the Applicants sent an email to the solicitor for the Respondent, noting the matter had been activated for the Online Court and suggesting the matter proceed by the Respondents filing a reply to the Defence (as had been previously raised by the Respondent), followed by the Respondent filing and serving its evidence in chief, and the Applicants then filing and serving their evidence in reply.

8. On the same day at 4:19pm, the Respondent’s solicitor sent an email to the Applicants’ solicitor stating his client wished to file an application to seek leave to issue subpoenas and for orders for disclosure to be made before a timetable for the service of evidence was entered into. It was explained that this “is having regard to the nature of the allegations our client has pleaded and in circumstances where our client is not privy to communications between the Defendants and the third parties named in the Statement of Claim, among other parties”. Orders were proposed by the Respondent which included an order to file a Notice of Motion seeking that leave, returnable before the Court on 15 October 2024.

9. On 19 September 2024 at 10:30am, the Respondent’s solicitor submitted a request to the Online Court, seeking the following orders:

“• The Plaintiff is to file a Notice of Motion seeking leave to issue subpoenas and for an order for disclosure by 8 October 2024.

• The Notice of Motion referred to in order 1 is returnable before the Court on 15 October 2024.

• The matter is otherwise listed for directions on 15 October 2024.

• The directions hearing listed on 23 September 2024 be vacated.”

10. At the time of making this request, the Respondent provided the Online Court with the following reasons for submitting the request:

“Dear Registrar,

The Defendant has now served an Amended Defence in accordance with the last Court timetable.

Notwithstanding the contents of Practice Note SC Eq 11, it is the Plaintiff's position that this is a matter in which it would be appropriate to apply for obtain [sic] leave to issue subpoenas and for the disclosure of documents prior to evidence being served. This is because:-

a) the Plaintiff alleges that the First Defendant, being a former employee of the Plaintiff, used the Plaintiff's confidential information to solicit its customers and clients either for his own benefit or on behalf of the Second Defendant; and

b) the Plaintiff is not privy to the communications between the Defendants and its customers and clients.

Accordingly, the Plaintiff respectfully requests that the orders contained in the attached consent orders be made in chambers. We also confirm that the Defendants have consented to the orders.”

11. On 20 September 2024 at 12:10 pm, the parties were sent an email from the Online Court as to the orders that had been made by the Registrar (Exhibit E), listing the matter for Directions before the Registrar on 15 October 2024, and which also provided the following commentary:

“Leave is not required to issue subpoenas in this List. In circumstances where there is an objection to any subpoena issued, the proper course is for the producing party or objecting party to file the relevant application by Notice of Motion in the proceedings.”

12. On 15 October 2024, the Respondent filed the NTP that is the subject of this Motion. In summary, the NTP sought:

1. all correspondence between the Applicants and each of Mainbrace and Burton Contractors from 1 March 2023 to “date”, and all invoices and receipts issued by the Applicants to those companies from 1 August 2023 to “date”;

2. “all documents” relating to a tender submitted by the second defendant to Mainbrace concerning the installation of a retaining wall at 17 Sterling Road, Minchinbury;

3. “all documents” relating to the design and construction of a retaining wall at 427 Precinct Road, Eastern Creek; and

4. all correspondence between the Applicants and 21 other companies from 1 March 2023 to “date” and all invoices and receipts issued by the Applicants to those 21 other companies from 1 August 2023 to “date”.

13. The NTP comprises 48 paragraphs of requests, of which the first 6 paragraphs relate to Mainbrace and Burton Contractors (as described by subparagraphs (1)-(3) of my summary above). The 21 other companies in relation to which documents are sought, by way of the requests in paragraphs 7-48 of the NTP, are derived from a specified list of clients prepared by the first applicant when he was employed by the Respondent.

14. The 42 other paragraphs of the NTP which seek from the Applicants correspondence, invoices and receipts concerning 21 other companies are similar in form. For each of the 21 other companies named in the NTP, there are two separate paragraphs seeking the information described at [12(4)] above.

15. Not all paragraphs of the NTP were ultimately pressed. Specifically, paragraphs 13-14, 25-26, 27-28, 35-36 and 37-38 were no longer pressed by the Respondent. Each pair of paragraphs related to a particular company. Those portions of the NTP which were still pressed concerned 16 companies. This judgment is only concerned with those paragraphs of the NTP that are still pressed.

16. This procedural context appears to provide some explanation as to why the current Motion before the Court has been filed by the Applicants seeking orders for the NTP to be set aside, rather than a motion filed by the Respondents making an application for an order for disclosure, having addressed the issues set out at paragraph [6] of Practice Note SC Eq 11 (the Practice Note).

17. On the issue of the above “commentary”, the Applicants made the following submission (in their written submissions in reply, at [6]): “… the Acting Registrar’s commentary is not admissible as a gloss on the operation of the Practice Note, nor as an authoritative statement of principle. For that reason, Exhibit E is of very limited utility”. I accept this submission and note the core utility of the commentary as providing procedural context to these proceedings.

Correspondence following service of Notice to Produce

18. On about 8 November 2024, the Applicants’ solicitor sent a letter to the Respondent’s solicitor in relation to the NTP, which raised a number of issues which included:

1. the NTP did not comply with the Practice Note;

2. there could be no legitimate forensic purpose for which all 48 requests were made, and that the Respondent has attempted to obtain disclosure before the appropriate time, circumventing the provisions of the Practice Note, to engage in an abuse of process;

3. the 48 requests were speculative;

4. the majority of the 48 requests were not in line with the position established by the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown City Council);

5. whilst the first six paragraphs and requests for production related to matters pleaded in the SOC (being documents associated with Mainbrace and Burton Contractors), that the remaining 42 paragraphs had not been mentioned, let alone pleaded in the SOC;

6. notwithstanding the issues raised, in order to avoid unnecessary interlocutory disputes and the costs associated with same, the Applicants agreed to provide documents in relation to the first six paragraphs.

19. On 18 November 2024, the Respondent’s solicitor sent a letter to the Applicants’ solicitor in response to the 8 November 2024 letter, disagreeing with the Applicants and providing their views in relation to the issues, which included the relevance of the Practice Note and associated rules and the issue of legitimate forensic purpose. The Respondent otherwise sought production of the documents.

20. On 26 November 2024, the Applicants’ solicitor sent a further letter in response, reiterating the Applicants’ views in relation to the application of the Practice Note.

21. On 29 November 2024, the Applicants filed the Notice of Motion seeking to set aside the NTP, save for the first six paragraphs.

Hearing

22. At the hearing of the Motion, Mr Maroya of counsel appeared on behalf of the Applicants and Mr McIntosh of counsel appeared on behalf of the Respondent. Counsel for both sides provided a written outline of submissions prior to the hearing and made oral closing submissions following the reading of evidence at the hearing. Given limitations of time, and without objection from the Respondent, Mr Maroya was permitted to provide written submissions, strictly in reply, by 5:00pm on the day of the hearing.

23. As required, I will cite the evidence in the proceedings by reference to the Court Book (CB), transcript (TR) pages and exhibit numbers, and cite the submissions by reference to the Applicants’ outline of submissions of Mr Maroya (AOS), the Respondent’s outline of submissions of Mr McIntosh (ROS), and the written submissions in reply of Mr Maroya (AOS-R).

Facts and Evidence

24. The Applicants read and relied on two affidavits by Mr Asmaro (one of which was described as a “confidential affidavit”), and an affidavit of their solicitor, Mr Bhatty. The Respondent read and relied on two affidavits by its solicitor, Mr Hudspeth (one of which was described as “open” and the other “closed”), and an affidavit of the director of Respondent, Mr Bouhoutsos.

25. The parties raised with me the fact that the material in some of the affidavits, including the documents exhibited with or annexed to those affidavits were subject to a confidentiality regime between the parties. The Respondent sought, without demur from the Applicant, orders marking four of the affidavits as confidential and restricting access to those affidavits without further order of the Court. I made those orders.

26. At the commencement of his oral submissions, after my having made the confidentiality orders referred to above, Mr Maroya said (at TR P2 L24-30):

“… To the extent that in any of your Honour’s eventual reasons for judgment, in whatever form they may take, your Honour needs to refer to any of the confidential material, I first make the observation it may not be necessary for you to traverse in any reasons, in any detail at all, perhaps, some of the material which has been marked confidential. But I think that that’s an issue which, if it arises, can be very easily resolved, at least from our point of view, your Honour.”

As it turns out, I have ultimately considered it unnecessary in these reasons for me to traverse, in detail, the material which has been marked confidential. However, to guard against the possibility that confidential information has unwittingly made its way into these reasons, I will give the parties an opportunity to review the reasons before their publication and hear them on any issues they raise regarding confidential information.

27. The Respondent carries on a business of providing commercial and residential construction services, including in respect of the supply of construction and certification of retaining walls in New South Wales, Queensland and Victoria.

28. Mr Asmaro was employed by the Respondent from December 2019 to September 2023. What exactly Mr Asmaro did whilst working with the Respondent is not clearly spelled out in the evidence. However, as part of his role, he was closely involved in the creation and maintenance of an important document, which the parties referred to as the “Job Details” document. It is the contents of this document around which much of the dispute between the parties (both this interlocutory contest and the broader dispute) centres.

29. At a high level, this document contained, amongst other information:

1. a list of businesses to whom the Respondent had submitted a tender (whether or not the tender was successful), including information about jobs in relation to which a tender was submitted; and

2. information as to the status of a given tender.

30. The existence of the “Job Details” document is not in dispute.

31. Additionally, it does not appear to be in dispute between the parties that Mr Asmaro was closely involved in the creation and maintenance of the document.

32. Both Mr Asmaro and Mr Bouhoutsos gave evidence that Mr Asmaro was the one who created the document when Mr Asmaro was employed by the Respondent. Mr Bouhoutsos deposes that Mr Asmaro had “primary control” of the document whilst he was employed, being one of only four employees who had access to the document. He says Mr Asmaro was in charge of monitoring tenders and so maintaining the Job Details document formed part of his job. Mr Asmaro says he “was the only person responsible” for updating the document. He deposes to having updated the Job Details document every now and then, and that he believed he had had a “large hand in drawing up” the document. He also recalls building a formula in Microsoft Excel (the application in which the Job Details document was drawn up) to automatically update parts of the document.

30. There are two relevant versions of this document, a 2022 version and a 2023 version. The 2022 version was the version of the document drawn on to come up with the list of the businesses in relation to which the NTP seeks documents. However, Mr Bouhoutsos deposes that the 2023 version of the document contains many of the businesses as referenced in the NTP and that the companies named in the NTP (excluding those companies in relation to whom production is no longer pressed) are ones with whom the Respondent continues to have an ongoing relationship of some sort. That is because those companies provided work to the Respondent or because the Respondent still has contact with those companies, either because it submits tenders or because it receives pricing inquiries.

31. As was earlier mentioned, Mr Asmaro’s employment with the Respondent ended in September 2023. Shortly before Mr Asmaro’s employment ended, he became a director of the second applicant, whose business includes the provision of commercial and residential construction services. In its Amended Defence, the Applicants deny that the second applicant is a “direct competitor” of the Respondent, but Mr Asmaro’s affidavit evidence suggests there may be at least some competition between his company and the Respondent either now or potentially in the future.

32. The only job won by Mr Asmaro’s company in its first 12 months of operation was for a project in Minchinbury, awarded by Mainbrace. The NTP sought documents in relation to the awarding of this job which the Applicants say they have produced (the Respondent mentioned it may wish to challenge the sufficiency of that production, but the point was taken no further before me).

33. The Applicants in their evidence question whether the information contained in the Job Details document really is confidential. The Applicants also put on evidence to suggest that he could not practically have taken a copy of the “Job Details” document with him.

Legal principles

Setting aside a notice to produce – Generally

37. It is well established that the grounds to set aside a notice to produce are the same as those which justify the setting aside of a subpoena: Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23 at [91] (McColl JA); Pallas v Lendlease Corporation Limited (No 2) [2025] NSWSC 7 at [191] (McGrath J). I will accordingly refer to the authorities on setting aside notices to produce and subpoenas interchangeably.

38. The legal principles that apply when a Court comes to consider whether to set aside a notice to produce were recently summarised by Meek J in Health Administration Corporation v Toll Global Forwarding Pty Ltd [2024] NSWSC 285 (Health Administration) at [58]-[89]. For convenience, key passages of his Honour’s summary are reproduced below:

“Notice to produce principles

…

Regulation of use of documents in proceedings

…

[65] Fundamentally, the power of the Court to compel production of documents is entrenched in the Court’s armoury to administer justice and regulate its processes to that end: see Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (SDPIE) at [56] per Bell P (as his Honour then was), [83] per Brereton JA (as the Commissioner then was).

…

[67] However, in the realm of modern civil litigation the Court’s power to order production of documents is rightly said to be crucial to the ability of parties to investigate the facts and assemble evidence to prove or defend a case: SDPIE at [84] per Brereton JA.

…

[69] The appropriate use of the powers of the Court to regulate production, both statutory and inherent, are to be understood by the context in which the occasion arises for use of the powers and the purposes for which the powers have been granted or evolved.

[70] Thus, in SDPIE Bell P stated at [58]:

... one important contemporary contextual matter that informs the Court’s consideration of the proper use of subpoenas in civil litigation is s 56 of the Civil Procedure Act and its identification of the overriding purpose of that Act and of the Uniform Civil Procedure Rules in their application to civil proceedings, namely to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. An appropriately targeted subpoena may advance the overriding purpose in a particular case, even though it may not be able to be shown that the documents subpoenaed either will or will be likely to assist the case of the party that has issued the subpoena.

[71] His Honour also noted another important matter informing the Court’s consideration of what is required for the interests of justice will be the nature of the proceedings and any legislative guidance as to the procedure to be followed in particular classes of proceedings: SDPIE at [59].

[72] It is important not to lose sight of the extent of statutory enactment in this area, as the Court’s inherent powers to regulate its processes may be enhanced or modified by statutory enactment. I will touch further upon statutory enactment below. However, I will for the moment remain with reference to caselaw.

[73] The widespread use of subpoenas has, as Brereton JA observed, given rise to the frequent occurrence of applications made to set aside subpoenas or notices to produce: SDPIE at [85]. That, in turn, has birthed a large mass of caselaw addressing the appropriateness of a request for production.

[74] His Honour noted that the interlocutory nature of contest over such issues, and the efficient use of court time, has led to the issue that rules or “tests” (which word I will return to) applicable in one context have sometimes been applied in different contexts without regard to historical and conceptual distinctions: SDPIE at [85], [87].

…

“abuse of process” and “legitimate forensic purpose”  

[76] Because powers are appropriately analysed in context by reference to purpose, it is unsurprising that in the realm of the Court’s powers to compel production of documents, whether pursuant to statutory provision or otherwise, the Court of Appeal has analysed the issue by reference to what are proper uses of the Court’s processes and what are abuses of such processes.

[77] In SDPIE, each of Bell P and Brereton JA observed that the power of the Court to set aside a subpoena, in whole or in part, is but an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process: SDPIE at [32], [60] per Bell P and [88] per Brereton JA.

[78] The notion of “legitimate forensic purpose” may be seen as the converse of “abuse of process”. Thus, a subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose: SDPIE at [88].

…

[80] As explained by Coles, the concept of a legitimate forensic purpose developed through two lines of caselaw. The first line of cases, such as Waind v Hill [1978] 1 NSWLR 372, concerned objections on the basis that the documents called to be produced were inadmissible. Thesecond line of cases (see, for example, Commissioner of Railways v Small (1938) 38 SR (NSW) 564 at 575 per Jordan CJ) concerned objections on the basis that the subpoena constituted a “fishing expedition”: Coles at 389-390.

[81] The particular notion of a “fishing expedition”, in terms of the seeking of information, has early uses in the context of courts assessing the appropriateness of specific interrogatories issued: e.g. Green v Green (1912) 13 SR (NSW) 126 at 140 per Street J; Hennessy v Wright (No 2) (1888) 24 QBD 445 at 448 per Lord Esher MR.

“apparent relevance”

[82] In SDPIE, Bell P stated that there is a danger in using the language of “tests” for the setting aside of subpoenas, and suggested such terminology be eschewed: SDPIE at [60]. Brereton JA, in a similar vein, noted it may be undesirable to propound a test, at least at too specific a level, as to when a subpoena should be set aside, observing that nonetheless some general principles which inform the proper approach can be stated (to which I have already referred above): SDPIE at [88], see also [98] per McCallum JA (as her Honour then was).

[83] Generally, a subpoena or notice to produce will have a legitimate forensic purpose if the documents sought to be produced have an apparent relevance to the issues in the case: SDPIE at [32], [44]-[50], [56], [60], [68]-[71], [80] per Bell P, [88]-[89] per Brereton JA. The corollary is that subpoenas should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court’s general power to regulate and protect its own processes: SDPIE at [60] per Bell P. His Honour noted that such a power is not to be restricted to defined and closed categories: see CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 392; [1997] HCA 33.

[84] Leaving aside particular considerations that may inform any given case such as questions of immunities or privileges, in civil proceedings it will generally be sufficient, and prima facie evidence of a legitimate forensic purpose, if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case. Thus, the “apparent relevance” touchstone will be met where the material requested will likely add, in the end, in some way or another, to the relevant evidence in the case, including if any such documents are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are or might be inadmissible according to the rules of evidence: SDPIE at [80] per Bell P, [89] per Brereton JA.

[85] Where it can be shown that the documents sought on subpoena are likely materially to assist the party that issued the subpoena, it will generally not be possible for the subpoenaed party (or some other interested party) to contend that the subpoena should be set aside on the grounds of abuse of process or that the issuing party lacked a legitimate forensic purpose. However, the converse does not follow. Thus, an inability to demonstrate that it is “on the cards” that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused: SDPIE at [32], [80] per Bell P.

[86] Brereton JA observed that the supposed requirement that it be likely that the documents sought will “materially assist the issuing party’s case” has, in the cases which employ that phrase, been permitted to migrate from a rule which was once but is no longer applicable to the law of discovery, to the different context of a subpoena for production, without recognition of the historical and conceptual distinctions between the processes: SDPIE at [90].

[87] The touchstone of “apparent relevance” is broader than the relevance threshold applied at the admissibility stage of a hearing: Coles at 390. It reflects wisdom that, at interlocutory stages of proceedings, the Court is usually reluctant to be overly prescriptive of what ultimately facilitates the administration of justice in proceedings at a point in time when issues may be identified by reference to pleadings or other documents but nonetheless real and precise issues may not be entirely clear or elucidated.

[88] Put another way, “apparent relevance” admits of the possibility that the documents sought may not ultimately turn out to be relevant. It is an experience of litigious life that clarity of real issues is often not brightly transparent in embryonic stages of proceedings. What is required is that the “apparent relevance” of the documents sought should be able to be ascertained (or sufficiently disclosed) by reference to the issues in the case as they appear in the materials in the proceedings (whether those materials be pleadings, affidavits or otherwise) at the time of the issue of the subpoena or notice to produce: SDPIE at [68] per Bell P.

[89] The “apparent relevance” approach outlined in SDPIE has been applied in this Court to the assessment of legitimate forensic purpose in the case of challenges to both subpoenas and notices to produce: see e.g. Zong v Lin [2021] NSWCA 209 at [16]-[18] per Gleeson JA (subpoenas); Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2) [2022] NSWCA 155 per Leeming JA at [13] (notice to produce and subpoena).”

Setting aside a notice to produce – Practice Note SC Eq 11

The Practice Note

39. As is well known, litigation conducted in the Equity Division of this Court is affected by the Practice Note, titled “Disclosure in the Equity Division”. The material paragraphs of the Practice Note are as follows:

“Purpose

3. This Practice Note is for the guidance of practitioners in preparing cases for hearing in the Equity Division with the aim of achieving the just, quick and cheap resolution of the real issues in the proceedings.

Disclosure

4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.

5. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.

6. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out;

the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;

the classes of documents in respect of which disclosure is sought; and

the likely cost of such disclosure.”

40. While the Practice Note does not, in terms, apply to notices to produce, the authorities suggest that the Court should be minded to set aside a notice to produce where it is used as a means to obtain disclosure of documents as a subversion of the Practice Note, with some authorities describing such a course as an abuse of process: International Management Group of America Pty Ltd v Media Niugini Ltd (t/as EMTV) (No 2) [2021] NSWSC 919 at [20] (Stevenson J); Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [53]-[55] (Lindsay J); The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 at [23]-[28] (Stevenson J); In the matter of Mempoll Pty Limited [2012] NSWSC 1057 at [12]-[13] (Black J) (Mempoll). The same point has been made in the closely related context of applications to set aside subpoenas: Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [55] and [132] (Ward CJ in Eq) (Broadway Plaza); The Owners – Strata Plan No 76902 v Roads and Maritime Services [2017] NSWSC 528 at [20] (Ball J).

41. Thus, even if a notice to produce may have a legitimate forensic purpose, a notice to produce may yet be set aside on the basis of an attempted subversion of the Practice Note: Broadway Plaza at [132].

42. As Ward CJ in Eq explained in Marcos Accountants Pty Ltd v Nigtol Pty Ltd [2019] NSWSC 909 at [60]-[61], what flows from the above stated principles is that a subpoena or notice to produce cannot be used as a substitute for an order for discovery which, under the Practice Note, could only be obtained in exceptional circumstances which have been properly identified and explained.

Exceptional circumstances necessitating disclose

43. As paragraph 4 of the Practice Note provides, disclosure will only be ordered by the Court if there are “exceptional circumstances necessitating disclosure”.

44. In Leighton International v Hodges [2012] NSWSC 458 at [19], McDougall J made the following observations as to what “exceptional circumstances” entails in this context (emphasis added):

“[19] The concept of "exceptional circumstances" is not unique. It appears, for example, in UCPR r 31.28 (4)(a), dealing with reliance on experts' reports that have not been disclosed as required by earlier paragraphs of that rule. The cases on that rule and its equivalents and predecessors make it clear that there can be no all-encompassing definition of "exceptional circumstances". What is required is an assessment of the particular provision that specifies the need for such circumstances, and the rationale for that provision; and a consideration of the application of the provision in the particular case. However, there are a number of cases which suggest that exceptional circumstances must be something more than circumstances regularly, routinely or normally encountered; but at the same time, they need not be unique, or very rare. (See R v Kelly [2000] 1 QB 198 at 208.)

[20] As a matter of language, something is exceptional if it is out of the ordinary, or unusual. To my mind, the exceptional circumstances referred to in paragraph 4 of the practice note must be circumstances that are not normal, or usual; they must be something out of the ordinary; they need not be unique; but however one characterises them they are not "exceptional" at large, but "exceptional" because they necessitate disclosure.

…

[22] In the context of the practice note, the disclosure (either pre-evidence or at all) must be shown to be reasonably necessary for disposing of the matter fairly or in the interests of a fair trial.

[23] As I have indicated, the concept of necessity is focussed on resolution of the need for disclosure. It is not something to be answered by reference to wider concepts. Having said that, however, once the power to order disclosure is enlivened (because the test of necessity is satisfied), it may well be that there are wider considerations that are capable of bearing on the order to be made, in a particular case. Again, it is unnecessary to express any concluded view on this.”

45. To show “exceptional circumstances”, it would be necessary to demonstrate the necessity to obtain documents to fairly prepare a case for trial, ie, that the party is unable to serve its evidence without certain documents: Danihel v Manning [2012] NSWSC 556 at [16] (Bergin CJ in Eq).

46. While it is not possible to list in advance the categories of “exceptional circumstances”, as each case must be judged according to its own facts, one possible set of circumstances which may be exceptional in the sense required is where the relevant facts are not in the knowledge of the party seeking disclosure: Bauen Constructions Pty Limited v New South Wales Land and Housing Corporation [2014] NSWSC 684 at [18] (Ball J); In the matter of Regional Express Holdings Limited (Administrators Appointed) [2025] NSWSC 499 at [8] (Black J).

Status of the Practice Note

47. Owing to the nature of some of the submissions made by the Applicants in relation to the status of the Practice Note, which are dealt with below, I will also set out the statutory context to the Practice Note.

48. The power of the Chief Justice of this Court to issue practice notes comes from two sources. The first is s 15 of the Civil Procedure Act 2005 (NSW) (CPA), which provides:

15   Practice notes

(1)  Subject to rules of court, the senior judicial officer of the court may issue practice notes for that court in relation to civil proceedings to which this Act applies.

(2)  A practice note must be published in the Gazette.

(3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.

49. Section 16 of the CPA is also relevant. That provision provides:

16   Court may give directions in circumstances not covered by rules

(1)  In relation to particular civil proceedings, the court may give directions with respect to any aspect of practice or procedure for which rules of court or practice notes do not provide.

(2)  Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.

50. Second is s 124(11) of the Supreme Court Act 1970 (NSW) (Supreme Court Act). Sub-section (12) is also relevant. Those provisions provide:

124   Rule-making power

…

(11)  A practice note (including any other document, however described, which regulates the practice or procedure of the Court, any Division of the Court or of any class of proceedings in the Court, but excluding a decision of the Court) issued by or on behalf of the Court must be published in the Gazette.

(12) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule.

Setting aside a notice to produce – Flexibility of the Court’s powers to regulate

51. In addition to considering the legal principles in relation to setting aside notices to produce, in Health Administration Meek J also referred to the flexibility of the Court’s powers more generally in relation to the production of documents, in a summary which I gratefully adopt:

“Flexibility of the Court’s powers to regulate production of documents and modify the form and content of notices to produce

[108] The Court has an inherent jurisdiction to regulate its own proceedings so as to promote matters relating to convenience, expedition and efficiency in the administration of justice, which jurisdiction includes directing or ordering the parties to use certain procedures, if the benefits derived from the use of such procedures justifies the costs and will ensure that the trial proceeds quickly and efficiently: Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; [2000] NSWSC 338 (Idoport) at [15] per Einstein J.

[109] What may constitute a fair trial or hearing is the subject of rich and steeped caselaw, and aspects of it may be subject to statutory modification: e.g. GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [34]-[35] per Kiefel CJ, Gageler (as his Honour then was) and Jagot JJ.

[110] However, generally litigants do not have vested rights in matters of procedure: Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ; [1957] HCA 7; Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports and Recreation Association Inc v Karabay (2007) 69 NSWLR 669; [2007] NSWCA 96 at [22] per Young CJ in Eq (Ipp JA and Handley AJA agreeing).

[111] In New South Wales, statutory reform commencing on 1 March 2000 provided an overriding purpose into rules of Court to facilitate the just, quick and cheap resolution of the real issues in proceedings, which reform was the precursor to the civil reforms introduced in 2005 with the CPA, s 56(1), (2): Reeves v Reeves [2024] NSWSC 134 at [364].

[112] It seems to me that once an issue regarding production of documents comes before the Court, the issue of what may be permissible is not restrained by the parties’ contentions but in a sense becomes “at large” in that it is subject to the Court’s power to actively manage cases to achieve the overriding objective: Idoport at [14], [78]; see also Johnson v Johnson (No 3) (2000) 201 CLR 488; [2000] HCA 48 at [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Such an active role is appropriate, provided it does not transcend into the Court impermissibly assuming the role of advocate in the proceedings: e.g. Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [220] per Ward JA (as her Honour then was).

…

[115] The guiding principles in relation to case management under the CPA and UCPR reflect, in part, the wisdom that rules are intended to facilitate the dictates of justice rather than inhibit them. It has been said that procedural rules are the servants, not the masters, of justice: e.g. Harding v Bourke (2000) 48 NSWLR 598; [2000] NSWCA 60 at [26] per Mason P, citing E M Campbell, Rules of Court (1985, LBC) at 106-107.

[116] The distinction in the UCPR between a “discovery” obligation and a “production” obligation provides a salient reminder to judges of differing processes that may be appropriately invoked in litigation.

[117] Clearly at times there is wisdom in some processes such as “production” of documents being distinguished from others such as “discovery” of documents. However, the provisions of the Court’s power under s 14 of the CPA to dispense with any requirement of rules of Court, if it is satisfied that it is appropriate to do so in the circumstances of the case, coupled with the Court’s powers under ss 56 and 61 CPA and r 2.1 of the UCPR, clearly enable the Court to permit modified procedures and to impose requirements different from the rules where that is assessed as facilitating the just, quick and cheap resolution of the real issues in the proceedings.”

Issues

52. Having regard to the procedural background set out above, together with the relevant legal principles and submissions made by the parties (see below), the following issues arise for consideration:

1. Does the Practice Note have the status of a statutory rule?

2. Should the NTP be set aside as an attempt to subvert the Practice Note?

3. Will it facilitate the just, quick and cheap resolution of the real issues in the proceedings to dismiss the orders sought by the Applicants on the Motion, and require the Applicants to produce the documents sought?

53. In summary, and for the reasons set out below, I have decided to dismiss the application to set aside the NTP.

Issue 1: Does the Practice Note have the status of a statutory rule?

The parties’ submissions

54. Both in writing and orally, the Applicants made the submission that “practice notes have the status of statutory rules”, and added in each case that practice notes should not be regarded as “mere or hollow” statements of internal or administrative policies of the Court (AOS-R at [18], TR 16 at lines 43-44).

55. The Applicants submitted that this conclusion was because of CPA s 15(2)-(3) and Supreme Court Act s 124(11)-(12).

56. The Respondent made no submissions on this point.

Consideration

57. The Applicants’ submission that practice notes have the status of statutory rules must be rejected.

58. The provisions referred to by the Applicants, ss 15(2)-(3) of the CPA and s 124(11)-(12) of the Supreme Court Act, are in different terms but materially similar in effect. Those provisions require practice notes issued by the Court to be published in the Gazette and say that ss 40 and 41 of the Interpretation Act 1987 (NSW) (Interpretation Act) “apply to a practice note in the same way as they apply to a statutory rule.”

59. Sections 40 and 41 of the Interpretation Act respectively provide for a requirement that written notice of the making of a statutory rule be placed before each House of Parliament and for the ability of either House of Parliament to pass a resolution disallowing a statutory rule. There is further detail to those provisions but it is immaterial for present purposes.

60. Plainly, the provisions cited by the Applicants in support of this submission require practice notes to be published in the Gazette and put before the Parliament in the same way other statutory rules are. There is, however, nothing in those provisions which elevates practice notes to having the status of statutory rules.

61. No further submissions were made justifying why practice notes should be treated as having the same status as statutory rules.

62. For completeness, I note that while the Interpretation Act does bring a rule of court within the definition of “statutory rule” (see Sch 4 of the Interpretation Act), in both the CPA and the Supreme Court Act, a practice note is conceptually distinct from a rule of court. Nothing in those Acts says a practice note is a rule of court, and it has been said that practice notes will give way to rules of court where the two are in conflict: see Welzel v Francis (2010) 77 NSWLR 92; [2010] NSWSC 75 at [12] (Einstein J).

63. For those reasons, the Applicants’ submission that the Practice Note has the same status as a statutory rule should be rejected.

64. However, my conclusion that practice notes, including the Practice Note, do not have the status of statutory rules does not reduce practice notes to “mere or hollow” statements of this Court’s procedure. As Bergin J said in Baulderstone Hornibrook Pty Limited v HBO+DC Pty Limited [2001] NSWSC 821 at [14]:

“A Practice Note governs or guides the way in which the proceedings are expected to be administered. Practitioners, and thus parties, should be aware of the requirements of the Practice Note and it is to be expected that orders and/or directions will be made consistently with the Practice Note which governs the particular list.”

65. Certainly, the Practice Note itself has not been treated as a “mere or hollow” statement of practice and procedure. So much is evident from the application of the principles underlying the Practice Note into areas in which they strictly do not apply, namely, to subpoenas and notices to produce. The statement by Ward CJ in Eq in Broadway Plaza at [133] that “non-compliance with the Practice Note should not be condoned” serves to reinforce the importance of the Practice Note to civil proceedings in the Equity Division.

Issue 2: Should the NTP be set aside as an attempt to subvert the Practice Note?

The parties’ submissions

66. The Applicants’ submissions focused closely on the Practice Note. Their submissions took the following course:

1. The parties have not yet completed the service of their evidence in the main proceedings, meaning that the proceedings were at a stage where the Practice Note applied to any orders for disclosure.

2. The Practice Note itself should not be understood as limited to applications made for discovery orders, but also to processes such as notices to produce and subpoenas. The Applicants specifically submitted that the NTP, as a notice to produce under r 34.1 of the UCPR, was “a process of disclosure to which the Practice Note applies, with the consequence that it ought not have issued without leave of the Court” (AOS at [27]).

3. Consequently, the Respondent could only have issued the NTP if it could show “exceptional circumstances necessitating disclosure” and that “disclosure is necessary for the resolution of the real issues in dispute”.

4. The Respondent has, according to the Applicants, failed to demonstrate exceptional circumstances necessitating disclosure and why disclosure is necessary in this case.

5. Thus, the NTP should be set aside.

67. In its written submissions, the Respondent did not initially engage directly with the Applicants’ contentions regarding the application of the Practice Note. At [38] of the ROS, the Respondent submitted that the Applicants “have not established that the call in the NTP is an application for disclosure to which Practice Note SC Eq 11 applies”.

68. The Respondent also submitted that the Court “would also not conclude that the NTP is, in any way, an attempt to subvert Practice Note SC Eq 11” (ROS [38]). That is so because the NTP “is simply a call for the contact that the [Applicants] have had with a specific list of the [Respondent]’s clients sourced from a highly confidential document developed by the [first applicant] during his employment with the [Respondent].”

69. In its oral submissions, the Respondent submitted that if the Practice Note applied, then “exceptional circumstances” as understood for the purposes of the Practice Note were present here. It submitted that the information sought by the NTP was “information that’s solely within the knowledge of the [Applicants]” (TR P22 L1-2).

70. The tenor of the Respondent’s written and oral submissions on this issue is summarised below:

1. The documents produced by the Applicants in answering the first six paragraphs of the NTP suggest that one or both of the Applicants may be soliciting Burton Contractors and Mainbrace and misusing the Respondent’s confidential information to do so (namely, the confidential client list referred to earlier in these reasons).

2. The extent of the Applicants’ alleged misuse of confidential information, including but not limited to the previously mentioned client list, is a real issue in the proceedings.

3. Information as to the full extent of the Applicants’ alleged misuse of confidential information, particularly any ongoing misuse, could only be obtained from the Applicants directly.

4. Therefore, the Court should not set aside the NTP as that is the only way the Respondent can find out the full extent of the alleged breaches of contract, duties of confidence and Corporations Act duties.

71. I note here that the Respondent did not explicitly link the submissions made above to paragraphs 4 and 5 of the Practice Note, save for the reference at the start of its oral submissions. However, given the Respondent orally referred to the knowledge asymmetry between the parties as showing “exceptional circumstances”, it is convenient to address these submissions here.

Consideration

72. To repeat what I said in [40] above, while the Practice Note does not, in terms, apply to notices to produce, nonetheless a notice to produce may be set aside where it is used as a means to obtain disclosure of documents and subvert the Practice Note. To the extent the Respondent’s submissions suggested otherwise, those should be rejected.

73. However, I am not satisfied that the NTP constitutes an attempt to subvert the Practice Note.

74. The NTP does not seek the disclosure of documents in overly wide and general terms. The disputed portion of the NTP seeks the production of documents in relation to 16 companies. However, in relation to each company, the NTP seeks only the correspondence passing between either of the Applicants and a specified company from 1 March 2023 to 15 October 2024, and invoices or receipts issued by one or other of the Applicants to a specified company from 1 August 2023 to 15 October 2024. The request for documents is confined, and no complaint is made by the Applicants about the paragraphs of the NTP being vague, oppressive or otherwise unanswerable.

75. I also do not view the NTP as engaging in a “fishing exercise” in the sense that the documents sought were not apparently relevant to the proceedings. The documents do appear to be apparently relevant to these proceedings. The SOC pleads at [28]-[32] that the first defendant (ie, the first applicant) used the Respondent’s confidential information for the second defendant’s (ie, the second applicant’s) benefit even prior to his departure from the Respondent. It also pleads at [40] that the first defendant has attempted to solicit clients of the Respondent for the benefit of the second defendant. The Applicants have denied both allegations.

76. I acknowledge that, save for the allegations concerning Mainbrace and Burton Contractors, the misuse of confidential information is not particularised in relation to other specifically named clients. But clearly, a key element of the dispute between the parties will concern whether information alleged to be confidential was misused by the Applicants. Additionally, as the Respondent pointed out, the list of 16 companies in relation to which documents are sought have not come from nowhere. They come from a version of the “Job Details” document referred to earlier in these reasons. That document is expressly referred to in the pleadings as part of the (allegedly) confidential information received and (allegedly) misused by the Applicants.

77. I do not need to enter the debates had as to whether the information contained in the documents is in fact confidential, or as to whether the "Job Details” document that was in evidence for the purposes of this Motion is the most relevant version of that document. It suffices to say that the documents and communications sought by the NTP as part of this matter are likely to go directly to matters in issue.

78. Against the possibility I am wrong in my conclusion that the NTP is not attempting to subvert the Practice Note, I will consider whether the NTP might otherwise still not run afoul of the Practice Note because “exceptional circumstances necessitating disclosure” have been shown. For the reasons which follow, I am still satisfied that “exceptional circumstances” have been made out. In my opinion, the documents sought by the NTP are otherwise necessary for the fair disposal of the matter and in the interests of a fair trial.

79. The Respondent submitted that, to the extent its case that the Applicants are misusing its confidential information is made out, it does not know the extent of the misuse. What seems to follow from this submission is that what is sought by the NTP is necessary to properly assess the scope of its case, both as to the quantum of damages that might flow to it, but also in making good its pleaded case that the Applicants did misuse confidential information.

80. Whether the Respondent’s allegations as to misuse of confidential information will eventually be made good at any eventual trial is one matter. Furthermore, as I explain later in these reasons (see [90] below), I do not accept the Respondent’s submission that the information sought from the Applicants by the NTP is strictly within only the Applicants’ knowledge. However, I accept on the material before me that, notwithstanding it was able to put a case in respect of Burton Contractors and Mainbrace, the Respondent is not in possession of information that would allow it to assess in full and make good its case as to misuse of confidential information.

81. Necessarily, the Respondent would not be in possession of the communications or invoices that passed between the Applicants and others. The NTP enables the Respondent to have more information concerning the extent to which, on its case, its confidential information was misused, and the information being sought is information which is largely in the knowledge of the Applicants. These considerations seem to provide the necessary exceptional circumstances (see [46] above, see also Mempoll at [21] (Black J)).

Issue 3: Will it facilitate the just, quick and cheap resolution of the real issues in the proceedings to dismiss the orders sought by the Applicants on the Motion, and require the Applicants to produce the documents sought?

The parties’ submissions

82. The Respondent’s submissions focused especially on this issue. It submitted that the just, quick, and cheap resolution of the real issues in the proceedings would be facilitated by requiring compliance with the NTP because the full extent and effect of Applicants’ conduct, particularly the first defendant’s alleged breaches of duties, will not otherwise be known.

83. The Respondents also submitted that there would be a “risk of further and unnecessary delay in the proceedings” (ROS [33]) if the NTP were set aside, as denying the Respondent access to the information sought within the NTP “would unnecessarily obscure the extent of the [Respondent’s] case.” In oral submissions, the Respondent added to this contention by submitting that learning of the full extent of any breaches of duty by the Applicants, which it says is only possibly by the Applicants complying with the NTP, after the close of evidence would add unnecessary costs to the proceedings. This is so because there would then need to be further amendments to the pleadings and further evidence put on.

84. The Applicants’ submissions did not directly contend with this more general question. Their submissions, as I understood them, started from the premise that the purpose of the Practice Note is to facilitate the just, quick and cheap resolution of the issues in dispute in proceedings in the Equity Division. From that starting premise, it followed that attempts to seek disclosure from the Applicants in a manner which subverted the Practice Note are themselves not actions which facilitate the just, quick and cheap resolution of proceedings.

85. More specifically, at AOS [17], the Applicants submitted that in circumstances where the Respondent’s specific claim for damages or compensation is of a “modest sum” ($192,928.16), the likely costs of compliance with the NTP are not justifiable in comparison. In response to this specific contention, the Respondents submitted orally that the Applicants have not pointed to any reason complying with the NTP would be onerous in some regard.

Consideration

86. In my opinion, compliance with the NTP would facilitate the just, quick and cheap resolution of the proceedings in this case.

87. There has been no progress regarding the service of evidence in these proceedings to date.

86. I approach this question keeping in mind that, as I decided above, the NTP seeks from the Applicants material of a fairly defined nature which is at least apparently relevant in the proceedings.

87. While it is not strictly correct to say, as the Respondent submitted, that what is sought by the NTP is only within the Applicants’ knowledge (for reasons I explain below), there is much force in the Respondent’s contentions that as things stand, it would be an inefficient course to now delay the provision of the documents sought by the Respondent.

88. The NTP seeks documents recording communications between the Applicants and other parties, and invoices or receipts issued by the Applicants to other parties. Necessarily then, the other parties to the communications or recipients of the invoices or receipts, that is, the 16 companies named in the still-pressed parts of the NTP, would also possess knowledge of those communications and documents. In fairness, the Respondent’s written submissions seemed to acknowledge this when, at ROS [42], it argued that it “would not be appropriate to issue a multitude of subpoenas to the [Respondent’s] clients at this time”.

89. Why it would not be appropriate to issue subpoenas at this time is not explained by the Respondent. However, in its written response to this submission, at AOS-R [31], the Applicants contend the reason the subpoenas would be inappropriate are because the Practice Note applies. It does not contend later subpoenas would, for example, be liable to be set aside. Further, at AOS-R [32], the Applicants say the Respondent’s director could have instead asked a responsible person within each of the 16 companies to assess if, in fact, the Applicants have done what the Respondent alleges they have done. These arguments by the Applicants suggest, even if indirectly, that what is being sought by the NTP will likely be relevant to the case.

90. To my mind, the question then is not necessarily whether the documents sought in the NTP could ever be requested. It should be clear that, in my view, the requests are proper. The question is when those requests could be made.

91. I accept the Respondent’s submissions that setting aside the NTP now would bring about delay and further costs. Whether the pleadings would need to be amended to take into account anything found in the documents sought by the NTP is not a question I need to decide. But it should be accepted that any documents which uncovered evidence of potential breaches of duty or contract could be part of the Respondent’s evidence in this case, at the very least in so far as the quantum of any compensation is concerned. Accepting that point means that delaying the provision of these documents to after the service of evidence is likely to add costs and delay the proceedings, at least to the extent the Respondent would then need to put on further evidence and the Applicants need to put on further evidence in reply. Having the NTP complied with now is more likely to lead to the efficient preparation and service of evidence – it is more likely it can be done all at once. If the pleadings do need to be amended, all the more reason in this case to have those finalised earlier rather than later.

92. While I acknowledge the Applicants made a submission that the likely costs of compliance with the NTP were not proportionate to the size of the dispute, the submission rose no higher than a bare assertion to that effect. There was no submission that compliance with the NTP would be unduly difficult.

93. Ultimately, my view is that not setting aside the NTP is more likely to promote the efficient progression of these proceedings, something which is sorely needed given its progress has stalled.

94. I note also that what I have said at [93] also provides, to the extent it was relevant, a further basis in the context of these proceedings to conclude, that “exceptional circumstances” for the purposes of the Practice Note have been made out in this case (applying what was said by Black J in Mempoll at [21], and by Kunc J in Simson v Wotif.com Holdings Limited [2013] NSWSC 1809 at [25]).

Conclusion

97. In conclusion, the NTP should not be set aside and the Applicants’ Notice of Motion should be dismissed.

Costs

98. The usual order as to the costs of an interlocutory application is that the costs of the application be costs in the cause: UCPR r 42.7(1), Wilson v Gillies (No 2) [2020] NSWSC 658 at [11] (Rees J); Wang v Cai (No 2) [2021] NSWSC 1268 at [61] (Ward CJ in Eq); Skytraders Pty Ltd v Meyer [2023] NSWSC 857 at [2] (Richmond J).

99. Both parties sought their costs of the Motion if they were successful.

100. Rule 42.7(1) does not fetter the Court’s usual discretion as to costs: His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [28] (Beazley, Giles, and Hodgson JJA). However, no argument was addressed by either side as to why I should depart from the default position as to costs in interlocutory proceedings and exercise my discretion as to costs in a given party’s favour. I also do not see anything in the circumstances of this case that would obviously warrant a departure from that position. Consequently, I will simply order that costs will be costs in the cause.

ORDERS

101. For the above reasons, I make the following orders:

1. The Notice of Motion filed on 29 November 2024 is dismissed.

2. The proceedings are listed before the Registrar in Equity on 20 October 2025.

3. The costs of the Notice of Motion be costs in the cause.

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Decision last updated: 13 October 2025