Young v King (No 3)

[2012] NSWLEC 42

Land and Environment Court

New South Wales

Medium Neutral Citation:	Young v King (No 3) [2012] NSWLEC 42
Hearing dates:	24 February 2012
Decision date:	14 March 2012
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	The Court's Orders and Directions appear in paragraphs [122] to [123] of this judgment.
Catchwords:	Notice to Produce: motion to "strike out" or "set aside" - context of the present litigation - principles to apply - costs - further disposition of matter
Legislation Cited:	Civil Procedure Act 2005 Fair Trading Act 1987 Water Act 1912 Uniform Civil Procedure Rules 2005
Cases Cited:	A v Z [2007] NSWSC 899; (2001) 212 FLR 255 Alister v R (1984) 154 CLR 404 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Bailey v Beagle Management Pty Ltd (2001) FCA 50; (2001) 105 FCR 136 Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Commonwealth v Northern Land Council (1991) 30 FCR 1 Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 43 Doyle v Australian Securities and Investments Commission (ASIC) [2005] HCA 78; (2005) 227 CLR 18 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 Kelly v Raymor (Illawarra) Pty Ltd [1981] 1 NSWLR 720 Liristis v Gadelrabb [2009] NSWSC 441 McLaughlin v Dungowan Manly Pty Ltd (NSWSC 4924/06) on 14 July 2009 unreported Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors [2004] NSWSC 777 Norris v Kandiah [2007] NSWSC 1296 NSW Commissioner for Police v Tuxford & Ors [2002] NSWCA 139 Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Quarry Products (Newcastle) Pty Ltd and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 2) [2012] NSWLEC 32 Roads & Traffic Authority of NSW v Conolly & Anor [2003] NSWSC 327; (2003) 57 NSWLR 310 R v Saleam [1999] NSWCCA 86 Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 Teoh v Hunters Hill Council and Anor (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 Trade Practices Commission v Arnotts Ltd and Ors (1989) 88 ALR 90; (1989) 21 FCR 306 Waind v Hill and National Employers' Mutual General Insurance Association Ltd [1978] 1 NSWLR 376 Young v King [2004] NSWLEC 93 Young v King [2011] NSWSC 793 Young v King (No.2) [2009] NSWLEC 125
Category:	Procedural and other rulings
Parties:	Margo Young (Applicant) Brendan King (First Respondent) Kristina King (Second Respondent)
Representation:	Mr R Newell, Barrister (Applicant) Mr M Wright, Barrister (First & Second Respondents) Terence Stern (Applicant) L C Muriniti & Associates (First & Second Respondents)
File Number(s):	40417 of 2003

Judgment

Introduction

1. This judgment concerns a Notice of Motion ('NOM') brought by the respondents, dated 24 May 2011 , seeking to have " struck out " a Notice to Produce ('NTP') served on their solicitor by the applicant.

1. The applicant had served the relevant NTP on 29 or 30 March 2011 , in terms of Uniform Civil Procedure Rules 2005 ('UCPR') Part 34, Rule 34.1, seeking the following documents from the respondents regarding Supreme Court proceedings they have on foot against their former lawyers:

1.Copy of the Statement of Claim filed by Brendan and Kristina King against Griffiths and others trading as Pike, Pike & Fenwick being proceedings number 2010/00038916 (hereinafter 'the proceedings').

2.Copies of any Defence filed by the Defendants in the proceedings.

3.Copies of any request for further and better particulars served by the Defendants in the proceedings.

4.Copies of any reply to request for further and better particulars provided by the Plaintiffs to the Defendants or any one of them.

5.Copies of any Affidavits served by Brendan and Kristina King on the Defendants in the proceedings.

6.Copies of any Affidavits served by the Defendants on Brendan and Kristina King in the proceedings.

7.Copies of any expert reports served by the Plaintiffs on the Defendants in the proceedings.

8.Copies of any expert reports served by the Defendants served (sic) on the Plaintiffs in the proceedings.

1. The NOM finally came on for hearing on 24 February 2012.

The matter(s) before this court

1. The substantive matter presently before this court is a NOM by the applicant to have " vacated " orders which were made by the then Chief Judge of the court (McClellan J), in a judgment he delivered on 19 February 2004 ([2004] NSWLEC 93), entered on about 2 March 2004 , and varied as to detail on 8 March 2004.

1. The " primary " litigation concerned a dispute between neighbouring parties, which dates back to July 2001 , and gave rise to these class 4 proceedings, which were commenced on 14 April 2003 , seeking 15 declarations, 9 injunctions, damages, and costs.

1. Mrs Young lives at No 35 Calca Crescent, Forestville, and the Kings " downstream " at No 37, in an area originally subdivided and drained around 1960. Mrs Young alleged, in her proceedings, that unlawful - her counsel says (subs 9.6.11, par 10) " manifestly illegal " - work was done by the respondent at/on both properties, and attacked (1) conditions imposed upon, and breaches of the notification of, a development consent (2001/1382), and (2) a construction certificate, both of which were granted to the Kings.

1. The " vacate " NOM has been framed in various alternative ways since the first version was filed on 23 May 2008 , and has been the subject of intense disputation and comprehensive attempts at case management, indeed more than twenty mentions and directions hearings, since it first came before me on 26 March 2009 . Two alternative formulations of the NOM were filed in court on 16 June 2011. Both versions seek:

(1)an order vacating McClellan J's order of 19 February 2004 (as varied on 8 March 2004?) " dismissing these proceedings ";

(2)an order relisting the class 4 proceedings " for directions ";

(3) an order that the respondents pay the costs of the motion on an indemnity basis; and

(4) a declaration in respect of " the applicant's subsisting rights to seek further relief or alternative relief generally ".

1. In addition, one version seeks orders granting the applicant's expert surveyor, and an expert plumber or other suitable expert, access to the respondents' land pursuant to UCPR 23.8.

1. There are still before the court several other " loose ends " that will require attention after this NTP dispute is determined, and before the " vacate " NOM comes on for hearing.

Pleadings relevant to the NOM to vacate

1. In adjudicating on the appropriateness of a NTP, the court normally has regard to the relevant pleadings, and not to any evidence filed in support of them.

1. The relevant " pleading " by the applicant of her case in support of upsetting the 2004 orders has continuously " evolved ". This court presently has before it:

(a)   The two alternative revisions of the applicant's " vacate " NOM just referred to,

(b)   The latest version of what has been called her " Grounds " document (" Grounds of Application to Set Aside Orders "), i.e. the version dated 18 October 2011 , and

(c)   A voluminous " Nature of the Case Statement " filed on 27 January 2012 , which outlines the applicant's complaints against all players in these and all other potentially relevant proceedings. It comprises 520 paragraphs on 173 pages.

1. The applicant has reserved the right to amend both the " Grounds " and " Nature " documents in the event of her obtaining access to the documents she now seeks to have produced. Her counsel has also indicated that some changes will be made to reflect changes underway regarding the pleadings in other proceedings.

1. I also note that, in the meantime, some particulars of the " Grounds " document have been sought and provided, but the respondents have reserved their right to make further requests once the " Grounds " and " Nature " documents are finalised.

1. The present dispute about the NTP has to be viewed in a historical context which I will now seek to explain.

The orders made by this court on the primary matter

1. The 2004 orders were originally made on 19 February 2004 , partly by consent, following a settlement agreement which involved the substantive class 4 proceedings being dismissed on the basis of an undertaking given by the respondents. McClellan J, heard argument on costs, and then pronounced (at [91]) the following orders :

1. I note the undertaking of the respondents provided in the document which I have initialled and dated and placed with the papers

2. By consent of the parties, the proceedings are dismissed.

3. I order the respondents to pay the applicant's costs.

4. I reserve liberty to any party to apply generally.

1. The formal orders as subsequently entered and issued by the Registrar (on or about 2 March 2004 ) were in the following terms:

The Court orders that:

1. Application is dismissed.

2. The respondents to pay the applicant's costs.

3. Liberty to apply generally.

4. Note the undertaking of the respondents.

1. On 8 March 2004 , His Honour, on the respondents' motion, but with Mrs Young's consent, made the following further orders (as recorded in typewritten " Associate's Notes " contained in the archived court file, there being no note of them on the court file cover):

1. Undertaking given to the court is, with the leave of the court, withdrawn.

2. Note Respondents' undertaking to the court in accordance with the amended form of undertaking which I have today initialled and dated.

3. Reserve liberty to either party to apply . (emphasis added)

1. The undertaking given on 19 February had said:

The Respondents undertake to the Court to:

1. Carry out the works identified in Exhibit A within 21 days.

2. Lodge a development application with Warringah Council for the erection of a retaining wall on the boundary between number 35 & 37 Calca Crescent, that wall to include the drainage works referred to in clause 1 above. That development application is to be lodged within 21 days of the date of this undertaking. The Respondents are to make all reasonable endeavours to progress the development application through Council. The Respondents are to complete the retaining wall works within 21 days of the granting of development consent by the Council.

1. The " amended undertaking ", dated by His Honour " 8 March 2004 ", was in the following terms:

The Respondents undertake to the Court to:

1. Carry out the works identified in Exhibit A within 21 days of granting of development consent by Council or by the Court .

2. Lodge a development application with Warringah Council for the erection of a retaining wall on the boundary between number 35 and 37 Calca Crescent, that wall to include the drainage works referred to in Clause 1 above. That development application is to be lodged within 21 days of the date of this undertaking.

3. The respondents are to make all reasonable endeavours to progress the development application through Council.

4. The Respondents are to complete the retaining wall works within 21 days of the granting of development consent by the Council or by the Court . (emphasis added)

1. There was no change made to Exhibit A as those orders moved from the February version to the " final " March version. The original exhibit was apparently authored by one geotechnical expert involved in the hearing and a conclave of experts, Mr Warwick Davies, and is among the 2004 court papers. Copies have been annexed to the two earlier judgments in the matter, and the document lies at the heart of the ongoing dispute. I have asked the parties to agree upon a totally intelligible text of it - that is one of the " loose ends " which require the parties attention ([9] above).

Rival contentions regarding the settlement which lies behind those orders and that undertaking

1. Put shortly, the applicant now says that the undertaking was acceptable to her at the time of the settlement, on the basis of a representation made to the court that there was entirely adequate drainage on the Kings' side of the boundary, but that the undertaking can now be shown to have been, and remain, really " illusory ", or a " sham ".

1. She also says that the settlement is tainted by " unconscionable conduct ", implicating, in various ways, the respondents, the lawyers and experts on both sides at the time, the experts involved later, and possibly Warringah Council (and perhaps also its advisors). She alleges that, although she was heavily dependent on competent advice, her legal advisors acted in the interests of the Council, to the benefit also of the respondents - the agenda of the Kings became the agenda of the Council and was facilitated by the applicant's then solicitor. The Council's solicitors " puppeteered " the proceedings in this court, despite the applicant's solicitor advising her not to join the Council as a party to them.

1. She also says that the orders are infected by error(s) in the " expert conclave " process, which took place during the February 2004 hearing. As a result of illegal works by the respondents, causing further complex drainage complications, the applicant's house is in danger of collapsing - Mr Newell, the applicant's counsel, told the court that there is a 60% chance of that occurring within ten years (T16.6.11, p8).

1. Essentially, the applicant contends:

(1)   that an attempt was made to orchestrate a situation which would permit Council to:

(a) legitimise the respondents' illegal granny flat, and

(b) order that there be a drain put on the applicant's land , rather than make that the responsibility of the respondents to resolve, and

(2) that the respondents, the Council, and lawyers and experts on both sides colluded in some way - the term " a Swiss Watch conspiracy " has been used - to " trick " her into that outcome, and ultimately deprive her of her land, at an under-value.

1. The respondents say simply that they made " all reasonable endeavours " to honour the undertaking, but that the development application ('DA') they lodged with Council, in accordance with the undertaking, was " scuttled " by the applicant's refusal to consent to it.

1. Mr Newell said on the applicant's behalf (T5.10.11, p13, LL17-20):

"Our position is very simple. We say the undertaking was a sham and that is revealed by what happened after ... The Council's consideration of it was a manifest sham. The DA was a grotesque sham".

1. According to the applicant, the respondents' purpose was to legitimise their knowingly illegal granny flat - the drain to go on the applicant's land would drain Kings' land, allowing a building certificate to be issued for the granny flat and other structures, thus far illegal. Mrs Young would derive no benefit, but would carry the burden of costs involved, and be left without a remedy.

1. The respondents reject all accusations of " collusion" or "conspiracy ", and the allegation that they were " the primary architect of an orchestrated prolonged fraud, leading up to the creation of what is said to be a sham undertaking " (T24.02.12 p34, LL2-3)

Proceedings taken in the aftermath of the orders

1. In the aftermath of those 2004 orders, the applicant:

(1)   commenced (in July 2007 ) District Court proceedings against the Kings and Warringah Council,

(2) filed (in May 2008 ) her original NOM in this court seeking to set aside the 2004 orders, and

(3) commenced (in February 2010 ) Supreme Court proceedings against her 2003-04 lawyers and her then key water expert (Dr Perrens).

1. The respondents have also commenced Supreme Court proceedings, against their lawyers of the time (Pike, Pike and Fenwick, as the firm was then known - " Pikes "), seeking " damages for breach of retainer, negligence, and misleading and deceptive conduct ".

1. This regrettable multiplicity of current proceedings has complicated this court's management of the " set aside " matter before it. For example, the intended hearing of the respondents' NOM currently under consideration in regard to the NTP was delayed from 16 June 2011 until 24 February 2012, because of many of the " loose ends " involved in the case. (Sorting out in due course the burden of the huge costs generated across the three courts will be a challenge in itself, and this court is ever alert to its responsibilities under sections 56-60 of the Civil Procedure Act 2005 to move inexorably towards a " just, quick and cheap " resolution, such that " the cost to the parties is proportionate to the importance and complexity " of the matter).

1. On 22 July 2011 , McDougall J refused the applicant (as plaintiff in both matters) an order removing the District Court Matter into the Supreme Court, at least not until the application to this court has been finalised ([2011] NSWSC 793, at [5]-[10]).

1. On 12 August 2011 , Curtis DCJ stayed the District Court proceedings which the applicant currently intends to amend to contain 19 prayers for relief, which would include mandamus, injunctions, an order for an easement, orders setting aside Council's consent and construction certificate, damages, costs and interest.

1. The Supreme Court proceedings are currently before Garling J for case management and interlocutory consideration. So far as this court is aware, those proceedings seek damages in tort, contract, and under the Fair Trading Act 1987, plus orders for restitution and equitable compensation. This court has been told that the applicant intends to amend her Statement of Claim in those proceedings as well.

1. Some proposed changes in either or both of the Supreme and District Court matters will involve s121A of the Water Act 1912, which Mr Newell now suggests will be of " fundamental significance to this case ". That section makes it an offence to " interfere with sub-surface water or obstruct its flow ", without the written permission of the relevant Ministerial Corporation. The applicant alleges that the excavation and the building works done by the respondents may involve breaches of that section by them and/or Council (T24.02.12, pp16, and 21-22).

1. On 31 July 2009 , I referred to a distinguished mediator the questions then before this court . In my reasons supporting orders for that referral ([2009] NSWLEC 125), I recounted a fair amount of the background to the applicant's attempts since 2008, with new legal representation, to have the subject orders set aside and the substantive case reopened.

1. Regrettably, the mediation did not succeed and the matter returned to my list on 15 March 2011 . The mediation referral order made on 31 July 2009 is still on foot; further mediation remains a possibility, but is not currently under active consideration. The appointed mediator, the Hon Mahla Pearlman AO has passed away in the interim.

The grounds of the applicant's challenge to the orders of this court

1. The grounds outlined at length in the 18 October 2011 version of the applicant's " Grounds of Application to Set Aside Order s" document may be briefly summarised as follows:

(1)   Any agreement or purported agreement represented by McClellan J's orders was made by the applicant's legal representative without her authority, and without consulting her, and in breach of an express limitation on the authority she gave them in her cost agreement.

(2)   The orders made by McClellan J were entered on or about 2 March 2004 " irregularly ", as they do not conform to the orders His Honour pronounced on 19 February 2004, and are alleged not to reflect his intention in making them, namely that, pursuant to liberty to apply, the applicant would be able to seek an appropriate remedy if the work the subject of the respondents' undertaking was not performed, or could not be performed, or if for some other reason, a remedy was necessary in the interests of justice.

(3)   Any agreement or purported agreement formally represented by His Honour's orders and each of them, is void for uncertainty. (Four particulars are provided concerning drainage matters, and the retaining wall required by cl 2 of the undertaking).

(4)   The underlying agreement is void by reason of common mistake, in that the subject matter of the agreement was a purported solution, proposed by experts, to the drainage problems on No 35 Calca Crescent, caused by the unlawful works performed by the respondents, whereas in fact, no such expert solution was ever proposed by the expert conclave, and Exhibit A did not indicate a solution to the drainage problems on No 35.

(5) The underlying agreement is void by reason of common mistake, in that its subject matter was the disconnecting of the upper drain from the stormwater system draining to the street, and taking that upper drain to the rear of No 37. (Reference is made in this ground to a letter from the expert Springett to Pikes, dated 5 January 2004).

(6)   The underlying agreement is void, or liable to be voided, for common mistake, or, in the alternative, unilateral mistake, and/or, in the alternative, is impeachable by reason that it is the consequence of the fraudulent or male fides conduct by the solicitor and/or counsel for the applicant. (Detailed particulars are included, one of seven being an allegation of male fides or fraud in the breaching or purported breaching of the underlying agreement).

(7)   The underlying agreement is liable to be set aside in equity, insofar as the respondents knew, or were on notice of facts that would lead a reasonable person to know, that the applicant's lawyers were intentionally acting contrary to her interests, or were acting in the interests of another party. The applicant was at a special disadvantage for the purposes of the underlying agreement, in that she was manifestly in need of, but was not receiving, disinterested legal assistance and advice for the purposes of conserving her interests in connection with the making of the underlying agreement.

(8)   The underlying agreement is void in that it is illegal, or can be performed only in an illegal manner. (Particulars are given, largely asserting that the work the subject of Exhibit A would require the granting of consent, a consent which could never lawfully be granted in the circumstances).

(9)   The underlying agreement is void in that it is and was at all material times impossible to perform. (Again very detailed particulars are provided).

(10)   Further, or in the alternative, the underlying agreement is void or voidable, in that the agreement or purported agreement, if any, was predicated upon knowingly false representations made by the respondents. (The particulars given refer again to the January 2004 Springett letter, and to possible male fides or fraud upon the applicant, by her then solicitor and/or counsel).

(11)   The applicant did not obtain any benefit from the underlying agreement, in that the respondents did not advance, in good faith, the DA the subject of the undertaking. (For particulars the reader is referred to an annexure to the " Grounds " document. That annexure has been the subject of much controversy during case management as it was based upon a since withdrawn contempt charge by the applicant against the respondents).

(12)   The respondents did not intend, when giving the undertaking, to comply with its terms in good faith, in that, as disclosed by the Springett letter, the respondents had no such intention of performing the works the subject of the undertaking. A possible alternative ground based on the uncertainty of the agreement is also included in Ground 12.

(13)   The consent the subject of the class 4 proceedings (consent No 1382) is fatally and fundamentally flawed, on a number of grounds, of which particulars are given.

(14)   To permit the consent to remain in place has implications for the community, beyond the private interests of the applicant and the respondents, in that the " environmental problems caused by the works " may have impacts on other parties, and consent 1382 is calculated to mislead subsequent purchasers of, or stakeholders in, No 37 Calca Crescent.

(15)   The applicant relies generally upon the court's inherent or implied power to set aside final orders, in order to prevent abuse of process, or injustice.

1. When the " Nature of the Case Statement " was filed on 27 January 2012, the applicant, pursuant to a direction of the court and an undertaking given in response to it, filed an executive summary of that statement which, for completeness, must be included in full:

1.The Kings purchased no 37 Calca Crescent, Forestville with the intention of illegally constructing a granny flat under their house.

2.They deliberately undertook the work without Council Approval for the purpose of constructing a granny flat and removing subdivision drainage.

3.Their plan was to shift the drainage burden resulting from the illegal works and removal of a sub-division drainage system to the Applicant or her property. This would require her to construct a drain to Starkey Street and to obtain an easement for that purpose at tremendous expense.

4.The evidence shows that the Kings colluded with Council from an early stage (2001) resulting in the Applicant's complaints being ignored and her land being left unsupported.

5.The Kings destroyed evidence of an antecedent sub-division drainage system and fabricated evidence of build up of fill on the applicants land. The intention to fabricate this evidence is part of their logic in undertaking the works initially without an approval.

6.The Kings could not drain their land following the illegal works so they colluded with council in a plan to assert that the sub-division drainage system worked such that the Applicant's land was burdened with a drainage for the benefit of their lot no. 37.

7.The Kings sought to get the Applicant to give a consent to her land for the purposes of a DA to build a fence - that DA would have given the Council the power to investigate and find that the applicant had to construct a drain on her land.

8.The Council granted a Consent 1382 which was improper on numerous grounds and was invalid.

9.The Council framed the Consent with a view to later giving a building certificate when circumstances could be contrived so that suitable drainage could be paced (sic) on no. 37.

10.The Applicant consulted solicitors with a view to obtaining support for her land.

11.The solicitors failed to join the Council and generally conducted the proceedings in the interests of the Council which by now was committed to orchestrating a drainage system on the Applicant's land.

12.In particular, the solicitors contrived to manage the issues in the case so that the removal of sub-division drainage by the Kings and its impact was air brushed out of consideration during the proceedings.

13.The Respondents knew what the solicitors were doing and the purport of their agenda. They accordingly knew that the Applicant was not obtaining proper advice, was obtaining and largely dependent on improvident advice and was accordingly in a position of special disadvantage.

14.The case came to Court in February 2004 without the Respondents proposing any plan to deal with the consequences of their excavation and without the Applicant's solicitors having enquired as to the existence of an outlet on the Kings' land.

15.The solicitors settled the matter at Court without instructions by and without consultation with the Applicant. The settlement was based on an undertaking by Kings to lodge a DA for a retaining wall (for which they already had consent). The settlement was justified by reference to the work of a conclave of experts which produced a document called Exhibit A.

16.Exhibit A proposed a very limited set of works and in particular the lowering of a 65 mm drain to the footing zone of a partially built retaining wall approximately on the boundary.

17.Exhibit A works could not have ever been implemented and the evidence shows that there was no bona fide intention of implementing them.

18.The settlement required the lodgment for a DA but suspiciously permitted King to deny that he was responsible for the excavation and therefore for the drainage of the land.

19.The Applicant's lawyers, the Council and the Respondents all understood that the footing which was subject of the undertaking would be demolished immediately following the trial.

20.They also expected the Council to find an alternative system on the Applicant's land based on the manner in which the matter had settled and the need in the circumstances to drain the land.

21.Plans were put forward by the Kings for the purposes of the DA which contained contrived ambiguities to make the applicant think that the undertaking was being complied with when it was being undermined by a proposal for demolition of the footing on which the undertaking was based.

22.The Council and the Applicant's lawyer colluded to conceal from the Applicant the purport of the drawings.

23.The removal of the footing, on which the undertaking was predicated was a concomitant of the placement of a drain on the Kings land so that the removal was predicated upon the assumed insinuation of a drain on the Applicant's land.

24.Considerable efforts were made to obtain the Applicants consent to an amended DA involving her land in order to empower the Council to investigate her land but in the event that was not obtained.

1. The applicant has made clear, during recent hearings, that the " Nature of the Case " Statement did not supplant the " Grounds " document, and should be seen as more in the nature of particulars of some of the grounds. The " Nature " documents also give some detail of the grounds of her claims against all the parties to all her proceedings across the three courts.

The challenge to the applicant's Notice to Produce

1. Production of documents on subpoena or in response to a NTP will not be required or enforced by a court unless the subpoena or NTP has what is regularly called " a legitimate forensic purpose ". (See NSW Commissioner for Police v Tuxford & Ors [2002] NSWCA 139).

1. In seeking to have struck out in this case the applicant's NTP, the respondents' counsel, Mr Wright, relies upon two affidavits sworn and filed by their solicitor, Terence Stern (on 18 and 24 May 2011), and some additional correspondence exchanged between him and the applicant's solicitor Leonardo Muriniti. Those gentlemen have conduct of their respective clients' proceedings in all three courts.

1. Stern has always contended that the NTP (and an identical one served, but later withdrawn, in the District Court proceedings) was, and is, a " fishing trip ", and so an " abuse of process ", as the issues in the Kings' Supreme Court matter are completely different from those in either the District Court or Land and Environment Court ('LEC') matters, and the NTP seeks " information which does not even have tangential relevance " to the LEC proceedings. He went so far as to describe the NTP as " scurrilous " (affidavit 18 May 2011, p21).

1. In court on 23 January 2012, Mr Newell indicated that he may reconsider whether to press for the documents (T23.1.12, p4, LL12-13), but his position later firmed, as did the respondents' stance that they have " no relevance ". A request by the respondents that the applicant indicate where in the " Nature of the Case " Statement one could find the allegations against the Kings, to which the documents sought to be produced would be relevant, remains unanswered, with the applicant relying simply on what Mr Newell put in his submissions.

1. Both sides filed written submissions shortly after the " strike-out " motion was filed, and adhered to, and supplemented, them at the eventual hearing of it on 24 February 2012. It was agreed that the court could have regard to the " Nature of the Case " Statement, and not just the executive summary of it, as the need arose, and could call for the documents listed in the NTP if I felt the need to see them before determining the strike-out motion.

1. In accordance with the usual approach taken by the courts, I determined that I should not consider, on the " strike out " motion, any of the affidavits sworn by the applicant or the two experts named Davies, Warwick and John/Jack, as admissibility of some of their contents would be disputed at the eventual hearing of Mrs Young's NOM to set aside the 2004 orders and reopen the substantive proceedings.

1. The applicant contends that the instructions the respondents gave their lawyers in 2003-04, and the reasons they are now suing them, would " shed light on critical issue[s] " remaining between the parties, namely:

(i) How did the agreement and undertaking come about, outside the official court record?

(ii) What was the respondents' state of mind as it impacted on the giving of the undertaking?

(iii) What level of knowledge did the respondents have of any mistaken beliefs on which the applicant apparently relied (allegedly as a result of her lawyers acting " manifestly against her interests " - Newell subs, 9.6.11, par 12)?

1. The applicant relies upon the letter from the expert Springett to Pikes, dated 5 January 2004, to which the applicant refers in several of her " Grounds " (see [38] above), as evidence proving that the respondents' undertaking was a sham.

1. I turn, therefore, to set out the principles established by the authorities, before I turn to consider the respective submissions of the parties.

The Principles

1. There is little disagreement between the parties about the relevant grounds upon which a court will set aside a subpoena, or a NTP, but the court needs to review the authorities in a search for guidance on how to apply the established principles to these particular circumstances.

1. Put simply, as mentioned above ([41]), the party seeking production of documents bears the onus of establishing that they are required for a legitimate or " proper forensic purpose ", i.e. they have a high probability of proving to be " relevant " to the " main case ", and may materially assist in the resolution of the issues in that case.

Setting the 2004 orders aside

1. The " main case " presently before this court is not the original class 4 challenge, but whether the " final " orders made by the court eight years ago, largely by consent, should be " vacated ". That being so, it is appropriate to note at this point that such " setting aside " questions are now covered by Rules 36.15 and 36.16 of the UCPR, which I now set out for completeness (emphasis added):

36.15 General power to set aside judgment or order

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if:

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

...

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

1. I had cause to examine those rules, and other relevant powers to set aside or vary the court's orders, in Teoh v Hunters Hill Council and Anor (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 - see, especially, pars [43]-[61], [103]-[104], [110]-[111], and the cases cited therein.

1. The principles I there stated have not been questioned elsewhere, and will be reviewed in terms of this matter when the applicant's NOM eventually comes on for hearing.

The Relevance Test for the NTP, in general terms

1. The test, in cases such as this, of the relevance of documents sought by NTP or subpoena which the court is asked to set aside, is well articulated in the major authorities.

1. The classic statement of the test is generally said to be found in the judgment of Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors ("Arnotts") (1989) 88 ALR 90; (1989) 21 FCR 306, at 103 of the ALR report. According to Arnotts , the correct questions for the court are (emphasis added):

Does the material sought have an apparent relevance to the issues in the principal proceedings, ie is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? ... Is the subpoena seriously and unfairly burdensome or prejudicial ? ... The test of adjectival relevance is satisfied if the material has apparent relevance .

1. His Honour concluded (also at 103, with emphasis again added) that the test was satisfied in that case because the documents sought " could possibly throw light on the issues in the main case ".

1. The use of the word " possibly " in His Honour's finding has been said, by Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation ('Cosco') (1997) 37 ATR 43 at 439, to mean that:

The material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made. (emphasis mine).

1. Brereton J noted in Portal Software International Pty Ltd v Bodsworth (" Portal ") [2005] NSWSC 1115, at [22], that it had become clear by that time that absence of apparent relevance is a sufficient ground to set aside a subpoena or a NTP. Where it is asserted that there is an abuse of process, " some onus would lie on the person contending that ... to make that allegation good " (at [28]), but where the question of relevance is raised it must be shown by the party issuing the notice rather than refuted by the producer (at [29]).

1. In ICAP Pty Ltd & Ors v Moebes & Anor ('ICAP') [2009] NSWSC 306, Nicholas J agreed with the construction adopted in Cosco , and in an unreported judgment in McLaughlin v Dungowan Manly Pty Ltd (' McLaughlin ' - NSWSC 4924/06) on 14 July 2009, Ward J agreed with Nicholas J.

1. Ward J also noted (at [28] of McLaughlin ) that Nicholas J had expressed caution in ICAP about application of a test of " legitimate forensic purpose " which incorporates phrases like " on the cards " or " could possibly throw light on ", but that Beazley JA (in Attorney-General (NSW) v Chidgey ('Chidgey') [2008] NSWCCA 65; (2008) 182 A Crim R 536) had found no reason to depart from the test or from the language adopted by Gibbs CJ in Alister v R ("Alister") (1984) 154 CLR 404. I will return to Alister and Chidgey . (See below, at [71] and [85] respectively).

1. Ward J noted (at [32]) that Nicholas J had stated the test (in [30]), in civil proceedings, in terms that (emphasis added):

It must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will.

1. Her Honour then observed (at [33]):

That requires a consideration of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena.

1. All these cases, and others, need to be reviewed again, as they were by Craig J in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110, where His Honour said, at [20]-[21]:

20. A consideration of the arguments advanced before me on 28 May indicated that the Subpoenas and Notice were framed in terms that did not enable it to be positively established that a legitimate forensic purpose was served by the Subpoenas and the Notice (Commissioner for Railways v Small (1938) 38 SR(NSW) 564; NSW Commissioner of Police v Tuxford [2002] NSWCA 139; Travel Compensation Fund v Blair [2002] NSWSC 1228). Whether such purpose is met in a given case will turn upon the connection between the issues raised in the proceedings and documents which are the subject of a subpoena or notice to produce. The requisite connection to be established has been variously described. Without intending to be exhaustive, it is apparent that a subpoena or notice to produce will be liable to be set aside where the party seeking production of documents cannot establish:

(i) that it is "on the cards" that the documents will materially assist on an identified issue: Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam [1999] NSWCCA 86 at [11]; Attorney-General for NSW v Chidgey [2008] NSW CCA 65; 182 A Crim R 536 at [58] - [69];

(ii) that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings: Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90 at 103; Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432;

(iii) that there is a reasonable basis for supposing that the material called for will likely add to the relevant evidence in the case: A v Z (2007) 212 FLR 255 at [4];

(iv) that it is likely the documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will do so: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494; ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307.

21. The principle was extensively discussed in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd. Tobias JA (in whose judgment Basten JA and Handley AJA agreed) considered at [22] the requirement for it to be shown that it is "likely" that the documentation sought will materially assist on an identified issue or the alternative requirement that there be a reasonable basis beyond speculation that it is likely the documentation will so assist was not relevantly different to a requirement that it be "on the cards" that the documents would materially assist on an identified issue. Importantly, all the tests, however stated, require identification of an issue or issues in the proceedings with some modicum of particularity which then becomes the measure against which the forensic purpose of the documents can be determined. It is that identification which must inform the requirement to produce the documents sought.

1. I embraced and applied Craig J's analysis in my recent decision in Quarry Products (Newcastle) Pty Ltd and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 2) [2012] NSWLEC 32, and I do so again. However, in view of the complexity of the present litigation, I think it desirable to elaborate on some of the authorities.

Historical review of the authorities

1. It is not contested that the same principles apply, in both civil and criminal matters, to setting aside a NTP (to a party), as to setting aside a subpoena (to a stranger): R v Saleam ("Saleam") [1999] NSWCCA 86, at [11]; Bailey v Beagle Management Pty Ltd (2001) FCA 50; (2001) 105 FCR 136.

1. In Commissioner for Railways v Small ("Small") (1938) 38 SR (NSW) 564, Jordan CJ stated the basic principle regarding abuse of process (at 575) in these terms:

"... a party is no more entitled to use a subpoena ... than he is a summons for interrogatories, for the purposes of ' fishing ', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all ..." (emphasis added)

1. In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd ("Fairfax") (1952) 72 WN (NSW) 250, it was said (at 254) that a party is not to be allowed to go on "... a 'fishing expedition', in the sense ... that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not ".

1. In Waind v Hill and National Employers' Mutual General Insurance Association Ltd ("Waind") [1978] 1 NSWLR 376, the Court of Appeal, per Moffitt P, said (at 382), after referring to Small :

... 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 [impermissible] purpose of 'discovery' ...(emphasis added)

1. In Kelly v Raymor (Illawarra) Pty Ltd ("Kelly") [1981] 1 NSWLR 720, a case involving a challenge to the validity of a resolution adopted by a board of directors of a company, McLelland J said (at 721-2):

... the validity of such a resolution can be legitimately challenged on the basis of mala fides or improper motives on the part of individual directors without whose participation the resolution would not have been adopted.

1. Alister concerned a subpoena issued to ASIO regarding an alleged investigation of the Ananda Marga by one Seary. The defence alleged that Seary's evidence was fabricated. The Attorney General of the Commonwealth argued that even to disclose whether or not the subpoena'd documents existed would prejudice national security. The trial judge set aside the subpoena. On appeal to the High Court, Gibbs CJ said (at 414-6):

Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.

...

The defence challenged the Crown case 'as a fabrication and a frame-up', and if Seary had made a report which showed that he had fabricated his evidence at the trial it would be dangerous to allow the conviction to stand. In all the circumstances of the present case the interest of the applicants to obtain any report made by one of the principal Crown witnesses on his investigation into the crimes charged is not outweighed by the public interest that would ordinarily require investigations by ASIO to be kept secret. Unlikely as it may be that any report would assist the applicants, I consider that we could not safely refrain from inspecting any report that Seary has made on the activities of the applicants. The subpoena in my opinion was too wide - I can see no reason to inspect all documents that may relate to any investigations made by Seary into Ananda Marga. We should in my opinion inspect all documents that relate to any investigation by Seary into the alleged crimes of which the applicants were convicted or into the activities of the applicants.

1. According to Ward J (in McLaughlin at [31]), Gibbs CJ considered that a less stringent test might be applied in criminal proceedings than civil. However, it has often been stated in criminal cases that an accused must establish that it is " on the cards " that the material sought will assist. The NSW Court of Criminal Appeal (per Simpson J) stated, in Saleam (1989) (at [11]):

The principles governing applications [for an order that documents be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (2) establish that it is 'on the cards' that the documents will materially assist his case.

See also Commonwealth v Northern Land Council (1991) 30 FCR 1 (at 37), Carroll v Attorney-General (NSW) ("Carroll") (1993) 70 A Crim R 162, and Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.

1. Arnotts was decided in 1989. (See [56]-[58] above).

1. In Carroll, Mahoney AP said (at 181):

... the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.

1. The cases refer to three stages in the process: (1) production of documents to the court; (2) the court's decision as to their inspection by other parties; and (3) the question of their admission into evidence.

1. Relevance or irrelevance is a key issue at the third stage, but was, in the past, not at the first stage, until Arnotts: see Portal at [19]. Where relevance is raised at the first stage, the issuing party has the onus of showing it. In the case of a subpoena, a non-party cannot always be expected to know what the issues in the case are so as to be able to demonstrate irrelevance: see Portal at [29], citing Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38.

1. Adams J in Roads & Traffic Authority of NSW v Conolly & Anor [2003] NSWSC 327; (2003) 57 NSWLR 310 appeared to reduce the test to one of " mere relevance ". His Honour said (at [12]):

.... it seems to me that the relevant "range" is therefore between the barely probable and highly probable. With respect, it seems to me that this area of the law is bedevilled with metaphors. I think the essential notion is that there is a reasonable chance that the material sought will assist the defence. If it is reasonable to infer that the material sought exists and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case (as it seems to me) that such a chance exists, even though it might be thought to be unlikely. Seeking that material therefore seems to me to be a legitimate forensic purpose, providing of course that the factual issues and the character of the material sought are precisely identified.

1. That " reframing " of the test has since been disavowed by Beazley JA in Chidgey , and by Ward J in McLaughlin .

1. Doyle v Australian Securities and Investments Commission (ASIC) ("Doyle") [2005] HCA 78; (2005) 227 CLR 18 was a case involving alleged improper use of position. Even though subjective intention or purpose was not a necessary ingredient in determining impropriety, and even though it did not concern a NTP, the case was put to Ward J in McLaughlin , which, a little like Alister , concerned a request for documents the existence of which was doubtful. Her Honour found them to be adequately described. (I say, respectfully, that Her Honour's survey and application of authority has proven most helpful to me in the present case).

1. Doyle was put to Her Honour in support of a submission that, " when looking at whether or not there had been an impermissible collateral purpose which was causative of the decision to proceed with the resolution " challenged in the case before her, " it is permissible to look at evidence of intention " (see [54]). The counter-submission put to Her Honour was that the only relevant question was what those supporting the impugned resolution had objectively sought to achieve by them. Subjective motives of one player cannot be relevant in impugning the collective actions of the company or board ([56]-[60]). Ward J referred to Kelly (quoted above at [70]), and held (at [64]) that:

Accordingly, while there is no personal action against Mr Garratt in the present proceedings asserting a breach of duty by reason of his acting for an improper purpose, evidence shedding light on the issue whether he acted for an improper purpose may well be relevant to the question whether the resolution of the board itself was so motivated ... For present purposes I am not convinced that documents which may assist in ascertaining Mr Garratt's subjective motivation lack the requisite degree of relevance.

1. Portal was also decided in 2005. It was a decision of Brereton J, who has also written several other important judgments since then on NsTP and subpoenas, including Norris v Kandiah ("Norris") [2007] NSWSC 1296.

1. In A v Z (' AvZ ') [2007] NSWSC 899; (2001) 212 FLR 255, His Honour had explained the differences between the process of discovery and that of subpoena. His Honour said (quoted in Norris , at [3]) that:

...the touchstone of discovery is the concept of relevance to a fact in issue in the proceedings, whereas subpoenas for production are not necessarily limited to documents relevant to a fact in issue, but may extend to documents relevant to credit.

1. In the context of UCPR 21.10, which had been considered by Young CJ Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182, Brereton J said (in Norris , at [4]):

The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by [Young J]... the rule was not intended to subject a recipient to any kind of general discovery obligation. The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required.

1. Brereton J continued (in [5]):

In my view, this notice does not clearly identify specific documents, but calls for classes of documents. It was not the intent of this rule to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. Accordingly, in my view, this notice is not a valid exercise of the power to serve a notice to produce under r 21.10, and I would set it aside on that basis.

1. Chidgey was decided in 2008. It concerned pursuit of documents to assist a defendant in arguing that some evidence against him had been " improperly or illegally obtained ". The magistrate found an alternative " legitimate forensic purp ose". In the Court of Criminal Appeal, Beazley JA applied the principles from Small, Saleam, and Alister, in a thorough review of authority (at [58]-[80]), and concluded (at [84]-[87] - her emphasis):

84 Notwithstanding that the subpoena sought documents that were identifiable, I am of the opinion that the legitimate forensic purpose identified by the Magistrate amounts to no more than a proposition that the respondent was entitled to engage in a "fishing expedition" to ascertain whether there had been compliance with s 5(2A). That is apparent from the terms in which the Magistrate identified the forensic purpose. There was no material before the Magistrate to indicate that there had been, or might have been, non-compliance with s 5(2A).

85 This is acknowledged in his Honour's comment that there should be access to the documents to enable the respondent to check whether there had been compliance with s 5(2A). In other words, the Magistrate identified the legitimate forensic purpose in terms that meant the respondent needed to have access to the documents "to discover whether he has a case at all": see The Commissioner for Railways v Small at 575. As Jordan CJ stated in that case, a party is not entitled to use a subpoena for that purpose.

86 This was not a case like, or analogous to, the example given in Alister where an important witness had given a pre trial report so that it could be said that it was "on the cards" that the document "would materially assist" the respondent by permitting cross-examination of the witness based on the earlier report. Nor was it a case like that which Hunt J had dealt with in Saleam, where there was some evidence that there was a problem with the evidence given at trial and the material subpoenaed may have revealed whether that was the case. Here, there was no suggestion that the police witnesses had made earlier statements that should be available for the purposes of cross-examination. Nor was there any suggestion whatsoever that there was any failure to follow correct procedures, or that any wrongdoing had been engaged in. In short, there was nothing at all to suggest that it was "on the cards" that the subpoenaed material would "materially assist the respondent's case".

87 It follows, in my opinion, that the Magistrate erred in law in allowing access to the material referred to in para 3 of the Schedule to the subpoena.

1. ICAP , both at first instance and in the Court of Appeal (See [93] below), were decided in 2009.

1. Brereton J delivered another relevant judgment in 2009, prior to Ward J's decision in McLaughlin , namely Liristis v Gadelrabb ("Liristis") [2009] NSWSC 441, a case in which the plaintiff sought specific performance of an alleged oral contract of sale. Questions of credit were involved, and the defendant issued a subpoena to the Commissioner of Police seeking the criminal records of both the plaintiff and his father, and the plaintiff argued abuse of process, and absence of a legitimate forensic purpose.

1. His Honour observed (at [5] - emphasis mine):

I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit. It is true that in Fried v National Australia Bank (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but that is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of "trawling" in this context is the same as that of "fishing ". It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is "on the cards" that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.

1. There was evidence, and " ample reason to suppose ", that there may be criminal records relevant to dishonesty and/or perjury on the plaintiff's part, but no evidence " nor any reason to suppose ", that there might be any regarding his father. So, there was " a legitimate forensic purpose " for seeking the son's records, but the part of the subpoena referring to the father was " nothing more than a fishing expedition to see whether any such documents are in existence ". It could not " be sustained ", and was set aside.

1. Whereas Brereton J hinted, in the passage quoted above (in [88]), that there may be a distinction drawn between " trawling " and " fishing ", depending upon context, and whereas Fairfax referred to dragging a pool (see [68] above), Ward J in McLaughlin (at [74]) noted submissions made to her, contrasting impermissible " trawling " and permissible " line fishing ", and concluded ([93]) that the subpoena in that matter was issued for a legitimate forensic purpose, and was not " an oppressive fishing (or trawling) expedition ".

1. Four days prior to Liristis , Nicholas J had given his first instance decision in ICAP (see [60] above), in which His Honour reviewed the authorities, and stated the relevant test (at [30]) in the following terms (already quoted above, at [62]):

... it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will .

1. His Honour concluded (at [45]) that the subpoena was based on speculation, and its "true purpose " was " fishing ", to see if the documents " might permit a case to be made " that the plaintiffs loss of market share and revenue was caused by work done by departing employees for a rival company in breach of their contracts, not a " legitimate public purpose " ([47]-[48]).

1. ICAP was appealed to the Court of Appeal - ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307. The judgment of that court was given by Tobias JA, who noted that the appellant contended that Nicholas J's formulation of the test (at [30], quoted above at [62]) was in error. Tobias JA responded (at [13]) by reference to use of the terms " on the cards ", " materially assist " and "likely " in leading cases like Alister and Waind , and by reference also to AvZ , Saleam, Chidgey , and some UK cases. Tobias JA's remarks indicate to this court the importance of carefully considering all the authorities for " shades of meaning ". He found no error in Nicholas J's reasoning or conclusion.

1. A month before the ICAP appeal, Barrett J applied the principles from AvZ in Patonga Beach Holdings Pty Ltd v Lyons ("Patonga") [2009] NSWSC 869. His Honour set aside a NTP given by the defendants to the plaintiff under UCPR 21.10, and granted them leave to serve a varied NTP, under Rule 34.1. In so doing His Honour analysed and contrasted the two rules which, for completeness I set out:

21.10 Notice to produce for inspection by parties

(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:

(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.

34.1 Notice to produce to court

(1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner:

(a) at any hearing in the proceedings or before any such examiner, or

(a1) at any time fixed by the court for the return of subpoenas, or

(b) by leave of the court, at some other specified time,

any specified document or thing.

(2) The other party must comply with a notice to produce:

(a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or

(b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.

1. His Honour found (at [11]-[15]), after considering Norris (above at [81]-[84]), that a Rule 21.10 notice may relate only to a " document described by means of characteristics peculiar to itself, such as a letter of a given date written by X to Y ," and not to, for example, " all letters written by X to Y in 2008 ". On the other hand, a Rule 34.1 notice plays the same role in relation to a party as a subpoena plays in relation to a non-party, and so can call for " all letters...", but cannot be "discovery ". His Honour quoted Small - the documents required to be produced must be " specified with reasonable particularity ".

1. It is to be recalled, in the context of Patonga , that the NTP challenged in the present matter was issued under Rule 34.1.

1. Azar was decided in 2010. I quoted above (at [64]) what are, for me, the key sections of Craig J's judgment. His Honour noted (at [14]) that the NTP challenged before him was given pursuant to Rule 21.10.

Submissions

1. Mr Wright submits (at pars 18 and 20):

18.The proceedings commenced by the Kings against their former legal advisers have no apparent relevance to these proceedings. Simply because the applicant here has now chosen to bring proceedings against her former advisers and experts does not make relevant any claim the respondents may have made against their former advisers. The documents sought by the notice to produce could not possibly shed light on the (ever changing) allegations made by the applicant here in support of her application to set aside the 2004 consent orders.

...

20. The purpose of the notice to produce is self evidently to give access to the applicant's legal advisers to the documents sought in order to enable them to ascertain whether they might gain assistance from them in support of the applicant's application to set aside the orders. That is plainly fishing.

1. In his oral submissions, Mr Wright speculated about whether the applicant might want the documents in case she might find some basis for her to make a case against Pikes as well, given that the respondents are unable to show how the documents could shed light on the applicant's scenario of a conspiracy involving the other parties she has already sued.

1. On the other hand, Mr Newell concedes that he must establish a " proper forensic purpose ", and submits (in pars 4, 5, 6, 7, 8, 9, 16, and 17):

4.The question whether the documents sought under the Notice to Produce directed to the Respondents are 'relevant' is not assisted by examination of the question whether the claim by the Respondents is a professional negligence claim on the one hand and the Applicant maintains proceedings in the Land & Environment Court on the other.

5. It is more useful to consider at (sic) the actual issues in both proceedings without regard to labels. It is useful to catalogue some of the actual issues on which the Motion for Variation turns: Those include (but are not limited to):

a. The understandings, knowledge and beliefs which caused (or upon which the Respondents relied) in offering the undertaking or reaching agreement generally;

b. Whether the undertaking was able in fact to be implemented by reason of the existence for example of an outlet;

c. Whether the undertaking was in fact a solution to the problem the subject of the proceedings;

d. Whether the undertaking was given in good faith by the Respondents.

6.... In the circumstances, it is readily to be inferred that the vehicle of loss which informs the Respondents' complaint is the set of obligations or limitations with which the Respondents might claim to be fixed by reason of the Final Orders themselves.

7.Moreover, it is in the nature of a claim against a solicitor that the client asserts a misguided understanding which, but for the solicitor's default, (in advising badly or failing to advise) the client would not have had.

8.In those circumstances, it is readily to be expected that the claim against the Solicitor would traverse some at least of the issues set out above. More than probably, that claim would involve consideration of the Respondents' knowledge and beliefs in the same way as would an examination of the issues of res extincta, unilateral mistake and common mistake. In complaining about an outcome based upon the undertaking (incorporating the 'Exhibit A' works) the Respondents would almost certainly deal with their understandings or beliefs which purported to lead to the putative compromise agreement ('the Agreement').

9.Those matters would inform the questions whether the Agreement was based upon a misunderstanding by the Respondents.

...

[Pars 10-15 speculate about the Respondents' dealings with Pikes and the basis of their action against them].

16.It is unlikely that the Respondents would have the audacity to make a claim against their solicitors arising out of the Final Orders in circumstances that the proximate cause of the Final Orders was a sham undertaking for which the Respondents acknowledged essential responsibility. It is more probable that the Respondents would, in one form or another, seek to explain away the sham as a third party's responsibility. That, in the known circumstances, would most probably be the responsibility of their solicitor. For the purposes of the claim, they would most likely rehearse the state of mind with which they gave the undertaking.

17.Insofar as the claim does not seek to explain away the apparent sham, the claim necessarily provides evidence in respect of an important issue raised by the Applicant - namely, that the undertaking was not given by the Respondents in good faith.

1. Mr Newell, in his oral submissions (at T24.02.12, generally pp17-24), doubted that Pikes would have given advice to Kings to inform their immediate reaction, on the Anzac Day weekend in 2003, to the commencement by the applicant of her class 4 proceedings. He pointed to no evidence of that, but the possible involvement of other advisors forms part of the complicated conspiracy scenario he is constructing - involving, for example, the construction of a footing with no intention to retain it, its construction in such a place and such a way that the necessary drainage would need to be on the applicant's land, and the Council's collusion in seeking to convince the applicant that the footing would remain so that she would accept that she should host the necessary drainage at her own (possibly extraordinary) expense, at least partly by denying any inappropriate excavation had occurred on the respondents' land.

1. The applicant's scenario has to rely on the hypothesis (articulated by Mr Newell at T24.02.12, p22, LL14-15) that the " basis facts ... show the inherent likelihood of a particular course of conduct ". Mr Newell presses the NTP on the basis (T p24, LL48-49) that " it is inherently probable that [the documents are] going to shed light on how ... the final orders were obtained ". The Kings would be expected to complain if/that they were " unwittingly involved in a sham ", and " that would clearly be relevant to the matters before the court in this application " to set aside orders (T p25, LL11-13). Mr Newell went on to speculate (T pp26-28) whether the claim made against Pikes concerns their failure to join the Council, to pursue the pre-trial suggestion of mediation (see McClellan J at [21]-[24], and [53]-[72]), or to investigate more thoroughly the arguments about drainage.

1. Mr Wright ridiculed (T p34) the suggestion that his clients would sue Pikes over whether they knew or did not know they were instigators of the " sham ". The applicant's arguments and allegations " repeatedly ... fall back on themselves " (T p34, LL8-9). Any far-fetched conspiracy to make a footing " disappear " from a Council file, not only might breach the State's corruption legislation, but is simply part of the applicant's strategy to fit allegations to a " case theory " constructed with her counsel (T p35, LL15-16).

Consideration

1. The claim for documents must be viewed against the pleadings to which their relevance is asserted (e.g. McLaughlin at [83]). Here the " pleadings " are the " Grounds ", amplified by the " Nature " documents. Among the allegations embracing the respondents in the wider conspiracy, Ground 10 charges them specifically with " knowingly false representations ".

1. The applicant was asked to identify where in the " Nature " documents the respondents and the court could find the allegations to which the NTP documents are said to be relevant, and, in reply, the respondents and the court were simply referred to the applicant's submissions (see [44] above).

1. The court has closely examined the " Grounds ", the " Nature " documents, the applicant's written submissions on the NTP issue, the transcript of the hearing on 24 February, and the notes and transcripts of the twenty odd occasions counsel for the applicant has had the opportunity to address the court to explain the applicant's case.

1. Much of what those sources contain has been quoted or summarised above. The action the respondents have taken against Pikes is obviously specific to their former professional arrangement, which would involve some privileged communications, and I am not persuaded that the necessary nexus, forensic purpose, or relevance have been established, such that the respondents should be required to produce the documents sought.

Conclusion

1. I accept the thrust of the respondents' submissions, the basic point of which is that the court should find that the subject NTP is an unacceptable " fishing " expedition to see if a case exists - it is " trawling " or " dragging " of the pond, not " line fishing " (see [90] above).

1. High Court and Court of Appeal decisions have set important restrictions and laid down clear principles, and I have surveyed many first-instance applications of those principles. You cannot compel production of documents to see if they may be relevant and/or of assistance. On any reading of the authorities, this NTP should be set aside, and I will so order.

1. The respondents sought an order for costs on an indemnity basis. I note that request, but will again reserve the question of costs.

1. The correspondence tendered at the hearing on 24 February ( Exhibit K1 ) should be returned to the respondents. A large number of exhibits from the court's consideration of the applicant's original " set aside " NOM, part-heard hearing from 2009, should remain among the court papers.

The way forward?

1. At the time I made the mediation order on 31 July 2009 there were four NsOM before the court, three brought by the applicant and one by the respondents. They were described in my judgment of that date ((No 2), at [59]). The applicant's decision to abandon her charge of contempt against the respondents means that one of the four NsOM has been rather truncated and two others now have no utility (see judgment (No 2), at [60]).

1. What remain undetermined in respect of those NsOM are (1) any costs issues regarding the NsOM affected by the contempt allegation; (2) the remainder of the applicant's original NOM dated 23 May 2008, as amended 6 August 2008; and (3) the applicant's NOM of 26 November 2008 seeking access to Kings' land by/for her experts.

1. The applicant now has before the court two alternative formulations of a replacement NOM seeking to " vacate" (" set aside "?) McClellan J's orders. The alternatives are described above (at [7]-[8]): both would appear to supersede item (2) from the previous paragraph, and the one seeking an access order would appear to absorb item (3).

1. In addition, there are two other " loose ends " which should be mentioned:

(i) Mr Wright handed up to the court on 15 March 2011 " Draft Short Minutes of Order " in regard to the court's appointing an independent engineer, pursuant to UCPR 31.46, to prepare a report for the court prior to a proposed re-instatement of the mediation. See Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors [2004] NSWSC 777 (especially at [93]ff); and

(ii) On 13 October 2011, the applicant filed a NOM seeking various orders regarding various items of evidence before this court and the Supreme Court, some of which from either court she might seek to rely upon in the other.

1. The applicant asserts a major injustice, and must now formalise the course she wishes to follow, and, at long last, prepare to prosecute her NOM to have McClellan J's orders set aside, regardless of what occurs contemporaneously in her District Court and Supreme Court proceedings.

1. Both parties must assist in putting the court record in order, and in arriving at the best way forward, towards resolving this unfortunate dispute.

1. Unfortunately, the applicant and her legal team have a disturbing record of disobeying this court's directions, and derailing its timetables, by changing their course virtually at midnight on the eve of any mention or directions hearing.

1. I propose to make a series of directions, but I am setting a fairly relaxed timetable, in the hope that it will be strictly observed.

1. I have not acceded to the respondents' request that orders and directions such as are made in this judgment should be made self-executing of the dismissal of the applicant's NOM.

1. However, it is the court's intention not to extend any of the time limits in, nor tolerate any breaches of, this timetable, save for any action taken pursuant to par 13 of the orders which follow.

Orders and Directions

1. Accordingly, the court makes the following orders and directions:

1. The respondents' NOM dated 24 May 2011 is upheld, and the applicant's NTP dated 29 or 30 March 2011 is set aside.

2. The costs of the dispute about the NTP are reserved.

3. The exhibit tendered at the hearing of the respondents' NOM is returned.

4. Within 14 days, the applicant must elect which of the two alternative formulations of her NOM to set aside the orders made and entered by the court in the substantive proceedings in February/March 2004 she wishes to press.

5. Within 14 days, the applicant is to comply with the respondents' NTP requiring production of her solicitor's file, and a disk containing its contents, with the cost of the disk to be applicant's costs in the cause unless a suitable contribution to that cost is negotiated with the respondents.

6. Within 28 days, the applicant must settle the final form and terms of her " Grounds of Application to Set Aside Orders " document, her " Nature of the Case " Statement, and a list of the affidavits and other evidence upon which she will seek to rely at the hearing of her NOM, and, also within those 28 days, must file all additional evidence upon which she intends to rely, in order that the respondents are clearly on notice of the case they are required to meet.

7. Within 28 days, the parties are to agree upon, and submit to the court, an intelligible translation of the document known as " Exhibit A ", referred to in the orders and undertaking under attack in the NOM.

8. Within 28 days, the applicant is to submit to the court the signed undertaking she has promised, committing not to bring against the respondents any further charges of contempt of the court's 2004 orders.

9. Within 42 days, the respondents are to request all further and better particulars they require in respect of the applicant's NOM, her " Grounds of Application to Set Aside Orders " document, and her " Nature of the Case " Statement, in their final form.

10. Within 56 days, the applicant is to provide responses to any request for particulars made pursuant to par 9 of these orders, and provide, to the respondents and the court, a list of all the evidence upon which she intends to rely at the hearing of her NOM.

11. Within 70 days, the respondents are to file, and notify the applicant and the court of, all evidence upon which they intend to rely at the hearing of the applicant's NOM.

12. Within 84 days, both parties are to file chronologies of relevant events, and written outlines of their submissions on the NOM to set aside the court's 2004 orders, and to notify each other of witnesses required for cross-examination at the hearing of that NOM.

13. The parties are granted liberty to apply to the court, jointly, to relist the matter on 72 hours notice, but only in the event that they agree to seek the appointment of a new mediator, pursuant to the order made by this court on 31 July 2009.

1. The court will list the matter for mention, and any necessary further/final pre-hearing directions, during the week commencing Monday 11 June 2012 , and will on that occasion set the applicant's " set aside " NOM down for hearing. The parties are to approach the Registrar, within seven days of these orders, to fix the date and time of that mention, in consultation with my Associate.

Decision last updated: 15 March 2012