Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd

Submissions of the Parties 8AEI posits three bases for seeking to set aside the notice to produce: (a)first, that the time for compliance with the notice to produce is not reasonable. That is to say, two working days; (b)second, that paragraph one of the notice to produce, even as narrowed, is oppressive and effectively seeks discovery when regard is had to the broad scope of the documents sought to be produced. Since 16 December 2008, for example, AEI had engaged several firms of solicitors, including its present solicitors, to advise it on the 2009 mine modification approval, which makes location of the documents more burdensome at such short notice; and (c)third, the second paragraph of the notice to produce is not directed to the 2009 modification approval but the 2012 modification approval and given that the documents sought could only have a legitimate forensic purpose in respect of the issue of discretion pleaded in response to the potential setting aside of the 2009 modification approval, the council was, in effect, engaging in a fishing expedition. 9In response the council stated the following: (a)first, the late issuing of the notice to produce was caused by failure of AEI to comply with orders of the Court with respect to the filing of its affidavit evidence in reply. AEI was ordered to have filed its affidavit evidence by 17 February 2014, however, it was not until 29 and 30 February 2014, that the council was served with the affidavits of Mr Brian Locke and Mr Russell Hetherington respectively, including the exhibits to those affidavits; and (b)second, the paragraphs of the notice to produce did no more than seek documents indirectly referred to by Mr Locke in his affidavit, and therefore, did not constitute fishing.

Applicable Legal Principles in Setting Aside the Notice to Produce 10Rule 21.11 of the Uniform Civil Procedure Rules 2005 ("UCPR") provides as follows: 21.11 Production under notice to produce (1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce: (a) produce for party A's inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B's possession, and (b) serve on party A, in respect of any document that is not produced, a notice stating: (i) that the document is a privileged document, or (ii) that the document is, to the best of party B's knowledge, information and belief, in the possession of a person identified in the notice, or (iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document. (2) For the purposes of subrule (1): (a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and (b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time. 11The validity of the notice to produce therefore depends on whether reasonable time has been allowed for production. Although 14 days is taken to be a reasonable time pursuant to r 21.11(2) of the UCPR, a notice will not be invalid because it requires production earlier than 14 days, or because no abridgement of time has been obtained. For example, in Welker v Rinehart [2012] NSWSC 839 the Court considered that two days was a reasonable time within which to produce a single document (at [9]). 12In addition to whether or not reasonable time has been permitted for production, the more orthodox principles with respect to setting aside subpoenas also apply to notices to produce (Azzi v Volvo [2006] NSWSC 283 at [4]). These were recently restated by the Court in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 (at [34]-[39]).

The Notice Must be Set Aside 13In my opinion, it is not necessary for the Court to determine whether or not the notice to produce was oppressive, amounted to a fishing expedition, or whether the documents sought had any legitimate forensic purpose having regard to the issues raised in the proceedings. This is because I have concluded that two business days to comply with the notice to produce was manifestly unreasonable in all the circumstances. 14Although AEI did not serve sworn copies of the affidavits, together with the exhibits, until 29 and 30 April 2014 (clearly in breach of the Court ordered timetable), the fact remains that identical unsworn copies of the affidavits were served on the council on 17 April 2014. While the exhibits to the unsworn affidavits did not accompany the affidavits, the exhibits were not required to be served and at no time prior to their receipt on 29 and 30 April 2014, did the council seek a copy of the exhibits. Furthermore, at the time the unsworn affidavits were served on the council by AEI, AEI indicated that there would be no changes between the sworn and the unsworn versions of the documents. 15It therefore follows that the council could, and should, have sought the documents purportedly referred to in the affidavit of Mr Locke much earlier than 2 May 2014. To allow two working days to produce documents, in some instances going as far back in time as 2008, was, on any view, unreasonable. 16For these reasons the notice to produce is set aside.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2014