Elanor Investors Limited v Sydney Zoo Pty Ltd

Amended summons

1. The Applicant's amended summons filed 26 June 2019 states: RELIEF CLAIMED 1 A declaration that the Respondent has threatened to breach, or in the alternative has breached, section 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by failing to comply with condition B2 of Schedule 8 of Development Consent (SSD 7228) granted by the Planning Assessment Commission of NSW, as delegate for the Minister for Planning, to the respondent dated 8 September 2017 (Development Consent). Particulars (a) Condition B2 of Schedule 8 provides that the Respondent shall carry out the development in accordance with the EIS, the RTS, the Supplementary Information and the Additional Information (as defined in the Development Consent). (b) The conduct of the Respondent amounts to a threatened or apprehended breach of the obligation to comply with section 6.14 of the El S, which indicates that Sydney Zoo will have approximately 40 Australian species; (c) The conduct of the Respondent, in causing or permitting the distribution of marketing material attached at Annexure A and B to these Orders, amounts to a threatened or apprehended breach, or in the alternative a breach, of the obligation to comply with section 6 and Attachment F of the RTS, which indicates that Sydney Zoo will display Australian animal species in a way that is "integrated with Aboriginal cultural experience" in an area less than 1.6 ha of the Sydney Zoo site; (d) The conduct of the Respondent, in causing or permitting the distribution of marketing material attached at Annexure A and B to these Orders, amounts to a threatened or apprehended breach, or in the alternative a breach, of the obligation to comply with section 6.14 of the EIS, Attachment F of the RTS, and with that part of the Additional Information in the Respondent's letter dated 10 August 2017 under the heading "Facility Differentiation" and "Product Differentiation - Australian Animals" (together, Differentiation Obligations), which provide that: (i) the "product offering" of Sydney Zoo will be materially differentiated from Featherdale Wildlife Park; (ii) Sydney Zoo will provide for differing experiences for guests, compared to Featherdale Wildlife Park; (iii) Sydney Zoo will position itself and operate in a way that allows Featherdale Wildlife Park "to continue to occupy the niche of 'getting close to the animals'", including but not restricted to substantial limitations on interactions with koalas; (iv) Sydney Zoo will position itself and operate as a "full-service facility" and be priced comparatively with Taronga Zoo, such that the Sydney Zoo pricing strategy establishes a "critical differentiator" from Featherdale Wildlife Park and such that Featherdale Wildlife Park may have the "key competitive advantage of being lower in price" when compared to Sydney Zoo. 2. A declaration that the Respondent has threatened to breach, or in the alternative has breached, section 4.2(1)(b) of the EP&A Act by failing to comply with condition B6 of Schedule 8 of the Development Consent. Particulars (a) The conduct of the Respondent, in causing or permitting the distribution of the marketing material attached at Annexure A and B to these Orders, amounts to a threatened or apprehended breach, or in the alternative a breach, of the obligation to comply with condition B6 which requires the display of Australian native animals: (i) to comprise less than 1.6 hectares of the overall exhibited animal collection in accordance with the area designated for Australian animals presented within the Site Plan at Appendix A to the Development Consent; and (ii) to be part of an Aboriginal Cultural Experience (as defined in condition C21 of the Development Consent). 2 3. A declaration that the Respondent has threatened to breach, or in the alternative has breached section 4.2(1)(b) of the EP&A Act by failing to comply with the hours of operation contained in Condition B10 of the Development Consent (Hours of Operation). Particulars (a) The conduct of the Respondent, in causing or permitting the distribution of the marketing material attached at Annexure A to these Orders amounts to a threatened breach, or in the alternative a breach, of the obligation to comply with condition B10 which restricts the hours of operation to 9am-10pm (December and January) and 9am-6pm (February to November). 3 4 An order that the Respondent must, by itself, its servants or agents (a) immediately cease distributing the marketing material attached at Annexure A and Annexure B to these Orders (Marketing Material); and (b) be restrained from distributing any further or other marketing, advertising or promotional material, in breach of conditions B2, B6 or B10 of the Development Consent. 4 5 An order that the Respondent must, by itself, its servants or agents, not distribute any document or information, that does not comply with Differentiation Obligations or Hours of Operation obligations imposed by the conditions B2, B6 or B10 of the Development Consent. 5 6 An order that the Respondent must within 7 days of the date of these orders, cause a notice, in a form to be agreed by the Court, to be served on all persons who were issued with the Marketing Material marketing material attached at Annexure A and Annexure B to these Orders. 6 7 Within 28 days of the date of these orders, the Respondent must provide to the Applicant information demonstrating compliance with Order 5 6 above. 7 8 The Respondent is to pay the Applicant's costs of the proceedings. 8 9 Such further or other order as to the Court seems fit. … [Annexure A "Marketing Material" not included] [Annexure B "Additional Marketing Material" not included]

Amended points of claim

1. The Applicant's amended points of claim dated 26 June 2019 state: The Parties 1. The applicant, Elanor Investors Limited: a. Owns Elanor Funds Management Limited - which is the registered proprietor of Lot 258 in DP 752051 known as 217-229 Kildare Road, Doonside (the Site); and b. Owns and operates the Featherdale Wildlife Park (Featherdale) business located at the Site. 2. Featherdale: a. Was established in 1972; b. Is the largest exhibitor of Australian fauna in the world and exhibits 1700 birds and animals, with more than 280 different species; c. Employs 58 fulltime staff, 3 part time staff, 50 casual staff and 49 volunteer staff; d. Facilitates $75 million of investment in employment, social, educational and conservation programs; e. Has conservation programs of local, regional, state and national significance; and f. Has recently been awarded the Excellence in Export at the 2018 NSW Business Awards, and the Silver Medal at the 2018 NSW Tourism Awards. 3. The respondent, Sydney Zoo Pty Ltd; a. Is the proponent for the State Significant Development Application (SSD 15_7228) (DA); and b. Proposed in the DA to operate a zoological facility (New Zoo) on the land owned by Western Sydney Parklands Trust being Lot 101 in DP 1195067. The Consent 4. On 14 August 2015, the respondent submitted the DA seeking approval for the New Zoo. 5. Relevantly after the DA was lodged: a. Urbis lodged submissions on behalf of the applicant objecting to the New Zoo. Particulars i. Submission in response to the proponent's Environmental Impact Statement; ii. Submission in response to the proponent's Response to Submissions Report iii. Submission in response to the DoPE's economic peer review report prepared by Hill PDA Consulting; iv. Submission comprising additional socio-economic evidence prepared by Urbis; and v. Urbis' submission in response to UTS SIA dated 26 July 2017, b. The Planning Assessment Commission of NSW (PAC), held a public meeting at the Rooty Hill RSL on 14 December 2016 to hear the public's views on the New Zoo; and c. The PAC released its Determination Report on 8 September 2017. 6. On 8 September 2017, the PAC as delegate for the NSW Minister for Planning, granted Development Consent (SSD 15_7228), subject to the conditions specified in Schedules B to D to the Development Consent, to the respondent for a zoological facility within the Western Sydney Parklands (Development Consent). 6A. The Development Consent (including the conditions specified in Schedules B to D to the Development Consent) became effective and has operated from 8 September 2017, or in the alternative the date that is endorsed on the notice given to the respondent in accordance with former section 81(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) which applied as at the date of grant of the Development Consent. 7. The Development Consent was subsequently modified on 8 May 2018 and 20 September 2018. 7A. The respondent lodged Modification Application Number SSD-7228-Mod-3 on 4 September 2018 (Modification 3) to change the hours of operation for the New Zoo. 7B. Urbis lodged a submission on behalf of the applicant objecting to Modification 3. 7C. The NSW Department of Planning and Environment's Major Project Register provides that the current status of Modification 3 is "More Information Required". 8. The conditions of the Development Consent include: (a) Condition B2 of Schedule B of the Development Consent which provides that the respondent shall carry out the development in accordance with the EIS, the RTS, the Supplementary Information and the Additional Information (as defined in the Development Consent); (b) Condition B6 of Schedule B which provides that the display of Australian native animals shall comprise less than 1.6 hectares of the overall exhibited animal collection and be in accordance with the area designated for Australian animals presented within the Site Plan at Appendix A of the Development Consent. The Australian native animals must be displayed as part of an Aboriginal Cultural Experience as detailed at Condition C21 of Schedule C; and (c) Condition B10 of Schedule B which provides that the hours of operation for the Development are restricted, on any day, to 9am - 10pm (December and January) and 9am - 6pm (February to November). 9. The following documents are incorporated into the Development Consent are: (a) by way of condition B2 of Schedule B: (a) (i) "Environmental Impact Statement titled 'Sydney Zoo SSD 7228 - Environmental Impact Statement', prepared by JBA, dated December 2015"; (b) (ii) "Response to Submissions titled 'Sydney Zoo SSD 7228 - Response to Submissions' prepared by JBA, dated May 2016"; (c) (iii) "Supplementary Information submitted by JBA, dated 22 August 2016"; and (d) (iv) "Response to the Planning Assessment Commission's request for further information" prepared by Sydney Zoo and dated April 2017, "Social Impact Assessment" prepared by the University of Technology Sydney (undated), and letter titled "The Sydney Zoo - 0440/16 - amendment of proposal" signed by Jake Burgess and dated 10 August 2017"; and (b) by way of condition B6 of Schedule B: (i) the Site Plan attached at Appendix A of the Development Consent. 9A. The respondent intends to open and operate a zoo on the land owned by Western Sydney Parklands Trust being Lot 101 in DP 1195067. 9B. The opening date of the New Zoo is not presently known to the applicant. The respondent has caused or permitted its employees, agents or representatives to advertise the opening date of the New Zoo in a way that has changed over time, including advertisements that indicate that the opening date is variously 2019, early 2019, mid-2019, second half of 2019, and after 1 October 2019 (together the Advertised Opening Date). Particulars Marketing material attached at Annexure A and B to the Summons. The Differentiation Obligations under the Development Consent 10. As a consequence of the conditions of the Development Consent pleaded at 8 and (b) and [9] above, the following differentiation obligations are incorporated into and operate as conditions imposed by the Development Consent (referred to together as the Differentiation Obligations): (a) Type of Facility; (b) Pricing; (c) Type of Australian Animal Encounters; and (d) Amount of Australian Species; (e) Two Thirds Exotic Species at Opening; (f) Koala Interaction and (g) Development of Regional Tourism; (d) Size of Australian Native Animals Display. Particulars See The applicant relies on the particulars set out in Schedule 1 annexed to this pleading which further identifies relevant conditions of the Development Consent and the source of each of the Differentiation Obligations. 10A. The Differentiation Obligations are obligations that, on their proper construction, apply to and regulate both: (a) the operations of the New Zoo after the opening date; and (b) the content of any advertising, promotional and/or marketing materials in respect of the New Zoo, whether before or after the opening date. 10B. As a consequence of condition B10 of Schedule B of the Development Consent, as set out in paragraph 8(c) above, the operation of the New Zoo is limited to the times set out in that condition (Hours of Operation condition). Marketing Actions in Breach of the Differentiation Obligations 11. The respondent has caused or permitted the following distribution of the marketing material attached at Annexure A and B to the Summons. 11A. The conduct of the respondent in causing or permitting the distribution of the marketing material attached at Annexure A and B to the Summons involves: (a) a threatened or apprehended breach, or in the alternative a breach, of the Differentiation Obligations set out in paragraphs 10(a),(b),(c) and (d); and (b) a threatened or apprehended breach of the Hours of Operation condition. Particulars a. 2018 Sydney Zoo Marketing Brochure (Annexure A-1, Summons) Particulars The responded [sic] has caused or permitted the following: i. its employees, agents or representatives to create the marketing brochure entitled "Sydney Zoo: Bungarribee Wildlife Park at Sydney Zoo" (Sydney Zoo Marketing Brochure) which advertises, among other matters: (A) "Bungarribee Wildlife Park" at Sydney Zoo opening in 2019; (B) Experiences including that all displays will allow visitors to get up close to Koalas, Echidnas, Wombats, Tasmanian Devils and a range of other unique species; and (C) An adult nett rate for registered travel operators of $12.00. ii. Its employees, agents or representatives to distribute the Sydney Zoo Marketing Brochure to day tour operators, inbound tour operators, international travel groups and/or travel agents prior to the Australian Tourism Exchange that was held in Adelaide in April 2018 as part of a deliberate strategy, based on advice from its consultant Australian Attractions Pty Ltd, to market the zoo as a wildlife park because it was more attractive to international tourists than a zoo; iii. Its employees, agents or representatives to distribute the Sydney Zoo Marketing Brochure to day tour operators, inbound tour operators, international travel groups and/or travel agents including to, among other operators, groups and agents: (A) To Diamond Tours in March 2018 by email from its representative Australian Attractions Pty Ltd; and (B) To Oz Travel Consulting Services. b. Korean Marketing Stall (Annexure A-2, Summons) Particulars The responded [sic] has caused or permitted: i. Its employees, representatives or agents to exhibit an advertising stall at the HanaTour Exhibition in Korea during the period 7 to 10 June 2018 (Korean Marketing Stall) which advertises "Bungarribee Wildlife Park" at Sydney Zoo opening in early 2019. c. Hong Kong Marketing Brochure (Annexure A-3, Summons) Particulars The respondent has caused or permitted: i. Its employees, agents or representatives to create a marketing brochure entitled '[Chinese characters]' (Hong Kong Marketing Brochure) which contains the following advertisement: 'At the end of 2018, you can enjoy a close-up "live-fed" wildlife experience in Sydney West. The Sydney Zoo, built at $36 million, raises 30 species of animals, and visitors can see Australian and other special animals on the boardwalk. The zoo also features a well-known Australian non-cage safari area that allows visitors to get close to nature in the wild.' ii. Its employees, agents or representatives to distribute the Hong Kong Marketing Brochure to inbound tour operators and travel agents including to an inbound tour operator in Hong Kong called Morning Star in about September 2018. d. $12 Trade Rate Particulars The respondent has caused or permitted: i. Its employees, agents or representatives to offer day tour operators, inbound tour operators, international travel groups and/or travel agents a $12 adult trade rate for the New Zoo including to, among other operators, groups or agents: (A) Diamond Tours in March 2018; (B) Oz Travel Consulting Services in May 2018; and (C) Orient Express Tours and Travel in November 2018. e. Australian Tourism Exchange Stall (Annexure B-1, Summons) The respondent has caused or permitted: i. Its employees, representatives or agents to exhibit an advertising stall at the Australian Tourism Exchange in Perth in April 2019 as part of a strategy to market the New Zoo to international tourists solely on the basis that it is an opportunity to get up close to koalas. f. Australian Attractions Marketing Letter (Annexure B-2, Summons) The respondent has caused or permitted: i. its marketing consultant, Australian Attractions Pty Ltd, to distribute the marketing letter with subject heading "We are very excited to introduce the new Sydney Zoo featuring the Bungarribee Wildlife Experience. Opening in the second half of 2019" which advertises, among other matters: (A) "Bungarribee Wildlife Experience" at Sydney Zoo opening in the second half of 2019; (B) The Bungarribee Wildlife Experience will highlight Australia's unique species including Koalas, Echidnas, Wombats, Tasmanian Devils, Dingos to name a few; (C) Experiences including handfeeding kangaroos, wallabies and emus; and (D) bookings after 1 October 2019. ii. its consultant, Australian Attractions Pty Ltd, to distribute the marketing letter to day tour operators, inbound tour operators, international travel groups and/or travel agents as part of a deliberate strategy to market the zoo as a wildlife experience because it is more attractive to international tourists than a zoo; and iii. its consultant, Australian Attractions Pty Ltd, to distribute the marketing letter to day tour operators, inbound tour operators, international travel groups and/or travel agents. g. 2019 Sydney Zoo Marketing Brochure (Annexure B-3, Summons) The respondent has caused or permitted: i. its employees, agents or representatives to create the marketing brochure entitled "Sydney's newest and most exciting Tourist Attraction" which advertises, among other matters: (A) the "Bungarribee Wildlife Experience as the highlight of the zoo; (B) experiences including that all displays will allow visitors to get up close to Koalas, Echidnas, Wombats, Tasmanian Devils and a range of other unique species; (C) hand feeding kangaroos, wallabies and emus; (D) one of Australia's "best displays of native Australian Flora and Fauna"; (E) a map which indicates that the display of native animals within the Bungarribee Wildlife Experience will be: i. in exceedance of the area designated for Australian animals presented within the Site Plan at Appendix A to the Development Consent; and ii. approximately 20-25% of the total exhibition area of the site for the New Zoo - which equates to an area being advertised for native animals of approximately 2.2-2.75 hectares; and (F) An adult nett rate for registered travel operators of $15.00. ii. its employees, agents or representatives to distribute the 2019 Sydney Zoo Marketing Brochure to day tour operators, inbound tour operators, international travel groups and/or travel agents prior to the advertised opening date for the zoo as part of a deliberate strategy to market the zoo as a wildlife experience because it is more attractive to international tourists than a zoo; and iii. its employees, agents or representatives to distribute the 2019 Sydney Zoo Marketing Brochure to day tour operators, inbound tour operators, international travel groups and/or travel agents. Breach of s 9.45 of the Environmental Planning and Assessment Act 1979 12. As a consequence of the matters pleaded in [10] - [11A] above, the respondent is in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 and the applicant is entitled to the declarations and orders sought in paragraphs 1 - 9 of the Amended Summons. Discretionary factors under s 9.45 of the Environmental Planning and Assessment Act 1979 13. The breaches identified in [12] above ought be remedied or restrained under s 9.46 of the Environmental Planning and Assessment Act 1979 because: a. There is either real or prospective harm to Featherdale's operations described in [2] above; b. A contributing reason as to why the PAC approved the New Zoo was because of the differentiation obligations incorporated into the Development Consent pleaded at [10] above; and c. Planning law ought not be undermined by non-compliance.
2. Schedule 1 to the amended points of claim outlines the differentiation obligations (type of facility, pricing, type of Australian animal encounters and size of Australian native animals display) and the source of each differentiation obligation in documents referred to in the development consent.
3. In par 10 of the amended points of claim the differentiation obligations no longer relied on are "(d) Amount of Australian Species", "(e) Two Thirds Exotic Species at Opening", "(f) Koala Interaction" and "(g) Development of Regional Tourism". To the extent that the notice to produce and subpoena before the Registrar sought documents and information relevant to differentiation obligations no longer pressed, those parts fall away. An amended notice to produce to that effect was filed in court at the hearing on 26 July 2019 and I have marked it Ex C. I have marked the amended subpoena to produce filed in court on 26 July 2019 as Ex D.
4. A notice to produce can be served on a party as provided for in r 34.1 of the UCPR. It can be set aside in the same way as a subpoena per Ritchie's Uniform Civil Procedure NSW (Ritchie's) at [34.1.17]. The power to set aside a subpoena by a party is identified in r 33.4 of the UCPR. The eight paragraphs in the subpoena are essentially the same as pars 1, 2, 5, 6-10 in the notice to produce.
5. Paragraph 22 of the Court's practice note for Class 4 proceedings provides: 22. Directions for formal discovery and interrogatories will only be made in exceptional circumstances and will generally be confined to particular issues. A party seeking such directions must provide the Court with a draft list of categories of documents to be discovered or draft interrogatories.

Notice to produce

1. The amended notice to produce in issue filed in court on 26 July 2019 states as follows: You are required to produce the following documents or things to the court: 1 A copy of any marketing documents (including any brochures, advertisements, pamphlets, flyers, posters and the like) produced by, or on behalf of, the Respondent promoting Sydney Zoo and/or Bungarribee Wildlife Park. 2 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between the Respondent, or the Respondent's representatives, and any day tour operators, inbound tour operators, international tour groups and travel agents in relation to the Marketing Material which is attached at Annexure A to the Summons. 3 A copy of any Aboriginal Heritage Experience Strategy (including all drafts) prepared by, or on behalf of, the Respondent for the purposes of condition C21 of Development Consent SSD 7228 granted on 8 September 2017 for Sydney Zoo (Development Consent). 4 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between the Respondent, or the Respondent's representatives, and the NSW Department of Planning and Environment since 8 September 2017 in relation to: (i) the type of facility proposed at Sydney Zoo (including any correspondence in relation to the proposed Bungarribee Wildlife Park); (ii) proposed pricing for Sydney Zoo; (iii) the type of Australian animal encounters proposed at Sydney Zoo; (iv) the amount and type of Australian species proposed at Sydney Zoo; and (v) the amount and type of exotic species proposed at Sydney Zoo; and (vi) the status of Sydney Zoo's compliance with Condition 87 of the Development Consent. 5 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between the Respondent, or the Respondent's representatives, and any day tour operators, inbound tour operators, international tour groups and travel agents since 8 September 2017 in relation to: (i) the type of facility proposed at Sydney Zoo (including any correspondence in relation to the proposed Bungarribee Wildlife Park); (ii) proposed pricing for Sydney Zoo; (iii) the type of Australian animal encounters proposed at Sydney Zoo; (iv) the amount and type of Australian species proposed at Sydney Zoo; and (v) the amount and type of exotic species proposed at Sydney Zoo. 6 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between the Respondent, or the Respondent's representatives, and Australian Attractions Pty Ltd since 8 September 2017 in relation to: (i) the type of facility proposed at Sydney Zoo (including any correspondence in relation to the proposed Bungarribee Wildlife Park); (ii) proposed pricing for Sydney Zoo; (iii) the type of Australian animal encounters proposed at Sydney Zoo; (iv) the amount and type of Australian species proposed at Sydney Zoo; and (v) the amount and type of exotic species proposed at Sydney Zoo. 7 A list of the adult nett/trade rate being offered by, or on behalf of, the Respondent to day tour operators, inbound tour operators, international tour groups and travel agents as at the date of this Notice to Produce. 8 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the adult nett/trade rate being offered by, or on behalf of, the Respondent to day tour operators, inbound tour operators, international tour groups and travel agents as at the date of this Notice to Produce. 9 A list of any day tour operators, inbound tour operators, international tour groups and travel agents who have entered into any agreement with the Respondent in relation to trade rates for the period commencing 1 April 2019 at Sydney Zoo, together with the agreed trade rate for those operators, groups or agents (as applicable). 10 Any agreement, and any documents (including any letters, emails, file notes and minutes of meetings) relating to any agreement between any day tour operators, inbound tour operators, international tour groups and travel agents and the Respondent in relation to trade rates for the period commencing 1 April 2019 at Sydney Zoo, together with the agreed trade rate for those operators, groups or agents (as applicable). 11 A list of the species of native animals that the Respondent proposes to exhibit at Sydney Zoo. 12 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the species of native animals that the Respondent proposes to exhibit at Sydney Zoo. 13 A list of the species of native animals that the Respondent has secured as at the date of this Notice to Produce to be exhibited at Sydney Zoo by 1 April 2019. 14 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the species of native animals that the Respondent has secured as at the date of this Notice to Produce to be exhibited at Sydney Zoo by 1 April 2019. 15 A list of the exotic species nominated in the Additional Information (as that term is defined in the Development Consent) that Sydney Zoo intends to have on display at opening. 16 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the exotic species nominated in the Additional Information (as that term is defined in the Development Consent) that Sydney Zoo intends to have on display at opening. 17 A list of the exotic species nominated in the Additional Information (as that term is defined in the Development Consent) that the Respondent has secured as at the date of this Notice to Produce to be exhibited at Sydney Zoo by 1 April 2019. 18 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the exotic species nominated in the Additional Information (as that term is defined in the Development Consent) that the Respondent has secured as at the date of this Notice to Produce to be exhibited at Sydney Zoo by 1 April 2019. 19. A copy of the Table contained at pages 37 to 39 of Section 3.6 of the "Response to the Planning Assessment Commission's Request for Further Information" prepare by the Respondent dated April 2017. 20. The date on which Sydney Zoo intends to commence operations.

Subpoena to produce

1. The amended subpoena to produce filed in court on 26 July 2019 states: SCHEDULE You are required to produce the following documents or things to the Court: 1. A copy of any marketing documents (including any brochures, advertisements, pamphlets, flyers, posters and the like) prepared by, or on behalf of, Australian Attractions for the Respondent promoting Sydney Zoo and/or Bungarribee Wildlife Park. 2. A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between Australian Attractions and any day tour operators, inbound tour operators, international tour groups and travel agents in relation to the Marketing Material which is attached at Annexure A to the Summons. 3. A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between Australian Attractions, or Australian Attraction's representatives, and any day tour operators, inbound tour operators, international tour groups and travel agents since 8 September 2017 in relation to: (i) the type of facility proposed at Sydney Zoo (including any correspondence in relation to the proposed Bungarribee Wildlife Park); (ii) proposed pricing for Sydney Zoo; (iii) the type of Australian animal encounters proposed at Sydney Zoo; (iv) the amount and type of Australian species proposed at Sydney Zoo; and (v) the amount and type of exotic species proposed at Sydney Zoo. 4. A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between Australian Attractions, or Australian Attraction's representatives, and the Respondent since 8 September 2017 in relation to: (i) the type of facility proposed at Sydney Zoo (including any correspondence in relation to the proposed Bungarribee Wildlife Park); (ii) proposed pricing for Sydney Zoo; (iii) the type of Australian animal encounters proposed at Sydney Zoo; (iv) the amount and type of Australian species proposed at Sydney Zoo; and (v) the amount and type of exotic species proposed at Sydney Zoo. 5. A list of the adult nett/trade rate being offered by, or on behalf of, Australian Attractions for the Respondent to day tour operators, inbound tour operators, international tour groups and travel agents as at the date of this Subpoena to Produce. 6. A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the adult nett/trade rate being offered by, or on behalf of, Australian Attractions for the Respondent to day tour operators, inbound tour operators, international tour groups and travel agents as at the date of this Subpoena to Produce. 7. A list of any day tour operators, inbound tour operators, international tour groups and travel agents who have entered into any agreement with Australian Attractions and/or the Respondent in relation to trade rates for the period commencing 1 April 2019 at Sydney Zoo, together with the agreed trade rate for those operators, groups or agents (as applicable). 8. Any agreement, and any documents (including any letters, emails, file notes and minutes of meetings) relating to any agreement between any day tour operators, inbound tour operators, international tour groups and travel agents with Australian Attractions and/or the Respondent in relation to trade rates for the period commencing 1 April 2019 at Sydney Zoo, together with the agreed trade rate for those operators, groups or agents (as applicable).

Evidence

1. Affidavits affirmed by Ms Lindeman-Jones solicitor for the Respondent dated 24 April and 19 July 2019 were read by the Respondent. Corresponding exhibits to these affidavits "AKL-1" and "AKL-2" were tendered as Exs A and B respectively.
2. Ms Lindeman-Jones' affidavit dated 24 April 2019 and exhibit AKL-1 to this affidavit describe the steps taken by the Respondent in the proceedings before the filing of the 24 April 2019 notice of motion. Ms Lindeman-Jones' affidavit dated 19 July 2019 and exhibit AKL-2 to this affidavit provide an update on the progression of the proceedings since her 24 April 2019 affidavit was filed.
3. Exhibit AKL-2 to Ms Lindeman-Jones' affidavit contains a letter dated 27 June 2019 from Mr Fuller solicitor for the Applicant to Mr Kahagalle solicitor for the Respondent. Under the heading "Subpoena and Notice to Produce" the letter provides: It is our client's position that it has the evidence critical to the establishment of its cause of action. What it is seeking is further examples of marketing in breach of the differentiation obligations and/or material that will materially assist the Court on an identified issue in dispute. That position was accepted by Registrar Froh in her judgment 17 April 2019.
4. The Respondent also relied on an affidavit of Ms Hutton solicitor for the Respondent dated 31 January 2019 attesting that the Respondent seeks business for itself through day tour and inbound tour operators. Information concerning its dealings with such operators is commercially sensitive and could be used by Featherdale Wildlife Park (Featherdale) to its commercial advantage.
5. The Respondent also relied on an affidavit of Mr Corbett managing director of Australian Attractions dated 15 February 2019 describing the amount of time required to comply with the subpoena. He estimated that it will take a total of approximately "41 person hours" for all of his staff to search for and collate all the documents requested by the subpoena. Each staff member must search their own computer for messages sent or received from prospective travel industry sellers. Responding to the subpoena will result in loss of sales since computers need to be available for use by staff at all times as the company offers a seven day service to its clients. Since the company's clients pay on a fixed fee basis it is difficult to quantify the loss that Australian Attractions will incur as a result of responding to the subpoena.

Respondent's arguments

1. The Applicant's notice to produce and subpoena should be set aside for the following reasons. First, the categories of documents sought are not justified by the summons and amended points of claim. They are wide-ranging both temporally and categorically and are tantamount to discovery. They are not appropriately tailored and confined to the summons and the amended points of claim. The amended points of claim focus on the Respondent's obligations regarding the development consent, the distribution of the marketing material in the annexure and whether there has been a breach of the development consent. There is no link between pars 11 and 11A of the amended points of claim and the documents sought.
2. Secondly, the notice to produce seeks the production of "any marketing material" produced by the Respondent promoting its zoo and/or Bungarribee Wildlife Park. This phrase is unconfined by reference to a date inter alia and is insufficiently tied to the amended points of claim or summons. It contrasts with the amended summons which confines marketing material to that annexed to the summons.
3. Paragraph 4 of the notice to produce seeks documents in relation to communications between the Respondent and the NSW Department of Planning and Environment (the Department). These are not relevant as they have no bearing on the construction of the consent. Obligations regarding the consent have already been pleaded.
4. Paragraphs 2, 5 and 6 of the notice to produce seek documents "in relation to communications between the Respondent" and other entities. These paragraphs are too broad in their scope and irrelevant in light of the amended points of claim and summons. Other paragraphs of the notice to produce use subject matter categories. A notice to produce must not be used as a substitute for discovery: Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [14]-[15]. The Applicant must describe the scope of documents sought with greater specificity.
5. Thirdly, the previous summons and points of claim had six particulars which have now gone. The previous justification for these categories has disappeared because former par 12 is no longer in the amended points of claim. The key materials now for the proceedings are only the development consent and the marketing material specified in the annexure.
6. Fourthly, the case should not be allowed to go off the rails with wide-ranging document production which amounts to "fishing".
7. Fifthly, the Applicant must identify the legitimate forensic purpose for which access to documents is sought: Marshall v Prescott (No 2) [2012] NSWSC 619 at [46]-[51]. No such legitimate forensic purpose has been identified in any affidavit. The Applicant admitted that it has sufficient evidence to establish its case in a letter dated 27 June 2019 from Mr Fuller solicitor for the Applicant to Mr Kahagalle solicitor for the Respondent above at [15]. Mr Fuller stated "[i]t is our client's position that it has the evidence critical to the establishment of its cause of action". Accordingly extensive document production is not necessary for the determination of the real issues in dispute. This confirms that the Applicant by seeking the documents listed in the notice to produce and subpoena is engaging in a "fishing expedition".
8. Sixthly, there are factors in s 56 of the Civil Procedure Act 2005 that favour setting aside the notice to produce and subpoena. Particulars fulfil an important case management objective (Ritchie's at [15.1.10]). The Respondent does not know the case it will be required to meet particularly with respect to breach. According to par 22 of the Court's practice note for Class 4 proceedings, extensive document production should only be permitted in Class 4 proceedings in exceptional circumstances.
9. Seventhly, the material sought is commercially sensitive since there are ongoing dealings with tour operators. This information could be used by Featherdale to its commercial advantage (affidavit of Ms Hutton dated 31 January 2019 above at [16]).
10. Finally, the notice to produce and subpoena are oppressive in that they would require approximately 1.5 months' work to locate the documents sought. Consequently, the Registrar's decision should be set aside.

Applicant's arguments

1. For a registrar's order to be set aside, an error of law or a material change in circumstances must be demonstrated: Shoal Bay Developments Pty Ltd v Port Stephens Council (No 2) [2015] NSWLEC 36 (Shoal Bay) at [4], citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 (Tomko v Palasty (No 2)) at [6]-[9] (Hodgson JA, Ipp JA agreeing). The amended points of claim do not constitute a wholesale replacement of the Applicant's claim, they merely clarify the claim. Moreover, the Court is not a court of strict pleading. The Registrar's decision should be confirmed.
2. The test of whether the scope of documents sought is permissible is whether it is "on the cards" that the documents sought will materially assist on an identified issue: Gertos Holdings Pty Limited v Roads and Maritime Services [2018] NSWLEC 172 at [87], citing Rinehart v Rinehart [2018] NSWSC 1102 at [43]-[54]. The notice to produce identifies categories of documents sought that "on the cards" have relevance.
3. Since the summons is the key document, the "on the cards" test must be applied to it. There is nothing in the summons that prevents the Applicant from seeking other examples of marketing materials and other materials generally that go to whether the Court should make declarations or issue injunctions.
4. The Applicant needs more material because it wants to know what other materials were sent with the marketing materials referred to in annexure A to the summons (and to whom and when). The notice to produce refers to annexure A. An order should be made granting the Applicant leave to amend the notice to produce to add annexure B to the summons ("Additional Marketing Material") or file a new notice to produce with annexure B. Further, the Applicant wants to know what the Respondent's offer was (material different to that in annexures A and B) and to check for compliance with differentiation obligations.
5. Communications between the Respondent and the Department are relevant because they would demonstrate whether there is a threat that the Respondent will carry out development in breach of the consent. Requesting this material does not constitute a fishing expedition because such communications are more likely to reflect a formal statement of the Respondent's position.
6. The amended summons does not prohibit the Applicant from requesting material other than that in annexures A and B. This is clear from prayer 4(b) which seeks an order restraining the Respondent from distributing "any further or other marketing, advertising or promotional material, in breach of conditions B2, B6 or B10" of the consent. Prayer 5 is broader, referring to "any document or information, that does not comply with conditions B2, B6 or B10" of the consent.
7. The phrase "in relation to" in par 2 of the notice to produce was not intended to capture any documents in relation to communications between the Respondent and tour operators, as opposed to simply communications. The Applicant is willing to remove this phrase for clarity. The purpose of pars 5 and 6 is to capture documents that the Respondent does not regard as marketing material but which would be relevant to prayers 4 and 5 of the amended summons. Paragraphs 7 and 8 which refer to trade rates and documents related to trade rates offered by the Respondent to tour operators inter alia are relevant to Sch 1 to the amended points of claim (differentiation obligations).
8. None of the categories of documents give rise to discovery as the content is clearly specified.
9. The Respondent's submission about the commercial sensitivity of the information sought can be addressed with a confidentiality agreement.
10. The Court should not accept the submission that the subpoena would be oppressive. That one person takes a working week (some 40 hours) to find documents is not oppressive.
11. With respect to the assertion that the Applicant conceded that it already has sufficient evidence to establish its case in correspondence between solicitors, the relevant statement was made in the context of responding to an allegation that the Applicant had insufficient evidence to commence proceedings. The Applicant was merely stating that it had a reasonable basis for its claim.
12. Case management principles should not be used to limit the Applicant's case.

Consideration

1. Relevant principles in reviewing a registrar's decision identified in Tomko v Palasty (No 2) by Hodgson JA at [6]-[9] (Ipp JA agreeing) adopted by me in Shoal Bay at [4] are as follows: [6] I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion. [7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so. [8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The Queen error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. [9] In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The Queen error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.
2. Mindful of these principles, I note that the Registrar's decision on the notice to produce and subpoena can be considered a matter of practice and procedure. The issues raised are important in determining the extent of the Applicant's case however. While still broadly similar to the case before the Registrar, it is clear from the number of amendments made to the points of claim in particular that the articulation of the Applicant's case has been substantially refined. My consideration of forensic purpose will therefore be necessarily a bit different to the Registrar's consideration.
3. I adopt the principles outlined in Rinehart v Rinehart at [43]-[54] and applied in Gertos Holdings Pty Ltd v Roads and Maritime Services at [87] as adopted in Elanor Investors (Registrar) at [17]: [43] As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: … 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. [44] Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]): … the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise. [45] In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306). [46] More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]). [47] Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "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 [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA). [48] Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said: A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, 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. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition". [49] Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena is oppressive and/or constitutes "fishing". [50] In Universal Press Pty Limited v Provest Limited [1989] FCA 402, Hill J stated (at [9]-[10]): Like Clark J, as his Honour then was, in Southern Pacific Hotel Inc v Southern Pacific Hotel Corporation (1984) 1 NSWLR 710 at p 717, I am of the view that there are two separate grounds for setting aside a subpoena that are often confused. The first, to which I have already referred, is the ground that the subpoena is so widely framed as to be burdensome and oppressive and therefore an abuse of process. The second, often linked with the first, is that the subpoena requires the addressee, being a third party to the litigation, to produce all documents which may afford evidence of the matters in dispute between the parties, is thus used as a way of obtaining discovery against a person not party to the litigation and so should be set aside (cf Small's case supra). Where the objection to a subpoena is that it is a misuse of the process of the Court for the purpose of discovery, what is usually meant is that it is an abuse of process to require a person not a party to litigation to form a judgment as to what is relevant to the issues joined in a proceeding to which he is not a party: National Employers' Mutual Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at p 382. It does not follow that a subpoena, issued in circumstances where the person requesting its issue is uncertain whether any documents exist which fall within the description in the subpoena, that description being otherwise precise, will be bad… [51] It is well recognised that a subpoena may be set aside as an abuse of process where it is used as a substitute for discovery or discovery against a third party (see Associated Dominions Assurance; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed)).
4. As there is substantial overlap between the documents sought in the notice to produce and the subpoena to produce, a finding in relation to the notice to produce will inform the approach to the subpoena.
5. Before the Registrar the Respondent submitted that the notice to produce and subpoena were a "fishing" exercise, impermissibly sought documents beyond the scope of the pleadings and lacked forensic purpose. Compliance with the subpoena was oppressive, supported by an affidavit of Mr Corbett of Australian Attractions.
6. Before me the Respondent submitted similarly and also that the notice to produce seeks a very wide range of documents which concern virtually every aspect of the business which the Respondent may seek to undertake such as its trade terms, the tour operators it has contacted and the nature of the experience to be offered to visitors.
7. The necessity for doing so from the Applicant's perspective arises because the apprehended breaches of development consent SSD 7228 by the Respondent concern operational matters such as the trade terms entered into with tour operators, the hours of opening and the nature of the experience to be offered. The core of the Applicant's claim is that the development consent imposes specified differentiation obligations on the Respondent in conducting its zoo as specified in pars 10, 10A and 10B of the amended points of claim. Breaches of these conditions are set out in detail in pars 11 and 11A. The amended summons seeks declarations of threatened or actual breaches of conditions B2, B6 and B10 in pars 1(a), (c)-(d), 2 and 3 in distributing specific marketing material attached as annexures A and B. The relief sought in the amended summons of restraining distribution of material focusses on the marketing material attached as annexure A and annexure B (prayer 4(a)), the distribution of any other marketing material in breach of conditions B2, B6 or B10 (prayer 4(b)) and the distribution of any document or information that does not comply with conditions B2, B6 or B10 (prayer 5). The relief sought in the summons in prayer 5 is particularly wide-ranging as it refers to any document or information which does not comply with conditions B2, B6 or B10.
8. The Registrar considered that all of the paragraphs of the notice to produce (focussing here on those relevant to the amended points of claim) were justified by the Applicant's case as pleaded. I generally agree but for two paragraphs, pars 1 and 4. I consider some variation is required for the timeframes in relation to pars 5 and 6.
9. Paragraph 1 of the notice to produce seeks all marketing documents prepared promoting the zoo and is unconstrained by time. That paragraph is wide-ranging and not tied to any substantive aspect of the Applicant's case in the amended summons or amended points of claim. Its forensic purpose is unclear and it is therefore impermissible. That wide-ranging consequential orders are sought in the amended summons in pars 4(b) and 5 does not establish a forensic purpose.
10. I observe that contrary to the Respondent's submissions I consider the breaches specified in pars 11 and 11A are reflective of the matters alleged in pars 10, 10A and 10B of the amended points of claim. Paragraph 2 of the notice to produce seeks documents concerning communications related to the marketing material in annexure A to the summons. That information is relevant to the issues raised in the amended points of claim and it is "on the cards" that it will inform that issue.
11. The Applicant seeks to amend the notice to produce so that it seeks similar material in relation to annexure B to the summons. Such an amendment should be allowed.
12. Paragraph 3 seeks a copy of the "Aboriginal Heritage Experience Strategy" prepared for the purposes of condition 21 of the development consent. That is also relevant to the issues identified in the amended points of claim and it is "on the cards" that it will inform that issue.
13. Paragraph 4 refers to correspondence with the Department in relation to various aspects of the planned operations at the zoo. That material, if it exists, can have no bearing on the construction of the development consent in issue in the Applicant's case. I do not consider that material has any forensic purpose. This paragraph is not permitted.
14. Paragraphs 5 and 6 seek the same material with par 5 cast widely to communications with tour operators inter alia in relation to three specified matters which are identified in the amended points of claim. The same information is sought from Australian Attractions in par 6. This information is relevant to the issues identified in the amended points of claim and it is "on the cards" that it will inform identified issues. The paragraphs seek material over close to a two year period as the commencement date is 17 September 2017. No justification for such a lengthy period has been provided by the Applicant. It should be reduced by at least half to avoid unnecessary production of documents not essential to the Applicant's case. The Applicant should also give consideration to whether the time period can be further reduced.
15. Paragraphs 7, 8, 9 and 10 concern trade rates offered by the Respondent. Paragraphs 7 and 8 specify the time the information is sought as the date of the notice to produce. Paragraphs 9 and 10 seek agreements entered into since 1 April 2019 and any lists of tour operators inter alia who have entered into such agreements. This information is relevant to the issues identified in the amended points of claim and serves a forensic purpose.
16. Paragraph 20 seeks the date on which the Respondent intends to commence operations. Presumably what is sought is a document in any form recording that date if it exists. If such a date is unknown, as was suggested from the bar table by the Respondent's counsel as an occupation certificate is necessary before commencement, that can obviously be a response by the Respondent.
17. While I have found that a number of paragraphs are satisfactory from the perspective of serving a forensic purpose, the Respondent also complained that the notice to produce gives rise to discovery as the documents are not specified with any particularity and require the recipient to select material. I consider the permitted paragraphs do sufficiently categorise the documents sought and do not give rise to discovery: Patonga Beach Holdings Pty Ltd v Lyons at [14].
18. The Respondent invoked case management principles to argue that extensive documents should not be allowed to be sought. Ultimately such principles should not be used to bar a party pursuing its case where the documents sought have been determined to serve a forensic purpose and are otherwise permissible. In the overall scheme of this litigation which concerns a new, substantial, multi-million dollar development with wide-ranging differentiation obligations under its development consent the Applicant should be able to adequately pursue its case.
19. That the Applicant's solicitor stated in correspondence that at the time of the letter dated 27 June 2019 sufficient material existed to justify its claim does not undermine the Applicant seeking more documents relevant to its case now. That the case is now likely to be more substantial in terms of documentary evidence than when first commenced is a neutral matter.
20. The documents sought under the subpoena to produce from Australian Attractions are the same categories as in the notice to produce amended as necessary to refer to that company. Australian Attractions has, I infer, a commercial relationship with the Respondent in relation to the commercial development of the new zoo. Paragraph 1 cannot stand consistent with my earlier finding. For the reasons already given in relation to the notice to produce the documents otherwise sought in the subpoena in other paragraphs have the capacity to inform the matters identified in the Applicant's case. The documents sought appear to overlap with the notice to produce in relation to par 4 which is in similar terms to par 6 in the notice to produce.
21. The next issue that arises is the Respondent's submission that the subpoena to produce is oppressive relying on the affidavit of Mr Corbett. He attests to the reasonably substantial amount of time and therefore cost which will be incurred by a non-party in complying with the subpoena. The documents sought in paragraph 2 appear confined. Paragraphs 3 and 4 seek specified documents over close to a two year period, from 8 September 2017. That is a lengthy period and, as already noted above at [53] no specific support for that is provided by the Applicant's case. Given the burden placed on a non-party the Applicant must consider whether such a lengthy period is warranted with a view to reducing that period by at least half.
22. Paragraphs 5-8 which deal with adult nett/trade rates are limited in time and should be answered in my view.
23. In light of the reduced scope of the subpoena including the substantial reduction in the timeframe for pars 3 and 4, I do not consider the time or cost required to obtain documents will be excessive or oppressive.
24. Confidentiality agreements can be drafted to ensure commercially sensitive material is protected and appropriate orders to that effect will be made.
25. Under r 49.19 of the UCPR a court has wide power to vary or discharge an order of the Registrar as the court sees fit. I decline to set aside the Registrar's decision in its entirety and indeed I confirm most of her determination. Orders requiring a modified notice to produce and subpoena to produce complying with the findings above will be made. The Applicant is to clarify whether the date of the amended documents will be the operative date for the purposes of the relevant paragraphs therein. I will discuss with the parties an appropriate timetable for the necessary steps to occur.
26. The Respondent seeks its costs of the notice of motion dated 21 January 2019 heard by the Registrar. The Registrar ordered that costs be reserved. Costs of this notice of motion dated 24 April 2019 are also sought. As I have not heard arguments on costs I will discuss costs with the parties before finalising any costs order.

Orders

1. The Court makes the following orders: 1. Pursuant to r 49.19 of the Uniform Civil Procedure Rules, the orders made by the Registrar on 17 April 2019 are varied as follows: 1. the Applicant's notice to produce filed on 26 July 2019 is set aside in part and varied in accordance with this judgment; 2. the subpoena to produce filed by the Applicant on 26 July 2019 issued to Australian Attractions Pty Ltd is set aside in part and varied in accordance with this judgment. 1. Costs are reserved. 2. The exhibits are returned.

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: 28 August 2019