Eodo Pty Ltd v Blue Mountains City Council & Ors

I turn, therefore, to the question of whether or not the subpoenas should be set aside, as all three respondents submit.

Mr Simpson, for the applicant, points out that probably all documents relevant to the question in the class 4 proceedings are in the hands of the respondents, that probably none of those documents are in the hands of his clients, and that, apart from the comment in par 19 thereof, the Practice Direction is silent on when subpoenas may properly be issued.

Ms Fitzhardinge, for the Second and Third Respondents, argues that public sector parties, like the Minister and the Director General, should, in such matters, be treated no differently from private parties, and that the applicant can obtain its evidence by other means in the ordinary course.

Mr McKenzie, for the First Respondent, argues that the subpoenas are "premature", and are designed to go "fishing" for evidence to found a case against the validity of the LEP. Subpoenas should not be issued until after discovery, when the trial of the issues, suitably "narrowed" by the court's usual pre-trial procedures, is "in prospect", and the "relevant evidence" can be identified defined and properly sought. Issuing these subpoenas, in their current form, at this very early stage, is an abuse of the court's "salutary procedure" - it is done for an "ulterior" purpose (i.e. "fishing"), and they are "both too wide and too early", and should be set aside.

The leading NSW authority, to which reference is frequently made in cases like this, is Commissioner for Railways v Small (1938) 38 S.R.564, in which Jordan CJ traced the relevant history of writs of subpoena, and restated the need for "particularity" as to the documents required to be produced. He noted the obligations of parties (c.f. strangers) to give discovery, and criticised "fishing" which he defined (at 575) as "endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all".

Jordan CJ's comments were adopted and applied in this court, for example, in Talbot J's judgment of 7 August 2000 in Commonwealth of Australia v Randwick Council [2000] NSWLEC 171 (at pars 23 and 26).

Mr Simpson referred the court to the judgment of Moffitt P in Waind v Hill & Anor [1978] 1 NSWLR 377. Moffitt P discussed Small and other authorities at length, but I can find, in his judgment, nothing to support the applicant's position; indeed (at 382) there are comments which refute it.

In this case it is clearly arguable that all the documents listed in the schedule to the subpoenas could well prove to be relevant to the question of the plan's validity, so I will not prejudge the subpoenas on the basis of their "width". However, a conclusion that they are part of "a fishing exercise" is virtually inevitable, as they have been issued when the only substantive document in the court file is the class 4 application. In the discovery process the parties must decide what documents they possess are relevantly related to an issue taken in the proceedings (Talbot J par 35), but the issues in this matter are yet to be defined, and it is not appropriate to subpoena any documents until they are.

I have concluded that this litigation should be allowed to follow the usual course envisaged by the Practice Direction. With that in view, the court orders: (i) the subpoenas for production issued by the applicant to the First, Second and Third Respondents, on 16-17 May 2001, in the terms referred to in par 1 of this judgment, are set aside. (ii) the class 4 proceedings will be listed for callover by the Registrar next Wednesday 6 June 2001, with a view to her giving the parties appropriate directions to progress them. (iii) The applicant will pay the costs of all three Respondents in respect of their Notices of Motion dated 25 May 2001.

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.