Galliott v The Owners �e" Strata Plan No 43251 [2025] NSWCATCD 157;

[O]nly if satisfied that -

(a) the management of a strata scheme the subject of an application for an order under this Act or an appeal to the Tribunal is not functioning or is not functioning satisfactorily, or

(b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or

(c) an owners corporation has failed to perform one or more of its duties, or

(d) an owners corporation owes a judgment debt.

1. The applicants raise numerous issues said to establish one or other of those conditions and to warrant the appointment of a compulsory strata managing agent.
2. One such issue is alleged non-compliance by the owners corporation with fire safety orders issued by the Council of the City of Sydney (the Council) over a period of time.
3. Mr Joe Kalgovas is a building surveyor employed by the Council in its Health and Building team. The documents the applicants have obtained from the Council disclosed that Mr Kalgovas has been involved in and been a point of contact for the Council in relation to the fire safety orders and applications by the owners corporation for extensions of time and modifications of fire safety orders.
4. On 4 June 2025 the Tribunal granted the first named applicant, Ms Galliott, leave to issue summonses to give evidence at the final hearing of the proceedings to 14 persons including Mr Kalgovas. Section 48 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that a summons to attend and give evidence at a hearing of the Tribunal may be issued by a registrar of the Tribunal on the application of a party or at the direction of the Tribunal.
5. On 17 July 2025 the applicants lodged with the Tribunal an application for a summons to be issued to Mr Kalgovas requiring him to attend the hearing to give evidence. The summons was issued on 22 July 2025.
6. On 30 September 2025 Mr Adam Stipcevic, a solicitor employed by the Council, filed an application for miscellaneous matters seeking an order setting aside the summons issued to Mr Kalgovas or an order excusing Mr Kalgovas from attendance.
7. The application stated that the Council had produced documents to the applicants which "accurately record Council's dealings with the various representatives acting on behalf of the Owners in relation to the two Fire Safety Orders between February 2011 and the current time."
8. By letter to the Tribunal dated 2 October 2025, Mr Stipcevic confirmed that he represented Mr Kalgovas and brought the application to set aside the summons on Mr Kalgovas' behalf.
9. The application for miscellaneous matters was listed before me on 7 October 2025.
10. Mr Stipcevic appeared for Mr Kalgovas, Mr J Li, of counsel, appeared for the owners corporation, Dr Jai Galliott appeared for the applicants.
11. At the conclusion of the hearing, I made orders:

"1 By 3 pm on 8 October 2025 the applicants are to file with the Tribunal and serve upon the respondents and the City of Sydney a document setting out the evidence which it is anticipated that Mr Joe Kalgovas will give if required to attend the hearing, which is not established by documents already available to the applicants.

2 Any submissions in response from the respondents or the City of Sydney must be filed with the Tribunal and served upon the applicants by 5 pm on 9 October 2025.

3 In the event that the summons is not set aside Mr Kalgovas will be required to attend the hearing only at 9.15 am on 17 October 2025 and for no longer than one hour."

1. The applicants did not file any documents in compliance with order 1.

1. In EJX v University of Newcastle [2022] NSWCATAP 105 (EJX) the Appeal Panel set out, at [43]-[45], principles applicable to the question whether the Tribunal should issue a summons for the production of documents:

"43 The test for whether the Tribunal should issue a summons for the production of documents at the request of a party has been equated to the test applied by the Courts in relation to the setting aside of a subpoena.

44 In Lonsdale v University of Sydney [2015] NSWCATAP 277 at [22] the Appeal Panel noted that the Court of Appeal decision in R v Saleam (1989) 16 NSWLR 14 at [11]:

"stands for the following propositions: before a summons is issued, 'the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case'".

45 In CPJ v The University of Newcastle [2017] NSWCATAD 350 Deputy President Hennessy held, at [9] - [12]

9 A registrar may, on the application of a party to proceedings or at the direction of the Tribunal, issue a summons: NCAT Act, s 48. NCAT Procedural Direction 2 gives as an example of an objection that can be made to a summons, that the "evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings". The Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27].

10 It is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. It is also impermissible for a party to use a summons for "fishing". The author Bernard Cairns describes "fishing" as "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge": Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585.

11 The question is not whether the documents would be admissible in evidence or will "definitely advance the case of the parties" issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: National Employers' Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447.

12 In a recent Supreme Court case, Brereton J summarised the principle as being "... that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they "appear relevant in the sense they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case": Sharpe v Grobbel [2017] NSWSC 1065 at [35] (footnotes deleted.)

1. Those principles were applied in relation to a summons to attend and give evidence in icare NSW v Webb [2023] NSWCATAP 192. In that case, the Appeal Panel held, at [34]-[43]:

"A summons should only issue for a legitimate forensic purpose

34 As submitted by the appellant, a summons should be set aside if it lacks a legitimate forensic purpose. The principles were alluded to in the appellant's written submissions, and not put into dispute in the appeal. The forensic onus is on the issuing party to identify a legitimate forensic purpose: see Re Don [2006] NSWSC 1125 at [26(3)]; Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown City Council), per Bell P (as His Honour the Chief Justice then was) at [73].

35 The power to set aside a summons is an instance of the Tribunal's power to regulate its processes and intervene in a case of abuse of its processes: Blacktown City Council at [32], [60], [88], [98], [100].

36 In Blacktown City Council (regarding a subpoena for production), Bell P said at [65]:

It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist.

37 In the same decision, Brereton JA said at [89]

l agree with [Bell P], for the reasons given by his Honour, that an issuing party is not required to show that it is 'likely' (or 'on the cards') that the documents sought will materially assist its case, as distinct from that it is 'likely' (or 'on the cards') that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they 'appear relevant in the sense that they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case...

... it was unnecessary [...] to demonstrate that the documents sought to be produced would materially assist [the applicant for a summons'] case, and sufficient to establish that the documents would assist on an identified issue.

39 I see no reason that the same principles are not apposite, with appropriate adjustment, to the issue of a summons to a potential witness to testify in proceedings. A summons to a witness to attend a hearing will not generally be an abuse of process if their evidence is likely to, or it is "on the cards" that it will, in some way, add to the relevant evidence in the case on an identified issue. However, if it can separately be demonstrated that the party issuing the summons "has done so for some improper, illegitimate or ulterior purpose foreign to the litigation", the Tribunal in the exercise of its discretion may still set aside the summons as an abuse of process: Blacktown City Council, per Bell P at [70].

40 Some older authority assists in that regard. In Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372 at 385 Moffitt P referred to "the invasion by the subpoena procedure of the rights of a stranger", in the following terms:

52 The court has power to refuse to admit cross-examination of a witness - even a party-witness - on an affidavit if that would be an abuse of process. In Re Mundell; Fenton v Cumberledge (1883) 48 LT 776 at 778, Pearson J made an order to that effect and referred to Raymond v Tapson [1882] UKLawRpCh 227; (1882) 22 Ch D 430 as an authority in which Sir George Jessel MR and Cotton LJ:

laid it down beyond all dispute that the court has a right to protect Her Majesty's subjects from the practice and process of this court being simply used to torture them, and not for the purposes of justice.

41 See also in this regard, Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 101, per Powell JA and Witness v Marsden & Anor [2000] NSWCA 52.

42 As was said by Bingham J in R v Baines ... [1908] UKLawRpKQB 159; [1909] 1 KB 258, at page 261:

There can be no doubt as to the jurisdiction of the Court to interfere where it is satisfied that its process is being used for indirect or improper objects. It must not be supposed that the position which the applicant occupy [one was Prime Minister, HH Asquith, and the other Home Secretary, H J Gladstone] affords them any privilege. They stand in the same position as any other of His Majesty's subjects. But the Court has to inquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant... (emphasis added)

43 The nature of the proceedings and the legislative context in which they are conducted is also relevant: Blacktown City Council, per Bell P at [59]."

1. At the hearing of the application I asked Dr Galliott to identify the evidence that he anticipated Mr Kalgovas would give, if called at the final hearing, which was relevant to the application brought by the applicants. Dr Galliott suggested that Mr Kalgovas would be able to shed light on the circumstances in which the respondent had failed to comply with fire safety orders over a number of years. Dr Galliott was not able to be more specific beyond suggesting that Mr Kalgovas had made comments to the effect that the respondent (or rather its management) was "the worst he had seen".
2. As noted in the extract from CPJ v The University of Newcastle [2017] NSWCATAD 350 at [9] cited in EJX, set out at [15] above, the onus lies upon the party issuing a summons to demonstrate a legitimate forensic purpose for the summons by reference to the issues in the proceedings.
3. The issues arising in the proceedings will be:

(1) Whether one of the pre-conditions for the appointment of a compulsory strata managing agent set out in s 237(3) of the SSMA has been established; and, if so

(2) Whether there are appropriate discretionary reasons for the appointment of a compulsory strata manager: Maple v The Owners - Strata Plan No. 8950 [2021] NSWCATCD 108 at [19]. See also The Owners-Strata Plan No 76317 v Ho [2020] NSWCATAP 205 at [26]- [28].

1. To the extent that the application relies upon the respondent's alleged failure to comply with fire safety notices over a number of years, that fact will be established, if established, on the basis of documents. To the extent that the respondent seeks to explain any such failure or delay, that will be a matter for the respondent. If the respondent has filed evidence seeking to explain any failure or delay in compliance with fire safety notices, which Mr Kalgovas might be able to contradict, the applicant could have identified such evidence in a document filed in accordance with my directions of 7 October 2025. As noted, the applicants did not file any document in accordance with those directions. The suggestion that Mr Kalgovas may have expressed an adverse opinion regarding the performance of the respondent (or its strata committee or strata manager) could have no relevance without context.
2. I did not consider that the applicants had identified at the hearing any legitimate forensic purpose for calling Mr Kalgovas to give evidence, as opposed to a general hope that he might be able to say something helpful. However, because it appeared the applicants may not have understood the burden that lay upon them to justify the summons, I gave the applicants an opportunity to identify the evidence which they anticipated he would give, which they could not establish by reference to documents already in their possession.
3. As noted, the applicants did not file any document in compliance with my direction.
4. Accordingly, I conclude that the applicants are not able to identify any evidence relevant to the application, which Mr Kalgovas might be able to give, and that the summons requiring Mr Kalgovas to attend the hearing should be set aside.

(1) The summons issued to Joe Kalgovas requiring his attendance at the hearing of these proceedings on 16 and 17 October 2025 is set aside.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.