Jason Lennard v Heyday5 Pty Limited

Catchwords: CIVIL PROCEDURE – where person has not attended court to be examined – where orders made previously directing them to do so – where arrest warrant sought – whether the person should be granted final chance before arrest warrant issued

Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Lennard v Heyday5 Pty Ltd [2025] NSWSC 1503

Category: Procedural rulings

Parties: Jason Lennard (Plaintiff)
Heyday5 Pty Ltd (First Defendant)
Buildcorp Group Pty Ltd (Second Defendant)
Workers Compensation Nominal Insurer (Third Defendant)
Beirut Paving Pty Ltd t/as The Sydney Brick Paving Company Pty Ltd (Fourth Defendant)
City Stone Paving Pty Ltd (Fifth Defendant)

Representation: Counsel:
Ms K Young (Plaintiff)
Solicitors:
RMB Lawyers (Plaintiff)

File Number(s): 2024/00072233-1

JUDGMENT

1. On 30 April 2025, a Subpoena to Produce was issued by the Court requiring the production of documents by Mr Shakar Rachid, a director of the fifth defendant, City Stone Paving. That subpoena was duly served on Mr Rachid. He has failed to comply with it.

2. On 12 December 2025, Mr Rachid’s failure to comply with the Subpoena was raised before Schmidt AJ. On that occasion, her Honour made the following orders:

“(4) Mr Shakar Rachid, Director of the Fifth Defendant, is ordered to attend this Honourable Court on a date to be fixed in order to be examined with respect to his failure to comply with the subpoena to produce filed 30 April 2025, pursuant to rule 33.12 of the Uniform Civil Procedure Rules 2005.

(5) The Plaintiff’s legal representative has leave to approach the Supreme Court of NSW registry and/or the registrar of the Common Law Division of the Court in order to obtain a date for the examination of Mr Shakar Rachid.

(6) The Plaintiff’s legal representative is required to effect personal service on Mr Shakar Rachid with a copy of this judgment and these orders. The representative is also required to give him notice of the date appointed for his examination, not later than 28 days before the date appointed for his examination.”

3. The plaintiff’s solicitor subsequently approached the Supreme Court of NSW registry and made arrangements for the examination of Mr Rachid to be listed on 27 February 2026.

4. On 18 January 2026 – that is, more than 28 days before the date appointed for his examination – Mr Rachid was served with a number of documents, including a copy of the decision of Schmidt AJ in Lennard v Heyday5 Pty Ltd [2025] NSWSC 1503, and a letter dated 22 December 2025 from the plaintiff’s solicitor, which relevantly provided:

“We confirm that an interlocutory hearing was held in this matter before Her Honour Acting Judge Schmidt of the Supreme Court of NSW on 11 December 2025.

I attach a copy of Her Honour’s judgment and orders dated 12 December 2025.

The orders that were made and which affect you are:

[the letter then sets out orders 5, 6 and 7 made by Schmidt AJ.]

[This] means that:

(a) You are required to attend the Supreme Court of NSW, Queens Square on 27 February 2026 at 11am for examination as to why you have not complied with the subpoena to produce filed 30 April 2025.

I annex a copy of the subpoena to produce filed 30 April 2025.

If you fail to attend Court on 27 February 2026, we will seek an order for your arrest.”

(Emphasis in the original.)

5. On 27 February 2026, the matter again came before the Court for the purposes of Mr Rachid’s examination. The Court record notes that he failed to appear to be examined.

6. As was noted by Schmidt AJ at [25] of her Honour’s reasons, this is a serious situation. Failure to comply with Court orders is a punishable contempt.

7. In light of Mr Rachid’s failure to appear, the matter was referred to me, sitting as Duty Judge. The plaintiff requested that I issue a warrant under s 97 of the Civil Procedure Act 2005 (NSW) for Mr Rachid’s arrest.

8. I am comfortably satisfied that a copy of the reasons of Schmidt JA and the 22 December 2025 letter from the plaintiff’s solicitor were served on Mr Rachid. In combination, those documents ought to have made clear to Mr Rachis that he was required to attend Court and be examined on 27 February 2026.

9. While the 22 December 2025 letter did not set out explicitly the terms of Order 4 made by Schmidt AJ, it did emphasise that Mr Richard was required to attend court on 27 February 2026 at 11 AM for examination and foreshadowed that the plaintiff would seek an order for his arrest if he failed to attend on that occasion. All of this was reinforced through a text message sent to Mr Rachid by the plaintiff’s solicitor on 26 February 2026 at 5:58 PM.

10. I am also satisfied that disobedience of the order requiring Mr Rachid to attend Court and be examined enlivens the arrest powers conferred by s 97 of the Civil Procedure Act. As was pointed out by the plaintiff, this is not a case in which U**niform C**ivil P**rocedure R**ules 2005 (NSW) (UCPR) r 38(6)(c) is engaged.

11. However, I have ultimately determined that Mr Rachid should be given one further opportunity to attend Court and be examined in compliance with Court orders, before a warrant is issued for his arrest. This view has been informed by the analogous considerations raised in UCPR r 40(7) (and authorities which have considered that rule) and the fact that Mr Rachid was not served with a sealed copy of the orders of Schmidt AJ, endorsed with an appropriate penal notice warning him of the consequences of non-compliance with those orders.

12. To be certain that Mr Rachid is left in no doubt that he is being ordered by the Court to attend and be examined, I think it is appropriate that he be served with a sealed copy of the order requiring his attendance, endorsed with a notice that makes very clear to him that a failure to comply with that order without lawful excuse:

13. Is contempt of court and may be dealt with accordingly; and

14. May lead to his arrest under s 97 of the Civil Procedure Act.

15. To ensure they can be no ambiguity about what is required, it is preferable that the order I propose to make, which is to be served on Mr Rachid, specify with precision the date on which he is required to attend; as opposed to the more conventional mechanism which requires the party seeking the examination to approach the registry for the allocation of a date.

16. The Court is able to accommodate an examination before a registrar on 7 April 2026. I have been informed by the plaintiff’s legal representatives that they too are available to conduct the examination on this date. If, having been served with a sealed copy of orders compelling his attendance on that occasion, Mr Rachid nevertheless fails again to appear, the Court will have little alternative other than to issue a warrant for his immediate arrest.

17. The above circumstances, I make the following orders:

18. That Mr Shakar Rachid, Director of the Fifth Defendant, attend this Honourable Court on 7 April 2026 at 10 AM in order to be examined with respect to his failure to comply with the Subpoena to Produce dated 30 April 2025.

19. Not later than 28 days before the date appointed for Mr Rachid’s examination, he is to be personally served with:

(a) These reasons; and (b) A sealed copy of these orders, endorsed with the following notice

“A failure to comply with Order 1 without lawful excuse:

(a) Is contempt of court and may be dealt with accordingly; and

(b) May lead to his arrest under s 97 of the Civil Procedure Act.”

And note that:

3. If, having been served with these reasons and a sealed copy of these orders as contemplated by Order 2, Mr Rachid fails to appear for his examination on 7 April 2026, the matter is to be referred to the Duty Judge to enable the plaintiff to apply for the issue of warrant for his arrest under s 97 of the Civil Procedure Act.

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