JPR Legal Pty Ltd v Marrickville Council

Matters to be Resolved (a) Issues in the case 7 Council is conducting the appeal on the basis of, and expects the expert evidence to focus on, those key issues, adverting only to the one changed circumstance, the closure of the RSL Club. 8 Representatives of the Applicant became aware, on or about 19 August, that Marrickville Anzac Memorial Club "was on the brink of closure" and that Marrickville Bowling and Recreation Club "went into administration". That information is somewhat confirmed in Ms Chiu's affidavit of 29 September, annexing ASIC searches of that date. (The Anzac Club is 450m and the Bowling Club 1100m from the subject site). 9 Council's principal solicitor, Mr Grant Christmas, deposes in his affidavit of 26 September to having on that date made direct personal inquiries of these two Clubs, with the result that the Anzac Club, with receivers appointed, will continue to trade as normal "for a very long time", and that the Bowling Club has not closed, is not about to close, is refinancing, is trading as usual, and is "about to come out of administration". 10 Counsel for the Applicant asks the court to agree that the Applicant can raise the status of the Anzac and Bowling Clubs as relevant to the court's consideration of the current DA. Council is opposed to such an expansion of the issues in the appeal. (b) Subpoenas 11 The court file indicates that the Applicant issued subpoenas to the Royal Exchange Hotel and Marrickville Tavern, on 14 August, seeking bar sales records for a one year period (compromised from the three year period stated in the subpoena) and for various particular dates. The Applicant has also issued a subpoena to the Rail Corporation, one to the "liquidators" of the Anzac Club, one to the Bowling Club, and another to the Anzac Club (this time to its "receivers and managers", and presumably in substitution for the earlier subpoena). The affidavit evidence before me (but not the court file itself) indicates also that a subpoena issued on 21 August to the RSL Club. 12 As I understand the Registrar's referral on 17 September, those subpoenas to the two hotels and the two clubs (other than the RSL) are before me. Only the Royal Exchange Hotel has appeared, and it was represented by counsel. I was told from the Bar Table that the two hotels raise similar issues regarding their response to the relevant subpoena, and that it was understood the Marrickville Tavern's representatives had "written to the court" about this hearing. No communication with the court, relevant to the issues understood, from the Royal Exchange's position, to be of concern to the Tavern, has been found, but it is clear from the affidavit material that the Tavern's solicitors are on notice that I would be asked to finalise at this hearing all issues regarding its obligations to comply with the subpoena. 13 There is nothing before me to indicate any particular issue with the two club subpoenas, except reference in the Gayle affidavit to the fact that as yet the parties have not been granted access to the Anzac Club documents, and I see no difficulty in the parties having access to any documents produced by the clubs, on the usual basis. 14 The subpoenas on the two hotels raise different problems for my consideration, but relevantly the same general problems in each case. 15 The information sought on subpoena is that required by the Parties Single Expert. Both would be nearby competitors of the proposed hotel. Both are said to be objectors to the proposal and there is certainly a detailed objection on behalf of the Exchange in the Council bundle. Both are entitled to some privacy in respect of their commercial operations, takings, market share, etc. Each appears to be part of a group and may need to "unscramble" financial records to comply. The Applicant (and I presume also the Council) respect the need for confidentiality, and will sign an appropriate agreement for each hotel. In both cases the terms of such an agreement (including as to photocopying) are either close to resolution or resolved. 16 What is, however, not resolved is the question of the "costs, losses and expenses" involved in the hotels' compliance with the subpoenas, and how and when they should be determined and paid. Consideration (a) Issues in the case 17 In my view the two clubs in some financial difficulty are too far away from the subject site to be of relevance to the parking issue in this appeal, but close enough to it to be of possible relevance to the social impact issue. 18 However, they are not closed, and may not close in the foreseeable future, if at all. Should they close before the hearing of this appeal, those responsible for case management and hearing of the appeal can revisit how the evidence is to be dealt with. Any closure of nearby licensed premises would amount, at least, to a "circumstance of the case", to be taken into consideration by the court. 19 As the parties have their own experts on the social impact aspect of the case I see no need to make any directions at this point other than to express the view that Mr McLaren should continue to prepare his report by reference only to the closure of the RSL. (b) Subpoenas 20 Both hotels hired a consultant or accountant to prepare the material to be produced in response to their subpoenas. The Parties' Single Expert clearly sought "raw data" on takings, rather than any commentary on financial performance. The Tavern's documents are in the Registry already, and the Exchange's figures are contained in a document in its counsel's possession. Both responses run to twelve pages or less. I have seen neither. Ms Berglund told the court the Exchange document is a "collation of numbers", and not an "expert report", and that it is "responsive" to the subpoena. 21 The Applicant is rightly prepared to pay "reasonable costs" for the provision of the material, but understandably concerned to see some justification for the rather remarkable costs figures claimed - some $8,000 for the Exchange, and $5,300 for the Tavern. 22 Citizens (individual and corporate) have obligations to assist the court when served with subpoenas, and there is no justification for treating compliance as some sort of commercial litigation with the party issuing it. Their advisors also have a civic duty - and, in the case of lawyers, some obligations to the court - to facilitate compliance. 23 Persons under subpoena are not selling highly valued material to the parties at professional market value prices; they are performing their civic duty to assist in the administration of justice. The time-honoured subpoena process is designed to shed light on the resolution of issues before the court and is not supposed to generate only heat as between the parties, and among their advisors and interested bystanders expected to assist the court by their evidence, or by the production of relevant documents. 24 There is clear Supreme Court authority for the obligation of a producing party to produce subpoena'd documents on the basis of an undertaking to pay reasonable costs involved, but payable only after compliance with the subpoena. See In the matter of Bauhaus Pyrmont Pty Ltd (in liquidation) [2006] NSWSC 253 ("Bauhaus"), especially pars [14]-[18]. Austin J acknowledged in that case that compliance with a subpoena often involves "commercial work" by lawyers and other professionals, and such work involves "expenses of personal exertion, sundry out-of-pockets, and legal expenses". 25 The court accepts that those to whom subpoenas are directed may have considerable work to do to comply, and may need assistance in ascertaining the purpose to be achieved by the subpoena, and advice on matters such as (1) the limitations upon which they can rely as to the permissible scope of a subpoena, (2) how to respond if the subpoena is oppressive or a "fishing expedition", (3) questions of privilege, and so on. 26 The obligation to comply falls on the addressee, and it will not often be satisfactory for an engaged expert or consultant to present a report of "sanitised" material in response to the subpoena. 27 The Uniform Civil Procedure Rules acknowledge that a producer complying with a subpoena should and can recover any "reasonable loss or expenditure incurred" (see Rule 33 and its subrules), but Austin J saw the underlying policy of the new Rules as being opposed to any prepayment of expenses, other than in circumstances where traditional conduct money is or should be paid to secure a witnesses attendance. His Honour was prepared to infer a power in the court to order a prepayment, in advance of the production of documents on subpoena, only where there was reason to doubt that in due course the issuing party may not be able to pay the reasonable expenses involved, or the particular circumstances of the case clearly called for it. 28 The Exchange and the Tavern appear to the court to have been holding out for pre-payment - perhaps into their respective solicitor's trust account for "adequate security" - of claimed amounts of expenses without any assessment process, and without any real particulars of how those component amounts are arrived at, and why they are justified. 29 Until the hearing before me the Exchange sought legal fees of $3,415 for ERA, plus $770 for HPL (the hotel changed solicitors on 15 September) and accounting expenses of $5,500. At that hearing its counsel said legal fees of $1,500 plus $1,000 (including attendance on the hearing before me), plus the full accounting expenses, would be acceptable, but prepayment was no longer pressed. 30 The Tavern has been asking legal fees of $1,221, plus $759, and accounting/consultancy charges of $3,300. It has produced the documents to the court, but not conceded access until "agreement" to pay those charges, in full as invoiced, is reached with the Applicant. 31 Even at this hearing no satisfactory particulars have been provided of how all these charges are arrived at, and why they are justified. 32 Counsel for the Applicant would concede only expenses of between $500 and $1,000 in each instance, and asks the court to set "appropriate" recompense, in order to put an end to the two hotels' obstructive behaviour and the unnecessary costs it has caused all concerned. 33 When opposition to compliance was encountered, the Applicant's solicitor quickly explained the purpose for which Mr McLaren sought the information, and when prepayment was pressed, the solicitor advised the solicitors for both hotels of what Austin J said and held in Bauhaus. Guarantees to pay "reasonable expenses" were proffered in writing at an early stage, and confidentiality assurances were given and agreements drafted and negotiated. 34 Legitimate subpoenas have been issued, and the adversarial approach taken to compliance with them must now end. The original dates for compliance with these subpoenas have long passed. Until the documents are produced and accessed no-one can truly assess their relevance and value to the appeal, and even then the reasonableness of the expenses claimed will remain unclear. 35 The court is left with no option, but to stipulate the appropriate expenses to be paid. I am satisfied that the amounts suggested by the Applicant are inadequate, and that those claimed by the two hotels are excessive. I have already accepted the justification for seeking legal advice, having confidentiality agreements drawn up etc, and I have acknowledged the justification for some accounting work to ensure compliance and protect commercially confidential information not at all relevant to the case at hand. The Applicant cannot be held totally responsible for any "unscrambling" costs involved. 36 In the case of each hotel I will allow $1,000 for legal services and $1,500 for accounting assistance, both to be "plus GST". The solicitors for the Applicant should confirm that those amounts will be paid to the solicitors for the hotels once they are satisfied the subpoenas have been complied with. As I will be ordering full production and confidential access forthwith, those payments should not be delayed for long. Bauhaus, and the Rules upon which it is based, do not even hint that such payments could/should be delayed beyond compliance, and a reasonable time should be allowed. Orders 37 The orders of the court are:

1. Royal Exchange Hotel is ordered to lodge with the Registrar forthwith the response it has prepared to the Applicant's subpoena. 2. Access to the material produced pursuant to Order 1 and to the Marrickville Tavern material (in subpoena packet 8514) is granted as soon as confidentiality agreements have been executed. 3. The Applicant is granted liberty to apply in the event of any delay in access being obtained in accordance with Order 2, and/or in the event of the material produced by the two hotels proving non-responsive to the subpoenas issued. 4. The costs and expenses recoverable by the two hotels in respect of the production of records found responsive to the subpoenas are determined in the case of each hotel at $1,000 for legal costs and $1,500 for accounting or consultancy expenses, plus GST on both amounts. 5. The costs and expenses determined in Order 4 are payable within 42 days of access granted in Order 2 being concluded. 6. Access is granted to materials produced in response to the subpoena served on Marrickville Anzac and Memorial Club Ltd. 7. The matter is returned to the Registrar's call-over list for Friday 3 October.

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.