Mathews v The Uniting Church in Australia Property Trust

Conduct money 12Mr J Dupree, who appeared for the applicants, submitted that the tender of adequate conduct money was an essential prerequisite to enforcing compliance with a subpoena. He relied upon the provisions of the Uniform Civil Procedure Rules 2005 ( UCPR ) Part 33 r 33.6(1) which relevantly provides as follows: "(1) An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required." 13The expression "conduct money" is defined in r 33.1(1) in the following way: " conduct money means a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending." 14Mr Dupree's submission under this ground for setting aside the subpoena was originally three-fold. First he submitted that a cheque does not satisfy the definition of "conduct money" because a cheque is not "money or its equivalent". Second, if contrary to the first submission, a cheque could be tendered, it must be a cheque drawn by the party issuing the subpoena or by the solicitor acting for that party. The cheque tendered to Mr Neustein by the corporate entity "Gadens Lawyers Sydney Pty Ltd" did not satisfy that requirement. Third, the conduct money, in whatever form, must be sufficient to meet all the reasonable costs and expenses of the addressee in providing the documents sought, including compensation for the time taken in identifying those documents, undertaking any copying or other process directed to recording the documents as well as those costs incurred in conveying the documents to the Court. 15In support of the third of these submissions, Mr Dupree cited the observations of Campbell J (as his Honour then was) in Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 881. His Honour was there required to consider the provisions of Part 37 of the Supreme Court Rules 1970 ( SCR ). He said (at [10]): "10. Part 37 rule 3 is headed ' Conduct money '. However, the wording of the rule imposes a wider obligation than to merely pay fares or reasonably anticipated expenses for accommodation or sustenance involved in complying with the subpoena. The rule requires, it seems to me, that the person tendering the subpoena make an estimate of what are the reasonable expenses of the person named of complying with the subpoena, and to tender that amount at the time of service. ' Expenses ' would include all money actually paid out, and the cost of items used up, in complying with the subpoena." 16I do not accept the applicants' submissions in this regard as founding a proper basis upon which to set aside the subpoena. UCPR 33.1(1) identifies three kinds of subpoena: one to attend to give evidence; one to produce documents and one both to give evidence and to produce documents. The subpoena presently under consideration falls within the second category of subpoena, namely to produce documents. 17Correctly understood, the applicant's reliance upon UCPR 33.6(1) is misplaced. In terms, that rule is expressed to apply to "a subpoena to attend to give evidence" (cf UCPR 33.1(2)). As I have said, the present subpoena is a "subpoena to produce" (cf UCPR 33.1(3)). While UCPR 33.6(1) is directed to compliance with subpoenas of the former kind, rule 33.6(4) makes provision for compliance with a subpoena to produce. 18Moreover, the rules provide separately for the payment of "conduct money" on the one hand and the payment of costs and expenses incurred by the addressee of a subpoena in complying with the requirements of that subpoena on the other. I have already set out the definition of "conduct money" found in rule 33.1(1). It is clearly directed to the travel costs, and if necessary, the accommodation expense in having the addressee attend Court and "returning after so attending". 19By way of contrast, UCPR 33.11 allows the addressee to recoup the loss or expense of complying with the subpoena by seeking an order of the Court to that effect. It was by reference to this rule that the solicitors for the first respondent indicated in the email exchange with Mr Neustein of his entitlement to seek an order of the Court if the amount agreed to be paid to him (capped at $1,000) was insufficient to meet his reasonable expenses. 20The provisions of Pt 33 of the UCPR addressing both the tender of conduct money and an order for payment of costs and expenses incurred in complying with a subpoena differ from those provisions that were contained in the SCR. Thus, the observations of Campbell J in Foyster relied upon by the applicants in these proceedings would not appear to have present relevance. The SCR did not contain a definition of "conduct money", as does the present rule, and the terms of SCR Pt 37 r. 3 differ in significant respects from the provisions of UCPR 33.6(1). In particular, the former rule was not confined in its operation to a subpoena to attend. Moreover it required the payment or tender of money "sufficient to meet the reasonable expenses of the person named of complying with the subpoena" (cf Foyster at [9]). 21The different operation of the relevant provisions of UCPR Pt 33 from those found in SCR Pt 37, as I have identified them, is a difference addressed in the judgment of Austin J in In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253. The addressee of the subpoena in that case, like the present, sought substantial payment in advance of producing documents as a condition of complying with a subpoena. The applicant in that case also sought to sustain its claim by a reference to the observations of Campbell J in Foyster . Austin J first identified the fact that the claim made by the addressee of the subpoena for costs and expenses was not comprehended by the definition of "conduct money" found in UCPR 33.1. His Honour then said (at [13]): "13. I contrast the current rule with the previous rule, Part 37 rule 3(1), which is set out at [9] of Campbell J's judgment. That rule said that a subpoena was not to require a person named to attend or produce any document or thing unless a sum sufficient to meet 'reasonable expenses' was paid or tendered. The current position with respect to subpoenas to produce is found in rule 33.6(4). It says that the addressee must comply with a subpoena to produce either by attending at court and producing the document or thing to the court, or by delivering or sending a copy of the subpoena and the document or thing to the Registrar. Obviously enough, if the second option is selected the concept of conduct money is inappropriate. ... 15. Rule 33.11 of the new rules makes provision for recovery of reasonable expenses. The rule declares that the court may order the issuing party to pay the amount of any reasonable loss or expenditure incurred in complying with the subpoena. This proposition applies to subpoenas to produce as well as subpoenas of the other two kinds to which I have referred. Significantly, for present purposes, the authority given to the court relates to the payment of reasonable loss or expenses 'incurred in complying with the subpoena'. This suggests that at least in the normal course, the court will deal with the matter after the expenditure has been incurred". 22I respectfully concur in his Honour's observations. They are apposite to the present case. 23In summary, compliance with the subpoena addressed to Mr Neustein cannot be avoided in reliance upon UCPR 33.6(1). That subpoena does not require Mr Neustein to attend to give evidence. It is only a subpoena of the latter kind that engages the provisions of the subrule. To the extent that the incurring of costs and expenses are contemplated in complying with the subpoena, upon application being made, reasonable costs and expenses incurred may be the subject of an order by the Court. However, there is no evidence before me to suggest that the costs likely to be incurred will be disproportionately high when compared with the resources of Mr Neustein or that doubt exists as to the ability of the first respondent, through its solicitors, to meet any order for payment of expenses (cf Bauhaus at [16]). Indeed, on the evidence before me there was no basis upon which to question the worth of the undertaking given by the first respondent's solicitors to meet Mr Neustein's reasonable expenses capped at $1000. Nothing contained in the exchange of emails between Mr Neustein and those solicitors concerning his likely costs and expenses suggests a figure in excess of $1000. 24In light of my reasons for rejecting this ground for setting aside the subpoena, it is unnecessary to determine the applicant's submission directed to the tender of a cheque as "conduct money" or the provision of a cheque drawn on an account that does not accord precisely with the name of the solicitors acting for the first respondent. However, in light of the definition of "cheque" contained in s 10 of the Cheques Act 1986 (Cth) and the liability of the drawer of a cheque stated in s 71 of that Act, it is not immediately apparent to me why, in principle, the tender of a cheque as "conduct money" would not qualify as "money or its equivalent" within the meaning of that expression found in UCPR 33.1(1).

Abuse of process: forensic purpose and "fishing" 30The remaining bases upon which the applicants assert that the subpoena should be set aside are that its issue lacked a legitimate forensic purpose; that it was "fishing" and, by its terms, required the production of documents that impermissibly called for judgment to be made as to what was required. Generically, these grounds, if made out, provide a further basis upon which to assert an abuse of process. 31In this context it is submitted on behalf of the applicants that the following matters support their claim to have the subpoenas set aside: (i)there has been no joinder of issues so as to permit the application of the "adjectival" test of relevance referred to in the authorities; (ii)documents sought to be produced are "already in Court" and thus the subpoena lacks forensic purpose; (iii)the documents sought in paragraph 1 of the Schedule to the subpoena are exhibited to an affidavit that has been filed in the proceedings and therefore its production under subpoena serves no forensic purpose; (iv)the document identified in paragraph 2 of the Schedule to the subpoena is part of an annexure to the affidavits sworn by Mr Neustein; and (v)documents referred to in paragraphs 3 and 4 of the subpoena involve a "fishing" exercise or otherwise seek discovery from a stranger to the litigation. 32The applicants correctly observe that issue in the proceedings has not been joined, in the sense that pleadings have closed. The applicants were directed to file their points of claim together with their affidavit evidence at an earlier hearing before the list judge. They complied with that direction. However, a direction that the respondents file their points of defence and affidavit evidence was vacated pending determination of the applicant's notice of motion to set aside the subpoena. Thus the question of relevance, if any, must be determined by reference to those documents that have been filed. 33The applicants rely upon the observations of Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 where his Honour observed at [22] "that absence of apparent relevance is a sufficient ground to set aside a subpoena or a part of a subpoena". In addressing "relevance" in that context, his Honour said (at [25]): "It is sufficient that [the documents sought to be produced] could 'possibly throw light' on the issues in the substantive proceedings, or that it appears to be 'on the cards' that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings". These observations were cited with approval by Ward J in In the matter of One.Tel Ltd (in liq) - SingTel and Optus Pty Ltd v Weston [2010] NSWSC 1491 at [21]. 34As I have earlier indicated, the applicant's case seems to be directed to a claim that the dressage arena on the first respondent's land was constructed without development consent and that a development consent granted by the Council for the extension of that arena is invalid. Those are the matters that are addressed by Mr Neustein in his affidavit filed in support of the applicant's case and in which he not only identifies documents to which he had regard but also expresses an opinion directed to the bases of challenge that the applicants seek to make. 35Clearly, the evidence addressed by Mr Neustein in his affidavit bears directly upon the claim or claims that the applicants seek to agitate. The identification of documents either referred to or relied upon by Mr Neustein (which is what the subpoena seeks to have produced) are "relevant" in the sense identified by Brereton J in Portal . It is "on the cards" that they will throw light on any evidence sought to be led through him by reference to his affidavit which, as I have indicated, would appear to provide a foundation for the case sought to be made by the applicants. I see no basis upon which to set aside the subpoena on the ground that it does not require a production of a document relevant to the case agitated by the applicants. 36The submission on behalf of the applicants that documents sought "are already in the Court" or are found either in annexures or exhibits to affidavits are submissions that I do not accept. The document identified in paragraphs 1 and 2 of the subpoena are quite specific. The requirement for them arises from the letter of instructions to Mr Neustein from the applicant's solicitor of 10 May. That letter is, in turn, referred to by Mr Neustein in annexure C to his affidavit as being a document with which he was provided for the purpose of preparing the report that is annexed to his affidavit. However, documents apparently fulfilling the description of those sought are not included as the documents to which the letter of instruction relates in the voluminous material exhibited either to Mr Neustein's affidavit or in the material exhibited to another affidavit filed on behalf of the applicants, namely that sworn on 1 August 2011 by Martin Welsh. The first respondent is entitled to have a document identified as the instructions to Mr Neustein produced by him. Moreover, there may be a legitimate forensic purpose in having Mr Neustein identify and produce the documents sought, even if they are documents that have otherwise come into the possession of the first respondent. It ought not have to await the cross-examination of Mr Neustein at trial in order to learn whether a particular document in the possession of the respondent is one to which Mr Neustein had recourse when preparing his evidence. 37For these reasons, I reject matters (ii), (iii) and (iv) argued under this ground as a basis for setting aside the subpoena. 38The application to have the subpoena set aside by reference to paragraphs 3 and 4 in the Schedule of documents to be produced is founded upon the claim that these paragraphs represent an impermissible "fishing" for documents; that they are ambiguous and that they call for the making of judgments that ought not be imposed upon a stranger to litigation. 39The focus of the applicant's claim directed to paragraphs 3 and 4 of the Schedule for the subpoena is upon the word "any" when referring to "any applications" (paragraph 3) or "any inspections" (paragraph 4). The use of this word is said to demonstrate that the documents sought are in the nature of discovery against Mr Neustein. 40The applicants accept, as I understood the submission of Mr Dupree, that precise identification of documents may not be required provided evidence is available or there is reason to believe that such documents exist. That concession would accord with the observations of Ward J in One.Tel where her Honour said (at [33]): "It may be that, as in Alister , even if the party seeking production of the documents is unable to say whether or not documents of the kind described do in fact exist, there would be sufficient basis to seek the documents provided there is reasonable cause to believe (or perhaps, to use the words of Gibbs CJ, at 414 in Alister that it is not unreasonable to believe) that there are such documents in existence...". The applicants submit that there was no evidence available that would fulfil the test identified in One.Tel . 41I do not agree. It is accepted by Mr Dupree that in order to obtain the information identified by Mr Neustein as having been obtained from the Council, an application or applications to the Council under the provisions of the Government Information (Public Access) Act 2009 would have been necessary. The respective properties identified in paragraph 3 of the Schedule to the subpoena are each properties described as they appear in that Schedule in documents exhibited to the affidavit of Mr Neustein. It is therefore "not unreasonable to believe" that there are copies of applications made under the Government Information (Public Access) Act that Mr Neustein or his company may have, seeking access to files pertaining to these properties. Should such documents exist and be in the possession of Mr Neustein, it is not contended on behalf of the applicants that those documents would not be relevant to be produced in response to the subpoena. 42By parity of reasoning, it is not unreasonable on the part of the first respondent to believe that, in preparing his report as an expert, Mr Neustein inspected documents in relation to the properties identified in paragraph 3 of the Schedule to the subpoena and made notes from such files when so doing. Alternatively, it is not unreasonable to believe that Mr Neustein was provided with file notes of others that were made following inspection of those files. For these reasons, I do not accept that the documents sought in paragraphs 3 and 4 of the Schedule to the subpoena involved impermissible "fishing" for documents as if it was discovery against a "stranger" to the proceedings. 43Mr Dupree further submitted that documents sought by the subpoena involved "fishing" or that the subpoena was oppressive in its requirement to produce documents because of the absence of any stated limit on the period of time applying to the documents sought in paragraph 3 of the Schedule. I accept this as a valid criticism but, in the circumstance, it is not fatal to the subpoena. Under UCPR 33.4(1), the Court is empowered to grant "relief" in respect of the subpoena other than by making an order setting it aside. That relief can, in the present circumstances, be provided by specifying a limited period during which any application of the kind identified in paragraph 3 was made. The first respondent suggested the period of 1 January 2010 to 31 August 2011. I did not understand the applicant to demur to the nomination of such a period. 44The "present circumstances" to which I have referred in the preceding paragraph are circumstances that are relevant to another of the applicants' ground of challenge, namely that as a "stranger" to these proceedings Mr Neustein should not be required to make the judgments said to be called for in addressing the requirements of paragraphs 3 and 4 of the Schedule to the subpoena. That circumstance is the involvement of Mr Neustein in these proceedings. While he is a stranger to the proceedings in the sense that he is not a party, he is not a "stranger" to the documents sought from him as the deponent of an affidavit filed in the proceedings in support of the applicant's case. 45It was observed by Brereton J in Portal at [26] that subpoenas addressed to parties "have been treated somewhat more liberally than subpoenas to strangers". This, no doubt, is because the party to whom a subpoena is addressed is expected to have a greater understanding of the proceedings and the issues it raises than is the case of a third party who, having no knowledge whatsoever of the proceedings, is confronted by a subpoena to produce documents relevant to those proceedings. It seems to me, by a similar process of reasoning, that the deponent of an affidavit in proceedings who is served with a subpoena to produce documents is not in any real sense a "stranger" to the requirements of that subpoena when it seeks production of documents referrable to the preparation of the affidavit which that witness has sworn or affirmed. Brevity of description used in seeking to identify documents may be unacceptable in a subpoena addressed to a true "stranger" but if used in a subpoena addressed to the deponent of an affidavit filed in the proceedings and, on its face, relating to the evidence that is there contained, may constitute an acceptable description for those documents. In that sense a more liberal approach may be taken to a subpoena addressed to the deponent of an affidavit or a witness than to a subpoena addressed to a stranger to the litigation. 46Contrary to the submissions made on behalf of the applicants, no judgment by reference to the issues in the proceedings is called for by Mr Neustein in responding to the subpoena served upon him (cp. National Employers Mutual General Insurance Association Limited v Waind [1978] 1 NSWLR 372 at 382; Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710 at 718). The requirement imposed upon him by the terms of paragraph 3 of the Schedule was to identify applications, if any, that he or his company had made for access to Council files. The obligation imposed by paragraph 4 was to identify notes made by or provided to him in relation to those files. The requirements to produce these documents did not impose an impermissible call for judgments to be made. 47Although not determinative of the issue, it is relevant to notice that in the several emails sent by Mr Neustein to the solicitor acting for the first respondent in the days following service of the subpoena upon him, he did not at any time identify an inadequacy in the description of documents required nor did he indicate any inability to understand or incapacity to identify the documents that he was required to produce. Indeed, he provided an estimate of the time likely to be required of him in "carrying out" document production. It was on that basis that he provided an estimate of his fees. 48In summary, I do not accept that the manner in which documents described in the subpoena are oppressive or involved Mr Neustein being required, in effect, to give discovery. The documents are sufficiently described to avoid the need for judgment to be made as to their relevance to the evidence proposed to be adduced from Mr Neustein.

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)