Property Council of Australia Limited & Ors v Direct Factory Outlets Homebush Pty Limited & Ors

Land and Environment Court (NSW)|2003-03-26|Before: Pain J

The Applicant has issued a subpoena to each of the five Respondents. All but the Third Respondent have objected to the terms of the subpoena issued to them and filed Notices of Motion seeking an order that the relevant subpoena be struck out. I note the Third Respondent and the Applicant have reached an agreement that the subpoena issued to the Third Respondent is to be stood over pending a decision in relation to the Applicant and the other Respondents regarding the subpoenas that are now before me.

I note that the original subpoena issued to all the Respondents requests business records and information concerning the sale of goods at premises at level 3, 3 to 5 Underwood Road, Homebush ("the property"), in relation to which property the First Respondent is the head lessee and the Second, Fourth and Fifth Respondents are sub-lessees.

A large number of documents are requested, according to the Respondents, and I received substantial estimates in relation to the cost of complying with the original subpoenas in the range for the First Respondent of approximately $67,000; the Second Respondent approximately $54,000; the Fourth Respondent approximately $65,000; and the Fifth Respondent approximately $15,000.

I note that in its amended Class 4 Application and Amended Points of Claim the Applicant alleges that there are breaches of the Environmental Planning and Assessment Act 1979 (the EP&A Act) at the property, in that prohibited development, or development which requires consent, is being carried out. It is alleged there are retail sales occurring at the property in breach of the relevant development consent. The Applicant is alleging the relevant consent allows only discounted and surplus, out of season, factory and seconds stock to be sold at the property.

I note that defences have been filed in response to the unamended Class 4 Application and Points of Claim. Particulars have been sought and provided by the Applicant to the Respondents that have requested particulars in relation to the unamended Class 4 Application and Points of Claim. I note the Applicant has only recently amended its Class 4 Application and Points of Claim. There are directions currently on foot for provision of further particulars and for further defences to be filed. There are also affidavits of Mr Speed which have been filed and served, on which the Applicant relies. The Applicant intends to file further evidence.

I note that the Applicant's counsel informed me the parties had in fact agreed before the Registrar to proceed by way of subpoena, and there are directions on the Court file from 14 January 2003 suggesting that there were consent orders to that effect.

I do note there have been negotiations between some of the Respondents and the Applicant about the terms of the original subpoena. I particularly note that the Applicants' counsel handed up during his submissions an amended schedule for all subpoenas (Exhibit D) to which I will return.

Applicant's submissions 9. The Applicant's counsel submitted that all that is required is that I be satisfied that the documents in the subpoena are specified with reasonable particularity and are properly sought to advance the case of the Applicant. The decision of Bailey v Beagle Management Pty Limited (2001) 105 FCR 136 was relied on. The documents sought are clearly in the possession of the Respondents and contain information relevant to the activities being carried out and are clearly relevant to the Applicant's case.

The other decision relied on by the Applicant was that of McIlveen v Baiada Poultry Pty Ltd [2002] NSWLEC 137, a decision of Pearlman J in which she noted (at [19]) that compliance would require the collection of a large number of documents, but that they were likely to be relevant to the issues in the case: see Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 . She considered in the circumstances (at [19]): the burden of compliance is outweighed by the desirability of having possibly relevant material available to the applicant so that it may advance its case, see Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 720.

The Applicant said that it had effectively, to borrow a phrase from Pearlman J, "nailed its colours to the mast" , a statement she made in the matter of Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd & Anor [2002] NSWLEC 55.

The Applicant maintained the subpoenas it originally issued were appropriate and should be allowed. If I am minded to allow the amended schedules that have been handed up to proceed that would also be satisfactory for the Applicant at this stage of the case.

Respondent's arguments 13. The Respondents all argued that the original subpoenas were too wide, amounted to fishing, were a replacement for discovery, sought irrelevant material and were oppressive overall. I should note all the Respondents, not surprisingly, addressed the original subpoenas in their submissions, rather than the amended schedules in Exhibit D.

I should note also that, apart from the Fifth Respondent, all the Respondents considered even the amended schedules were still too wide. I was informed that even if the amended schedules were allowed there would still be substantial costs incurred in meeting the subpoenas, and that was unreasonable.

I will not summarise each of the individual arguments of the Respondents as there was substantial commonality between all those arguments. I will note that in relation to fishing it was said that, based on The Commissioner for Railways v Small (1938) 38 SR (NSW) 564, the Applicant is not entitled to use a subpoena for fishing, where it is endeavouring not to obtain evidence, but to discover whether it has a case at all. It was said these subpoenas certainly fell into that category. There was an obligation on the issuer of the subpoena to do so with reasonable particularity and, if there are large numbers of documents sought as in this case, it is an abuse of process if these are not sufficiently relevant.

It was also said that the Court's Pre-Hearing Practice Direction 1999, ought to be followed. In particular my attention was drawn to par 19, dealing with discovery. The Respondents argued discovery was more appropriate for several paragraphs in the subpoenas.

The argument was also put that, based on Arnhill Pty Ltd v General Terminal Company Pty Ltd (1991) 23 NSWLR 545, the subpoenas were oppressive, they imposed unduly onerous obligations on the Respondents to collect and produce documents which would have little or no relevance to the proceedings. The Fourth Respondent also put forward a further argument that documents sought were not necessary at this particular juncture of the case relying on Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98.

In addition to their general submissions all the Respondents addressed the individual paragraphs of their respective subpoenas. I will not, in the interests of time do that to summarise the submissions before me, but I will be returning to the schedules in detail in this judgment.

In relation to my finding, I agree with some, not all, of the submissions of the Respondents, that the original subpoenas are too wide and oppressive in some paragraphs, and that they are not generally limited as to time. They seek documents which relate to the entire business at the centre, or the entire businesses of Respondents at the centre, some of which material would be irrelevant and are simply too broad in terms of the original subpoena issued. I note that this is a summary of the general issues and does not apply to every paragraph. I therefore consider parts of the original subpoena ought to be struck out.

The question then arises, are the amended schedules in Exhibit D appropriate to be issued? These have now been limited as to time. Several paragraphs have been deleted so that the scope of documents sought is now restricted. I think that given the nature of the Applicant's case it is appropriate that amended subpoenas be issued as the evidence in the case is likely to necessarily be, in part, located in the records of the Respondents which the Applicant is seeking.

Clearly the matters in the amended schedules are within the knowledge of the Respondents. The documents are sufficiently particularised so that the recipients are able to identify the documents. I realise the number of documents sought may still be substantial, but they are likely to be relevant to the case, in my view.

I intend to make some further amendments to some of the schedules in Exhibit D and I will go through these and itemise the changes. Some of the changes were discussed in the Court during submissions. I have subsequently considered all of the subpoenas once again and I consider further deletions are necessary, particularly in relation to the First Respondent.

In relation to the subpoena dated 19 December 2002 issued by the Applicant to the First Respondent the Applicant may rely upon the subpoena in accordance with the amended schedule "R1" which formed part of exhibit D as follows: (a) Par 1 is allowed. (b) Par 2 is deleted. (c) Par 3 is deleted, but the Applicant is given leave to redraft a narrowed paragraph. (d) In Par 4: (i) In the opening sentence insert after the words "concerning the management of the Centre" the words "since 1 July 2002"; (ii) Insert at the end of subpar (a) "since 1 July 2002"; (iii) Subpar (b) is deleted; (iv) Insert at the end of subpar (c) "since 1 July 2002"; and (v) In subpar (d) after the words "sublessees of the factory outlets/stores" insert the words "of the Second to Fifth Respondents". (e) Par 5 is deleted, but the Applicant is given leave to redraft a narrowed paragraph. (f) In par 6 in the second line insert after the words "correspondence and other documents" the words "since 1 July 2002" and insert after the words "sold at the factory outlets/stores" in the fourth line the words "including the stores operated by the Second to Fifth Respondents". (g) In par 7 after the words "(terms defined in the Subleases)" insert the words "applying since 1 July 2002 to one or more of the Second to Fifth Respondents". (h) In par 8 in the first line insert after the words "memoranda and other documents" the words "since 1 July 2002". (i) In par 9 in the first line insert after the words "memoranda and other documents" the words "since 1 July 2002". (j) Par 10, 11, 12, 13, 14, 15 and 16 are deleted.

In relation to the subpoena issued by the Applicant to the Second Respondent (Annexure A to the affidavit of Dave Griffiths sworn 13 March 2003) the Applicant may rely upon the subpoena in accordance with the amended schedule "R2" which formed part of exhibit D as follows: (a) Par 1 is allowed. (b) In par 2 the date of "13 September 2001" is amended to "1 July 2002". (c) Par 3 is deleted. (d) Par 4 is allowed. (e) In par 5 after the words "(including copies thereof)" insert the words "since 1 July 2002", and after the words "operation of the Centre" delete the words "including, but not". (f) In par 6 in the opening sentence after the words "(including copies thereof)" insert the words "since 1 July 2002". (g) Par 7, 8, 9, 10 and 11 are deleted. (h) In par 12: (i) after the opening words "Any and all" insert the word "supplier"; (ii) in the first line delete the words "order forms, consignment notes"; (iii) in the fourth line before the words "for sale at the Sanity Music Store" insert the word "directly"; and (iv) amend the date of "13 September 2001" to "1 July 2002". (i) In par 13 in the first two lines delete the words "including but not limited to price lists," and "order forms and copies thereof"; and amend all references in par 13 to the date "13 September 2001" to "1 July 2002". (j) In par 14: (i) in the first two lines delete the words "documents, including but not limited to recommended price" and "catalogues, brochures, other advertising material"; (ii) in subpar (a) amend the date of "13 September 2001" to "1 July 2002"; (iii) in subpar (b) in the first line delete the words "list and/or"; and (iv) in subpar (b) amend the date of "13 September 2001" to "1 July 2002". (k) In par 15 in the first two lines delete the words "documents, including, inter branch or inter store transfer documents, internal order forms" and "consignment notes"; and at the end of par 15 insert the words "during the period 1 July 2002 to date". (l) Par 16 is deleted. (m) In par 17: (i) the opening words "Any and all" are deleted; (ii) in the third line the words "or summarise" are deleted; (iii) in the third line the word "part" is deleted and replaced with "substantially all"; and (iv) in the last line the date of "1 July 2001" is amended to "1 July 2002"; (v) at the end of the paragraph insert the words "with one such complete record per calendar month sufficing." (n) In par 18 the date of "13 September 2001" is amended to "1 July 2002" in the third line. (o) Par 19 is deleted. (p) In par 20 the date of "13 September 2002" is amended to "1 July 2002". (q) Par 21 is allowed. 3. In relation to the subpoena issued by the Applicant to the Fourth Respondent (annexure A to the Fourth Respondent's Notice of Motion dated 10 February 2003) the Applicant may rely upon the subpoena in accordance with the amended schedule "R4" which formed part of exhibit D as follows: (a) Par 1 is allowed. (b) In par 2 the date of "13 September 2001" is amended to "1 July 2002". (c) Par 3 is deleted. (d) Par 4 is allowed. (e) In par 5 after the words "(including copies thereof)" insert the words "since 1 July 2002", and after the words "operation of the Centre" delete the words "including, but not". (f) In par 6 in the opening sentence after the words "(including copies thereof)" insert the words "since 1 July 2002". (g) Par 7, 8, 9, 10 and 11 are deleted. (h) In par 12: (i) after the opening words "Any and all" insert the word "supplier"; (ii) in the first line delete the words "order forms, consignment notes"; (iii) in the third line before the words "for sale at the Mathers Shoes store" insert the word "directly"; and (iv) amend the date of "13 September 2001" to "1 July 2002". (i) In par 13: (i) in the first two lines delete the words "documents including but not limited to price lists," and "order forms and copies thereof"; (ii) amend all references to the date "13 September 2001" to "1 July 2002"; and (iii) in the eighth line before the word "from:" insert the words "having the brand name or style". (j) In par 14: (i) in the first two lines delete the words "documents, including but not limited to recommended price" and "catalogues, brochures, other advertising material"; (ii) in subpar (a) amend the date of "13 September 2001" to "1 July 2002"; (iii) in subpar (b) in the first line delete the words "list and/or"; (iv) in subpar (b) amend the date of "13 September 2001" to "1 July 2002"; and (v) in the fourth line after the word "footwear" replace the word "from" with the words "having the brand name or style". (k) In par 15 in the first two lines delete the words "documents, including, inter branch or inter store transfer documents, internal order forms" and "consignment notes"; and at the end of par 15 insert the words "during the period 1 July 2002 to date". (l) Par 16 is deleted. (m) In Par 17: (i) the opening words "Any and all" are deleted; (ii) in the third line the words "or summarise" are deleted; (iii) in the third line the word "part" is deleted and replaced with "substantially all"; and (iv) at the end of the paragraph insert the words "with one such complete record per calendar month sufficing". (v) in the fifth line the date of "13 September 2001" is amended to "1 July 2002"; (n) In par 18 third line the date of "13 September 2001" is amended to "1 July 2002". (o) Par 19 is deleted. (p) In par 20 amend the figure "19" in the third line to "18". 4. In relation to the subpoena issued by the Applicant to the Fifth Respondent (annexure C to the affidavit of Annette Wilson sworn on 29 January 2003) the Applicant may rely upon the subpoena in accordance with the amended schedule "R5" which formed part of exhibit D as follows: (a) Par 1 is allowed. (b) In par 2 the date of "13 September 2001" is amended to "1 July 2002". (c) Par 3 is deleted. (d) Par 4 is allowed. (e) In par 5 after the words "(including copies thereof)" insert the words "since 1 July 2002", and after the words "operation of the Centre" delete the words "including, but not". (f) In par 6 in the opening sentence after the words "(including copies thereof)" insert the words "since 1 July 2002". (g) Par 7, 8, 9, 10 and 11 are deleted. (h) In par 12: (i) after the opening words "Any and all" insert the word "supplier"; (ii) in the first line delete the words "order forms, consignment notes"; (iii) amend the date of "13 September 2001" to "1 July 2002"; and (iv) before the words "at the Florentine Eyewear Store" insert the word "directly". (i) In par 13: (i) in the first two lines delete the words "documents including but not limited to price lists," and "order forms and copies thereof"; (ii) amend all references in par 13 to the date "13 September 2001" to "1 July 2002"; (iii) in the sixth line after the word "sunglasses" insert the words "having the brand name or style"; and (iv) in the sixth line delete the word "from" and insert the words "having the brand name or style". (j) In par 14: (i) in the first two lines delete the words "documents, including but not limited to recommended price" and "catalogues, brochures, other advertising material"; (ii) in subpar (a) amend the date of "13 September 2001" to "1 July 2002"; (iii) in subpar (b) in the first line delete the words "list and/or"; (iv) in subpar (b) amend the date of "13 September 2001" to "1 July 2002"; and (v) in subpar (b) in the fourth line after the word "sunglasses" insert the words "having the brand name or style". (k) In par 15 in the first two lines delete the words "documents, including, inter branch or inter store transfer documents, internal order forms" and "consignment notes"; and at the end of par 15 insert the words "during the period 1 July 2002 to date". (l) Par 16 is deleted. (m) In Par 17: (i) the opening words "Any and all" are deleted; (ii) in the third line the words "or summarise" are deleted; (iii) in the third line the word "part" is deleted and replaced with "substantially all"; and (iv) in the fifth line the date of "13 September 2001" is amended to "1 July 2002"; (v) at the end of the paragraph insert the words "with one such complete record per calendar month sufficing." (n) In par 18 third line the date of "13 September 2001" is amended to "1 July 2002". (o) Par 19 is deleted. (p) In par 20 third line amend the figure "19" to "18".

Costs 23. In relation to costs, it seems to me the Respondents have been largely successful and should get their costs. The parties issuing subpoenas under authority of the Court do have an obligation to ensure these are properly drafted and of appropriate scope. It has been necessary for the Court to spend some considerable time considering and amending even the amended schedules produced by the Applicant. This does in part support the Respondents' claim that the original subpoenas were too wide and oppressive. It seems to me the changes in the amended schedules are significant compared to the original subpoenas issued, and on that basis I think it is appropriate that the Respondents have their costs paid by the Applicant.

Payment of conduct money 24. To complete all the matters that were put to me, I note in relation to the payment of conduct money the Fourth Respondent sought its reasonable costs under s 35 of the Service and Execution of Process Act 1992 (Cth). In my view it is premature to do so, and I accept Mr Maston's submissions on behalf of the Applicant to that effect in his argument in reply. It seems to me that if the Respondents wish to pursue avenues under the Service and Execution of Process Act 1992 (Cth) they can put on a Notice of Motion and the matter can be properly argued at the appropriate later point in time.

I also note that these are subpoenaed documents and they will be produced to the Court. There was some concern expressed by some of the Respondents about confidentiality in relation to commercially sensitive documents, but I presume that any such issues can wait until the documents are produced to the Court. Orders 26. In addition to the four orders that I will make in the same terms as those four sub-paragraphs set out in par 22 above (and which I will not repeat in full here) I will order that: 5. The Applicants are to pay the First, Second, Fourth and Fifth Respondents' costs of their respective motions (dated 30 January 2003, 31 January 2003, 10 February 2003 and undated (filed 7 February 2003) respectively) to strike out the subpoenas (referred to in Orders 1, 2, 3 and 4) issued to each of those Respondents by the Applicant. 6. The matter is listed for mention in the Registrar's callover list on 15 April 2003.

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.

CITATION : Property Council of Australia Limited & Ors v Direct Factory Outlets Homebush Pty Limited & Ors [2003] NSWLEC 99 APPLICANTS Property Council of Australia Limited & Ors PARTIES : RESPONDENTS Direct Factory Outlets Homebush Pty Limited & Ors FILE NUMBER(S) : 40871 of 2002 CORAM: Pain J KEY ISSUES: Practice and Procedure :- motions seeking strike out of subpoenas - subpoenas covered large number of documents - whether subpoenas too wide - whether fishing - whether being used as replacement for discovery - whether irrelevant material sought - whether oppressive Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pre-Hearing Practice Direction 1999 Service and Execution of Process Act 1992 (Cth) s 35 Arnhill Pty Ltd v General Terminal Company Pty Ltd (1991) 23 NSWLR 545; Bailey v Beagle Management Pty Limited (2001) 105 FCR 136; Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98; CASES CITED: McIlveen v Baiada Poultry Pty Ltd [2002] NSWLEC 137; Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710; Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921; The Commissioner for Railways v Small (1938) 38 SR (NSW) 564; Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd & Anor [2002] NSWLEC 55 DATES OF HEARING: 14, 19, 26/03/2003 DATE OF JUDGMENT: 03/28/2003

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