Rex v Landrey

Medium Neutral Citation: R v Landrey [2026] NSWDC 55

Hearing dates: 30, January 2026, 18 February 2026,6 March 2026.

Date of orders: 13 March 2026

Decision date: 13 March 2026

Jurisdiction: Criminal

Before: Acting Judge Bennett SC

Decision: The application is granted.

Catchwords: CRIMINAL LAW - Costs application - Production of material under subpoena – Documents in subpoena not identified with adequate precision – Subpoena scope -The accused required to meet reasonable costs to defray expenses occurred by applicants to comply – No access sought to documents produced under subpoena – Accused’s position that there was no need for subpoena to be complied with – Accused anticipated he not be burdened with the obligation to meet reasonable costs of compliance - Compliance with subpoena would require disproportionate costs and time –- Reasonable compliance costs ––– Reasonable for the applicant to conclude they were obliged to comply with subpoena

Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
District Court Act
Supreme Court Act 1970

Cases Cited: Attorney General for New South Wales v Chidgey [2008] NSWCCA 65.
R v DK [2023] NSWCCA 281.
R v Jenkin (No 2) [2018] NSWSC 697
R v Obeid [2018] NSWSC 1024 at [21]-[34] (Beech-Jones J):
R v Saleam [1999] NSWCCA 86.

Texts Cited: District Court Rules 1973 - Part 53
Supreme Court Rules 1970 -. Rule 75.3
Uniform Civil Procedure Rules 2005 - Rule 33.11

Category: Procedural rulings

Parties: The Applicants: Bradd Morelli & others as partners in the firm Jirsch Sutherland & Co.
The Respondent: Accused – Geoffrey Vance Landry

Representation: For the Applicants:
Counsel: A Di Francesco
Solicitors: Ms Natalie Ben, Hegarty Legal
For the Respondent /Accused
Counsel: Christopher Parkin.
Solicitors: JCK Legal

File Number(s): 2021/296314

JUDGMENT

Introduction

1. Geoffrey Vance Landrey is to appear for trial in the District Court, Sydney on charged with 25 offences for alleged conduct contrary to s 192R(1)(b) and s 254(b)(ii) Crimes Act 1900.

2. The parties elected that the trial proceed before a judge alone. It has an estimate of three weeks and is to commence on 23 March 2026.

3. By Notice of Motion signed on 14 January 2026, orders were sought pursuant to s 227, Criminal Procedure Act 1986, or alternatively Part 53 Rule 23 of the District Court Rules 1973, in respect of a subpoena issued on 13 November 2025, on behalf of the Accused to Jirsch Sutherland & Co, to set aside paragraphs 2, 3 and 5 of the call, and amendment of paragraph 4 to:

All documents (whether notes, emails, reports, correspondence or otherwise) referring to Queensland Supreme Court proceedings 340/13 between Naturelink Environmental Services Pty Ltd and Combined Property Holdings ty Ltd, including but not limited to the settlement of those proceedings in 2015.

4. Affidavits in support by the solicitor with carriage on behalf of the Applicants were affirmed on January 14, 2026, and January 21, 2026. The application came before this court on January 30, 2026.

5. The matter came before me on 30 January 2026. The parties provided an array of documents with written submissions to which counsel spoke.

6. The Accused’s counsel acknowledged that the proposed paragraph 4 would suffice in the circumstances, consistent with the effect of representations in correspondence between the Accused and the Applicants.

7. Given the opportunity to review the material the matter came before me on 18 February 2026 when I announced that I would make an order for the payment of the costs and the next step was discussed. Counsel were unable to assist with the appropriate course. The day before the Applicants served a notice of motion with supporting evidence for the assessment of quantum which the Accused had not had time to consider.

8. I adjourned to 6 March 2026 for the parties’ further consideration. In the meantime, my enquiries revealed the appropriate course was to formalise the order for the payment of costs, to be assessed by the appropriate officer of the Supreme Court of New South Wales. I am told by the Registry of this court that this is the usual course of action in such cases.

9. On 6 March 2026 the parties made further submissions and the proceedings were adjourned to 13 March 2026 for my decision and publication of reasons on Caselaw.

10. As discussed hereunder, the Applicants produced to the court documents in response to the terms of paragraph 4 as proposed.

The Issue Refined

11. Given that the Applicants lodged with the court bundles of documents meeting the call made by the amended paragraph 4 in the subpoena, on the understanding that the terms of that paragraph addressed the Accused’s need in asking the court to issue the subpoena, the issue for resolution came to whether the Accused should meet reasonable costs to defray the expense that the Applicants incurred in the steps taken to comply.

12. The Applicants’ original Notice of Motion challenged the breadth of the subpoena and sought in paragraph 5 such further or other orders as the Court deems fit. As argument evolved the issue centred upon the power of the court to order against the Accused the costs incurred or to be incurred in assembling the material sought, confined to the items sought by the proposed amended paragraph 4.

13. During argument the Accused’s counsel announced that the subpoena in the amended form would meet the Accused’s needs, consistent with correspondence from the Accused’s solicitor on 15 December 2025, at page 51 of the bundle included with the Applicants’ second affidavit. Nonetheless, email from the Applicants’ solicitor sent on 12 January 2026 at page 56 of the bundle, noted recent correspondence which included disputes regarding the expense of harvesting the materials sought, noted that the narrowing of the subpoena was not agreed, and that the Accused intended to call upon the subpoena in its original form. This followed a letter from the Accused’s solicitor at page 50 of the bundle which included:

Next Steps

Please advise your client’s position as to the proposed narrowing set out above by not later than 5pm on 16 December 2025, along with any claim to reasonable costs and expenses.

Should a resolution not be possible, we look forward to receipt of your notice of motion and affidavit in support as soon as possible and, in any event, before the next return date on Thursday 18 December 2025.

14. Argument continued upon the question of reimbursement of the expenses incurred and to be incurred in satisfying the amended call. The envelopes of material produced by Jirsch Sutherland & Co are on the court file but no access is sought by either party in the trial. The Accused’s counsel advised initially that no access would be sought if the consequences would include an order for the costs of compliance with the subpoena. As I understood the position, if there were no such order access would be sought. The Crown announced on 18 February 2026, that it would not seek access unless and until it was sought by others and granted by the court, at which time it would do so.

15. When the matter resumed before me on 6 March 2026 the Accused’s counsel announced his instructions that no access to the documents produced would be sought. This position is taken notwithstanding the available inference that it was at least possible that the documents sought would include material relevant to the proceedings and might assist the Accused’s case at trial. The question one would ask is what other purpose the subpoena would have.

16. The Accused’s counsel asserts that the Applicants’ solicitors were told and knew that they need not comply with the subpoena unless and until the court had ruled, including upon the question of costs of compliance. The Applicants’ counsel argued that there was no evidence of any statement or request to the effect that the Applicants should not comply until further notice.

17. There was no attempt to withdraw the subpoena, an order by the court which on its face required compliance. The Accused argues that there was no need to comply with the subpoena upon the constructions of the legislation which provides for these processes.

18. The argument continued with reference to various provisions pursuant to which the Applicants submitted that the court had power to award costs reasonably incurred in the Applicants’ steps to assemble the material and provide it to the court in compliance with the subpoena.

The Evidence

19. The subpoena called for the following documents:

Schedule

1. A copy of this subpoena.

2. The file for the liquidation of Naturelink Environmental Services Pty Ltd (Naturelink).

3. All emails sent and received in relation to the liquidation of Naturelink

4. All notes, emails, reports* correspondence or other documents referring or relating to the settlement of Queensland Supreme Court proceedings 340/13 between Naturelink and Combined Property Holdings Pty Ltd 2013.

5. All emails sent to, or received from:

(a) George Barnes

(b) Paul Galea

(c) Michael Porter

during the period 1 September 2014 to present.

20. The affidavits and accompanying documents upon the original application and as modified in the course of argument are before the court, without qualification or cross examination of the deponent or others who might have relevant evidence. The affidavit of Natalie Ben affirmed on 14 January 2026, provides a fair outline of the evidence upon which the applications were argued. In the affidavit, the following is asserted:

21. Ms Ben is a solicitor employed by the firm acting for the Applicants Jirsch Sutherland & Co, with day-to-day carriage of this matter under the supervision of her principal.

22. Exhibited to the affidavit is a bundle of paginated documents marked “NB-1”..

23. On 13 November 2025, at the request of the Accused the Court issued the subpoena to produce various documents addressed to the Applicants: page 1.

24. On 25 November 2025, her firm acknowledged receipt of the Subpoena on behalf of the Applicants.

25. The subpoena as initially framed was said to be too wide and oppressive; she itemised the documents sought thereby.

26. Ms Ben referred to a letter from her firm to the solicitors acting for the Accused, on 25 November 2025: page 42;. This included the following propositions:

(a) Acknowledgement of the receipt of the subpoena to the Proper Officer of the partnership trading as Jirsch Sutherland & Co with a bank cheque for $30.00 for conduct money; (b) The subpoena was incorrectly directed to the partnership rather than an individual partner; (c) The terms of the subpoena were oppressive; (d) There are and were significant costs and resources that would be required to comply with the subpoena as served, estimated to be $50,000.00. (e) The Accused as invited to reconsider the categories of the documents desired; (f) Copies of pleadings and related documents to assist in definition of the issues in dispute in the proceedings were requested; and (g) Adjournment of the return of the subpoena was sought, reserving the right to have the subpoena set aside or varied for oppression and lack of forensic purpose.

7. A letter from the Accused’s solicitors to Ms Ben’s firm on 26 November 2025: page 44, in which he challenged the propositions advanced, refusing to provide copies of the pleadings and related documents, but in lieu thereof provided a summary of facts and the reasons the documents are sought in the subpoena. The letter includes at page 46 of the bundle (emphasis added):

Our client’s criminal trial will be commencing on 23 March 2026. If he is to have sufficient time to prepare then the subpoena must be responded to promptly. In the circumstances, our client does not consent to a 4 week adjournment as proposed. Our client is prepared to consent to a one week adjournment, which should be more than adequate time to identify and produce documents responsive to the narrowed call.

If you intend to apply to have the narrowed subpoena set aside in whole or in part, please file your motion and supporting affidavit in advance of the return date so that the motion can timetabled and addressed promptly.

We note your client’s reservation as to costs. If an entitlement to costs is being seriously maintained in criminal proceedings, we invite you to identify the court's power to make such an order.

We look forward to your timely response.

8. The Accused’s solicitors did not provide any other documents to inform the Applicants of the issues in the proceedings.
9. From the letter of 26 November 2025, Ms Ben understands that the issues in the proceedings are limited to a representation made on or about 20 October 2015, at Sydney, by the Accused that:

(a) Naturelink Environmental Services Pty Ltd borrowed $1,500,000.00 from Combined Property Holdings Pty Ltd; (b) A valid deed of loan existed between the companies; (c) A relevant false representation is said to have occurred during mediation of the dispute between Naturelink Environmental Services Pty Ltd and Combined Property Holdings Pty Ltd in Supreme Court of Queensland Proceedings 340/13; and (d) Bradd Morelli in his capacity as the Liquidator of Naturelink Environmental Services Pty Ltd was deceived during the mediation.

10. Ms Ben provides details of the liquidation proceedings and the role of Bradd Morelli and her instructions and belief as to the content of the liquidation file for Naturelink Environmental Services Pty Ltd comprising in excess of 22 lever arch folders, 964MB of electronic files contained in a SharePoint folder, and approximately 34GB of emails.
11. Her instructions and belief are that a substantial proportion of the liquidation file for Naturelink Environmental Services Pty Ltd contains documents and records unrelated to the issues in these proceedings. She provides particulars of such document.
12. Compliance the subpoena would need review the entire liquidation file for relevance and whether privilege attached to any of the documents with substantial time and cost, disproportionate to the issues in the proceedings.
13. Ms Ben is instructed and believes that costs of compliance with the subpoena in its current form [before the suggested amended of paragraph 4] are estimated to exceed $60,000 (including GST), as particularised in the letter of 3 December 2025 from her firm to the Accused’s solicitors at page 47 in the bundle beneath the heading Conduct Money.
14. The Accused’s solicitor indicated that the Accused was not prepared to pay the estimated cost of compliance, asserted in correspondence from the Accused’s solicitors of 15 December 2025 at page 51. At page 50 the letter includes,

Reasonable costs and expenses

We note your client's estimate that the reasonable costs of compliance will exceed $60,247.49. On no sensible view could this constitute "reasonable" costs of producing the documents sought. Plainly it takes no account of the proposed narrowing of the subpoena either.

We reject your client's assertion that they are entitled to claim legal costs of $26,238.00 for reviewing files and internal costs of $30,239.00 for the time of Mr Morelli and his staff. Notably:

1. As stated in our previous correspondence, it is not the role of the subpoena recipient to determine 'relevance'. Your client is required to produce documents that fall within the description of the subpoena. The determination of relevance is a matter for the Court and the parties at trial.

2, A review for privilege is not a cost of producing the document. Further, and in any event, any review for legal professional privilege should not require the extensive hours claimed, particularly given the nature of a liquidation file where most documents ought operational in nature-

3. We do not require the production of hard copies of the documents. Scanned documents on a USB will be sufficient. Our client is happy to provide additional conduct money to cover that expense. We note 1TB hard drives are less than $100 at Officeworks. We trust this addresses your concern about photocopying expenses.

Accordingly, our client does not agree to pay for the time of Mr Morelli or for a legal review of the documents to occur. That is not, on any view, "the reasonable expenses of the person named of complying with the requirement to produce the document or thing": cf District Court Rules 1973 (NSW) r 21(b).

15. Communication between the Accused on one side and George Barnes, Paul Galea or Michael Porter on the other side representing Naturelink Environmental Services Pty Ltd in the Queensland proceedings are privileged for the reasons advanced at para [22] and following in the affidavit.
16. Correspondence with the Accused’s solicitor sought to reduce the scope of the subpoena and agree on cost of compliance. Following receipt of the subpoena the parties exchanged the following correspondence attempting to reach an agreement:

(a) Letter of 25 November 2025 from her firm to the Accused’s solicitors: page 42, the relevant portions of which are discussed above. (b) Letter of 26 November 2025 from Naturelink Environmental Services Pty Ltd the Accused’s solicitors to her firm: page 44, the relevant portions of which are quoted above. (c) Letter of 3 December 2025 from her firm to the Accused’s solicitors: page 47 which includes the following in addition to the particulars of the costs involved:

Conduct Money

2. Our client acknowledges receipt of a bank cheque in the amount of $30 for conduct money.

3. Respectfully, this amount is well below our client's reasonable expenses of complying with the subpoena as foreshadowed in our letter to you dated 25 November 2025

4. In accordance with section 224 of the Criminal Procedure Act 1986 (NSW) and rule 53.21 of the District Court Rules 1973 (NSW), our client is not compelled to comply with the Subpoena unless and until your client pays our client reasonable costs of compliance with the subpoena.

(d) Letter of 15 December 2025 from the Accused’s solicitors to her firm: page 50 to which there is reference above. (e) Letter of 17 December 2025 from her firm to the Accused’s solicitors: page 53 to which there is reference above, including the amount of work involved and the cost of performing that work, and:

Amended Scope of the Subpoena

We note your client’s agreement to narrow the scope of the Subpoena to:

"All documents (whether notes, emails, reports, correspondence or otherwise) referring or relating to the Queensland Supreme Coun Proceedings 340/13 between Naturelink [Environmental Services Pty Ltd) and Combined Property Holdings Pty Ltd but not limited to the settlement of those proceedings in 2015."

17. Notwithstanding the efforts implicit in these exchanges no agreement was reached upon the scope of the subpoena or cost of compliance, although it was otherwise upon her understanding of the negotiations. On 18 December 2025 Ms Ben sent email to the Registrar informing the Court that the parties had agreed to narrow the scope of the Subpoena and sought adjournment of the return date to 15 January 2026, which was granted.
18. The Accused’s solicitors subsequently informed her that her understanding of their correspondence of 17 December 2025 was incorrect, that their agreement to narrow the scope of the Subpoena was conditional on there being no claim for costs, and that the Accused intended to call on the Subpoena in its current (original) form (My emphasis).
19. Ms Ben’s understanding of the Accused’s position was informed by the letter of 15 December 2025 in which his solicitors wrote:

Our client is prepared to discuss and consider your client’s claim to costs and expenses of production,..: page 52 of NB-1.

20. She was instructed and believed that on 18 December 2025, the Applicants had commenced collating documents for production in answer to the narrower paragraph four.
21. The Applicants informed the Accused of the adopted course, provided the estimated costs of compliance, and invited the Accused to withdraw the Subpoena.
22. The Accused informed the Applicants that he did not agree to meet the estimated costs of compliance.
23. She was informed by the Accused’s solicitor that on 15 January 2026 the Accused intended to call on the subpoena in its original term.
24. Email exchanged between the Accused’s solicitors and her firm between 17 December 2025 and 12 January 2026: page 56 to 62 including:

(a) To Ms Ben on17 December 2925 which included:

Notwithstanding your revised estimate of $41,208.49, our position remains as per our correspondence dated 15 December 2025.

We do not consent to an adjournment for further discussions as this issue is unlikely to be resolved via discussions.

If you file an application to ascertain the reasonable costs of compliance, we would consent to a timetable for evidence to be filed and a hearing on the issue

(b) From Ms Ben on 18 December 2025 which included:

Thank you for your email. We are seeking our client's instructions in relation to the application for our client's costs of compliance. We will revert to you as soon as we have them.

In so far as the production of documents is concerned, we note that your client has agreed to narrow the scope of the subpoena on 15 December 2025. Accordingly, your client has agreed to narrow the scope of the Subpoena to:

"All documents (whether notes, emails, reports, correspondence or otherwise) referring or relating to the Queensland Supreme Court Proceedings 340/13 between Naturelink [Environmental Services Pty Ltd] and Combined Property Holdings Pty Ltd but not limited to the settlement of those proceedings in 2015."

We are instructed that our client requires until 16 January 2026 to produce these documents. Please let us know if you agree to the adjournment.

(c) To Ms Ben on 23 December 2025 which included (their emphasis):

We refer to your email on 18 December 2025.

Please be advised our proposal to narrow down on 15 December was made in an attempt to and on the condition that it resolves the issue of costs.

We reiterate from our letter of 15 December "Noting that you apparently have no difficulty with undertaking an exercise of this kind, and on the basis that our client will not be put to the expense of such an exercise, our client proposes a single paragraph in full satisfaction of the subpoena as-issued"

The proposal was conditional. The issue of costs is not resolved as you still seek over $40,000 in costs. Therefore we are liberty to call on the entirety of the subpoena as issued. Please note we did not consent for you to advise the Court whether we have narrowed down the scope.

For clarity, if an application is to be made for reasonable costs and expenses to be determined, that should be made prior to production occurring. Our client does not agree to be responsible for payment of an as-yet unquantified amount. In the event that the Court makes a determination as to the reasonable costs that is beyond what our client is prepared to pay, our client reserves the right to withdraw the subpoena.

(d) From Ms Ben on 8 January 2026 at page 58 of the bundle (my emphasis):

We refer to your email of 23 December 2025.

1. In your letter of 15 December 2025, you indicated to us that:

1. our client had agreed to narrow the scope of the subpoena on the basis that your client "will not be put to the expense of such an exercise";

2. the narrowed scope would substantially reduce any burden on our client; and

3. your client was prepared to discuss and consider your client's claim to costs and expenses of production.

You then wrote: "Should a resolution not be possible, we look forward to receipt of your notice of motion and affidavit in support as soon as possible, and in any event, before the next return date on Thursday 18 December 2025"

2. On 17 December 2025 and 18 December 2025, we wrote to you confirming the narrowed scope of the subpoena, informed you of our anticipated costs of compliance and sought an extension of time for compliance and asked that you respond to us promptly given that the subpoena was returnable on 18 December 2025 at 2pm. No objection or response was received from you prior to the return of subpoena which was listed on 18 December 2025 at 2pm.

3. In the absence of any objections from you, on 18 December 2025, we wrote to the Court stating our understanding of the matters and sought an extension for compliance with the subpoena.

4. We disagree that an application for reasonable costs and expenses of compliance with subpoena should be made prior to production occurring. Any such application is ordinarily made after the documents have been produced and the actual costs can be quantified. If you disagree, please identify a particular practice note, rule or case law which confirms that any such application should be made prior to production occurring as soon as possible.

5. Our client has already commenced collating the documents in response to paragraph 4 of the subpoena as was modified by you in your letter of 15 December 2025 and continues to incur significant costs. Our client intends to produce these documents by 15 January 2026. The application for compliance costs will be made in due course.

6. Noting your client's current position and your intention to reserve your client's liberty to call on the entirety of the subpoena as issued, we are instructed to make an application to set aside paragraphs 2, 3, and 5 of the subpoena whilst producing documents in response to paragraph 4 of the subpoena as was modified by you in your letter of 15 December 2025.

7. The effect of this will be that our clients will be producing documents by 15 January 2026 and your client will be liable for cost of such compliance as determined by the Court.

8. If your client wishes to make a reasonable offer as to what he is prepared to pay to our client on account of their reasonable costs and expenses, our client will consider it- Any such offer should be made as soon as possible and well in advance of the next return date.

9. If your client wishes to withdraw the subpoena, he should do so as soon as possible and not later than 12 January 2026.

(e) To Ms Ben on 12 January 2026 at 10:44 am asserting that advice to the court that the scope of the issue was resolved was without notice or consent of the Accused, and at page 57 (emphasis added):

As is made clear by Criminal Procedure Act s 224 (see also DK at [601), compliance with a subpoena is not required unless conduct money has been tendered. Unlike in civil proceedings, conduct money in District Court criminal proceedings for a subpoena to produce documents is the reasonable costs and expenses of producing the document: see District Court Rules 1973 (NSW) r 53.21. Accordingly, if that money has not been tendered in advance …, then compliance with the subpoena is not required and could not be characterised as anything but voluntary. Your client does so at its own risk.

Third, it is extremely concerning to us that you have not yet filed and served your notice of motion and affidavit in support of the application to set aside the subpoena. Please do so forthwith and in advance of the next mention so that a timetable for the application may be set down.

(f) From Ms Ben on 12 January 2026 at 6:33 pm:

The acknowledgement that in light of recent correspondence the scope of the subpoena was not resolved, and their instructions to prepare an application to set aside the subpoena and produce documents in accordance with the proposed paragraph 4;

21. The Accused’s solicitor asserts therefore that he sought the production of the documents as set forth in the original schedule, ultimately reduced to the terms of the proposed paragraph 4, upon which there was but qualified agreement on the part of the Accused because of the dispute that arose about the cost of compliance.

22. The Accused submits that there was no call upon the subpoena in court. As noted earlier, Jirsch Sutherland & Co produced envelopes of material in response to the call in the proposed paragraph 4 but no access was sought by either party in the trial. Initially the Accused’s counsel advised that access would not be sought if the consequences would include an order for the costs of compliance with the subpoena. If there were no such order access would be sought.

23. It is an available inference that the Accused and those representing him must have anticipated that amongst the documents sought there would be at least the possibility of material relevant to the issues in the forthcoming trial, some of which might have been of benefit to the Accused in his defence. I raised this in the course of argument when I came to understand that notwithstanding that documents were produced and are held in court in response to the amended paragraph 4, the Accused has no intention whatsoever, and as I understand regardless of what I decide, to seek access to the documents. It is not clear to me why this would be so in the circumstances.

24. I find the following facts.

25. On 13 November 2025, at the request of the Accused the Court issued the subpoena addressed to the Applicants to produce the various documents. The breadth of the subpoena’s call is clear from the terms in the Schedule

26. The subpoena served was accompanied by a bank cheque for $30.00 representing conduct money. This was wholly inadequate considering the steps that must have been required to assemble the material sought, estimated in the initial stages to be $50,000.00, and subsequently to exceed $60,000.00. The Applicants’ solicitor not unreasonably sought the Accused’s reconsideration of the categories of documents the Accused wished produced and asked for copies of pleadings and related documents to understand the issues in dispute, to ensure there was no breach of privilege, and to identify the documents that might be relevant to the issues.

27. The Accused’s solicitor challenged the propositions advanced, refused to provide pleadings or related documents, but summarised the facts and gave reasons for the documents. The trial is to commence on 23 March 2026. The Accused agreed to adjourn the return date for one week in response to the Applicants’ request for longer. The Accused’s letter included that if the Applicants intended to have the “narrowed subpoena” set aside in whole or in part, the Applicants should file a motion in advance of the return date.

28. The Applicants itemised the anticipated costs involved in compliance with the subpoena as served. The Accused’s solicitor wrote that the Accused would not meet the asserted estimated cost of compliance, noting that the Applicants’ obligation was to produce the documents leaving relevance for the court. An electronic version of the material was said to suffice. The Accused was prepared to provide additional conduct money to cover that expense.

…. In the event that the Court makes a determination as to the reasonable costs that is beyond what our client is prepared to pay, our client reserves the right to withdraw the subpoena.

35. On 8 January 2026 from the Applicants’ solicitor responding to the email of 23 December 2025, noting content from the Accused’s solicitor’s letters of 15, 17, and 18 December 2025 including confirmation of the narrowed scope of the subpoena, particulars of their anticipated costs of compliance, request for extended of time for compliance, and request for a prompt response given that the subpoena was returnable on 18 December 2025 at 2pm. No objection or response was received before this and thereupon the Applicants’ solicitor wrote to the Court with their understanding and sought an extension for compliance. The email challenged the proposition that an application for reasonable costs and expenses of compliance should be made prior to production occurring, ordinarily made after documents have been produced when actual costs can be quantified. The Applicants had commenced collating the documents in response to paragraph 4 as modified in the Accused’s solicitor’s letter of 15 December 2025 and continued to incur significant costs. The Applicants intended to produce the documents by 15 January 2026, the application for compliance costs to be made in due course.

36. On 12 January 2026 the Accused’s solicitor asserted that advice to the court that scope of the issue was resolved was without notice or consent of the Accused, argued that by force of the Criminal Procedure Act s 224 and the decision in R v DK [2023] NSWCCA 281compliance with a subpoena is not required unless conduct money as been tendered, and that unlike civil proceedings, conduct money in District Court criminal proceedings for a subpoena to produce documents is the reasonable costs and expenses of producing the document: District Court Rules 1973 (NSW) r 53.21. The email continued,

Accordingly, if that money has not been tendered in advance …, then compliance with the subpoena is not required and could not be characterised as anything but voluntary. Your client does so at its own risk.

37. On 12 January 2026 the Applicants’ solicitor wrote that considering recent correspondence the scope of the subpoena was not resolved and advised of their instructions to prepare an application to set aside the subpoena but produce documents in accordance with the proposed paragraph.

Submissions

The Applicants

38. On behalf of the Applicants’ counsel provided the written submissions to which he spoke in the course of argument.

39. I agree with the submission that paragraphs 2 to 5 of the Subpoena are too wide and oppressive as to the scope of documents sought considering the issues anticipated in the trial drawn from the documents presented. The oppression extends to the date range, (a period of over 11 years), and to the range and quantity of documents sought. I agree that the documents sought in the Subpoena are not identified with adequate precision. Overall, I agree that the scope of the call amounts to what has come to be known as a fishing expedition, consistent with the decision made by the Accused to narrow the scope of the call and abandon the call altogether in the face of costs sought to defray the expense of assembling and producing the material.

40. The statements of principle presented with reference to authorities including R v Saleam [1999] NSWCCA 86 applied in Attorney General for New South Wales v Chidgey [2008] NSWCCA 65 are well established and as I understand it there is no challenge to their application in this instance.

41. Whatever the actual belief held regarding the documents sought, there is no evidence upon which the court may determine the legitimate forensic purpose of the individual documents or their bulk sought extended call and how they might materially assist the Accused.

42. However, considering the agreement to narrow the call, said to be conditional upon the questions of costs, I accept that the amended paragraph 4 on its facts and with the agreement of the parties is sufficient to satisfy these two bases for the subpoena. I accept that the nature of the proceedings invites a liberal approach to the assessment of this question

43. I agree with the submission that the original call to the Applicants ‘are not a party in the trial proceedings’, lacked sufficient particularity, and without the modification agreed approaches discovery which is not the purpose of this process.

44. The Applicants note that the liquidation in respect of which this prosecution arose is ongoing. It is not in issue that the Applicants in partnership are practising accountants, and one of them is the liquidator of Naturelink Environmental Services Pty Ltd. The Applicants’ submissions draw upon the summary provided on behalf of the Accused in the absence of the pleadings and related documents that would assist in assessment of the scope of the documents actually required in the proceedings.

45. The submission specify the terms describing the documents sought in the original form of subpoena, said to be imprecise, the extent of the material to which imprecision might extend. As to paragraph 4 the Applicants accept that the original paragraph 4 is relevant and was sought for a legitimate forensic purpose with respect to the criminal charges, and notes that the revision for which the Applicants contend is broader, intended to a replace in an appropriate form paragraphs 2 to 5 of the Subpoena with wording that captures relevant documents sought for a legitimate forensic purpose.

Uniform Civil Procedure Rules 2005

33.11 Costs and expenses of compliance

(1) The court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

(2) If an order is made under subrule (1), the court must fix the amount or direct that it be fixed in accordance with the court’s usual procedure in relation to costs.

(3) An amount fixed under this rule is separate from and in addition to—

(a) any conduct money paid to the addressee, and

(b) any witness expenses payable to the addressee.

District Court Act 1973

171D Practice and procedure of Supreme Court to be followed unless other provision made

Subject to this Act and the rules, the procedure and practice of the District Court when exercising its criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction.

Supreme Court Act 1970

Division 4 Savings

17 Criminal proceedings

(1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.

(2) Rules may be made under this Act—

(a) for regulating and prescribing the practice and procedure of the Court, and

(b) without limiting the generality of paragraph (a), for—

(i) providing for the regulation of the sittings and order of business of the Court and the regulation of the vacations and holidays to be observed by the Court and in the offices of the Court, and

(ii) prescribing the duties and functions of the Prothonotary and other officers of the Court and the records to be kept by them,

in relation to any of the proceedings in the Court which are specified in the Third Schedule.

(2A) The provisions of this Act, including Part 9 (subsections (1) and (4) of section 124 excepted), apply in relation to rules made pursuant to subsection (2) as they apply in relation to other rules.

(3) Subsection (1) does not affect the operation of sections 1, 2, 5, 6, 7, 41, 53, 54, 55, 72, 101 (5) and 130.

(4) (Repealed)

R v DK [2023] NSWCCA 281

65 The respondents relied on Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 33.11 as the source of power for the orders made by the primary judge. This reliance was misplaced. The explanation of why that is so is complex and requires focus upon a web of legislation.

66 Uniform Civil Procedure Rules r 33.11(1) provides that the Court may order that a party to a proceeding who issues a subpoena is to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. By subr (2) the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs. By subr (3) an amount thereby fixed is separate from and in addition to any conduct money paid or witness expenses payable to the addressee.

67 Prima facie the UCPR do not apply to criminal proceedings: UCPR r 1.5. However, by r 75.3(1) of the Supreme Court Rules 1970 (NSW) (“SCR”), certain provisions of the UCPR are made to apply to proceedings specified in the Third Schedule to the Supreme Court Act. Included as item (a1) in the Third Schedule are proceedings for the prosecution of offenders on indictment in the Supreme Court or in the District Court.

68 Supreme Court Rules r 75.3(1) relevantly provides:

“(1) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings specified in the Third Schedule to the [Supreme Court] Act and proceedings to which Division 2 [Summary Proceedings] applies:

…

(g) Part 33 (subpoenas), other than

…

if the issuing party is the Crown, rules … 33.11 …”

(italics added)

Thus, although Pt 33 of the UCPR is picked up by r 75.3(1)(g), subpoenas issued by the Crown are expressly excluded from the operation of UCPR r 33.11. (A qualification to the operation of Pt 75 in SCR r 75.1(2), which provides that the SCR do not apply to proceedings in the Court of Criminal Appeal, is not presently relevant).

69 Section 171D of the District Court Act similarly picks up and applies UCPR r 33.11, but also subject to the exclusion in SCR r 75.3(1)(g). Section 171D provides that, so far as practicable, the procedure and practice of the District Court when exercising its criminal jurisdiction, shall be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction. By s 17(1) of the Supreme Court Act, that Act and the Rules made thereunder do not apply to criminal proceedings in the Supreme Court. However, that is subject to an exception. Section 17(2)(a) authorises the making of Rules “for regulating and prescribing the practice and procedure of the Court” in relation to, inter alia, proceedings specified in the Third Schedule (i.e., including criminal proceedings). Rule 75.3 of the SCR is such a rule. Accordingly, UCPR r 33.11 applies as part of the procedure and practice of the Supreme Court in the exercise of its criminal jurisdiction, but, by SCR r 75.3(1)(g)(ii) its application to subpoenas issued by the Crown is excluded.

70 Thus, UCPR r 33.11 does not empower the District Court to make an order against the Director for the costs of compliance by a recipient of a subpoena issued at the request of the Director.

71 The respondents nevertheless sought to rely on the decision of Beech-Jones J in Obeid at [32] as supporting a contrary conclusion. As outlined above, His Honour there considered that SCR r 75.3 reveals an intention to empower the (Supreme) Court in criminal proceedings to order an Accused person to reimburse a third party for the reasonable costs of complying with a subpoena issued by the Accused, but not for the litigation costs involved in any challenge or resistance to the subpoena. The difficulty with the respondents’ proposition is that that decision was concerned with a subpoena issued by an Accused person, to whom the exclusions to which I have referred do not apply. Section 224 of the Criminal Procedure Act and the exclusion by the SCR of subpoenas issued by the Crown from the application of UCPR 33.11 in the criminal jurisdiction of the District Court make it clear that the power recognised by Beech-Jones J to order costs of compliance do not apply where the issuing party is the Crown (or the Director).

49. I agree with the submission rejecting the contention that the Applicants must in the circumstances here seek a ruling on their reasonable costs of compliance with the Subpoena from the Court based on costs estimates, before compliance has actually occurred or the costs actually incurred. I agree that if costs are to be awarded it may be after they have been incurred.

50. The task of assessing costs in these circumstances might be predictive in the sense that it is an assessment before the production of the material. However equally it may be advanced for consideration upon the assessment of the work said to have been required and the reasonable costs of the performance of the work.

The Accused

51. The Accused’s submissions to which counsel spoke in court noted those filed by Applicants and conceded without conceding the correctness of any particular objection made that the Accused is prepared to receive production of the proposed revised paragraph 4 in full compliance with the subpoena.

52. The dispute is what are reasonable costs and expenses, and when they are to be assessed and paid. The Accused contends the following:

53. He disputes that there is any power to order the costs and expenses of compliance for a subpoena issued in District Court criminal proceedings on indictment.

54. To the extent that there is any power to order the costs and expenses of compliance, the relevant legislation and rules require that amount to be determined in advance of compliance.

55. In circumstances where he foreshadowed that he would not be paying the costs estimated, and that any production to the Court would be at the Applicants’ own risk, he ought not be ordered to pay the costs or expenses of compliance above the $30 tendered at the time of service.

56. This is especially so where admissible evidence to support an estimate of $40,000 for compliance with proposed revised paragraph 4 has not been produced.

57. The Criminal Procedure Act 1986 s 224 applies to proceedings on indictment in the District Court by virtue of District Court Act 1973 (NSW) s 171(5); R v DK [2023] NSWCCA 281 and provides:

Unless a court otherwise orders, a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.

54. “Conduct money” is prescribed in District Court Rules 1973 (NSW) r 53.21 as:

(a) an amount equivalent to the amount that would be payable for that day, in accordance with the Scale of Allowances Paid to Witnesses published in Government Gazette No 104 of 27 June 2003, at pages 6408 and 6409, in respect of the person named if the party issuing the subpoena were entitled to claim witnesses expenses in respect of that person as costs in the proceedings, and

(b) in relation to the production of a document or thing, the reasonable expenses of the person named of complying with the requirement to produce the document or thing. (Emphasis added)

55. By force of s 224 there is no obligation to comply with a subpoena where conduct money has not been paid.

56. The Accused takes issue with the Applicants’ submissions asserting the application of the Uniform Civil Procedure Rules and invites attention to s 171D of the Act which I shall repeat for convenience with the Accused’s emphasis.

Subject to this Act and the rules, the procedure and practice of the District Court when exercising its criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction.

57. Attention is invited to District Court Act s 171(5) which is said to provide for a different practice and procedure to be applied in the District Court to that in the Supreme Court. The Supreme Court practice upon which the Applicants rely as applying the Uniform Civil Procedure Rules is said that this is ousted by s 171(5).

58. S 171 District Court Act provides relevantly:

171 Criminal procedure rules

(1) The Rule Committee may make rules, not inconsistent with this Act or any other Act, for or with respect to any matter that by this Act is required or permitted to be prescribed for the purposes of, or in connection with, the exercise by the Court of its criminal jurisdiction or that is necessary or convenient to be prescribed for carrying out or giving effect to this Part and Division 3 of Part 2 or any Act under or by virtue of which rules under this Part apply, and in particular for or with respect to providing for the procedure and practice to be followed in the Court in all proceedings in which, and with respect to which, the Court has for the time being criminal jurisdiction and regulating or providing for any matters incidental to, or relating to, any such procedure or practice.

(2) Without limiting the generality of subsection (1), rules may be made under that subsection for or with respect to any of the following—

(a) …,

(b) conferring on a registrar in particular proceedings power, subject to the rules, to issue on behalf of a defendant or an appellant in those proceedings—

(i) …, or

(ii) a subpoena requiring a person specified in the subpoena to attend and produce, for the purpose of evidence, in the proceedings any document or thing that is in the possession or under the control of that person,

(c) …,

(d) …,

(e) …,

(f) …,

(g) …,

(h) …,

(i) …,

(j) …,

(ja) …,

(k) ….

(3) A provision of the rules may—

(a) apply generally or be limited in its application by reference to specified exceptions or factors,

(b) apply differently according to different factors of a specified kind, or

(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,

or may do any combination of those things.

(4) (Repealed)

(5) Despite any other provision of this Act, the provisions of Part 3 of Chapter 4 of the Criminal Procedure Act 1986 and any rules under that Part apply to proceedings in the Court in its criminal jurisdiction.

59. I do not accept that s 171(5) expresses the intention for which the Accused contends, to exclude the Supreme Court practice applying the Uniform Civil Procedure Rules but rather attracts to the proceedings in this court the application of Part 3 of Chapter 4 of the Criminal Procedure Act 1986 and any rules under that Part.

60. However, if this view is incorrect, it remains that the Applicants have the benefit of relevant provisions found in Chapter 4 Criminal Procedure Act, 1986 which provides for summary procedures, specified in Part 1 as proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily.

61. Part 3 provides for the attendance of witnesses and production of evidence in lower courts, and relevantly includes (my emphasis),

222 Issue of subpoenas

(1) A registrar, if requested to do so by a party to proceedings, is, subject to and in accordance with the rules, to issue to the person named any of the following subpoenas—

(a) …,

(b) a subpoena for production,

(c) ….

(2) If the prosecutor in proceedings is a public officer or a police officer, the officer may, subject to and in accordance with the rules, issue any such subpoena. The subpoena is to be filed and served in accordance with the rules.

(2A) A police officer may issue a subpoena under subsection (2) on behalf of a public officer.

(3) ….

(4) A party may require a subpoena for production to be returnable—

(a) on any day on which the proceedings are listed before a court, or any day not more than 21 days before any such day, or

(b) with the leave of the court or a registrar, on any other day.

223 Time for service of subpoenas

(1) A subpoena must be served within a reasonable time and at least 5 days before the last day on which it must be complied with.

(2) A registrar may, on application by the party concerned, permit a subpoena to be served later than the time permitted by subsection (1). The later time must be endorsed on the subpoena by the registrar.

(3) A subpoena may be served by delivering a copy of the subpoena to the person named or in any other manner prescribed by the rules.

224 Conduct money

Unless a court otherwise orders, a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.

225 Limits on obligations under subpoenas

The person named is not required to produce any document or thing if—

(a) it is not specified or sufficiently described in the subpoena, or

(b) the person named would not be required to produce the document or thing on a subpoena for production in the Supreme Court.

226 Production by non-party

(1) If the person named in a subpoena for production is not a party to the proceedings, the subpoena is, unless a court otherwise orders, to permit the person to produce the document or thing to the court specified in the subpoena not later than the day before the first day on which the person’s attendance is required, instead of attending and producing the document or thing as required by the subpoena.

(2) The rules may make provision for or with respect to the production of documents or things produced to a court under subsection (1), and the return of the document or thing, and any related matters.

(3) …

227 Subpoena may be set aside

(1) A court may, on application by the person named in a subpoena, set aside the subpoena wholly or in part.

(2) Notice of an application under this section is to be filed and served as prescribed by the rules on the party on whose request, or by whom, the subpoena was issued.

228 Inspection of subpoenaed documents and things

(1) A party may, if a court so orders—

(a) inspect documents or things produced in compliance with a subpoena, and

(b)

take copies of any documents so inspected.

(2) Any such order may be made on such terms and conditions as the court thinks fit.

(3) A registrar may exercise the function of a court to make an order under this section unless—

(a) the court otherwise orders, or

(b) a party, the person named in the subpoena or a person claiming privilege in respect of the document has notified the court in the manner prescribed by the rules that the party or person objects to the making of an order under this section.

229 Action that may be taken if person does not comply with subpoena

(1) A party who requested, or issued, a subpoena may apply to the court for the issue of a warrant under Part 4 for the arrest of the person named if the person named has not complied with the subpoena.

(2) The court may issue the warrant if satisfied that—

(a) the person named has not complied with the subpoena, and

(b) the requirements of this Part for subpoenas were complied with and no just or reasonable excuse has been offered for the failure to comply.

(3) A Magistrate before whom a person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant—

(a) committing the person to a correctional centre or other place of security, and

(b) ordering the person to be brought before a court at the date, time and place specified in the order.

(4) The Magistrate must give notice of the date, time and place set to the party who issued or requested the subpoena.

230 Application of Bail Act 2013**—bail decisions made by courts**

(1) A court may make a bail decision under the Bail Act 2013 in respect of a person brought before the court after having been arrested under a warrant referred to in section 229.

(2) The Bail Act 2013 applies to the person as if—

(a) the person were Accused of an offence, and

(b) the proceedings in which the person is required to be examined or produce a document or thing were proceedings for that offence.

(3) Bail may be granted for the period between—

(a) the person’s being brought before a court under a warrant for the purpose of being examined as a witness or producing a document or thing, and

(b) the person’s being examined as a witness or producing the document or thing.

231 Action that may be taken if witness refuses to give evidence

(1) This section applies to a person who—

(a) appears before a court on a subpoena, or

(b) appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena, or

(c) is brought before a court under a warrant of commitment after being so arrested,

to give evidence, or produce any document or thing, or both.

(2) The court may order that a warrant be issued for the committal of a person to whom this section applies to a correctional centre for a period not exceeding 7 days if the person refuses, without offering any just cause or reasonable excuse—

(a) to be examined on oath, or

(b) to take an oath, or

(c) to answer, after having taken an oath, any questions that are put to the person concerning the subject-matter of the proceedings, or

(d) to produce the document or thing.

(3) However, the person is to be released before the expiration of those 7 days if the person—

(a) consents to be examined on oath and to answer questions concerning the subject-matter of the proceedings, or

(b) produces the document or thing.

(4) This Part applies in relation to a subpoena to the exclusion of section 194 (Witnesses failing to attend proceedings) of the Evidence Act 1995.

(5) In this section, a reference to a person who appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena includes a reference to a person in respect of whom bail has been dispensed with after being so apprehended.

232 Rules relating to subpoenas

The Rule Committee may make rules for or with respect to the following matters—

(a) the form of subpoenas,

(b) the production of documents or things to the registrar and the inspection of the documents or things,

(c) the return of subpoenas to parties,

(d) conduct money,

(e) hearing of objections to subpoenas.

62. The Accused argued against the proposition that the judgements in R v DK [2023] NSWCCA 281 assists the Applicants, considering that the issue there was whether the District Court had power to order costs for the subpoena against the Crown and did not indicate the nature of the costs as compliance costs or litigation costs.

63. I agree that this was an effect of the decision but this must be understood in the context of s 224 Criminal Procedure Act quoted above.

64. The Accused submitted that the decision in DK ibid must be understood as one reached when the court was not required to determine whether the Uniform Civil Procedure Rules applied to subpoenas issued in criminal proceedings on indictment in the District Court. In that case the Crown was the issuing party.

65. The Court of Criminal Appeal in DK ibid was not called upon to consider whether the District Court Act, s 171(5), with Criminal Procedure Act excluded the operation of the Uniform Civil Procedure Rules in relation to subpoenas issued in indictable criminal proceedings in the District Court.

66. The Accused submits that

67. The Uniform Civil Procedure Rules and the Criminal Procedure Act provisions do not apply concurrently but apply to subpoenas issued in criminal proceedings in the Supreme Court, empowered to order reasonable costs of compliance:, R v Obeid [2018] NSWSC 1024.

68. The Criminal Procedure Act applies to subpoenas issued in criminal proceedings on indictment in the District Court.

69. In any event, it was not a necessary step in the reasoning process in DK ibid that the Uniform Civil Procedure Rules apply to subpoenas issued in criminal proceedings on indictment in the District Court and if it be the case that the court there reached that conclusion the decision was “plainly wrong’.

70. The Accused submitted that the effect of Criminal Procedure Act s 224, District Court Act s 171(5) and District Court Rules r 53.21 is that the time for determination of, and payment of, the costs and expenses of compliance with a subpoena is before the subpoena is complied with.

71. I do not accept this contention.

72. The Accused contends that he should not be compelled to meet the expense of compliance beyond the $30.00 tendered. He does not accept as reasonable the quantum specified by the Applicants, who produced documents voluntarily, not in accordance with the subpoena as issued but in purported compliance with a revised paragraph 4 in the hope that the Accused will accept those terms or that the Court will beyond its power order the amendment of the subpoena without the concurrence of the Accused who sought the process.

21 Conduct money

The amounts prescribed for the expenses of complying with a subpoena in relation to a day are relevantly:

(a) …, and

(b) in relation to the production of a document or thing, the reasonable expenses of the person named of complying with the requirement to produce the document or thing.

73. The Accused argues that if money has not been tendered in advance of the payment of the then compliance with the subpoena is not required and could not be characterised as anything but voluntary. The Applicants complied at its own risk.

74. I do not accept that this would deny the Applicants their reasonable expenses of complying with the requirement to produce the documents.

75. Submissions were regarding the actual reasonable costs and expenses, but I need not turn to this question in my decisions

The Nature of the Subpoena

76. A subpoena in these proceedings for the attendance of witnesses and the production of documents is an order of the court. It is not an order or request by the party who sought the issue of the subpoena from the court. In this case the Accused was invited to withdraw the subpoena but it remains in place.

77. The party to whom the subpoena is issued is required to comply with the subpoena subject to the determination of issues that might arise upon the breadth of the call and the extent to which compliance with it is oppressive. Otherwise the person or entity to which the subpoena is issued must comply within the time specified unless the court allows accommodation because of circumstances in which might compliance within the period cannot be achieved.

78. Regardless of whether there is a call on the subpoena in court, subject to the considerations that might arise, the recipient is obliged to comply whether the party who sought the subpoena calls upon the subpoena in court or chooses not to do so.

79. In this case there was no occasion when the Accused gave notice of intention to withdraw the subpoena, other than to indicate acceptance of the proposed paragraph 4 accompanied by the expressed intention to call upon the documents produce subject to the decision of the Court upon the application for the reasonable costs for compliance. The intention to call upon the documents was therefore not abandoned but was contingent upon the indication of the court that it would require the Accused to meet the reasonable costs of compliance, and if this was required the Accused would refrain from the call, allowing the documents produced to remain in the court without further consideration, anticipating that he would therefore not be burdened by the obligation to meet the reasonable costs of compliance.

80. I do not accept this to be appropriate.

81. There could be no purpose in the request for the court to issue the subpoena other than upon the possibility that the documents would provide evidence relevant to the issues in the trial, including exculpatory material. It would be unusual not to seek access to the documents produced.

82. Traditionally the lawyers serving a subpoena at the same time tender an amount to meet the costs of providing the material. The sum tendered is in the experience of the Court modest. The Criminal Procedure Act 1986 for example provides in respect of lower court proceedings in s 224,

224 Conduct money

Unless a court otherwise orders, a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.

83. I was referred to ss 171 and 171D, District Court Act 1973, providing the making of rules for the purposes of and in connection with the exercise of the District Court of its criminal jurisdiction, which attracts the application of the procedure and practice in the Supreme Court unless other provision is made. I have discussed the provisions and authorities to which I was taken.

84. The District Court Rules 1973 Part 53 Division 2 provide for subpoenas in criminal proceedings in this court. These include,

21 Conduct money

The amounts prescribed for the expenses of complying with a subpoena in relation to a day are:

(a) an amount equivalent to the amount that would be payable for that day, in accordance with the Scale of Allowances Paid to Witnesses published in Government Gazette No 104 of 27 June 2003, at pages 6408 and 6409, in respect of the person named if the party issuing the subpoena were entitled to claim witnesses expenses in respect of that person as costs in the proceedings, and

(b) in relation to the production of a document or thing, the reasonable expenses of the person named of complying with the requirement to produce the document or thing.

Decision

85. I see no merit in the argument that the Applicants should not have an order or the payment of their reasonable costs accruing upon their decision to produce documents answering the call in the amended paragraph 4 the terms of which the Accused found acceptable. The suitability of the paragraph was understood by those representing the Applicants to have been accepted, leaving for determination the quantum of the costs of compliance that were reasonable. It was reasonable for the Applicants to conclude that their obligation was to assemble and produce documents in accordance with the amended paragraph 4 upon that understanding, and to anticipate resolution of the quantum in due course. The pertinent considerations include the imminent trial date, the subject of correspondence from the Accused, and the risk of consequences in their failure to produce the documents.

86. I am not persuaded that it was appropriate for the Accused to leave in place the subpoena, on its face requiring the Applicants to comply within the time specified and certainly before the trial date, and at the same time represent that in the absence of agreement as to the reasonable costs of compliance, compliance it is not required, and if the Applicants chose to comply they would do so at their peril, which I understand to be that they would be left to suffer the burden of the costs they incurred by doing so.

87. It does not follow from the legislation and rules which excuse compliance with a subpoena in the absence of the tender of a reasonable amount as conduct money that the recipient of a subpoena should be denied the reasonable costs of compliance when searching for and producing documents within their control. It was permissible and appropriate for the Applicants to comply with what was believed to be the obligation to produce documents within the call of the amended paragraph 4, particularly in the circumstances here where the Accused at no time withdrew the subpoena, and at all times until recently expressed the intention to call upon the original subpoena, regardless of the acknowledgement that the amended paragraph 4 was adequate for his purposes, in the absence of agreement upon what the reasonable costs of compliance ought to be.

88. I do not accept the Accused’s contention that the Applicants, as recipients of the subpoena, decided at their risk of loss to comply with the amended paragraph 4 of the subpoena.

89. I find that the Accused should pay the amount representing the reasonable expenses of the Applicants in complying with the requirements to produce the documents described in the proposed paragraph 4 of the call in the subpoena.

90. The sum for which the Accused is responsible will be as agreed between the Accused and the Applicants, and in the event that agreement cannot be reached, the matter is to be referred to the Supreme Court of New South Wales in the usual manner for assessment.

The Orders

92. Paragraphs 2, 3 and 5 of the subpoena issued by the Court at the request of the Accused dated 13 November 2025 are set aside pursuant to section 227 of the Criminal Procedure Act 1986 and Part 53, rule 23 of the District Court Rules 1973.

93. Paragraph 4 of the Subpoena is aside in part and amended to:

All documents (whether notes, emails, reports, correspondence or otherwise) referring to Queensland Supreme Court proceedings 340/13 between Naturelink Environmental Services Pty Ltd and Combined Property Holdings Pty Ltd, including but not limited to the settlement of those proceedings in 2015.

94. Noted that the Applicants assembled and filed with the court documents represented to comply with the terms of paragraph 4.

95. The parties to the criminal proceedings brought against the Accused have liberty to apply to the court for access to the documents upon adequate notice of the intention to do to each other party and the Applicants.

96. The Accused is to pay the amount representing the reasonable expenses of the Applicants in complying with the requirements to produce the documents described in the adjusted paragraph 4 of the subpoena.

97. The sum for which the Accused is responsible will be as agreed between the Accused and the Applicants, but in the event that agreement cannot be reached, the matter is to be referred to the Supreme Court of New South Wales in the usual manner for assessment.

**********

Amendments

04 May 2026

cover sheet amended to R In lieu of Rex

To accommodate the concessions made on behalf of the Accused I shall order modification of the call made by the subpoena to incorporate the amended paragraph 4.