Rezai v BUILD TECH CORP PTY LTD [2025] NSWSC 861 | Case summary | Zoe

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Rezai v BUILD TECH CORP PTY LTD [2025] NSWSC 861 | Case summary | Zoe

It is rule 21.2 which provides for the making of orders for discovery of documents within specified classes. It requires that a class “must not be specified in more general terms than the court considers to be justified in the circumstances”: r 21.2.
Classes may be specified by relevance to one or more facts in issue; by description of the nature of the documents and the period within which they were brought into existence; or in such other manner as the Court considers appropriate in the circumstances: r 21.2(3).
It is rule 21.9(2) which specifies, in the case of a notice to produce before hearing, that “a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.”
By way of contrast, r 33.3 requires a subpoena to be in the approved form and to identify the document to be produced. It does not require that individual documents be identified, but that they can be identified by a sufficient description. Subpoenas are also not confined to the production of documents relevant to a fact in issue and can extend to documents relevant to credit and those capable of providing a legitimate basis for cross-examination: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [61]-[62]. It also need not be intended that subpoenaed documents be tendered in evidence, nor need they be admissible.
It is long settled that what a subpoena must do is specify, with reasonable particularity, the documents which are required to be produced: Commissioner for Railways v. Small (1938) 38 SR (NSW) 564 at 573 discussed in Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245; [1981] HCA 35 at [11]. A subpoena may not put the recipient into the position of having to judge whether the document has the capacity to prove anything, which is what discovery permits.
This being what distinguishes a subpoena from discovery, a subpoena not being able to require a person to assess whether documents are relevant to a fact in issue: Southern Pacific Motel Services Inc. v. Southern Pacific Motel Corporation Ltd. (1984) 1 NSWLR 710.
A subpoena must be interpreted in a broad, commonsense way from the perspective of the recipient: Southern Pacific Motel Services Inc at 720. But even a description of documents which ‘relate to’ a particular fact or subject matter may properly be required, provided the production is reasonably necessary and not oppressive: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 929.
Parties are generally not entitled to use a subpoena as a substitute or alternative to discovery: Small at 574. That involving an abuse of process: National Employers’ Mutual General Association Ltd v Waind (1978) 1 NSWLR 372.
It is the issuing party which bears the onus of establishing that there is a legitimate forensic purpose for the production sought: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20]-[22].

Build Tech contended that it had issued the subpoena bona fide, for the purpose of obtaining evidence, that being sufficient to establish the required legitimate forensic purpose: Blacktown City Council at [61].
Such a purpose being able to be established by showing that the documents will materially assist on an identified issue, or that it is likely that they will assist: at [65]. Documents relevant to cross-examination are also able to establish the required purpose: at [69].
Further, that apparent relevance should be able to be ascertained by an examination of the description of the documents sought, in light of the issues disclosed by the pleadings: at [68]. A subpoena requiring production of documents which by their nature have a bearing on the issues will not amount to fishing: at [69].
Build Tech thus did not serve any evidence to support its motion, relying on the pleadings and the terms of the subpoena itself to advance its case.
Rezai disputed that it had met the onus which fell upon it, contending that the class descriptions resulted in impermissible discovery being pursued.
There was no suggestion that the production the subpoena required was onerous, other than because there was a general difficulty with Mr Rezai providing instructions. That is because he does not speak, read, nor write English, nor does he read or write in his native language, with the result that his communications have to be interpreted.
But it was not suggested that this alone was a basis on which the subpoena could be set aside.
Mr Rezai rather contended not only that he had already produced some of the documents sought, as the Rules had required, but that the relevance of the other subpoenaed documents was not apparent.
Further, that the descriptions of the subpoenaed classes tasked him with assessing documents in order to decide whether they did or did not fall within the descriptions. Mr Rezai claiming that this effectively sought improperly to extract the benefits of discovery, without satisfying its prerequisites.
That was disputed.

It is the Court which issues a subpoena, on application by a party. It also has power to set such a subpoena aside, in whole or in part, in order to regulate its processes and, in particular, to intervene in a case of abuse of its process: Blacktown City Council at [88].
Rule 21.8, on which Mr Rezai relied, forms part of the particular regulation of personal injury damages claims under the Rules. That regulation including:
Rule 15.12(2), which in such cases requires the plaintiff to serve, as soon as practicable after service of the statement of claim, a statement accompanied by specified documents, including “copies of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing”, including relevantly “letters from employers, wage records, income records and group certificates”.
Rule 15.14(1) which requires that the statement and documents served must “be as final and complete as to the plaintiff’s case as they can, with the exercise of reasonable diligence” and they must be updated to be accurate and complete. If the plaintiff becomes aware they are no longer accurate and complete “the plaintiff must give to all active parties such advice as is necessary to make that information accurate and complete”: r 15.14(2);
Rule 15.16, which after conducting a review or status conference empowers the Court to dismiss the proceedings or make other orders, if the plaintiff has not complied with those requirements;
Rule 21.8, which only permits an order for discovery in personal injury cases, if the court, for “special reasons”, orders that discovery be given. Such an order is sought by motion;
Rule 21.12, which in such cases only permits service of a notice to produce a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party, if the Court has ordered they be produced, for “special reasons”. Such an order may also be pursued by motion; and
Rule 22.1(3) which, in the case of personal injury damages claims, only permits the Court to order a party to answer interrogatories if satisfied that “special reasons” exist that justify the making of the order.
The Rules also provide generally for service on another party of a notice to produce documents at a hearing, a time fixed by the Court for return of subpoenas, or by leave of the Court at some other time: r 34.1. This Rule makes no particular provision in respect of personal injury damages claims, but there is no issue that it can be relied on in such a case.
Nor do the Rules regulating the issue of subpoenas impose any limitation on their issue in personal injury cases: Part 33.
Rule 33.2 provides, relevantly, that the Court may order, by subpoena, the production of documents unless the Court has made an order, or there is a rule which has the effect of requiring that the proposed subpoena not be issued, or not be issued without the leave of the Court and that leave has not been given. There has been no such order in this case and there is no such rule in a personal injury case.
Rule 33 permits subpoenas to be issued and made returnable before the Registrar well before the date fixed for a trial, so that documents required for preparation may be procured: Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors [2006] NSWSC 831 at [6]. There is no suggestion that the Rules do not permit a subpoena to be served by one party on another. They even permitting, for example, a defendant’s insurer to serve a subpoena on a defendant in an appropriate case: Mulligan v Lancaster [1969] 2 NSWR 284.
Both a notice to produce and a subpoena attract a fee of $129, while a motion attracts a fee of $766.
It follows that it may be cheaper to pursue production of documents to which rr 15.12 and 15.14 apply by order sought at a review or status conference rather than by motion, notice to produce or subpoena, if a plaintiff has failed to serve them.
It was documents of this kind which were captured by category 5 and 6 of the subpoena. It follows that it would have been cheaper to have pursued their production at a review or status conference, but I cannot see that the Rules preclude their pursuit by subpoena.
Mr Rezai relied on the Rules which regulate discovery and notices to produce to which r 21.8 applies to contend that in a personal injury case a subpoena should not be issued to a plaintiff, even though the Rules do not make such a provision in r 33, relying on observations of Davies J in Foley by her next friend Cook v Propix Pty Ltd t/as Jamberoo Action Park [2017] NSWSC 933. His case being that the production which the subpoena sought was premature and did not accord with the regulatory regime.
Unlike this case, in Foley the plaintiff had “frankly admitted” that the subpoena there in issue was served in lieu of discovery for reasons explained at [19]. The result was that parts of the subpoena were set aside. At [57], his Honour observed:

Mr Rezai argued that these observations reflected that a party in a personal injury claim should not use a subpoena to obtain another party’s production of documents. Build Tech contended, however, that his Honour’s observations were rather directed to the impermissible use of a subpoena in order to obtain discovery, which it was not pursuing.
Build Tech arguing that the Rules permit one party to issue a subpoena to another to obtain documents required for timely preparation for trial. For example, in order to obtain expert evidence. They not contemplating that a defendant would be limited to the documents which a plaintiff had served or referred to in pleadings or an evidentiary statement or other evidence. Nor that a defendant would be restrained from the pursuit of relevant documents, until after service of the plaintiff’s evidence. The issuing of a subpoena permitting the pursuit of documents which could advance its case beforehand.
The cases which the parties advanced raised the question of whether there is a lacuna in the Rules, so far as the issue of a subpoena to a party in a personal injury case is concerned. Part 33 not making any reference to personal injury cases or the need to establish the ‘special reasons’ required in the case of discovery and some notices to produce.
What is in issue between the parties about the operation of the Rules must be approach in light of the overriding purpose specified in s 56 of the Civil Procedure A**ct, the just, quick and cheap resolution of the real issues in the proceedings. Section 56(2) requiring the Court to give effect to that purpose when it interprets the Rules.
So approaching the Rules I am not persuaded that they preclude the issue of a subpoena by one party to another in a personal injury case, if that does not impermissibly involve the pursuit of discovery.
The Rules could have imposed the special reasons limitation on the issue of a subpoena under r 33 or on issue of a notice to produce under r 34 in personal injury cases, but they do not. I am accordingly not persuaded that r 33 can sensibly be interpreted as if such a limitation had been imposed.
The issuing party must of course adhere to the obligations imposed by s 56 in the pursuit of any subpoena*.* A subpoena must thus be set aside if challenged, if it does impermissibly seek discovery, or has no legitimate forensic purpose. As I have explained, that was not here established.
The obligations which s 56 imposes should also result in any subpoena being carefully crafted and pursued only when its service does not result in unnecessary costs being incurred. This means that if documents have already been produced they should not become the subject of a subpoena. Nor should a subpoena be pursued if production of a document could more cheaply be obtained by an order made at a directions hearing.
It follows that there should be no need to pursue production of “letters from employers, wage records, income records and group certificates”, by subpoena, given that the Rules require they be served by plaintiffs and if they are not, contemplating that this can be ordered without the need for a motion.
But the Rules also contemplate that there will be circumstances where a subpoena may be legitimately served on another party in a personal injury case, that being the quick and cheap way in which to obtain production of relevant documents.
If a subpoena is served and production of a document is resisted because it impermissibly requires discovery to be given, or has no legitimate forensic purpose, a motion to have it set aside can be pursued. That some documents could be pursued by a notice to produce in only limited circumstances, does not preclude the pursuit of a subpoena for which there is a legitimate forensic purpose and which does not require discovery to be given.