Silberstein v The Owners - Strata Plan No 55468 & Ors [2022] NSWCATCD 207 | Case summary

NCAT Consumer and Commercial|2022-11-29|Before: The Hon J

The applicant's submissions

In relation to Categories 1 and 2 the applicant submits: 1. categories 1 and 2 are directed towards documents establishing the nature of common property defects, the water ingress caused by those defects, works undertaken by or on behalf of the first respondent to rectify those defects, and the respondents' knowledge of, and state of mind, regarding those things; 2. the documents are relevant to establishing reasonable foreseeability of certain kinds of loss, duty of care and breach of that duty by the respondents, and whether the second to fifth respondents acted in good faith within the meaning of s 260(1) of the SSMA for the purposes of executing their functions and/or whether their conduct warrants the Tribunal ordering their removal from the strata committee; 3. although a summons shares some similarities with a subpoena, subpoenas are generally more limited because they are ordered against non-parties not familiar with the proceedings. In this case, the summons is issued to the first respondent which is well familiar with the facts and circumstances of the proceedings; 4. the applicant accepts that the evidence of the respondents: (a) may put less in issue than the defence currently does; and/or (b) may refer to documents otherwise captured by Categories 1 and 2, in which case those categories can be narrowed. To that end, the complaints in the respondent's submissions, to the extent sustainable, would be better dealt with by amendment than dismissal of the Summons.

Preliminary views

In my preliminary view, there is considerable substance in the respondents' submissions, in particular that a subpoena (here a summons) cannot be used as a substitute for discovery: Small at 574; that Categories 1 and 2 are "exceptionally broad" and that the identifiers "referring to and "in relation to" are problematic and have the effect of requiring the respondents to "trawl through" their records to determine what does and what does not "refer to" or "relate to" the "water ingress issues".
If the applicant wishes to press for production of documents the subject of Categories 1 and 2, she may care to consider amending the current terms of Categories 1 and 2, or withdrawing the summons and starting afresh.

Costs

If the respondents seek costs, they should file and serve submissions as to costs by 23 December 2023. Their submissions should identify the relevant costs rule and the reasons why costs should ordered.
The applicant may respond by 23 January 2023.
The applicant may reply by 30 January 2023.
The Tribunal proposes to consider any application for costs on the papers and without a hearing. If any party opposes that course they must address that issue in their submissions.

Orders

The Tribunal orders that: 1. Paragraph 3 of the Schedule to the summons issued on 4 October 2022 at the request of the applicant to the first respondent is set aside. 2. If the respondents seek costs, they should file and serve submissions as to costs by 23 December 2023. 3. The applicant may respond by 23 January 2023. 4. The respondent may reply by 30 January 2023.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 28 August 2023 - Formatting amendments. 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. Decision last updated: 28 August 2023

Fishing

In my view, what the applicant is doing is clearly "fishing".
As the Supreme Court noted in Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd (No 2) [2019] NSWSC 758 at [185]: What constitutes a "fishing expedition" was explained by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 (i.e., where a party has no evidence that "fish of a particular kind are in a pool [but] desires to be at liberty to drag it for the purpose of finding out whether there are any there or not").
As the Supreme Court further noted in Structerre Consulting Engineers (NSW) Pty Limited v Townend [2020] NSWSC 1476 at [17]: A subpoena may not be used by a party to litigation for the purpose of endeavouring, not to obtain evidence to support the party's case, but to discover whether they have a case at all: The Commissioner for Railways v Small (1938) 38 SR (NSW) at 564. A subpoena is "fishing" when issued in the hope of finding something to supply evidence necessary to support one's case, there being no evidence that the subpoenaed party has such material but wishing to find out whether there is any material or not. …
I see no substance in the applicant's submission that the applicant is not looking to "fish out a case she does not have, she is looking to prove the case she has pleaded'.
For these reasons paragraph 3 of the Summons should be set aside.

Silberstein v The Owners - Strata Plan No 55468 & Ors

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)