Tin-Tagel Majikk Pty Ltd v Hockey

The notices to produce

1. On 18 February 2021 the plaintiffs served a notice to produce for inspection pursuant to r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) requiring production of the following documents. 1. Listings Report for Ray White Berkeley Vale for the period 1 October 2018 to 31 October 2020 inclusive. 2. Listings Report for Ray White Berkeley Vale for the period 1 October 2018 to 31 October 2020 inclusive as recorded in the Ray White Berkeiey Vale "MyDesktop" software. 3. Property Notes for each of the properties listed in the Listings Report for Ray White Berkeley Vale for the period 1 October 2018 to 31 October 2020 inclusive. 4. Property Notes for each of the properties listed in the Listings Report for Ray White Berkeley Vale for the period 1 October 2018 to 31 October 2020 inclusive as recorded in the Ray White Berkeley Vale "MyDesktop" software. 5. Contact Notes for each of the properties listed in the Listings Report for Ray White Berkeley Vale for the period 1 October 2018 to 31 October 2020 inclusive. 6. Contact Notes for each of the properties listed in the Listings Report for Ray White Berkeley Vale for the peridd 1 October 2018 to 31 October 2020 inclusive as recorded in the Ray White Berkeley Vale "MyDesktop" software. 7. Current employment contract between Boyle Partners Pty Limited and Susan Noelene Eastway. 8. Each and every expired employment contract between Boyle Partners Pty Limited and Susan Noelene Eastway 9. Current employment contract between Ray White Berkeley Vale and Susan Noelene Eastway. 10. Each and every expired employment contract between Ray White Berkeley Vale and Susan Noelene Eastway.
2. Correspondence then ensued between the solicitors. The solicitors acting for Boyle Partners suggested that the service of the notice to produce was contrary to the position taken by the Registrar in rejecting discovery before the evidence was completed. A subsequent letter from the solicitors for Boyle Partners disputed that the documents referred to were clearly identifiable, and in that way it was said the notice did not comply with UCPR r 21.10. It was also said that the documents were not relevant to a fact in issue.
3. There were said to be no documents in categories 7 to 10. They are not in issue here.
4. On 8 April 2021 the solicitors for the plaintiffs filed a notice of motion seeking an order that Boyle Partners comply with the notice to produce.
5. On 28 April 2021 the plaintiffs filed and served all but one of their affidavits in chief. The other affidavit was filed and served on 10 May 2021.
6. On 6 May 2021 the solicitors for the plaintiffs served a notice to produce to the Court pursuant to UCPR r 34.1 seeking production of the following documents: 1. Exported contacts file for Ray White Berkeley Vale containing: a. Contact ID; b. Surname; c. Contact Notes; d. Insert Date 2. Exported contacts file for Ray White Berkeley Vale containing; a. Contact ID; b. Surname; c. Contact Notes; d. Insert Date as recorded on the Ray White Berkley Vale "MyDesktop" software.
7. In response to that further notice, the solicitors for Boyle Partners wrote a letter to the solicitors for the plaintiff setting out why they maintained their objections to both notices, but putting an open offer as follows: 14. Our client is keen to explore with you whether the Notices can be resolved without the need to incur the cost and expense of the hearing on 22 July 2021. To that end. we make the following proposal (Proposal): (a) We will produce to your office copies of the listing reports, contact notes and property notes for each of the 50 Properties identified in the Folley Affidavit; (b) The production of the documents is subject to your office signing an undertaking and/or agreeing to confidentiality orders being made in the Proceeding substantially in the form attached to this letter; and (c) Your clients will agree to withdraw the Notices and file consent orders in the Proceedings dismissing the Notice of Motion filed on 8 April 2021 with no order as to costs.
8. The proposal was not agreed to by the solicitors for the plaintiffs.
9. On 25 June 2021, the solicitors for Boyle Partners filed a notice of motion seeking orders that both notices to produce be set aside, alternatively, that Boyle Partners be excused from compliance with the notices on the grounds that the documents contained confidential information.
10. On 1 July 2021 the solicitors for the plaintiffs filed an amended notice of motion seeking an additional order, that Boyle Partners comply with the notice to produce dated 6 May 2021.
11. This judgment concerns the amended motion by the plaintiffs and the motion by Boyle Partners.

Legal principles

1. Rule 21.10 UCPR provides: 21.10 Notice to produce for inspection by parties (cf SCR Part 23, rule 2(1); DCR Part 22, rule 2(1), (1A) and (2)) (1) Party A may, by notice served on party B, require party B to produce for inspection by party A - (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
2. Rule 21.9(2) UCPR provides: For the purposes of this Division, 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.
3. Rule 34.1 UCPR provides: 34.1 Notice to produce to court (cf SCR Part 36, rule 16; DCR Part 28, rule 18; LCR Part 23, rule 9) (1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner - (a) at any hearing in the proceedings or before any such examiner, or (a1) at any time fixed by the court for the return of subpoenas, or (b) by leave of the court, at some other specified time, any specified document or thing. (2) The other party must comply with a notice to produce - (a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or (b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.
4. In Norris v Kandiah [2007] NSWSC 1296 Brereton J said at [4]: Part 21 r 10 authorises service of a notice to produce, in respect of documents referred to in originating processes, pleadings, affidavits and witness statements, and "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by Young CJ in Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. As his Honour explained, the rule was not intended to subject a recipient to any kind of general discovery obligation. The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required.
5. In Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 Barrett J said: [12] The language used in rule 34.1. - "specified document" - is different. The word "specified" here means, in my view, the same as "described" or "identified", so that a notice under rule 34.1 plays in relation to a party the role that is played under rule 33 by a subpoena in relation to a non-party. [13] The requirement under rule 33 is that a subpoena to produce documents "identify" the document to be produced (see rule 33.3(4)(a)), that is, cut the document out from the universe of documents by some description or specification. [14] It is permissible for a subpoena to call for, for example, all documents recording oral communications between A and B within a stated period and referring to a particular company: see Lane v Registrar of the Supreme Court [1981] HCA 35; (1981) 148 CLR 245. Such a subpoena satisfies the requirement that there be "specified with reasonable particularity the documents that are required to be produced". These are the words of Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573. What is impermissible, again using the words of Jordan CJ, is that a person be required to search for or produce all such documents as he or she may have in his or her possession or power relating to a particular subject matter. Jordan CJ continued: "It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents".
6. In Norris v Kandiah Brereton J pointed out the difference between the two rules enabling a notice to produce to be given. His Honour said: [3] There are important and fundamental distinctions between a notice to produce under r 21.10 and a notice to produce under r 34.1. Rule 21.10, appearing as it does in Pt 21 of the Rules, is a process of discovery. A notice under r 34.1, appearing in Pt 34 entitled Notice to Produce to Court and following notices to produce at the hearing including opinions is a process akin to a subpoena for production. I endeavoured to explain the differences between the process of discovery and that of a subpoena for production in A Pty Ltd v Z [2007] NSWSC 899. One of the critical differences is that the touchstone of discovery is the concept of relevance to a fact in issue in the proceedings, whereas subpoenas for production are not necessarily limited to documents relevant to a fact in issue, but may extend to documents relevant to credit.
7. In Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465, Leeming JA said: [10] True it is, as Barrett J said in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [13]-[14] that a subpoena or, relevantly, a notice to produce under UCPR r 34.1, may permissibly call for, for example, "all documents recording oral communications between A and B within a stated period", on the basis that such a request satisfies the requirement stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR NSW 564 at 573 that a document (in that case in the subpoena) be "specified with reasonable particularity." Barrett J went on to say, however, that: "What is impermissible, again using the words of Jordan CJ, is that a person be required to search for or produce all such documents as he or she may have in his or her possession or power relating to a particular subject matter." [11] Barrett J continued at [15] as follows: "[T]he recipient of a subpoena or r 34.1 notice to produce must not be put into a position of having to judge the legal effect of a document or its capacity to prove something." [12] Common to both articulations of principle, and deriving from the requirement in r 34.1 of the notice to require production of "any specified document or thing," is the need for the notice with reasonable particularity to identify what it is which is the subject of the requirement for production. There are a number of familiar ways in which that can occur. One is by requiring production of a nominated file on a particular matter. Another is to call for particular documents which are capable of being identified on their face.
8. What must be shown to establish a legitimate forensic purpose has recently been clarified by the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. Whilst that was in the context of a subpoena, the same principles are also relevant for a notice to produce under r 34.1. Justice Bell said: [69] If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is "not sufficient", and a similar statement in Carroll at 182 that "mere relevance is not enough" may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: "must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." … [80] My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can: "(i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case", at least in civil matters, an inability to demonstrate that it is "on the cards" that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.
9. The expression "on the cards" derives from the judgment of Gibbs CJ in Alister v the Queen (1984) 154 CLR 404, [1984] HCA 85 where his Honour said (at 414): Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence.
10. In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, Owen J said (at 254): A "fishing expedition", in the sense in which the phrase has been used in the law means, as I understand it, that a person who has no evidence that there are a particular kind of fish in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.

Consideration

1. The plaintiffs relied on expert reports from Kylie Atkinson. Ms Atkinson's expertise comes from her work within the real estate sector and the technology associated therewith. Ms Atkinson has over 15 years of experience as a trainer and coach in the MyDesktop software. The Ray White Group Australia uses the MyDesktop software and Ms Atkinson is familiar with, and has extensive experience of and expertise concerning, that software as used by the Ray White Group Australia-wide. She also has 29 years of experience in the real estate sector inclusive of sales, property management, trust accounting, database technology and real estate associated software.
2. Ms Atkinson was asked to make these assumptions: (a) On or about 18 December 2018, Ray White Berkeley Vale obtained access to confidential information belonging to Ray White Bateau Bay (Business Confidential Information) Business Confidential Information is defined to mean: "Information on the computer database maintained by Ray White Bateau Bay and information held by employees and stored electronically or stored by any other method of recording information that, inter alia, details the names, contact details, property address, and notations in relation to past, current and prospective sellers, buyers, investors and landlords and the conversation history of past, current and prospective sellers, buyers, investors and landlords." (b) Ray White Berkeley Vale obtained access to the Business Confidential Information from Wayne Hockey and/or Susan Eastway (as the previous owners of Ray White Bateau Bay); (c) Ray White Berkeley Vale has used the Business Confidential Information.
3. Ms Atkinson was then asked whether the documents sought in the two notices to produce "are relevant to the allegations made in (a), (b), (c) respectively above". Objection was taken by counsel for Boyle Partners to Ms Atkinson's evidence in answer to that question, and I upheld that objection.
4. The question was an unfortunate one because it is not for the expert to opine on whether documents are relevant to allegations. It is a question of law to be determined by the Court.
5. However, the substance of Ms Atkinson's evidence, putting aside her conclusion that the documents are relevant to the allegations, is that Wayne Hockey, or another person using Wayne Hockey's MyDesktop software login, obtained access to Business Confidential Information in the form of a "data export". Ms Atkinson went on to say this: I have, from the attachment to the letter of instruction, sighted a copy of a Daily Activity Summary, which is a report generated from the of Ray White Bateau Bay MyDesktop software. I can confirm that the contact's data (including but not limited to, contact names, contact telephone numbers, contact email addresses, contact residential addresses, contact notes, contact ID, contact insert date in relation to, but not limited, property owners, prospective sellers, prospective buyers, current landlords) was exported under the user name of Wayne Hockey. … The requested document in the notice [to] produce to court, … will have information that will indicate whether or not Ray White Berkley Vale have imported the Business Confidential Information…
6. The third plaintiff, Kenneth Folley, who is the sole director and secretary of Danc, provided information in his affidavit about the MyDesktop system. He said it was in place when he entered into the Share Purchase Agreement, and is integrated with the system used by the Ray White franchise, which is called One System.
7. Mr Folley went on to say: 43. This allows for a single client database to be accessed by staff using unique individual login and password details. All staff have access to contacts and properties for which they are responsible for managing, and can create, edit and update notes within the database. The database logs the name, date and time of all entries. All client notes can be viewed by all sales staff. 44. MyDesktop stores all personal and property details, including but not limited to actual or potential client names, addresses, contact details, anniversary dates, property reports, listings, and correspondence. This information is confidential to RWBB. Client contacts are arranged by the following categories: (a) 'Hot Stock', which are sellers expected to market their property in the next six months. The sales person has more than likely conducted a Market Appraisal or Listing Presentation, and would be maintaining very regular contact with these clients. The client is notified of every property which sells in their area, even if it is another agent's listing. (b) 'Pipeline', which are clients who have indicated that they will be selling in the next 6 to 12 months. Similarly to Hot Stock clients, these clients are kept in regular contact and notified of nearby property sales. (c) 'Client pool', which includes landlords, past vendors, past purchasers and any other individuals who entities whom a sales person is fostering a relationship with. (d) 'Prospective vendors', which are clients who don't have a strong relationship with the business and aren't looking to sell immediately but would like to be kept informed of what is happening in their market. 45. RP Data is a cloud-based property information provider. It is a subscription service outside One System. RP Data shows (i) the listing date (ii) the sales date (iii) the sales agent and (iv) the property owner and (v) RWBB appraisals conducted using RP Data. 46. PriceFinder also lists these details and as well, it lists RWBB appraisals using PriceFinder. PriceFinder is a cloud-based software system. It is part of the One System which is a reference to all the Ray White software systems used by franchisees. There are other software systems that real estate agents can use and one of them is RP Data. RWBB, MyDesktop and Download by Hockey 47. I have done a search of the Daily Activity Summary Report from RWBB MyDesktop which revealed that Hockey had downloaded from MyDesktop on 2 October 2018, the 'Contacts' recorded on the RWBB MyDesktop at that time. That information includes but is not limited to names, postal addresses, email addresses, landlines, mobile numbers, partner details, potential and existing vendors, potential and existing purchasers, property owners including the addresses of the properties. It also includes past contacts with buyers, property owners, landlords and vendors as well as a communication history with current and historic clients.
8. Ms Atkinson was asked about the documents identified in the notice to produce issued under r 34.1. Ms Atkinson said that the terminology "exported contacts file" is a commonly recognised and understood wording by a person who uses client relationship management software such as the MyDesktop software. She said that there is no ambiguity in what documents are being sought, and that the documents are easily obtainable in the MyDesktop software. Ms Atkinson said that the usual information contained in the documents described in paragraphs 1 and 2 of that notice to produce, includes but is not limited to: a. Contact reference id (a unique numeric reference given to every contact entered into the MyDesktop software) b. Insert Date (the date the contact was entered into the MyDesktop software) c. Name of contact (the first and last name of the contact and any partner's first and last name(s)) d. Contact details (telephone number(s), email address(es) and residential and or postal address for contact) e. Contact Notes include but not limited to; i. Name of person within the real estate office making the note ii. Date of note (the date the note was entered by the person making the note, as generated by MyDesktop software) iii. If the note is imported, from an excel spreadsheet, the note date could be either: 1. The date the note is imported (the date in which a person manually imported the excel spreadsheet into the MyDesktop software) 2. Or the date the note was entered into the MyDesktop software before the export of the contacts file (the date the note was originally entered in the MyDesktop software) iv. Note type (type of note eg; system note, general note, phone call, home open feedback note etc) v. Note description (what the person entering the note has written or what the MyDesktop software automatically records when a task is performed) vi. Notes pertaining to the contact (inclusive of activity regarding e-marketing, conversations, website enquiries, emails etc) vii. Notes pertaining to the contact inclusive of printed emails and letters etc (correspondence related to the contact generated from the MyDesktop software will be recorded as a note by the system) f. Name of person 'owning' the contact (the person within the office who is the main point of contact to the person(s)/contact entered) g. Buyer requirements (what is the contact looking to buy eg; bedrooms, bathrooms, price range etc) This "Exported Contacts File" will be a CSV excel spreadsheet. All fields within the spreadsheet, that are not requested under the Notice to Produce, can be removed to form the document as required.
9. There was evidence from Mr Folley that from an Excel spreadsheet provided to him by Ray White (NSW) Pty Ltd, the agency's franchisor, he was able to prepare a list of all the properties sold by RWBV from 4 January 2019 to 30 October 2020. He was then able to cross-reference those properties with the database held on the RWBB MyDesktop software. Some 50 of the properties sold by RWBV formed part of the confidential information downloaded from RWBB.
10. The plaintiffs submitted that the documents sought in the notice issued pursuant to r 34.1 will reveal what is said to be the crux of the case by the plaintiffs against the first, second and seventh defendants, which is whether the contact notes or the contact data downloaded by Mr Hockey was then imported into the data of RWBV.
11. Counsel for Boyle Partners identified three objections to the notice to produce issued under r 34.1. The first was that it lacked reasonable particularity; secondly, it lacked a forensic purpose; thirdly, it was being used as a substitute for discovery.
12. Counsel for Boyle Partners submitted that if the notice to produce pursuant to r 34.1 was specific to the 50 properties identified by Mr Folley, there would be no objection to what is sought. He submitted, however, that what has been sought in the notice to produce extends much beyond those properties and would involve production of the whole of the database of RWBV.
13. In my opinion, Boyle Partners should be required to comply with the notice to produce issued pursuant to r 34.1. There is evidence that either Wayne Hockey or someone using his login, obtained access to the Business Confidential Information belonging to RWBB, and exported that information. There is evidence that the 50 properties identified by Mr Folley formed part of the Business Confidential Information of RWBB, and had been dealt with in some way by RWBV. That evidence means that what is sought in the notice to produce is not only relevant to the principal issue in the case, but it is also "on the cards" that the documents will materially assist the plaintiffs' case.
14. The analogy drawn by counsel for Boyle Partners, that what is being sought is the equivalent of a request for a filing cabinet, is inapt. Material stored electronically is not as easily divisible as hard copy documents. On the other hand, the onerous task of going through hard copy documents to identify the relevant documents is considerably reduced when searching electronic storage using electronic means. It is of some significance, although the Evidence Act 1995 (NSW) is not at this stage directly applicable to what is sought, that the definition of "document" in the dictionary to the Evidence Act includes: (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else.
15. It does not seem to me a proper objection that what is contained on what is sought to be produced consists of a large number of different entries within the particular database. In my opinion, what is sought does not offend what was said by Leeming JA in Loulach, by Brereton J in Norris v Kandiah or by Barrett J in Patonga Beach Holdings.
16. In my opinion, the exported contacts file is relevant to the principal issue in the case, and is likely to throw light on the issue of whether RWBV has used the Business Confidential Information. The evidence to which I have referred demonstrates that what is involved in this notice to produce is not a fishing expedition.
17. It may be accepted that what is now on the documents sought to be produced will include much more information than was exported from RWBB. That is an inherent characteristic of a database. However, the only way that the plaintiffs can ascertain if, and to what extent, that exported contacts file was uploaded into the systems at RWBV is for the file as sought to be produced. It will then be necessary to make appropriate arrangements concerning confidentiality.
18. In the light of Ms Atkinson's evidence, it does not appear that Boyle Partners will have any difficulty understanding what is to be produced.
19. This notice to produce was issued after all but one of the plaintiffs' affidavits in chief were filed and served. In that way, the notice to produce does not amount to a contravention by the backdoor of the Registrar's ruling. I do not consider that it offends any principle which provides that a notice to produce should not be used as a substitute for discovery. Having regard to s 56 of the Civil Procedure Act 2005 (NSW), I consider that the issue of, and compliance with, this notice to produce is likely to result in a more economical approach to issues surrounding the disclosure of relevant documents.
20. The position is otherwise in relation to the notice to produce issued under r 21.10. I do not consider that categories 1 to 6 in that notice consist of specific documents that are clearly identified in the notice: r 21.10(1)(b). The categories are too widely expressed, particularly in relation to the dates.
21. If specific documents are not identified, the documents must be identified in the originating process, a pleading, an affidavit or a witness statement filed or served: r 21.10(1)(a). The Listings Report, the Property Notes and the Contact Notes are not referred to in the pleadings and there was no reference to them elsewhere at the time the notice to produce was issued. Subsequently, affidavits were filed on behalf of the plaintiffs where Contact Notes or Property Notes were referred to (the affidavit of Mr Folley, paragraph 56 and following).
22. I have some considerable doubts that compliance with r 21.10(1)(a) can operate retrospectively by the later filing of an affidavit. However, even if that is so, I consider that the period of time specified in categories 1 to 6 is far too broad for the categories as described to be produced. In any event, it is likely that compliance with the notice to produce issued under r 34.1 is likely to make the earlier notice otiose.
23. In my opinion, the notice to produce dated 18 February 2021 pursuant to UCPR r 21.10 should be set aside. In relation to the notice to produce filed 6 May 2021 pursuant to UCPR r 34.1, the seventh defendant should be ordered to comply with that notice.
24. Issues of confidentiality were raised in correspondence but not argued at the hearing of the motions. Such issues will need, in the first instance, to be resolved between the parties, but it is likely that an order in the form of, or similar to, the Consent Order at annexure LJNB-017 to the affidavit of Lachlan John Neish Boughton sworn 25 June 2021 would be appropriate. If agreement cannot be reached, the parties can approach the Duty Judge under the liberty to apply.
25. In the circumstances where each side has been partially successful, there should be no order for costs in relation to either of the Notices of Motion.

Conclusion

1. I make the following orders: 1. The notice to produce issued pursuant to UCPR r 21.10 on 18 February 2021 is set aside. 2. The seventh defendant is to comply with the notice to produce issued pursuant to UCPR r 34.1 on 6 May 2021 within 14 days. 3. Except as provided in orders (1) and (2) herein, dismiss the plaintiffs' amended notice of motion filed 1 July 2021 and the seventh defendant's notice of motion filed 25 June 2021. 4. No order for costs, to the intent that each party pays its own costs of each motion. 5. Liberty to apply on 2 days' notice.

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: 16 August 2021