Woolworths Ltd v The Warehouse Group

1 By notice of motion the first respondent seeks the striking out of several paragraphs of a notice to produce served by the applicant upon the first respondent. The notice of motion seeks the striking out of all paragraphs of the notice to produce except par 3. A copy of the notice to produce is annexed to this judgment. 2 It became clear during the course of the hearing that the applicant is prepared to accept a time limit on the documents required by the notice to produce, being documents for a period of six months from 11 May 2002 to the present. 3 The notice of motion seeking the striking out of the paragraphs was supported by an affidavit of Mr A Simon who is the IT production services manager of the first respondent. Mr Simon's affidavit is detailed but in summary it deals with three matters. First, it deals with the electronic storage, retrieval and recording facilities of the first respondent. Secondly, it explains Mr Simon's opinion as to the burden in complying with the notice to produce as to time and as to expense, and, thirdly, it sets out what Mr Simon perceives to be the value judgments necessary in order to comply with the notice to produce. 4 The background is this. A class 4 application has been filed by the applicant against the first respondent and Cariste Pty Ltd, the second respondent. It seeks relief in respect of two separate development consents. In relation to development consent numbered 1937/01, it seeks, first, a declaration that the first respondent is using the property in breach of condition 5 of the consent and, secondly, a declaration that that use is prohibited under the relevant local environmental plan. It seeks consequential orders, first, that the first respondent be restrained from using the property in breach of condition 5 and the zoning, but, as an alternative, it seeks an order that the first respondent be restrained from using the property for the display and/or sale of a number of specified goods listed from (a) to (t) in the class 4 application. The goods so specified are, I believe, although I have not checked every one, the same as are mentioned in par 1 of the notice to produce. The applicant also seeks a declaration that the second respondent is using the property in breach of condition 5 of that development consent and it seeks similar consequential orders against the second respondent. 5 In relation to the other development consent, numbered 358/01, the applicant seeks a declaration that the first respondent is using the property in breach of condition 6 of that consent and a declaration that that use is prohibited from being carried out on the property. It seeks similar consequential orders as were sought in relation to the other consent, and, again as an alternative, it sets out a prayer for an order that the first respondent be restrained from using the property for the display and sale of a number of specified goods. These goods appear to be the same as those specified in par 2 of the notice to produce. Declarations and consequential orders in the same terms are sought against the second respondent. 6 It is important to note that the class 4 application sets out in terms the provisions of condition 5 of the first consent and the provisions of condition 6 of the second consent and specifies to what those consents refer. It is also important to note for the circumstances of this decision that the only formal documentation filed thus far (apart from the notice to produce) is the class 4 application. 7 It was made clear from the bar table that draft points of claim have been prepared by the applicant, but they are not in evidence. A copy was handed up in relation to the cross-examination of Mr Simon but they have not been tendered and the information from the bar table is that they were served only this morning upon the first respondent. I proceed therefore on the basis that there are not yet any points of claim. Nor are there any affidavits in chief in relation to the class 4 application. 8 In response to the notice of motion the applicant has filed an affidavit of its solicitor, Miss E S Duenow, which sets out certain correspondence between the parties commencing with a claim made by the solicitors for the applicant and addressed both to the manager of the business at the property and to the general manager of Liverpool Council that there has been a breach of the two development consents, being breaches of condition 4 and condition 5 in one consent and a breach of condition 6 of the other consent. 9 In response to that correspondence the solicitors for the first respondent replied to say that they had investigated those assertions, that they did not admit there had been any breach of either of the consents but to the extent that there has been any such breach it would be rectified, was entirely inadvertent and steps would be taken to ensure that no breaches of the nature complained of or otherwise of the conditions of the consent would occur. There was further correspondence between the parties whereby the solicitors for the applicant sought details of the actions asserted to be taken by the first respondent as set out in the correspondence but it appears that there was no full response and the class 4 application was lodged. 10 The principles governing a question of this kind are set out in two relevant binding authorities. The first is The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 where, at pp 574 - 575, Jordan CJ said as follows (omitting citations): Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: … It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place. It would greatly impede the trial of actions at nisi prius, and impose an intolerable burden upon the presiding judge, if he were required from time to time to suspend proceedings and wade for himself through masses of documents for the purpose of endeavouring to determine whether any of them are relevant. Especially is this so when the documents may be called for whilst the case is still at the stage when it is difficult or perhaps impossible for the Judge to know what may become relevant and what may not. In the absence of special circumstances, … a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of "fishing," i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: … or to discover the nature of the other side's evidence: … Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant: … 11 The other principle which is important is to be found in the judgment of Rogers J in Arhill Pty Ltd and Others v General Terminal Company Pty Ltd and Others (1990) 23 NSWLR 545. At p 556 his Honour referred to the Rules of the Supreme Court (UK) which provided that no order for production of documents for inspection, or to a court, shall be made "… unless the court is of the opinion that the order is necessary, either for disposing fairly of the cause or matter, or for saving costs". His Honour said, "[t]hat, it seems to me, should be the criteria whereby courts should approach applications in relation to setting aside subpoenas, discovery and inspection. There should only ever be the one true guide. Obviously, if a document is not relevant, it cannot be necessary for disposing of the cause. Obviously, if the document does not open up a new line of inquiry, it cannot be necessary. But merely because it is relevant, or opens up a new line of inquiry, does not make it necessary". 12 In that context and applying those principles, it is also important that I refer to this Court's Pre-Hearing Practice Direction 1999. In relation to class 4 proceedings, pars 17 and 19 are important. Paragraph 17 provides as follows: 17. Where the respondent enters an appearance the following timetable shall be observed:-

(d) affidavits of the respondent in reply to affidavits in defence of any application in the nature of a cross-claim together with any points of reply to the defence to cross-claim shall be filed and served within 14 days of the applicant's affidavits. 13 Paragraph 19 provides: 19. If either party requires discovery, then unless the circumstances justify the expense of formal discovery, informal discovery should be arranged within 14 days of the date for service of the respondent's affidavits. Subpoenas or notices to produce to parties should not be used as a substitute for discovery. 14 The situation here is that the Practice Direction has not yet been complied with. There are no points of claim or affidavits in chief filed formally on behalf of the applicant. In those circumstances I consider it to be oppressive and an abuse of process to seek to ask the first respondent to produce the documents which are set out in the notice to produce. I say that because I do not think at this stage it is possible for the first respondent, let alone the Court, to know precisely what is the case that the applicant is claiming and in particular the precise issues which arise between the parties. I do not say that in any artificial sense. The class 4 application does set out lists of goods but it does so in a context where the declarations of breach that are sought are simply a breach of condition 5 and a breach of condition 6 of the respective development consents. There is no precise articulation at this stage as to those breaches. It is urged upon me by Mr Beatty on behalf of the applicant that one can determine from the class 4 application that it is these lists of goods the sale of which or display of which constitutes the relevant breaches. I think that requires assumptions to be made arising out of the one document, assumptions which are not yet based in any formal pleadings (such as they are in this Court) which are called for by the Pre-Hearing Practice Direction. 15 This is not the first time, as the parties explained, that a similar issue has arisen between the same parties. It arose in relation to a separate case concerning a separate property in which there was a claim that a notice to produce should be struck out in whole or in part. I delivered a judgment in relation to that on 20 February 2002, see Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd and Anor [2002] NSWLEC 55. But the conclusion I came to in that case is different to this one and, (because the parties are almost identical) I should say that the circumstances there were different. It is clear from the judgment that what the applicant had filed in that case was its points of claim and there was also an affidavit tendered on behalf of the applicant which set out the case that was there under consideration. This is a different set of circumstances, and in this case I think it appropriate to make the orders that are sought in the notice of motion. 16 I would be inclined to award costs in favour of the first respondent but I am prepared to hear submissions on that point. NO SUBMISSIONS WERE MADE 17 My orders therefore are as follows:

At a glance

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Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (2)