Woolworths Ltd v The Warehouse Group

SECOND RESPONDENT no appearance SOLICITORS N/A

IN THE LAND AND 40243 of 2001 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 20 February 2002

WOOLWORTHS LTD Applicant v THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD First Respondent HARBOUR PROPERTIES PTY LTD Second Respondent

The matter before me today is a notice of motion brought by the first respondent seeking the striking out of paragraphs numbered 1, 3, 4 and 5 of a notice to produce dated 25 January 2001 served upon it by the applicant.

The strike out claim is put on the basis that it is oppressive because the notice to produce is premature. Mr Rigg, appearing for the first respondent, submitted that it is premature because at this point in the pleadings no facts are in issue. Therefore, so Mr Rigg claimed, the notice to produce can be no more than a fishing expedition by the applicant, that is, an endeavour to find the facts upon which to base its case. In Mr Rigg's submission, the Court should take into account the width of the notice to produce because, as is disclosed in the affidavit of Mr W Tozer, the first respondent's General Manager of Information Technology, resources, expense, time and effort will be required to comply with it.

In response, Ms Duggan, appearing for the applicant, pointed to the fact that the notice to produce follows, in its terms, a reference to goods and claims made in the class 4 application, repeated in the affidavit of Mr A P Duggan, filed on behalf of the applicant, and repeated again in the points of claim which were filed yesterday, 19 February 2002. She submitted that these documents, already on the record and already served on the first respondent, show quite clearly what are the facts in issue in the applicant's claim against the respondents, and show that what is sought is directly related to those facts. Accordingly the notice to produce, Ms Duggan submitted, does not amount to a fishing expedition, nor is it oppressive. She claimed that any questions of access to the documents which are produced, and their relevance, is a question for a later date. She submitted, that, therefore, the notice of motion should be dismissed, the effect of which would be to confirm the requirement of the first respondent to comply with the notice to produce.

My attention was drawn to the decision of Sheahan J in Eodo Pty Ltd v Blue Mountains City Council and Ors [2001] NSWLEC 106. In that judgment certain subpoenas were set aside and in the course of his judgment, at par 19, Sheahan J said: In this case it is clearly arguable that all the documents listed in the schedule to the subpoenas could well prove to be relevant to the question of the plan's validity, so I will not prejudge the subpoenas on the basis of their "width" . However, a conclusion that they are part of "a fishing exercise" is virtually inevitable, as they have been issued when the only substantive document in the court file is the class 4 application. In the discovery process the parties must decide what documents they possess are relevantly related to an issue taken in the proceedings (Talbot J par 35), but the issues in this matter are yet to be defined, and it is not appropriate to subpoena any document until they are.

As Mr Rigg pointed out, cl 19 of pt B of the Court's Pre-Hearing Practice Direction 1999 provides as follows: 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.

In Mr Rigg's submission there are more affidavits to be filed in the proceedings. Certainly the directions which bind the respondent to file its points of defence and affidavits nominates 15 March 2002 as the date for compliance, which is a date not yet reached. It is also true that a notice to produce should not be used as a substitute for discovery.

However, in this case, the applicant has taken what is something of an unusual step. In contrast to what usually occurs, the applicant, in its class 4 application, has set out very carefully many of the facts on which it relies. It refers to a breach of condition 10 of the development consent. It refers to provisions of the Fairfield Local Environmental Plan 1994 which are said to be such that the use is prohibited. It seeks an alternative order in which it sets out, from (a) to (s) inclusive, a number of items which it alleges are being used on the property for display and/or sale. Those items, from (a) to (s) inclusive, were repeated in the notice to produce (although the applicant, when the hearing took place today, sought an amendment of the notice to produce by the deletion of the material appearing as item (s)). The notice to produce requires information about communications with the council concerning the operations of the first respondent, communications between any officers and employees of the respondents concerning the purchase, storage, display, advertising for sale of the goods listed in items (a) to (r), communications about those items, and information about revenue and profits derived from the sale of those items.

In my opinion this is a case quite unlike the case of Eodo v Blue Mountains City Council. In my opinion the applicant has, to use a phrase adopted by Ms Duggan, "nailed its colours to the mast". It has, unusually as I have said, set out its claim in its class 4 application, in the affidavit of Mr Duggan and in its points of claim. I do not think in these circumstances that the notice to produce was premature. I do not think that it is a fishing expedition. It is directed to those matters which are set out in the three documents I have mentioned. I do not think that this is a case where the issues of fact between the parties are not yet displayed. It is clear from the applicant's documents what those issues of fact are likely to be, although I accept Mr Rigg's contention, because it is the fact, that the points of defence and the respondents' affidavits have not yet been filed. However the points of defence will either dispute all the facts or dispute some of them and concede others. They will not make a difference to the facts that appear in the applicant's documents thus far filed, and served on the respondents. In those circumstances I see no reason to strike out any part of the notice to produce. Accordingly it must follow that the notice of motion should be dismissed.

Two issues consequently arise. The first is the time for the return of the notice to produce. The time for compliance, that is, for production of the documents was 5 February 2002. That time has expired. Mr Rigg has suggested that an appropriate time would be two months from today's date, taking into account the material that is required and the matter's set out in Mr Tozer's affidavit and his oral evidence.

That affidavit evidence shows that obtaining some of these records (those that are kept in the electronic form) would require at least some effort on behalf of the first respondent. However, Mr Tozer conceded, in response to questions by Ms Duggan in cross-examination, that he had made no inquiries of the store manager at Villawood as to the particular paper records that might be kept in relation to any of the matters sought.

Nonetheless, I take into account that, as Mr Tozer's evidence shows, the first respondent is a company that has operations throughout Australia. In particular, it has operations in this State and indeed in Sydney. So it is not a question of the company dealing with its entire operation in one place. The store at Villawood is only one of its stores. For this reason, I think some leeway must be given to the first respondent to comply with the notice to produce.

I do not put any weight on the fact that the notice to produce was dated 25 January 2002 and therefore it has been in the possession of the first respondent since that point. The first respondent's response to the notice to produce is to seek to have it struck out. It is entitled to bring that notice of motion although it failed and I think the time runs from today.

Nonetheless, I think two months is too long in view of the fact that these proceedings were commenced by an application dated 24 December 2001 and filed in the Court on that date. I propose to allow one month from today's date as the date for production, that is, the date will be 20 March 2002.

The first respondent has failed in its notice of motion today and in the circumstances the second matter arises. The applicant seeks its costs in relation to the notice of motion and the hearing today. Mr Rigg resists such an order on the ground that, first, a concession was made by the applicant in deleting item (s), secondly, that the notice to produce was served before the points of claim, and, thirdly, that it was in any event a departure from cl 19 of pt B of the Pre-Hearing Practice Direction 1999.

In my opinion, the appropriate course to adopt is not to make any order for costs, except to direct that the costs of today's proceedings should be costs in the cause. The reason for doing that is that the first respondent has taken a step which it is entitled to take. It has failed but it is merely a step in the proceedings and I think it is more just and fair to make the costs the costs in the cause.

(1) I dismiss the first respondent's notice of motion.

(2) I direct that the date for production required by the notice to produce dated 25 January 2002 shall be 9.00 am on 20 March 2002.

(3) I direct that the costs of this notice of motion shall be costs in the cause.

(4) The notice to produce be listed in a callover before the Registrar at 9.00 am on 20 March 2002.

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