Houston v Shiels

1. [1]

   By notice of motion filed on 7 August 2025, the defendants in the substantive proceedings, Barry Shiels, Kelly Shiels and Benjamin Kirby, seek an order “dismissing”, or in effect, setting aside a notice to produce (the Notice). The Notice is on an authorised court form which indicates it was prepared for the first plaintiff, Joanne Houston, but is signed only by the second plaintiff, Trevor Karlsson, and gives the second plaintiff as the relevant contact. The date appearing on the Notice is “27th July 202”. There appears to be no issue that the Notice was signed on 27 July 2025, and will, for the purposes of my orders, be referred to by that date.

2. [2]

   In addition to the order sought at paragraph 1 of the motion, seeking the Notice be dismissed, paragraph 2 sets out not a proposed order, but grounds on which it is contended the Notice should be dismissed. By paragraph 3, the defendants seek an order for costs on the motion. By paragraph 4, the defendants seek “any other order the court deems fit and appropriate”. As it happens, the defendants submit that an order should be made requiring that the plaintiffs be required to obtain leave of the court before issuing any further notice to produce.

3. [3]

   The plaintiffs are unrepresented in these proceedings. The second plaintiff presented the argument on behalf of both plaintiffs. Having regard to the joint position taken by them I will refer to the arguments as those of the plaintiffs without differentiating between the first and second plaintiff.

4. [4]

   The defendants are all represented by the same solicitor, Ms Melanie Nasser of Nuray Associates. Mr Dean of counsel appeared for the defendants on this application.

5. [5]

   At the hearing, an affidavit of the defendants’ solicitor in support of the motion dated 7 August 2025 was read and a further affidavit of Ms Nasser of 5 December 2025 was read. Also relied on by the defendants is a notice of motion filed on their behalf on 2 September 2024 together with an affidavit in support of that same date.

6. [6]

   Tendered by the plaintiffs on the application is an email from the first plaintiff to the defendants’ solicitor of 22 January 2026, objecting to the inclusion of documents relating to proceedings in the District Court and attaching a document titled “Application for referral of contempt” and a Hearing Information Form in relation to the substantive proceedings in this Court dated 4 August 2025. The “Application for referral of contempt” has been prepared in a form indicating it is intended to be filed in the District Court of New South Wales at Queanbeyan. The proceedings in the District Court relate to criminal charges against the second plaintiff with respect to an offence of violence against the second defendant, damage to her property and damage to a dwelling located on land on which all three defendants reside.

7. [7]

   Both parties provided written submissions including additional submissions provided by the plaintiffs as an “addendum” to the Court book.

8. [8]

   There is a contest over the procedural history, and in particular, whether the defendants have in fact agreed to delay proceedings until after the second plaintiff’s District Court trial. It is not necessary to resolve that dispute in order to deal with this matter.

Background

1. [9]

   By the plaintiffs’ Amended Statement of Claim (ASOC) the first plaintiff seeks damages with respect to damage to her property in the south coast area of the State, across multiple incidents. According to the ASOC:

   1. (1)

      on 1 December 2021 at around 11 pm, the garage and carport on the first plaintiff’s property, together with a motor vehicle belonging to her, were damaged by fire;

   2. (2)

      on 2 December 2021, in a separate fire at 2:15 am, a diesel motorhome belonging to the first plaintiff was also damaged by fire;

   3. (3)

      at “[a]bout Midnight” on 4 December 2021, a caravan on the first plaintiff’s property was damaged by fire;

   4. (4)

      at some time between 18 July 2022 and 27 July 2022, the first plaintiff’s residence was broken into and damage was occasioned to the first plaintiff’s property, including by dousing various parts of the property with fuel, (the inference the plaintiffs seek to draw being that this was done with the intention to set fire to the property); and

   5. (5)

      “multiple fires” on 10 October 2024 at the property of the first plaintiff which destroyed the garage, the residence and the studio together with the contents.

2. [10]

   Included in the ASOC is a table setting out the property damaged in the above incidents and a corresponding monetary value. The total claimed on behalf of the first plaintiff is $4,839,182.

3. [11]

   The second plaintiff claims damages of $1. It is not clear why.

4. [12]

   The defendants submit the ASOC discloses no cause of action. It is not a well drafted document. There may be all sorts of problems with it, but there is no application to have it struck out. The defendants explained the absence of any such application on the basis that a motion had previously been brought by them in relation to the original statement of claim resulting in the first statement of claim being struck out and the plaintiffs being granted leave to file an amended statement of claim. According to the defendants, the ASOC filed by the plaintiffs did nothing to address the deficiencies in the original claim. The view apparently taken by the defendants was that, rather than bring a further application to strike out the claim, it would be more efficient to attempt to avoid further interlocutory disputes and simply let the matter go to hearing. Whatever might be said about the practicalities of the defendants’ approach, it has the result that the ASOC, whatever its deficiencies, remains on foot.

5. [13]

   Whilst, as noted above, the ASOC is not a model of drafting, it is tolerably clear that the first plaintiff at least alleges the three defendants are responsible in tort to compensate her for significant damage to her property. While no particular tort is identified (such as, perhaps, trespass) the ASOC seeks to attribute responsibility for the damage to the first plaintiff’s property to the defendants by, for example, asserting there is “evidence of ‘mens rea’ and ‘actus reus’ (a guilty mind and a guilty act)” with respect to the events resulting in damage to the first plaintiff’s property (see at ASOC at paragraph 40).

6. [14]

   The basis for the second plaintiff’s claim for compensation of $1, however, as observed above, is, to me at least, a mystery.

7. [15]

   By way of further factual background, it seems there have been a number of fires deliberately lit in the area in which the plaintiffs and defendants live. The second plaintiff is currently facing trial in the District Court with respect to the following offences alleged to have been committed on the day of his arrest, 17 July 2022:

   1. (1)

      Intentionally destroy property, the dwelling house, with intent by the destruction to endanger the life of the second defendant, contrary to s 198 of the Crimes Act 1900 (NSW);

   2. (2)

      Intentionally destroy by means of fire a Subaru motor vehicle, the property of the second defendant, contrary to s 195(1)(b) of the Crimes Act 1900 (NSW); and

   3. (3)

      Assault occasioning actual bodily harm against the second defendant, contrary to s 59(1) of the Crimes Act 1900 (NSW).

8. [16]

   The dwelling house, the subject of the first charge, is at an address where all three defendants lived, at least in June 2022, the first defendant in the main house and the second and third defendants in smaller dwellings on the property (see attachment U to the ASOC). It also appears that the rear of the property is adjacent to the property of the first plaintiff, the subject of the ASOC (attachment W).

9. [17]

   Piecing together various parts of the ASOC including various documents annexed to it, together with the plaintiffs’ submissions, it appears the plaintiffs’ case is that the damage was occasioned by the defendants in retribution for actions they attributed to the second plaintiff, including the events leading to his criminal charges. In this regard, I noted the incident set out above at [9(4)] occurred in the days following the incident leading to the second plaintiff’s criminal charges. The plaintiffs’ case in relation to this incident is that the first defendant is directly responsible for the damage, while some form of accessorial liability can be attributed to the second and third defendants on the basis of them having “colluded” to bring about the result. The ASOC asserts the first defendant’s DNA and fingerprints were “obtained by Police Forensics” and attaches some forensic evidence (attachment C) which suggests that DNA consistent with the first defendant was found at the location in the course of the police investigation into the incident. The ASOC also asserts (on what on its face appears to be a speculative basis) that the first defendant’s explanation to police for the presence of his DNA can be established to be false. It might be noted that DNA is highly transferrable and the precise means by which a person’s DNA came to be in a particular location may not be clear.

10. [18]

    In relation to the second fire, the ASOC asserts (at paragraph 9) that the third defendant was seen leaving the first plaintiff’s property at the time the motor home referred to at [9(2)] burst into flames. I infer it is intended to assert that the third defendant is directly responsible for this fire. I understand the plaintiffs’ case to be that the same person was responsible for the first fire ([9(1)]), it having occurred only some hours earlier.

11. [19]

    The plaintiffs have indicated they intend to rely on tendency reasoning (see Evidence Act 1995 (NSW), s 97) to connect the defendants with responsibility for the various incidents. Beyond what I have set out above there appears to be little else set out in the ASOC as to how the plaintiffs propose to establish their cases. Various inferences are said to be available from facts set out in the statement of claim, many of which, to me at least, appear tenuous in the extreme. Be that as it may, the ASOC, as I have said, remains on foot. The evidence is not closed.

The motion

1. [20]

   On 27 July 2025 the defendants were served, by email, a notice to produce. While the email was ostensibly sent by the first plaintiff, and, as noted above, the document indicates it was prepared on her behalf, it is signed by the second plaintiff in his capacity as “plaintiff”. It is arguably the second plaintiff’s document. At the hearing no issue was raised as to whether, on the assumption it is the second plaintiff’s Notice, the documents sought would need to be relevant to his case rather than to the case of the first plaintiff. As I have observed, the plaintiffs’ respective cases are quite different.

2. [21]

   On 1, 4 and 7 August 2025 emails purporting to clarify the Notice were sent by (ostensibly) the first plaintiff to the defendants’ solicitor.

3. [22]

   On 7 August 2025 the defendants filed this motion seeking to set aside the Notice.

4. [23]

   The Notice itself is on a court approved form, Form 19, which makes reference to r 21.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). There can be no issue the Notice purports to be a Notice served on the defendants in accordance with that rule.

Determination

1. [24]

   I approach the matter having regard to the guiding principles in the Civil Procedure Act 2005 (NSW), Part 6, Division 1, and in particular the overriding purpose of the Act set out in s 56(1) being to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

2. [25]

   Turning to the relevant rules, r 21.10 forms part of Division 2 of Part 21 of the UCPR. Also forming part of Division 2 and relevant for present purposes are r 21.9 and r 21.11. Together these rules provide:

3. [26]

   Key requirements of a valid notice to produce are specificity with respect to the documents sought, and the relevance of the documents to a fact in issue in the proceedings.

4. [27]

   In Norris v Kandiah [2007] NSWSC 1296, Brereton J said, at [4]:

5. [28]

   In Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869, Barrett J, after referring to the above said, at [11]:

6. [29]

   There is no relevant difference as to the principles applicable on an application to set aside a subpoena or a notice to produce: Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [34]; Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [10]. Recognising this, Ward J observed in In the matter of One.Tel Ltd (In Liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491, at [32]-[36]:

7. [30]

   The plaintiffs submitted that as the Notice is not an order of the Court there is nothing for the Court to set aside. The argument is untenable. Having been served with a notice, purportedly in compliance with UCPR r 21.10 the defendants were obliged, in accordance with r 21.11, set out above, to comply with that Notice. The defendants seek to avoid that obligation by having the Notice set aside. The Court clearly has power to do so: see for example Hamod v State of New South Wales (No 8) [2008] NSWSC 125.

8. [31]

   The defendants submitted that the Notice was invalid in its entirety on the basis that there is no foundation for the proceedings in which the Notice has been issued. Put another way, it was submitted that nothing sought by the Notice could be relevant in circumstances where no cause of action is disclosed by the ASOC.

9. [32]

   While it may be difficult, or indeed impossible, to establish relevance to the second plaintiff’s claim given that the basis for that claim is entirely opaque, the basis for the first plaintiff’s claim is tolerably clear. While there may be much to be said for the contention that the ASOC is defective, as discussed above, no application has been brought to have the claim dismissed or struck out. The result is, in my view, it is not open to the defendants to proceed on the basis that there is, in effect, no claim against them.

10. [33]

    It is necessary to consider the terms of the Notice.

11. [34]

    It is convenient to consider in turn the documents sought by each paragraph of the Notice.

12. [35]

    Paragraph 1 of the Notice seeks, as clarified by emails of 1 and 4 August 2025:

13. [36]

    Paragraph 1 of the Notice fails to identify documents with the specificity required in accordance with the authorities referred to above. Indeed, in an email of 6 August 2025, the first plaintiff asserted the documents do not exist. A belief the documents do not exist, and presumably never existed, excludes the capacity to identify the documents with the requisite precision. The first paragraph must fail for this reason.

14. [37]

    Before leaving the first paragraph of the Notice, I note that even if the documents sought were identified, the claim would fail based on relevance. The cabin is on the property on which the defendants reside. It is not clear how the documents sought, relating as they do to entirely different premises, could materially assist the plaintiffs in establishing the defendants’ responsibility for damage to the first plaintiff’s property. When pressed, the second plaintiff said the documents were relevant to the credit of the defendants (which is presumably anticipated as in issue in the event they were to give evidence). When the definition in UCPR r 21.9, excluding documents relevant only to the credibility of a witness, was pointed out to the second plaintiff he sought to establish relevance beyond credit.

15. [38]

    The second plaintiff submitted the material was relevant as he anticipates the defendants will “attempt to justify the destruction of [the first plaintiff’s property] based on their assertions that … the second plaintiff, destroyed the menopause cabin”. A belief the second plaintiff destroyed the cabin, even if true, could not justify the destruction of the first plaintiff’s property or provide any sort of defence. The documents sought are not relevant to a fact in issue as required by UCPR r 21.9.

16. [39]

    Paragraph 1 of the Notice fails.

17. [40]

    Paragraph 2, as clarified by the first plaintiff’s emails of 4 August and 7 August 2025, seeks:

18. [41]

    Paragraphs 3 and 4 relate to the second and third defendants respectively and are (in their final form) otherwise in identical terms.

19. [42]

    Read literally the request for the “account details” and “phone numbers” is a request for information rather than a document. The request can, however, sensibly be read down as a request for the mobile telephone records of each defendant for the specified periods. The first period relates to the time the fires referred to at [9(1), (2) and (3)] occurred, while the third and fourth periods relate to the incidents referred to at [9(4)] and [9(5)], respectively.

20. [43]

    As noted above, the plaintiffs’ case is that the defendants are liable for the damage to the first plaintiff’s property. Further, the plaintiff’s case appears to be that the fires referred to at [9(1)] and [9(2)] were directly caused by the third defendant and the damage referred to at [9(4)] was directly caused by the first defendant. Whether it was a particular defendant, the plaintiffs’ case can be taken to be that at least one of the defendants was at the relevant location on each occasion, and that all defendants are responsible as a result of their “collusion”.

21. [44]

    While, as I have observed, the plaintiffs’ case, at this point, may have difficulties, it is not for me on the present application to assume those difficulties are insurmountable. The records are sought, as I understand it, on the basis of their potential to provide (approximate) locations of the mobile telephones when calls were made, and thus inferentially the location of the defendants. Any locations provided will necessarily be based on the location of the cell site tower used by the telephone when making a call. The defendants and the first plaintiff reside on neighbouring properties. It could not be expected that any location record of the cell tower used by a defendant’s phone when making or receiving a call could distinguish between a defendant being at home or at the first plaintiff’s property. This difficulty is exacerbated by the absence of certainty that a mobile phone will necessarily access the closest cell tower.

22. [45]

    The charge records also have the capacity to establish communication between the defendants. The defendants reside on the same property and clearly have a connection with one another. Telephone contact between them, in the ordinary course, would not be surprising. That said, telephone contact at particular points in time may be relevant. It is necessary to consider the various time periods for the records sought.

23. [46]

    The plaintiffs’ case is that the third defendant lit the first two fires ([9(1)] and [9(2)]) and was necessarily at the first plaintiff’s property very close to the time of the fires at 11 pm on 1 December and 2:15 am on 2 December 2021 in order to do so. The third fire was lit a relatively short time afterwards, on the plaintiffs’ case around the midnight of 4 and 5 December. [1] Telephone contact between the third defendant and other defendants, around the time of those fires, the times of which are reasonably specific, is relevant to the plaintiffs’ case of collusion. That is, it would be relevant, and perhaps significant if, at a time the third defendant could be shown to have been at the first plaintiff’s property for the purpose of lighting a fire, he was also in telephone communication with the other defendants.

24. [47]

    The second period of records sought, for 23 June 2022, relates to an occasion when petrol fumes in a cabin on the property where the defendants reside were reported to police. Records relating to this time have no relevance to the plaintiffs’ claim.

25. [48]

    The third and fourth periods relates to the damage referred to at [9(4) and (5)] respectively. While the damage, particularly in the case of [9(4)] is put as occurring in a broad timeframe, I understood the first plaintiff’s case to be that the perpetrator of the fire was disturbed by the first plaintiff’s return before the fire could be lit, providing a more precise time for the damage. Significant telephone activity around this time between the defendants would be relevant to the first plaintiff’s case.

26. [49]

    No issue was raised with respect to any question of whether the records were in the possession of the defendants. They may not be. I am however satisfied that “there is a reasonable basis (beyond mere speculation) to believe that the [defendants] have in their possession” the relevant records: Rinehart v Rinehart [2018] NSWSC 1102 at [123].

27. [50]

    I would uphold paragraph 2 of the Notice with respect to the first, third and fourth periods. The periods specified should be modified to remove ambiguous references to “midnight” while maintaining their intent.

28. [51]

    In coming to the above conclusion, and in referring to either plaintiff’s “case”, I make no finding on the apparent viability of that case.

29. [52]

    These paragraphs each seek “Supporting Document or Thing” and then go on to identify various assertions made by the defendants to the police, either in specified video recordings or in (written) police statements. On its face a request for a “Supporting Document or Thing” does not identify a specific document, at least, as is the case here, where the identity of any such document is not apparent from the assertion referred to in the request. Further, the first plaintiff’s email of 6 August 2025 asserts the documents do not exist. The point seems to be to establish that there was no foundation for the particular assertions made to the police. Whatever be the point, it is clear the required identification of a specific document is lacking.

30. [53]

    While it is unnecessary to go further, I would also observe that the relevance of what is sought, beyond credit, is doubtful. The point seems to be to discredit the defendants on the basis of statements made by them with respect to the events with which the second plaintiff is charged.

31. [54]

    These paragraphs of the Notice must fail.

32. [55]

    These paragraphs seek the criminal histories of the defendants. The plaintiffs accept, that in at least two cases, they do not know if any such history exists. Putting to one side the existence, in each case, of the document, or whether it is in the hands of the particular defendant, the relevance of the documents has not been established, beyond (perhaps) credit. As noted above, that is not sufficient. These paragraphs must fail.

Should the plaintiffs be required to obtain leave before issuing further Notices?

1. [56]

   The plaintiffs have been successful in maintaining part of the Notice. That said, much of the Notice was defective. The plaintiffs have made it plain in correspondence with the defendants that they intend to issue further notices. Having regard to the conduct of the proceedings to date, it is difficult to have any confidence that any future notices will comply with UCPR r 21.10. In these circumstances there is a superficial attraction to requiring the plaintiffs to obtain leave before putting the defendants to the trouble of bringing a motion to set aside a defective, or partly defective, notice.

2. [57]

   In support of its argument the defendants sought to draw a parallel with the issue of a subpoena. Pursuant to UCPR r 7.1 the plaintiffs, being unrepresented, require leave to issue a subpoena. The difference is, however, a subpoena is an order of court which compels a third-party to comply with its terms. It is understandable that there should be some safeguard such that third parties are not troubled by an order of court (either by way of compliance, or by taking action to set the subpoena aside) without the court first being satisfied that there is some proper foundation for it.

3. [58]

   The situation with respect to a notice to produce is different (a distinction clearly acknowledged by the Rules). With respect to a notice to produce, the result of requiring leave will be that the validity of the notice will be litigated by the parties before the notice is issued. If leave is not required, the validity of the notice may or may not be litigated. Neither option is particularly attractive. In circumstances, however, where the choice is between the certainty of the matter being brought before the court and the probability of the matter being brought before the court, the just, quick and cheap resolution of the proceedings favours the latter. I would not require the plaintiffs seek leave before issuing a notice to produce.

Costs

1. [59]

   The plaintiffs have been partially successful. A significant majority of the Notice has however failed. It is not appropriate to attempt any precise apportionment. The fairer course, in my view, is that costs be in the cause.

Orders

1. [60]

   I order as follows:

   1. (1)

      The first plaintiff’s Notice to Produce dated 27 July 2025 be set aside with the exception of items (1), (3) and (4) of paragraphs 2, 3 and 4 by which each defendant is required to produce records in his or her possession relating to mobile telephone services subscribed in his or her name for the periods:

   2. (2)

      The costs of this application be costs in the cause.