Metro Environmental Logistics Pty Ltd v Newcastle Port Corporation (No 3)

The plaintiff, Metro Environmental Logistics Pty Ltd, brings these proceedings against Newcastle Port Corporation arising out of an Agreement for Lease made in December 2018 concerning the use of a facility at Glebe Island port in Sydney for the storage, processing and dispatch of bulk sand by sea.

The Port Corporation terminated that Agreement for Lease in March 2019. Metro alleges that the Port Corporation engaged in unconscionable conduct that has caused it loss and damage.

The matter has reached a stage where directions have been made for Metro to serve its expert evidence.

To assist it to give instructions to its expert, Metro served two subpoenas on a third party, Holcim (Australia) Holdings Pty Ltd. The headquarters of the “Holcim Group” are in Switzerland.

In January 2023, Metro served Holcim with the first subpoena seeking documents in relation to Holcim’s sand operations. The parties engaged in negotiations in relation to that subpoena. As a result of those negotiations, at a hearing before me on 8 September 2023, the ambit of this subpoena was narrowed and a confidentiality regime imposed.

On 29 September 2023, Metro served on Holcim a second subpoena.

On 8 November 2023, Metro filed a Notice of Motion seeking the following declarations:

It is common ground that since then, Holcim has complied with the second subpoena and that Metro’s Notice of Motion of 8 November 2023 should be dismissed.

What remains in dispute is the question of the costs of the motion.

The parties have exchanged written submissions and agree that I may deal with this question on the papers.

Metro seeks an order that Holcim pay the costs of the motion on an indemnity basis. It does not seek any orders against Mr Adams and Ms Blomfield. [1] Indeed, it is hard to see upon what basis Metro sought to have those individuals dealt with for contempt. The second subpoena was not directed to them. They are not directors of Holcim, although Ms Blomfield is the company secretary. Further, as to Mr Adams, he is not involved in giving instructions in relation to the second subpoena nor kept up to date on communications with Metro concerning the subpoena.

There was delay by Holcim in complying with the second subpoena. Holcim complied with the second subpoena only after Metro’s contempt motion was foreshadowed and then served.

But an explanation has been given for this. That explanation is not disputed.

Holcim, by its solicitor, considered the second subpoena oppressive and sought to negotiate a more confined scope of the documents to be produced.

The solicitor for Holcim, Mr Nathan Mattock, has deposed:

During those negotiations, the return of the second subpoena was listed and stood over on five occasions. Representatives of Holcim did not attend those listings as on four occasions Holcim’s solicitor understood that Metro would stand the subpoena over by consent and on one occasion were not aware of the listing of the subpoena. Metro, through its solicitor, did not indicate it considered Holcim to be in breach of the orders of the Court until 30 October 2023 when it foreshadowed the bringing of a contempt motion.

However, there was then a telephone conversation between the solicitors for Metro and Holcim. Mr Mattock has given this evidence in relation to that conversation:

Mr Mattock gave this evidence in response to service by Metro of the Notice of Motion of 8 November 2023:

Thereafter, the parties stood Metro’s Notice of Motion of 8 November 2023 over by consent while Holcim worked to comply with both subpoenas. Holcim completed its compliance with the first subpoena between October and December 2023 and with the second subpoena on 27 November 2023.

In those circumstances, my conclusion is that Metro has not shown that Holcim engaged in conduct that would have warranted a finding of civil contempt. There was no “wilful disobedience” [2] of the command of the Court represented by the subpoena such as would be necessary to support such a finding; particularly in view of the agreement between Ms Clapoudis and Mr Wilton on 2 or 3 November 2023, to which I have referred. It was not necessary for Metro to file the Notice of Motion of 8 November 2023.

In those circumstances I see no basis to order that Holcim pay the costs of the Notice of Motion, let alone on an indemnity basis.

As I have said, Metro does not seek a costs order against the individuals named in its Notice of Motion.

I order that the plaintiff’s Notice of Motion of 8 November 2023 be dismissed with no order as to costs.