[2021] NSWSC 406

POS-NP Pty Ltd v Resource Pacific Pty Ltd

Notice to produce set aside

Catchwords

PRACTICE AND PROCEDURE – notice to produce – whether seeks production of documents referred to in affidavits – whether seeks production of a specific document – whether seeks discovery – whether tends to subvert operation of Practice Note SC Eq 11

Cases cited

New Cap Reinsurance Corporation Ltd v Daya[2008] NSWSC 64
Plus One International Pty Ltd v Ching (No 3)[2020] NSWSC 1598
Re Force Corp Pty Ltd (Recs and Mgrs Apptd) (In Liq)[2018] NSWSC 896
Re Octaviar Ltd (recs and mgrs apptd) (in liq)[2012] NSWSC 1027
Rinehart v Rinehart[2015] NSWSC 205
The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd[2012] NSWSC 502

Legislation cited

Uniform Civil Procedure Rules 2005 (NSW)

Judgment

[1]
On 23 February 2021, the plaintiff served on the defendant a Notice to Produce, purportedly under Uniform Civil Procedure Rules 2005 (“UCPR”) r 21.10.
[2]
By notice of motion filed on 24 March 2021, the defendant seeks an order setting aside that notice to produce.
[3]
UCPR r 21.10 provides for a notice seeking production of:
[4]
The Notice to Produce seeks 21 categories of documents, all of which are described at a high level of generality.
[5]
Fifteen of the 21 paragraphs seek documents “as referred to” in affidavits served on behalf of the defendant.
[6]
In order that a document be “referred to” in, relevantly, an affidavit for the purpose of UCPR r 21.10, the affidavit must make a direct allusion to a document. [1]
[7]
In my opinion, none of the paragraphs of the identified witnesses makes a direct allusion to the documents, the production of which is sought.
[8]
For example, paragraph 2 of the Notice to Produce requires production of:
[9]
In paragraph 17.1 of his affidavit, Mr Farrar said:
[10]
In this paragraph, Mr Farrar does not refer to any “Applications” or “Shipment Contracts”. He merely describes a contractual process.
[11]
Another example is paragraph 10 of the Notice to Produce, which seeks the following documents:
[12]
In paragraph 24 of his affidavit, Mr Farrar said, relevantly, that Glencore Coal (NSW) Pty Ltd:
[13]
Mr Farrar did not “refer to” any documents in this paragraph.
[14]
The remaining six paragraphs of the Notice to Produce do not refer at all to any affidavit (or other document) served by the defendant, nor to any “specific documents”.
[15]
For example, paragraph 9 seeks production of:
[16]
In effect, by serving the Notice to Produce, the plaintiff is seeking discovery from the defendant, but without complying with the requirements of Practice Note SC Eq 11, which provides:
[17]
In The Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd, [2] I said: [3]
[18]
Other judges of this Division have expressed the same view. [4]
[19]
The plaintiff’s submissions refer to Baseline but not the passage I have set out above. This appears to me to be a clear case where the Court should order “otherwise” under UCPR r 21.11.
[20]
I order that the Notice to Produce served on the Defendant by the Plaintiff on 23 February 2021 be set aside and that the Plaintiff pay the Defendant’s costs of the Defendant’s Notice of Motion of 24 March 2021.
[21]
I order that the matter be listed for further directions on 30 April 2021.