Hamod v State of New South Wales (No 8)

Each of the defendants moves by notice of motion for orders setting aside a notice to produce dated 19 November 2007 served upon them by the first plaintiff. The notices to produce are different in each case but the submissions of the defendants concerning them are similar. Notice to produce served on first defendant

The notice to produce from the first plaintiff directed to the first defendant is in all 21 pages long and contains 138 separate paragraphs of documents or categories of documents which the first plaintiff requires to be produced. The schedule to the notice to produce defines "records" to mean "all documents, letters, written correspondence, written records, email records, forms, memorandums, notes, files, lists, statements, agreements, affidavits, tape recordings, registers, electronic records, video recordings, audio recordings, financial records and statements, bank statements, bank cheque and deposit books, invoices, letters of credit, bank drafts, facsimiles, file notes, warrants, reports, notes of complaints, photographs, plans, certificates, electronic discs, books, written complaints, legal advice and journals". "Relevant period" is defined to mean the period from 1 September 1994 to November 2007. Notice to produce served on second defendant

The notice to produce served upon the second defendant is only 13 pages long but contains 80 paragraphs describing documents or categories of documents. The schedule and the period is the same as in the first notice to produce. Discovery

Each of the defendants has given discovery in accordance with categories of documents notified to them to the first plaintiff in 2006 or 2007. Each of the defendants has provided a list of documents to the first plaintiff and the first plaintiff has made no application in either case for further discovery nor has he otherwise complained about that process. Discussion

The first plaintiff's notices to produce were presumably served on the defendants under the Uniform Civil Procedure Rules 2005. Rules 21.10 and 21.11 are respectively as follows: " 21.10 Notice to produce for inspection by parties (1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced. 21.11 Production under notice to produce (1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce: (a) produce for party A's inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B's possession, and (b) serve on party A, in respect of any document that is not produced, a notice stating: (i) that the document is a privileged document, or (ii) that the document is, to the best of party B’s knowledge, information and belief, in the possession of a person identified in the notice, or (iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document. (2) For the purposes of subrule (1): (a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and (b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time.”

In Norris v Kandiah [2007] NSWSC 1296, Brereton J at par [4] said this: "[4] Part 21 r 10 authorises service of a notice to produce, in respect of documents referred to in originating processes, pleadings, affidavits and witness statements, and "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by Young CJ in Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. As his Honour explained, the rule was not intended to subject a recipient to any kind of general discovery obligation. The words “clearly identified” mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required."

At par [7] his Honour also made the following comments: "[7] Where the sustainability on grounds of relevance of a notice to produce is called into question, the issuer bears at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case. A document relates to a fact in issue if it bears on the probability of that fact."

In Azzi v Volvo [2006] NSWSC 283, Brereton J made the following comments at pars [4] and [9]-[14] inclusive: "[4] It is now established that a notice to produce of this type may be set aside in circumstances and on grounds equivalent to those applicable to the setting aside of subpoenas [ Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136, Highfields Preparatory and Kindergarten School Pty Ltd v Simpson (NSWSC, Master Greenwood, 22 August 1985, unreported); Portal Software Pty Ltd v Bodsworth [2005] NSWSC 1115, [10]]. Those grounds include, relevantly that the subpoena seeks discovery or further discovery from a party [ Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372; Finnie v Dalglish [1982] 1 NSWLR 400]; that the subpoena is oppressive [ Commissioner for Railways v Small ; Senior v Holdsworth ; Ex parte Independent Television News Ltd [1976] QB 23; Finnie v Dalglish ], or that the subpoena calls for production of documents which have no apparent relevance to the issues in the proceedings [ Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; Hatton v Attorney-General (2000) 158 FLR 31; Portal v Bodsworth [20]-[21]]. The grounds which I have stated are far from exclusive, and are all but instances of the court's power to control its process, the power to set aside a subpoena being an instance of the court's inherent jurisdiction to control its process in the case of an abuse of process. The traditional categories of cases in which subpoenas might be set aside are not the only cases in which the court will intervene, but particular examples of a broad class of case in which the court will set aside a subpoena as an abuse of process [ Botany Bay Instrumentation Pty Limited v Stewart (1984) 3 NSWLR 98, 100 – 101]."

In Foord v Brock [2005] NSWCA 156, Bryson JA said this at par [61]: "[61] Well known limitations on the use which may be made of subpoenas appear from many decisions of the Court; significantly in Commissioner for Railways v Small (1938) 38 SR NSW 564, and a recent example in NSW Commissioner of Police v Tuxford [2002] NSWCA 139. In a similar way a Notice to Produce to another party should not be used oppressively; in proceedings conducted with pleadings where discovery and inspection are available there can be little use for a Notice to Produce except for production of documents which have been identified earlier in the proceedings." Submissions

Mr Hutchings of counsel who appeared for the first defendant submitted that the notice to produce served upon the first defendant was oppressive, lacked specificity, was in the nature of discovery in circumstances where discovery had already occurred and was otherwise, but also for these reasons, an abuse of process. He submitted that the notice to produce appeared to have been prepared without reference to the issues referred to in the sixth amended statement of claim or to the fact that discovery had been given without complaint from the first plaintiff. He submitted that a notice to produce was not a substitute for discovery. In this respect I was referred to The News Corporation Limited v Lenfest Communications Inc [1996] NSWSC 474 and AAPT v Cable and Wireless Optus [1999] NSWSC 454 at pars [15]-[18]. Finally, it was submitted that the notice to produce was in the circumstances incapable of salvation to the extent that it contained portions which were defensible. In this respect it was submitted that the very nature of the document was such as to make any attempt to separate the good from the bad itself oppressive.

Mr Speakman of Senior Counsel who appeared for the second defendant contended that the notice to produce served upon the second defendant was liable to be set aside upon any one of the following grounds. First, the document failed to comply with Rule 21.10(b) in as much as it was insufficiently specific. Secondly, the categories referred to in the document overlapped with discovery, which had already been given and amounted therefore to an impermissible attempt to obtain further discovery. Thirdly, and similarly, the document was an attempt to obtain additional discovery beyond the categories originally provided. Fourthly, none of the documents of which production was sought could be shown to be relevant to a fact in issue in the proceedings. Finally, the document was so broad in its terms as to be oppressive.

The first plaintiff with commendable frankness acknowledged that the notices to produce had been served upon the defendants, in effect, to give to them an opportunity to say whether or not they had the documents in their possession. The first plaintiff also concedes that a significant proportion of the material referred to in the notices was either in his possession or was the subject of subpoenas to be issued by him to third parties for production in due course. The first plaintiff also indicated some enthusiasm for a further amendment to his sixth amended statement of claim to which in part the documents sought in the notices to produce were said to be relevant. Conclusion

The breadth and length of each of the notices to produce make reproduction of them in these reasons inconvenient and impractical. There is no doubt that any attempt to comply with the notices would be an extremely time consuming, costly and onerous task. There is similarly no doubt that much of the material of which production is sought will have fallen within the categories of documents which the defendants have already discovered.

I consider that the notices to produce in each case are vexatious and oppressive and are an abuse of process. The first plaintiff, who now appears for himself, is not legally trained and confesses a less than perfect understanding of the rules of court. His litigation, however, has been on foot in this Court and in the Federal Court for some time and he is not inexperienced to the point where he is unable adequately to represent his own interests. The notices to produce in this case are so plainly flawed that they are incapable of withstanding even the most sympathetic scrutiny having regard to the first plaintiff's present lack of professional legal representation.

In my opinion each of the notices to produce should be set aside. Accordingly I make the following orders: 1. Notice to produce filed 23 November 2007 issued to the first defendant is set aside. 2. Order the first plaintiff to pay the first defendant's costs of its notice of motion filed 11 December 2007. 3. Notice to produce filed 23 November 2007 issued to the second defendant is set aside. 4. Order the first plaintiff to pay the second defendant's costs of its notice of motion filed 13 December 2007.