[2020] NSWSC 1433

Neville’s Bus Service Pty Ltd v Total Group Constructions Pty Ltd

Notice to Produce set aside

Catchwords

CIVIL PROCEDURE – notice to produce – notice seeks documents not shown on this application to have relevance to issues in proceedings

Cases cited

ICAP Australia Pty Ltd v Moebes[2009] NSWSC 306
Owners Corporation SO 69567 v Baseline Constructions Pty Ltd[2012] NSWSC 502

Legislation cited

Practice Note SC Eq 11

Judgment

[1]
The plaintiff, Neville’s Bus Service Pty Ltd, is the owner and operator of a bus depot at Smeaton Grange. The first defendant, Total Constructions Pty Ltd, is a construction company.
[2]
In 2014, Neville’s Bus Service entered a building contract with Total to carry out construction works at the depot. Those works included external concrete pavement works.
[3]
Neville’s Bus Service contends that the concrete works contain defects in that the works did not conform with specifications under the relevant contract and were not carried out in a workmanlike manner or using suitable materials.
[4]
The parties have agreed to engage in informal settlement discussions.
[5]
To facilitate those discussions, on 28 August 2020, by consent, Hammerschlag J ordered that Neville’s Bus Service provide Total’s expert access to the depot, that Total serve a report by the expert by 2 October 2020 and that the parties attend an informal settlement conference on 16 October 2020.
[6]
On 24 August 2020 Total served on Neville’s Bus Service a notice to produce, requiring production of the following documents:
[7]
The notice to produce seeks material relevant to water ingress to Neville’s Buses site. Neville’s Bus Services makes no allegations in its Technology and Construction List Statement concerning water ingress.
[8]
The justification for the notice to produce is set out in an affidavit of Total’s solicitor, Mr Peter Adams as follows:
[9]
Thus, the basis for seeking the documents in the Notice to Produce is that:
1. (1)
  someone at Total has told Mr Adams that on an unspecified date either Neville’s Bus Service or Camden Council carried out drainage works to restrict water ingress to the depot;
2. (2)
  Mr Adams has told Total’s concrete expert about this and asked that person whether the damage of which Neville’s Bus Service complains “may” have occurred as a result of water ingress to the depot;
3. (3)
  the documents sought are necessary to enable the concrete expert to opine on whether “the” ingress of water “could” have affected the structure of the pavement at the depot; and
4. (4)
  the documents “could” assist Total’s Concrete expert providing an opinion as to the cause of damage to the pavement area.
[10]
Leaving aside questions such as the broad nature of the categories of documents sought [1] , and the requirements of Practice Note SC Eq 11 [2] , the difficulty there is that there is no evidence, even on information and belief, as to what connection there might be between any water ingress to the depots and the concrete pavement defects of which Neville’s Bus Services complains. Mr Adams does not say that Total’s concrete expert has opined that water ingress could have caused or affected the concrete pavement.
[11]
The Notice to Produce looks very much like a fishing expedition and seeks documents not shown on this application to have any apparent relevance to the issues in the proceedings. [3]
[12]
I order that:
1. (1)
  The Notice to Produce served by the defendants on the plaintiff dated 24 August 2020 be set aside.
2. (2)
  The defendants pay the plaintiff’s costs of the plaintiff’s notice of motion of 9 September 2020.
3. (3)
  The matter be listed for directions on 23 October 2020.