Land and Environment Court New South Wales

• Medium Neutral Citation: Martin v The State of New South Wales [2011] NSWLEC 63
• Hearing dates: 7 April 2011
• Decision date: 07 April 2011
• Before: Craig J

Decision

1. The applicant's notice of motion so far as it seeks to set aside the notice to produce issued by the respondent on 18 March 2011 is dismissed.

2. The determination of Order 2 sought in the applicant's notice of motion is adjourned to the hearing of the respondent's notice of motion for security for costs on Tuesday, 3 May 2011 .

3. Extend time for compliance with the respondent's notice to produce to Friday, 15 April 2011 .

4. The applicant is to pay the respondent's costs of his notice of motion so far as that notice of motion seeks the setting aside of the respondent's notice to produce.

5. The exhibits may be returned.

• Catchwords: PROCEDURE:- application to set aside notice to produce - documents sought in support of motion for security for costs - legitimate forensic purpose - application dismissed
• Legislation Cited: Mining Act 1992; Uniform Civil Procedure Rules 2005
• Cases Cited: Burrell Place Community Action Group Inc v Griffith City Council [2009] NSWLEC 120; Rajski v Computer Manufacture and Design Pty Ltd [1982] 2 NSWLR 443; [1983] 2 NSWLR 122; Merribee Pastoral Industry Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] HCA 41; (1998) 193 CLR 502
• Category: Procedural and other rulings
• Parties: In person (Applicant); C Spruce (Respondent)
• Representation: N/A; C Spruce (Respondent); In person; Crown Solicitors Office (Respondent)
• File Number(s): 80001 of 2011

EX TEMPORE Judgment

1 HIS HONOUR : By a summons filed on 21 January 2011 in Class 8 of this Court's jurisdiction, Anthony Gilbert Martin seeks some 16 declaratory orders. They relate to the processing of and/or offers to grant 6 exploration licences under the Mining Act 1992. That is intended to be a compendious statement of the application and in no way reflects its detail.

2 On 18 March 2011 the respondent applied by motion for orders, amongst others, that Mr Martin give security for the respondent's costs of the proceedings together with an order that the proceedings be stayed until such time as the security sought is provided to the satisfaction of the Registrar of the Court. The respondent's motion for these orders is fixed for hearing before the Court on 3 May next.

3 At the time of filing its notice of motion, the respondent also served upon Mr Martin a notice to produce given under the provisions of Uniform Civil Procedure Rules 2005 ( UCPR ) Pt 34 r 34.1. The documents sought in the notice to produce were described as follows:

"1. A copy of your tax return for the financial year 2009 - 2010.

2. A copy of all bank statements relating to accounts held by you individually, or jointly with another person, from 1 July 2010 to date."

Those documents have not been produced. Their production in accordance with the notice was required by 25 March 2011.

4 By a notice of motion filed on 28 March 2011, Mr Martin seeks to have the respondent's notice to produce set aside. In the alternative, Mr Martin seeks an order that he provide -

"a security of cost of $5000.00 or less, as this Honourable Court determines for a day's hearing of this matter on 30 th May 2011 be handed by Bank Card, Bank Cheque or in Cash to the Registrar by 4.30pm of the day of the hearing of this motion".

It is Mr Martin's notice of motion that is now being determined.

5 The essence of the argument advanced by Mr Martin, as I understood it, was essentially this. He had ample financial resources available to meet any costs payable by him. This fact was demonstrated by sums or security provided by him to the Minister or his Department in connection with his exploration licences or applications for them. He was prepared to provide for costs in any reasonable sum. In any event, requiring the production of the documents sought in the respondent's notice to produce was not relevant to any issue in his principal proceedings.

6 It was made clear to Mr Martin that I was not determining the respondent's motion for security and that I would leave the alternative order that he sought, namely the provision of security in the sum of $5,000 in some form, to the hearing of the respondent's motion on 3 May next. However, apart from the submission directed to the relevance of the documents sought in the notice to produce to Mr Martin's principal proceedings, he persisted with his arguments, effectively directed to reasons why an order requiring him to provide security for costs should not be granted.

7 As I have said, the respondent's notice to produce was issued pursuant to UCPR 34.1. That rule relevantly provides as follows:

" 34.1 Notice to produce to court

(1) A party may, by notice served on another party, require the other party to produce to the court, ...

(a) at any hearing in the proceedings ..., or

(a1) at any time fixed by the court for return of subpoenas, or

(b) by leave of the court, at some other specified time,

any specified document or thing."

Subrule (2) then indicates the requirements for compliance with a notice served in accordance with subrule (1).

8 No complaint is made by Mr Martin about the manner in which the documents required are specified. As the respondent has made clear, and as the timing of the giving of a notice to produce confirms, the notice to produce is directed to the respondent's motion seeking an order that Mr Martin provide security for costs. In terms, the latter order is sought pursuant to the Court's implied power to make such an order. It has been held that this Court has such a power ( Burrell Place Community Action Group Inc v Griffith City Council [2009] NSWLEC 120). In light of the decision of Holland J in Rajski v Computer Manufacture and Design Pty Ltd [1982] 2 NSWLR 443 at 447, confirmed on appeal to the Court of Appeal (see Rajski v Computer Manufacture and Design Pty Ltd [1983] 2 NSWLR 122) I have no reason, in the context of the motion before me, to question the existence of such power in this Court. Whether in the circumstances of this case it is appropriate to exercise the power by making the order sought by the respondent is not the issue before me. It is sufficient that there is, on its face, power in the Court to make such an order.

9 The respondent submits that it has a legitimate forensic purpose in seeking the production of the documents identified in its notice to produce. As would be apparent, that purpose is one in aid of the prosecution of its notice of motion for security for costs. The inability of a party to meet the costs of proceedings, should they be unsuccessful, is relevant to the exercise of the discretion available to order security (see Kirby J in Merribee Pastoral Industry Pty Ltd v Australia and New Zealand Banking Group Ltd [1998] HCA 41; (1998) 193 CLR 502).

10 Production of recent income tax returns and bank statements constitute evidence capable of informing an argument directed to Mr Martin's capacity to pay costs. They are therefore relevant to a fact in issue in the respondent's application for security.

11 For these reasons Mr Martin has not made out a basis for setting aside the respondent's notice to produce. As I have endeavoured to make clear in the course of the hearing, a determination to this effect in no way predetermines the respondent's motion for security for costs. If it is unsuccessful then the documents required to be produced will have no apparent relevance to the principal proceedings.

12 As the respondent's notice to produce required production of the nominated documents on 25 March, it will be necessary to vary this time.

13 The respondent seeks an order that Mr Martin pay the costs of its notice of motion. That order is opposed by Mr Martin. He says that the costs of the motion should be costs in the proceedings rather than an order for costs made today.

14 Having sought production of the nominated documents in support of a motion for security for costs which may or may not need to be pursued, depending upon the content of the documents sought to be produced, it seems to me there is substance in the respondent's argument that the costs of Mr Martin's present notice of motion should be determined in its favour. It has been required to defend the service of its notice to produce when, as my judgment has indicated, no ground of substance directed to the content of the notice or to the requirement that the notice be obeyed has been advanced. In those circumstances it seems to me that it is appropriate to make an order for costs.

Orders

15 The orders that I make are therefore as follows:

1. The applicant's notice of motion so far as it seeks to set aside the notice to produce issued by the respondent on 18 March 2011 is dismissed.

2. The determination of Order 2 sought in the applicant's notice of motion is adjourned to the hearing of the respondent's notice of motion for security for costs on Tuesday, 3 May 2011 .

3. Extend time for compliance with the respondent's notice to produce to Friday, 15 April 2011 .

4. The applicant is to pay the respondent's costs of his notice of motion so far as that notice of motion seeks the setting aside of the respondent's notice to produce.

5. The exhibits may be returned.

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Decision last updated: 12 April 2011