Aversa v Roads & Maritime Services [2021] NSWSC 1047

Aversa v Roads & Maritime Services [2021] NSWSC 1047

The plaintiffs have established a legitimate forensic purpose for the documents sought under their notice to produce; the documentation sought is likely to materially assist in assessment of their claim for compensation or an account of profits, and the notice is neither premature nor oppressive. The motion to set aside the notice to produce is therefore dismissed.

Parties
First Plaintiff: Rosario Aversa; Second Plaintiff: Antonia Aversa; First Defendant: Roads & Maritime Services (now Transport for New South Wales); Second Defendant: Registrar General
Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Notice to Produce Motion / Interlocutory Application – Motion to Set Aside Notice to Produce
Outcome
First defendant's motion to set aside notice to produce dismissed; costs of the motion to be the parties' costs in the proceedings unless otherwise ordered upon written submissions; further directions for management of issues regarding public interest immunity, legal professional privilege, and access to documents.
Legal Topics
Notice to Produce, Compulsory Acquisition, Forensic Purpose, Fraud, Statutory Powers, Public Interest Immunity, Legal Professional Privilege
Civil Procedure Equity Land Law Government Notice to Produce Compulsory Acquisition Forensic Purpose Fraud +3 more

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Parties

Rosario Aversa

First Plaintiff

Antonia Aversa

Second Plaintiff

Roads & Maritime Services (now Transport for New South Wales)

First Defendant

Registrar General

Second Defendant

Procedural Posture

Notice to Produce Motion / Interlocutory Application – Motion to Set Aside Notice to Produce

Legal Issues

  1. 1 Whether the plaintiffs' notice to produce should be set aside as serving no legitimate forensic purpose or being oppressive
  2. 2 Whether the notice to produce amounts to a 'fishing expedition' or lacks proper forensic purpose
  3. 3 Whether production of high-level, commercial-in-confidence documents is justified to support claims for compensation or an account of profits

Ratio Decidendi

The plaintiffs have established a legitimate forensic purpose for the documents sought under their notice to produce; the documentation sought is likely to materially assist in assessment of their claim for compensation or an account of profits, and the notice is neither premature nor oppressive. The motion to set aside the notice to produce is therefore dismissed.

Court Disposition

First defendant's motion to set aside notice to produce dismissed; costs of the motion to be the parties' costs in the proceedings unless otherwise ordered upon written submissions; further directions for management of issues regarding public interest immunity, legal professional privilege, and access to documents.

Orders

  • Dismissal of the first defendant's motion to set aside notice to produce.
  • Costs of the motion to be the parties' costs in the proceedings, unless otherwise determined upon written submissions filed and served within the next week.