Mathews v The Uniting Church in Australia Property Trust (NSW) [2011] NSWLEC 198

Mathews v The Uniting Church in Australia Property Trust (NSW) [2011] NSWLEC 198

A subpoena to produce is not invalid for lack of conduct money tender at the time of service; sufficiency and form of conduct money applies only to subpoenas to attend to give evidence. The description of documents was adequate given the addressee's role as witness. No abuse of process or forensic overreach was found as the documents sought had sufficient relevance. The sole necessary limitation was to restrict requests for certain applications to a defined period, not to set aside the subpoena entirely.

Parties
First Applicant: Celia Chater Mathews; Second Applicant: Martin Welsh; First Respondent: The Uniting Church of Australia Property Trust (NSW); Second Respondent: The Methodist Church (NSW Property Trust); Third Respondent: Maitland & Butcher Pty Ltd; Fourth Respondent: Maitland & Butcher Architect Pty Ltd; Fifth Respondent: Hornsby Shire Council
Jurisdiction
Australia
Judgment Date
15 November 2011
Procedural Posture
Notice of Motion (procedural) / Interlocutory (application to Set Aside Subpoena)
Outcome
Subpoena to produce affirmed, application to set aside dismissed with costs, minor amendment to subpoena wording.
Legal Topics
Subpoena to Produce, Conduct Money, Abuse of Process, Relevance of Documents, Forensic Purpose of Subpoenas
Civil Procedure Subpoena to Produce Conduct Money Abuse of Process Relevance of Documents Forensic Purpose of Subpoenas

Case Brief

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Parties

Celia Chater Mathews

First Applicant

Martin Welsh

Second Applicant

The Uniting Church of Australia Property Trust (NSW)

First Respondent

The Methodist Church (NSW Property Trust)

Second Respondent

Maitland & Butcher Pty Ltd

Third Respondent

Maitland & Butcher Architect Pty Ltd

Fourth Respondent

Hornsby Shire Council

Fifth Respondent

Procedural Posture

Notice of Motion (procedural) / Interlocutory (application to Set Aside Subpoena)

Legal Issues

  1. 1 Whether a subpoena to produce may be set aside for lack of conduct money at service
  2. 2 Whether the subpoena was an abuse of process for lack of forensic purpose or as a 'fishing' exercise
  3. 3 Whether the subpoena described the target documents with sufficient clarity

Ratio Decidendi

A subpoena to produce is not invalid for lack of conduct money tender at the time of service; sufficiency and form of conduct money applies only to subpoenas to attend to give evidence. The description of documents was adequate given the addressee's role as witness. No abuse of process or forensic overreach was found as the documents sought had sufficient relevance. The sole necessary limitation was to restrict requests for certain applications to a defined period, not to set aside the subpoena entirely.

Court Disposition

Subpoena to produce affirmed, application to set aside dismissed with costs, minor amendment to subpoena wording.

Orders

  • Paragraph 3 of the Schedule to the subpoena amended to apply only to applications made between 1 January 2010 and 31 August 2011.
  • Applicants' notice of motion filed on 23 September 2011 otherwise dismissed.