Diamond v Birdon Contracting Pty Ltd and Anor [2008] NSWLEC 252

Diamond v Birdon Contracting Pty Ltd and Anor [2008] NSWLEC 252

The subpoena to the Internal Audit Bureau was set aside because the documents sought related to investigations into departmental officers and complaints handling and had no relevance to the current Class 4 application or to the Applicant's intended answer to the First Respondent's strike out motion. The subpoena to the Department was set aside as to categories 2, 3, 4, 5, 6, 7, 9, 10 and 11 because those categories were not relevant to the pleaded Class 4 case and lacked legitimate forensic purpose. Category 15 had been answered by affidavit, category 1 was too broad, and categories 1, 13 and 14 were stood over because any relevance to alleged breach of the First Respondent's undertakings...

Jurisdiction
Australia
Judgment Date
08 September 2008
Procedural Posture
Class 4 Proceedings Concerning Alleged Breaches of a 1996 Development Consent for Sand Mining at Tinda Creek by the First Respondent / Duty Judge Hearing of Notices of Motion by Non Parties to Set Aside Subpoenas Issued by the Applicant
Outcome
The Bureau's motion was granted and its subpoena was set aside; the Department's motion was largely successful, with specified categories set aside and other categories stood over; costs were ordered for the Bureau.
Legal Topics
['subpoenas' 'legitimate Forensic Purpose' 'class 4 Proceedings' 'development Consent Compliance' 'costs']
['practice and Procedure' 'environmental Planning and Development'] ['subpoenas' 'legitimate Forensic Purpose' 'class 4 Proceedings' 'development Consent Compliance' 'costs']

Case Brief

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Procedural Posture

Class 4 Proceedings Concerning Alleged Breaches of a 1996 Development Consent for Sand Mining at Tinda Creek by the First Respondent / Duty Judge Hearing of Notices of Motion by Non Parties to Set Aside Subpoenas Issued by the Applicant

Legal Issues

  1. 1 ['Whether the subpoenas issued to the Department of Water and Energy and the Internal Audit Bureau of NSW should be set aside under Pt 33 r 33.4 of the Uniform Civil Procedure Rules 2005.' "Whether the documents sought had relevance and a legitimate forensic purpose in relation to the Class 4 proceedings or the First Respondent's strike out motion." 'Whether costs should be ordered in favour of the Department and the Bureau on their motions.']

Ratio Decidendi

The subpoena to the Internal Audit Bureau was set aside because the documents sought related to investigations into departmental officers and complaints handling and had no relevance to the current Class 4 application or to the Applicant's intended answer to the First Respondent's strike out motion. The subpoena to the Department was set aside as to categories 2, 3, 4, 5, 6, 7, 9, 10 and 11 because those categories were not relevant to the pleaded Class 4 case and lacked legitimate forensic purpose. Category 15 had been answered by affidavit, category 1 was too broad, and categories 1, 13 and 14 were stood over because any relevance to alleged breach of the First Respondent's undertakings...

Court Disposition

The Bureau's motion was granted and its subpoena was set aside; the Department's motion was largely successful, with specified categories set aside and other categories stood over; costs were ordered for the Bureau.

Orders

  • ['The subpoena addressed to the Internal Audit Bureau dated 21 August 2008 is set aside.' 'The subpoena addressed to the Department of Energy and Water dated 21 August 2008 is set aside in relation to the schedule of documents in categories 2, 3, 4, 5, 6, 7, 9, 10 and 11.' "The subpoena addressed to the Department...