Australia, Sept. 6 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 5:

1. In May 2019 Mr Rezai was injured while working at a construction site. He sues Build Tech as occupier of the site, alleging that it breached the duty of care which it owed him, as did his employer Sydney Wide Bricklaying & Tiling Pty Ltd, also a defendant. His claims are all defended and Build Tech also claims that Mr Rezai was contributorily negligent.

2. Build Tech served a subpoena on Mr Rezai before he served his evidentiary statement, which required the production of various documents. It was withdrawn, but a second subpoena was served which was set aside by Registrar Hedge. Build Tech now seeks to have the Registrar's decision set aside.

3. That is resisted by Mr Rezai, who considers that the second subpoena was materially similar in scope to the first and that both subpoenas impermissibly sought discovery, that being regulated by Part 21 of the Civil Procedure Act 2005 (NSW), which Build Tech had impermissibly sought to circumvent.

4. Such an order for discovery may be sought by motion supported by an affidavit. In Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498 Garling J explained that the requirement for special reasons to be established is a restrictive one, intended to act as a limitation on the circumstances in which an order will be made: at [49].

5. The requirement is an inexact one, capable of some elasticity in interpretation. It requiring the applicant for the order to show that there is something unusual or different which takes the matter out of the ordinary course. With the material sought to be discovered relating to a fact in issue: at [50]-[52]. What will take a matter "out of the ordinary" being identified at [51] to be:

"(a) an inability to obtain the requisite factual material without the exercise of the discretion;

(b) that the applicant is in a position of some disability or disadvantage;

(c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;

(d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised."

6. This special reasons requirement is not imposed by the Rues on the issue of a subpoena. It was Build Tech's case that the subpoena it had issued did not seek discovery and was of a kind which defendants in personal injury cases ordinarily have come to serve.

7. Mr Rezai accepted that such a practice had developed. But he contended that it was one which did not accord with the intent of the Uniform Civil Procedure Rules 2005 (NSW) or the overriding purpose specified in s 56 of the Civil Procedure Act, namely, the just, quick and cheap resolution of the real issues in the proceedings. The Rules having been crafted to reduce costs in personal injury cases such as this by limiting the production which parties can pursue and that Build Tech was not entitled to use the issue of a subpoena to avoid the limits imposed, it thereby impermissibly pursuing discovery.

8. The cases advanced also suggested that there may also be non-compliance with other aspects of the Rules which seek to drive both settlements and timely hearing of personal injury claims. *Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19873b17ea86d9b2d275f345)

Disclaimer: Curated by HT Syndication.