Australian Leisure and Hospitality Group Pty Ltd & Anor v Dr Judith Stubbs & Anor

Judgment 1On 27 February 2012 orders were made restraining the first defendant (Dr Stubbs) from disclosing confidential information of the plaintiffs to the second defendant (the Council) or its representative, and restraining her from assisting the Council as an expert witness in forthcoming proceedings in the Land and Environment Court. These are my reasons for making the orders. 2The first plaintiff (ALH Group) owns and develops liquor stores across Australia which trade under the names BWS and Dan Murphy's. Mr R J M Blair-Holt is the chief operating officer and a director of ALH Group. The second plaintiff (MMJ) is retained by ALH Group as a town planner. From time to time Dan Murphy's stores are co-located on a single site with other liquor stores operated by ALH Group, such as BWS liquor stores. Dr Stubbs is a consultant specialising in social and strategic planning. She has been frequently retained by developers and consent authorities to assess and report on the social impact of proposed development, and has acted as an expert in court proceedings including those in the Land and Environment Court. She is the principal of the firm known as Judith Stubbs & Associates.

Background 3In about September 2008 MMJ was retained by ALH Group to provide town planning advice and a development application for the proposed development of a Dan Murphy's liquor store in Nowra. It was proposed that this store would be located on the same site as an existing BWS store. On about 4 May 2009 Mr G J Rollinson, a town planner employed by MMJ, requested Dr Stubbs to prepare a social impact assessment to support the proposed development application to the Council. On 14 May 2009 Dr Stubbs advised him that the approach she would take would: "... seek to identify opportunities to understand any adverse impacts of the existing use within the locality, and to propose positive ways that the existing application may address these impacts through design or management (mitigation)". 4During May and June 2009 MMJ provided information, as requested, to Ms Colleen Lux, a senior researcher associate to Dr Stubbs. Information was also provided to Dr Stubbs or Ms Lux by Mr Blair-Holt regarding the operation of the proposed development and the nature of the businesses conducted by Dan Murphy's and BWS, and in relation to the Dalrymple Hotel, Queensland and the Prince Mark Hotel, Victoria, and also in relation to the commercial impact of co-location of a BWS and Dan Murphy's stores including trading figures before and after co-location. 5On 17 July 2009 a first draft report was provided by Ms Lux to MMJ. 6On 29 July 2009 there was a meeting attended by Dr Stubbs, Mr Rollinson, and Mr Barry Cloke for ALH Group. A critique of the report was presented by Mr Rollinson and Mr Cloke, and was discussed. Amendments to the report were also suggested. 7By letter of 11 August 2009 to MMJ, Dr Stubbs responded to the matters raised at the meeting. The letter included the following: "Nevertheless, on balance we would be forced to conclude that there is likely to be an increase in alcohol related harm in the immediate locality and the LGA from the additional bottle shop. Due to the existing high levels of harm, and greater proportional increase in density in the immediate locality, the impacts are likely to be exacerbated by sitting the premises in this locality. As noted, the impacts are likely to be highly contextual, and no particular study precisely represents the circumstances of this development. A valid method of method of inquiry in these circumstances is a comparative case study approach. For these reasons, we recommend a desktop review of the opening of Dan Murphy's at Dalrymple and Doveton. Such a desktop review, looking at comparative demography, sales data and any increase in assaults and the like associated with the opening, may demonstrate that the impacts based on the literature are overstated, but without conducting the additional research there is no basis to form such a conclusion." 8An attachment included specific responses to matters raised in the critique referable to the relationship between alcohol outlets and alcohol-related crime. It included the following: "The important thing is to identify the characteristics of outlets and locations associated with negative impacts and see if they are found in the locality in question ... ... In this context we draw your attention to our recommendation at 6.4.1, whereby research into the impacts of the opening of similar stores at Doveton, Victoria and Dalrymple, Queensland are proposed. We believe this would provide more definitive data around possible impacts, particularly given the apparent importance of context arising from the literature." 9Subsequently Dr Stubbs was informed by Mr Rollinson that the report would not be used for the development application, and no further work was required of her. 10On 6 October 2009 MMJ lodged the development application (DA 09/2325) with the Council. It was refused on 17 May 2011. 11On 11 November 2011 MMJ commenced proceedings in the Land and Environment Court arising out of the Council's refusal of the development application. In its statement of facts and contentions filed 14 December 2011 the Council contends that the development application should be refused as it will have an unacceptable social impact on the surrounding area which is a disadvantaged locality. Particulars relied upon include assertions that the proposed development would increase the availability of alcohol (i.e. by increasing the number of outlets in close proximity and by decreasing price), and seeks to increase the density of liquor outlets on the site in circumstances where it is asserted that there is a direct relationship between the density of liquor outlets and alcohol-related harm, and between the price of alcohol and alcohol-related harm. 12On 15 December 2011 the plaintiffs' solicitors advised the Council's solicitors of their objection to Dr Stubbs acting as an expert witness in the Land and Environment Court proceedings on the ground that she would have a conflict of interest. 13In December 2011 Dr Stubbs was retained by the Council to act as an expert witness and to report to the Land and Environment Court on questions concerning the social impact of the proposed development. 14On 23 December 2011 the proceedings were fixed for hearing on 15 and 16 March 2012. It was ordered, inter alia: "12 Experts are to ensure that a joint conference is a genuine dialogue between experts in a common effort to reach agreement with the other expert witness about the relevant facts and issues. Any joint report is to be a product of this genuine dialogue and is not to be a mere summary or compilation of the pre-existing positions of the experts." 15By letter of 12 January 2012 to the plaintiffs' solicitors, the Council's solicitors advised of the intention of the Council to rely on Dr Alison Ziller as an expert on social impact issues in general, and on Dr Stubbs as an expert to address the social impact of the provision of an additional outlet for the sale of bulk discount alcohol in an area that is socially disadvantaged and experiences a high rate of alcohol-related crime. 16By letter of 20 January 2012 to the Council's solicitors, the plaintiffs' solicitors objected to the use of two experts. In addition, objection was taken to retaining Dr Stubbs on the ground that whilst engaged by ALH Group she had received confidential information which should not be disclosed. 17By letter of 20 January 2012 to Dr Stubbs, the plaintiffs' solicitors demanded that she cease to act as an expert witness for the Council. It included the assertion that whilst acting for ALH Group she had been provided with instructions and confidential information for the preparation of the social impact assessment following which she had delivered a draft social impact report in June 2009 which was revised in August 2009. It was advised that there was no consent to the use or disclosure of the confidential information, and the fear was expressed that there was a real possibility that she would use, consciously or subconsciously, the information in carrying out her engagement for the Council as an expert witness. 18By letter of 23 January 2012 to the plaintiffs' solicitors, the Council's solicitors confirmed the intention to rely on the evidence of both Dr Ziller and Dr Stubbs. It said Dr Stubbs would address the particular social impact issue relating to the provision of an additional liquor outlet in an area that is socially disadvantaged and experiences a high rate of alcohol-related crime. The existence of a real possibility of disclosure of confidential information by Dr Stubbs was denied. It was asserted that she would be able to carry out her assessment and prepare a report without reference to documents with which she may have been provided in the past. 19On 1 February 2012, on MMJ's application, the Land and Environment Court ordered that the Council be restricted to one social impact expert. 20By letter of 3 February 2012 to the plaintiffs' solicitors, the Council's solicitors advised that the Council would be relying upon the expert evidence of Dr Stubbs. 21On 8 February 2012 the statement of evidence of Mr James Lette was filed by MMJ as its expert evidence on the social impact issue. The statement includes a detailed case study of a similar Dan Murphy's store operating at Ballina for evaluation of the social impact of an operation at a site similar to that proposed at Nowra. 22The plaintiffs claimed relief because they feared there was a real possibility of disclosure of the information provided to Dr Stubbs should she act as an expert witness for the Council on the issue of the social impact of the proposed development.