Australian Muslim Welfare Centre Inc v Campbelltown City Council

Land and Environment Court (NSW)|2024-09-03|Before: Robson J

Nature of proceedings and outcome

These Class 1 appeal proceedings were commenced by Australian Muslim Welfare Centre Inc ('AMWC') on 23 August 2023 appealing against a development control order ('DCO') issued by Campbelltown City Council ('Council') pursuant to Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). The property concerned is approximately 2ha in size and is located at 13-17 Eagleview Road, Minto ('site'). The Class 1 appeal is set down for hearing from 1 to 3 October 2024.
Presently before the Court is a notice of motion filed by Council on 28 August 2024 (and amended on 3 September 2024) seeking that a notice to produce filed by AMWC on 12 August 2024 be set aside pursuant to r 34.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR').
For the reasons that follow, noting that there was agreement between the parties in relation to one of the two categories of documents sought in the notice to produce, I dismiss Council's notice of motion and make no order for costs.

Evidence

In support of its notice of motion, Council read the affidavit of its solicitor Karen Peta Arthur affirmed 28 August 2024. Ms Arthur deposed to the background to the matter including detailed correspondence that had passed between the parties reflecting their respective positions in relation to both categories of documents initially sought in the notice to produce.

Parties' positions

The parties' positions in relation to the outstanding category of documents can be shortly summarised noting, again, that the essence of the dispute in the substantive proceedings is that AMWC maintains it has development consent to use the premises as a community facility and it denies that its current use is as a place of public worship.
AMWC submits that the manner that Council has been dealing with and/or enforcing the activities on the Misra premises which is zoned similarly to the site being C4 - Environmental Living under the CLEP, and which is used in a manner that shows "some similarities [with] both sites catering for religious communities [one to the Hindu community and one to the Muslim community] including the holding of prayers and religious festivals", has (or will have) relevance to the issues in the present proceedings at least in relation to the possible questions regarding discretion.
AMWC submits that the history of, and the attitude of, Council towards the ongoing use of the Misra premises "may be relevant" to the Court's determination of the characterisation and the use of the premises by AMWC which is a primary issue in the substantive proceedings. As such, the documents sought in the first category have a legitimate forensic purpose and it is "on the cards" that the documents will materially assist AMWC's case.
AMWC submits that, to the extent that Council contends that production of the documents would be oppressive (apparently on the basis that AMWC seeks all documents from 2001, that is, since the decision of the Court in Misra in December 2001), the Court would note that Council has not adduced any evidence in relation to any difficulties that it may have in complying with the notice to produce.
Council submits that the documents sought in the first category of the notice to produce are irrelevant on the basis that the test for legitimate forensic purpose has been expressed as an "on the cards" test which requires any assessment of the relevance of documents sought by reference to the issues in the proceedings.
AMWC maintains that the attitude of Council towards the use of the Misra premises is relevant to the Court's discretion as to what orders it may make in relation to the DCO. Relevantly, Council points to earlier correspondence between the parties where Council sought particulars from AMWC on the first category of documents in the notice to produce and where AMWC informed Council that the request arose because Council, itself, raised the case of Misra in Council's SOFAC, that the Misra premises are on the same road as the site and used in a not dissimilar manner. Despite AMWC's expressed position, Council maintains that the documents sought will not materially assist the Court in the exercise of its discretion to make an order under s 8.18(4) of the EPA Act and that the issuance of development control orders by Council, as a relevant enforcement authority under Div 9.3 of the EPA Act, involves matters wholly within the discretion of Council. As such, any decision by Council to take or not to take enforcement against another landowner, such as those occupying the property the subject of Misra, cannot have any bearing on the exercise of the Court's discretion under s 8.18(4) of the EPA Act in relation to the site.
Council further submits that even if it could be established that some or all of the documents requested in the first category of documents had some forensic relevance (which it denies), the requirement for the production of all described documents since December 2001 is onerous and oppressive and should be struck out or amended.

Relevant principles

The legal principles that I am to apply in relation to the determination of the motion are well-known and can be briefly summarised.
Rule 34.2(1) of the UCPR provides that "[u]nless the court orders otherwise, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession."
The considerations that apply to the setting aside of subpoenas are generally applicable to notices to produce: Tony Azzi Automobiles Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283 at [4] (Brereton J).
A notice to produce must be issued for a legitimate forensic purpose and must seek documents that have apparent relevance to the issues in the principal proceedings: Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102-103 (Beaumont J); [1989] FCA 340 ('Arnotts (No 2)'). The relevance of the documents sought must be assessed by reference to the issues in the proceedings: Rinehart v Rinehart [2018] NSWSC 1102 at [47] (Ward CJ in Equity).
Documents will have apparent relevance where, first, they may reasonably be regarded as (that is, "on the cards") having the potential to materially assist in the resolution of the issues in the proceedings: Alister v R (1984) 154 CLR 404 at 414; [1984] HCA 85 (Gibbs CJ, Murphy and Brennan JJ agreeing, Wilson and Dawson JJ dissenting); R v Saleam (1989) 16 NSWLR 14 at 17-18 (Hunt J); and, second, the material could "possibly throw light on" an identified issue in the proceedings: Arnotts (No 2) at 103.
Council (as the issuing party) bears the onus of establishing that the notice to produce has a legitimate forensic purpose: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20], [22]. The failure to establish the onus can amount to an abuse of process: Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [28].
A number of the earlier decisions in relation to subpoenas (and/or notices to produce) were reviewed by the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 ('Blacktown City Council') at [59]-[60], [68] in terms which I respectfully adopt and do not recite. More particularly, the President of the Court of Appeal (as the Chief Justice then was) stated, at [80]: "[80] My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in [R v Saleam [1999] NSWCCA 86 at [11]], it can: '(i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case', at least in civil matters, an inability to demonstrate that it is 'on the cards' that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings."
Thus, AMWC is required to point to a reasonable basis beyond speculation that it is likely that the evidence will materially assist on any given issues apparent from the pleadings or in particulars (and in this case, the SOFAC).
In summary, it is sufficient to justify a notice to produce as having been issued for a legitimate forensic purpose if the documents sought are apparently relevant or, moreover, whether those documents sought to be produced will materially assist in relation to an identified issue or there is a reasonable basis beyond speculation that it is likely the documents sought in the notice to produce will so assist.
While the contentions noted above raise matters of some nicety, the principal, if not threshold issue, is one of characterisation. Council maintains, and apparently has consistently maintained, a concern that the site is being used as a place of public worship. AMWC maintains that it is being properly used in relation to its existing consent.
I consider that the documents sought in the first category of the notice to produce have the potential to materially assist in relation to an issue in the proceedings as submitted by AMWC and that the documents sought have an apparent relevance to the issue in relation to any exercise of discretion and other relief that may be sought (such as a variation or modification of the DCO). Further, as these proceedings are in Class 1 of the Court's jurisdiction, I am conscious of the comments in Blacktown City Council at [59], that the procedures followed in particular classes of proceedings, such as s 38 of the Land and Environment Court Act 1979 (NSW) ('Court Act'), arguably favours a more generous approach to the scrutiny of (here) notices to produce than in ordinary adversarial litigation.
I consider that Council, as the party alleging oppression should lead some evidence of the difficulty in complying with the notice to produce and the absence of such evidence is a reason to reject an argument that a notice to produce is oppressive: BCEG Australia v Yu Xiao (No 2) [2020] NSWSC 1403 at [17] (Stevenson J); Sader v Elgammal [2023] NSWLEC 21 ('Sader') at [35] (Pritchard J).
I also note that, in forming this opinion, Council has not marshalled evidence which would indicate that the costs or the time or effort otherwise required to meet the first category of documents sought in the notice to produce would amount to oppression. In these circumstances, adopting the approach noted in the principles summarised above, and an approach recently adopted by Pritchard J in Sader at [35], that in the absence of that evidence, I am unable to assume the task would be oppressive. While the requirement for all documents since December 2001 appears redolent of oppression, as I indicated to counsel during the hearing of the motion, it may be that there are no relevant documents or files as discretely described in the notice to produce for Council to produce.
In the circumstances, although I have some sympathy for Council's position, and I have some doubt as to the ultimate relevance of the documents which remain in issue, I have formed the view that it is not appropriate to strike out the notice to produce in relation to the remaining category in issue.

Costs

AMWC has enjoyed some success in the motion and seeks its costs.
This Court's power to award costs of the proceedings arises pursuant to s 98(1) of the Civil Procedure Act 2005 (NSW) and r 3.7 of the Land and Environment Court Rules 2007 (NSW) ('Court Rules').
Insofar as these proceedings are within Class 1 of the Court's jurisdiction (see s 17(d) of the Court Act, they are subject to the presumptive rule set out in s 3.7 of the Court Rules, wherein an order for costs should not be made unless the Court considers it "fair and reasonable in the circumstances".
While the principles applicable to the Court's exercise of the power under r 3.7 of the Court Rules are well-known and not repeated here, it is incumbent upon the Court to form a view irrespective of success or otherwise, whether it is fair and reasonable in the circumstances to award costs.
I have formed the view that neither party has established that any order as to costs would be fair and reasonable in the circumstances. My reasons may be shortly stated. Both parties have acted appropriately, and the concerns expressed by both parties were genuine. Council's concerns in relation to the nature and relevance of the documents was not without reason and indeed my findings in relation to allowing the notice to produce to continue and the documents to be produced does not, and will not, affect any further judicial officer considering whether those documents or the material in any file will be relevant and admissible at the final hearing. It is trite to note that the lens through which I look at the application to set aside the notice to produce is a different lens to be looked through by a judge or a commissioner hearing the case in due course, and I make that clear to the parties.
In summary, while I accept that Council had a justifiable reason for bringing the notice of motion, I find that the parties have behaved appropriately by seeking to address and resolve some concerns in relation to the documentation the subject of the motion prior to, and during the hearing of, the motion. I do not consider that an order for costs in favour of either party would be fair or reasonable so as to rebut the presumptive rule in r 3.7(2) of the Court Rules.

Orders

The orders of the Court are: 1. Leave is granted to Campbelltown City Council to amend the notice of motion filed 28 August 2024 to remove the words "for Inspection" and to replace the words "rule 21.11" with "rule 34.2(1)". 2. The notice of motion filed 28 August 2024 is dismissed. 3. No order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2024

(2001) 118 LGERA 301

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