Boronia Park Preservation Group Inc v MSMG Developments Pty Ltd and Ors

The subpoenas

1. During the course of the interlocutory process, the Applicant issued a subpoena to Mr Russell Kingdom ("Mr Kingdom") to produce documents to the Court with the requirement being in the following terms: All documents in your possession or control relating to Arboricultural Impact Assessment services carried out by or for Advanced Treescape Consulting at 14A and 16 Barons Crescent, Hunters Hill, NSW in the period from 25 August 2014 to date including but without limit all field notes, diaries, notes, file notes, photographs, correspondence, emails, letters, faxes, memos, reports, notes, plans in digital and hard copy, both draft and finals.
2. Material was produced in response to this subpoena on 9 July 2015 and general access was given to the parties on that date.
3. The Applicant also filed a subpoena on 25 June 2015 addressed to Bee & Lethbridge, Surveyors, seeking production of: All documents in your possession or control relating to surveying services carried out by or for Bee & Lethbridge Pty Ltd at 14A and 16 Barons Crescent, Hunters Hill, NSW in the period from 25 August 2014 to date including but without limit all field notes, diaries, survey notes, surveys, file notes, photographs, correspondence, emails, letters, faxes, memos, reports, notes, plans in digital and hard copy, both draft and finals.
4. Material was produced in response to this subpoena on 7 July 2015 and general access was given to the parties on that date.

lodgEment of a fresh Development Application

1. On 14 July 2015, the First Respondent's solicitor wrote to the Registrar seeking to exercise the liberty to restore and informing the Registrar that: The First Respondent proposes to submit a new development application seeking consent for the same development as approved in the development consent which is the subject of these proceedings. In these circumstances, the First Respondent seeks to adjourn the proceedings until the foreshadowed development application is assessed and determined.
2. A fresh development application has, in fact, been lodged by the First Respondent with the Second Respondent. Ms Josie Walker, counsel for the Applicant in the proceedings and on the motion, advised me that the Applicant expects this to be considered by the Second Respondent in early November 2015.

The notice of motion

1. On 21 August 2015, the Applicant filed a Notice of Motion seeking the following orders: 1 That this notice of motion be heard in camera. 2 In these orders: (a) "the Subpoena Documents" are: (i) the documents dated between 22 September 2014 and 20 December 2014 produced by Bee & Lethbridge Pty Ltd in response to the applicant's subpoena; (ii) the documents dated 5 November 2014 to 20 December 2014 produced by Advanced Treescape Consulting in response to the applicant's subpoena; and (iii) a letter from Joe Vescio of Provincial Planning to the second respondent dated 6 January 2015, produced by the second respondent in response to the applicant's subpoena. (b) "the Implied Undertaking" is the undertaking impliedly given by the parties to the Court not to use documents obtained under the compulsory processes of the Court for collateral purposes. 3 A declaration that the provision by the applicant of the Subpoena Documents to the councillors and the General Manager of the second respondent would not constitute a breach of the Implied Undertaking, if the documents are provided for the following purposes: (a) the purpose of allowing the second respondent to consider its position in relation to the present proceedings; and (b) the purpose of allowing the second respondent to form its own view as to whether or not the Consent has lapsed, in the context of considering a fresh application for the same development. 4 In the alternative to Order 2, the applicant is granted leave to provide the Subpoena Documents to the councillors and the General Manager of the second respondent for the purpose set out in Order 2.
2. The Notice of Motion with which I am now dealing has been filed in response to the lodgement of the First Respondent with the Council of the further development application foreshadowed in the First Respondent's solicitor's letter of 14 July 2015. The Notice of Motion was made returnable before the List Judge on 28 August 2015.
3. On 28 August 2015, I made directions as List Judge with respect to the future process for dealing with the motion and stood the matter over to 4 September 2015.

mr Kingdom's objection

1. When the matter came before me, again, on 4 September 2015, I was advised by Ms Walker that Mr Kingdom, one of the parties who had been subpoenaed and produced documents, objected to his material being released to councillors and the General Manager of the Second Respondent. Mr Kingdom was present in court on that occasion. I made the following directions to permit Mr Kingdom to put his objections before the Court and otherwise for further consideration of the matter: * Mr Kingdom is to serve any affidavit evidence on which he wishes to rely by 4:30pm Friday 18 September 2015. * The applicant is to file Mr Kingdom's affidavit with the Court. * The applicant is to serve Mr Kingdom's affidavit on such other persons as it considers appropriate. Service on non-parties may be by express post. * The motion is otherwise adjourned to 25 September 2015.
2. I was satisfied that it was appropriate to hear the Notice of Motion in the absence of the First to Third Respondents, as to have them present for the argument had the strong potential, I was persuaded, to render the outcome of the motion futile if I were to grant the orders sought in any substantive fashion (whether modified from those sought or not).
3. Mr Nicholas Eastman, counsel for the First Respondent, provided me with a copy of the Strathfield Council v Australian Catholic University Limited [2013] NSWLEC 22 decision and withdrew.

The basis for the Applicant's motion

1. Ms Walker provided written submissions in support of the motion. I have extracted below the element that sets out what I understand to be the basis for the orders sought: The second respondent has entered a submitting appearance in these proceedings. We know that, prior to the commencement of these proceedings, Council wrote to MSMG Developments expressing a view that physical commencement had occurred. In these circumstances, it is reasonable to infer that the second respondent has submitted on the basis that (1) it believes that the consent has commenced and (2) the first respondent is actively contesting the proceedings, therefore it is unnecessary for the second respondent to incur further costs in defending the validity of the consent. This position could well change if the second respondent becomes aware that the information which was submitted to it in support of physical commencement was materially incorrect. The second respondent may decide to enter the fray on the side of the applicant. It may, for example, decide to engage senior counsel and to make additional arguments on the side of lapsing. This would increase the amount of resources which are available for the running of the case, which would tend to promote the success of the applicant in the proceedings. That the applicant is impecunious was acknowledged in the interlocutory judgment of this Court in Boronia Park Preservation Group v MSMG Developments [2015] NSWLEC 112 at [70]. The proceedings are currently adjourned by consent to 9 October 2015 while the first respondent attempts to obtain a development consent from the first respondent for essentially the same development. This does not change the fact that there is utility in bringing these matters to the second respondent's attention. The adjournment is no indefinite, and the applicant could decide, if there are significant delays in determining this development application, to press for a hearing date. The applicant does not want to pre-empt the second respondent's views on how the proceedings should be conducted, if and when it decides to withdraw its submitting appearance. Insofar as order 3 refers to the General Manager of the second respondent, this was merely intended as a reference to the person who normally receives correspondence on behalf of a Council. As the first respondent pointed out at the first directions hearing of this motion, in circumstances where the second respondent is legally represented, correspondence would usually be through the second respondent's solicitors. The applicant agrees that if it provides the Subpoena Documents to the second respondent without leave, in the context of the present proceedings, this communication should be to the second respondent's solicitors, not the General Manager. However, insofar as order 3 refers to the councillors of the second respondent, the applicant submits that this is necessary to enable the applicant to engage the second respondent on a political level. The second respondent is a collegiate body which makes its decision by meetings of councillors, who may have disparate views on particular issues. If the applicant was limited to providing and discussion the Subpoena Documents to the second respondent's legal advisers, it would not be able to bring to the attention of individual councillors particular documents which, in its view, show that the information provided by the applicant so far is incorrect.

the history of the development consent

1. To provide some context to matters being dealt with in this motion, a little history of the challenged development consent needs to be provided. The determination of the Council to grant development consent was made on 23 November 2009. The notice of determination was issued on 22 December 2009 and was expressed, by its terms, to lapse on 22 December 2011. The development consent was Exhibit D on the motion.
2. However, the consequence of coming into effect on 26 May 2010 of s 95(3A) of the Environmental Planning and Assessment Act 1979 ("the Planning Act") (as a consequence of the enactment of the Environmental Planning and Assessment Amendment (Development Consents) Act 2010) meant that the date of lapsing of the 2009 consent was extended to 22 December 2014.
3. It is only necessary, for the purposes of this motion, to note one of the conditions of development consent set out in the notice of determination. That condition is condition 30, a provision in the following terms: A construction certificate is required to be approved and issued by either Council or an Accredited Certifier, prior to the commencement of any works on the site.
4. On 24 November 2014, the Council determined an application pursuant to s 96 of the Planning Act to modify the 2009 development consent. The notice of determination of the modification application is dated 1 December 2014. The original conditions of consent were modified in two respects, one of which is potentially relevant to the question of whether the 2009 consent has commenced or has lapsed. In this regard, the modification replaced the original condition 30 with the following: A Construction Certificate is required to be approved and issued by Council or an Accredited Certifier prior to the commencement of any works on the site, except for the following works: (a) the pegging-out of the existing and proposed boundaries, driveway and slabs; (b) geotechnical drilling; (c) trenching for root mapping.
5. On 6 January 2015, the First Respondent's town planner wrote to the Council seeking to demonstrate that, as a consequence of certain physical works in relation to the consent having been carried out, the development had commenced and that, as a consequence, it had not lapsed as a consequence of s 95(4) of the Planning Act. The physical works set out in the letter to the Council were in the following terms: 1 Retained Bee & Lethbridge Surveyors to undertake road detail survey approx. 300 metres of Barons Crescent to locate road centrelines, kerb, gutter, gutter lip and existing vehicle crossings, confirm levels down subject drive entrance to site to guide driveway design, Investigate and locate sewer mains where visible on site, mark existing and proposed new boundaries, attend site and mark out the location of 25 structural piers (4 located within envelope of current dwelling) mark pier locations with numbered stakes (painted red) to assist root mapping and assessment by Advanced Treescape Consulting, such physical work being carried out between 22 September and 8 December, 2014. 2 Retained Martens Consulting Engineers to carry out geotechnical investigations and report on 5 September, 2014. 3 Retained Advanced Treescape Consulting who undertook selective hand trenching to expose roots in vicinity of driveway/platform works on November 27, 2014.
6. On 7 January 2015, the Council replied, relevantly, in the following terms: The submission you made to Council via e-mail and attached letter on 6 January 2015 which addressed the matter of physical commencement for the subject development. The details have been checked and it is determined that physical commencement has taken place. A copy of this letter and your earlier e-mail have been placed on Council's file for records.

The Applicant's challenge to the development consent

1. As I understand the position advanced by Ms Walker, if the substantive issues proceed to hearing, the Applicant proposes to found its case on the following propositions: 1. The window for opportunity to take advantage of the exceptions imported into condition 30 of the 2009 development consent as a consequence of the 2014 modification was the period between 1 December 2014 and 22 December 2014; 2. Proper construction of the documents produced by Bee & Lethbridge in response to the subpoena demonstrates that no work capable of satisfying s 95(4) was in fact carried out on the site during the period between 1 December 2014 and 22 December 2014; and 3. The second of the matters relied upon in the First Respondent's town planner's letter of 6 January 2015 was not available to be relied upon as the geotechnical investigations were finalised by 5 September 2014 and, therefore, were not authorised to be carried out without a construction certificate; 4. A proper understanding of the documents produced by Mr Kingdom in response to the subpoena addressed to him must lead to the same conclusion, namely, that no works were carried out during the period 1 December 2014 to 22 December 2014.
2. The consequence of that, the Applicant proposes, should be the conclusion reached in the substantive proceedings is that none of the matters relied upon in satisfaction of s 95(4) of the Planning Act can be so relied upon and that, as a consequence, the development consent lapsed on 22 December 2014 and that the Council's acknowledgement, in its letter of 7 January 2015 to the contrary, is based on inaccurate information and is, therefore, of no effect.
3. All of those issues stand to be explored if these proceedings run to a substantive hearing and determination.

The subpoenAed documents and the fresh Development application

1. It is the Applicant's position that, when the Council considers the fresh development application being, as foreshadowed by the First Respondent's solicitor, an application for the same development as approved by the development consent which is the subject of the proceedings, the Council will do so in the erroneous (as put by the Applicant) belief that the First Respondent's town planner's letter provided a valid basis for demonstrating that the 2009 consent had not lapsed on 22 December 2014 but it had, in fact, so lapsed.
2. The Applicant says that if the Applicant is able to inform the Council of material in the subpoenaed documents, then the Council might be persuaded to ignore the 2009 development consent and its purported claim of validity to the extent that it might propose to have regard to that fact in its consideration of the fresh development application.
3. In support of the motion, the Applicant read an affidavit of Mr Woolf, the Applicant's solicitor. The affidavit affirms that Mr Woolf had caused the subpoenas to be issued to Bee & Lethbridge and to Mr Kingdom. Exhibited to Mr Woolf's affidavit were two bundles of documents. The first comprised a bundle of all documents that had been produced by Bee & Lethbridge that were dated between 22 September 2014 and 20 December 2014. The second bundle comprised all documents produced by Mr Kingdom dated between 5 November 2014 and 20 December 2014.
4. These documents comprise the documents identified in prayers (2)(a)(i) and (ii) of the Applicant's Notice of Motion. The final document identified in (2)(a) is the document written by the First Respondent's town planner from which I have earlier quoted.

The extent to which the documents should be discussed in this decision

1. I have carefully considered the extent to which it would be appropriate to set out the detailed elements of the documents to which I have been taken by Ms Walker in support of this application.
2. In addition to her oral submissions, she provided comprehensive written analysis of the documents and what the Applicant says is capable of being drawn from them and why, being conclusions that the Applicant wishes to put to members of the Council to inform the councillors in their decision-making role concerning the First Respondent's new development application.
3. It is also evident to me that these conclusions that the Applicant seeks to draw from these documents are also ones that would form a significant portion of the Applicant's submissions in the substantive proceedings if it proceeds to trial.
4. The process that I am undertaking in determining this motion does not, in any way, require me to make any evaluative determination of the validity or otherwise of those conclusions and I am not to be taken to have done so. Indeed, it would be quite improper for me to express any view whatsoever on the merits.
5. To do so would be inappropriate, in the context of these proceedings and would also have the potential to be misconstrued as, if I were to express such an opinion and it were to be conveyed to the members of the Council, they might draw the conclusion that I was, in some way, endorsing such propositions as the Applicant might be advancing to the Council - a position equally entirely inappropriate, given that the Council is an independent, elected body that is to determine the First Respondent's new development application within the proper, statutory decision-making framework.
6. For completeness, prior to turning to consider whether or not the Applicant has established that there are special circumstances warranting permitting the extra-curial use of these subpoenaed documents, I should also observe that: 1. The motion seeks permission to use the entirety of the two sets of subpoenaed material rather than selected documents within them; and 2. Although I have been taken to a selection of the documents in each bundle as providing a foundation for the submissions concerning special circumstances, I do not propose to identify the individual documents. To do so, I am concerned, could also potentially lead to an inference that I was endorsing the conclusions that the Applicant might be seeking to draw from those documents (either in these proceedings or in their submissions to the councillors) - given my conclusion, for the reasons set out subsequently, that the Applicant should be permitted, on a confined basis, to use the documents for extra-curial purposes.
7. I also considered whether I should confine the permission to use the documents extra-curially to those specific documents to which I was taken during the course of Ms Walker's oral submissions and which are discussed in her written submissions. I have concluded that to do so would necessitate sufficient description of the nature of the documents also to risk inappropriate inferences being drawn from my granting permission for their use.

special circumstances?

1. It is within this framework that I turn to consider whether the Applicant has established the special circumstances that are necessary to provide a proper foundation for permitting the Applicant to use these documents for the purposes sought.
2. In Springfield Nominees Pty Limited and Ors v Bridgelands Securities Limited and Ors [1992] FCA 472; 38 FCR 217, a first instance decision in the Federal Court, Wilcox J dealt with an application for the use of an affidavit that had been filed in proceedings that might be regarded as broadly related but proceedings that had settled. As a consequence of the settlement, the affidavit had not been read and had thus not become evidence in the public domain. Wilcox J set out, at [25], a list of matters that he considered in determining whether or not to permit the use of the affidavit in the other proceedings. The list of matters which he considered was described by him as being inclusive rather than exhaustive. These matters were: 1. the nature of the document; 2. the circumstances in which the document came into existence; 3. the attitude of the author of the document and any prejudice the author might sustain; 4. whether the document pre-existed litigation; 5. the nature of the information in the document (particularly whether it contained personal data or commercially sensitive information); and 6. the circumstances in which the document came into the hands of the party seeking to be able to use it.
3. There are, in my assessment, two significant differences between the circumstances requiring consideration by Wilcox J and those arising in this instance. First, weighing a little against permitting release of the documents, is the fact that the purposes for which the release is sought is extra-curial rather than for similar but unrelated proceedings. On the other hand, of much greater significance, is the fact that the use of the documents is proposed to be for purposes related to the same parties and the same issues for which the documents have been subpoenaed in these proceedings. That, in my assessment, is a strong point in favour of permitting their release for the purposes for which the Applicant seeks consent. Indeed, the Applicant puts it (but I need not determine and am not to be taken as expressing an opinion on this point) that non-release of the documents might have the effect of rendering these proceedings futile, even if well-founded.
4. Returning to the matters set out by Wilcox J, I observe the following: 1. The documents that are proposed to be used are ones that would constitute, on my examination of all of them, part of the business records of either Bee & Lethbridge or Mr Kingdom and are therefore not, from their terms, amenable to any claim for privilege of any nature; 2. The documents appear to have come into existence in connection with both Bee & Lethbridge and Mr Kingdom's activities in connection with the site that is the subject of these proceedings and the subject of the fresh development application being considered by the Council; 3. In each instance, release of the documents is resisted by the party that has produced them pursuant to subpoena. With respect to the documents produced by Bee & Lethbridge, a letter from Bee & Lethbridge's solicitors was tendered on the motion relevantly setting out Bee & Lethbridge's objections in the following terms: In response to information provided in your prior letter of 28 August, we are instructed by our client to advise that it opposes any disclosure of its documents which have been produced pursuant to the Subpoena for any purpose other than those permitted in the usual course during the conduct of these proceedings. Furthermore, we are instructed to advise that, whilst our client wishes to express its opposition to the disclosure of the documents in the manner of that which is sought in the orders set out in the Notice of Motion, as our client is not a party to the proceedings, it does not intend to appear at tomorrow's hearing and, therefore, will leave the matter on the basis of its expressed opposition to the disclosure of the documents. Similarly, Mr Kingdom wrote a letter (also tendered on the motion) objecting to the release of the documents with the relevant portion being in the following terms: I do not consent to any of the documents that I produced to the Court under subpoena being provided to any person who is not a party to the proceedings. I also do not consent to any of the documents that I produced to the Court under subpoena being used by any party to the proceedings for any purpose other than the conduct of the proceedings. The documents that I produced to the Court are private. They are professionally and commercially sensitive and it is inappropriate for them to be distributed to people who are not involved in the proceedings. If people who are not party to the proceedings receive my documents, there will be no control over what they do with the documents. I am very concerned over how these documents would be used if they are allowed to enter the public domain unregulated. In addition, Mr Kingdom was provided with the opportunity to swear an affidavit and give oral evidence about his concerns. His affidavit (read on the motion on 25 September 2015) dealt with factual matters contained in the subpoenaed documents. Its terms should not be discussed in this context, therefore. During the course of his oral evidence at the hearing on the motion, he repeated his concern that he did not consider it appropriate that this material should be made available as it would, as I understood his evidence, expose material concerning his activities for the First Respondent that were part of his commercial relationship with it. I have carefully examined all of the material produced by each subpoenaed party to determine whether or not, in my assessment, any of it is commercially sensitive in the proper sense that that term might be understood as warranting preservation of confidentiality. I am satisfied that there is no proper basis for so concluding with respect to any of the documents. 1. It is clear from the date of commencement of the proceedings earlier noted when compared to the range of dates of the subpoenaed material in each instance (the ranges being different for each of the subpoenas) that none of the material was likely to have been produced in anticipation of litigation. Nonetheless, as part of my examination of the documents, I have also carefully considered whether any of the documents might be so regarded and I am satisfied that there is no document amongst those produced by either subpoenaed party that could be so characterised; 2. Further, I have carefully examined the material sought to be released from the implied undertaking in order to establish whether any sensitive personal data might be revealed. Mobile telephone records, for example, can demonstrate by reference to call locations or base stations interrogated automatically, whether a particular mobile phone (and hence, presumably, its owner) was or was not in a particular location (when the fact of whether the person was there on a particular date or at a particular time might be of factual relevance in the proceedings). 1. I am satisfied that no sensitive personal is included amongst the documents produced by either Bee & Lethbridge or Mr Kingdom; As a consequence, I have no concerns on any privacy basis as to why I ought not permit the documents to be released. 1. Finally, self-evidently, the documents have come into the possession of the Applicant through the conventional subpoenaing process in this litigation and there is no suggestion that they have been obtained in any improper fashion.
5. Ms Walker also took me to the case of Minister for Education v Bailey [2000] WASCA 377; 23 WAR 149, proceedings in the Western Australian Court of Appeal. The appeal was against a decision of a Master of the Western Australian Supreme Court permitting the use of a document discovered in one set of proceedings for the purposes of founding a second set of proceedings between the same parties. The Master released Mr Bailey from the implied undertaking not to use the discovered document for that purpose. The application by the Minister for leave to appeal against that decision was dismissed. Steytler J cited Springfield Nominees and said, at [30]: I have mentioned that no issue has been taken with the learned Master's expression of opinion that the discovered document was "highly relevant" to the matters in issue between the parties on the s 47A leave application. It was (and still is) acknowledged that production of the discovered document might well influence the outcome of that application. Indeed that was, as I have said, the very prejudice on the Minister's side which was pointed to by his counsel. It must consequently be accepted, for the purposes of the appeal, that the nonproduction of the document might well have the consequence that the respondent would forever be barred from bringing the second proceedings…
6. Although these circumstances do not apply, precisely, in these proceedings, that which the Applicant seeks to submit to the councillors comprising the body politic of the Second Respondent is founded on the Applicant's view that it can so demonstrate.
7. In general terms, it seems to me that, by analogy, these circumstances also apply sufficiently in this case.
8. Further, his Honour said, at [34]: I should, perhaps, say in this respect that it may be that the conduct of a defendant, by his counsel, in creating a misleading impression of the true state of affairs in circumstances in which the production of the document might correct that impression could, depending on the circumstances, amount to a special circumstance sufficient to justify a relaxation of the obligation.
9. It is unnecessary and inappropriate, as I have earlier observed, for me to make any comment on the merits or otherwise of that position. It is enough, in my assessment, that I have concluded that the circumstances are sufficiently special to warrant the Applicant being afforded the opportunity to do so.
10. As earlier noted, Mr Eastman, counsel for the First Respondent, before indicating during one of the mentions of the motion that the First Respondent was not seeking to participate, provided me with a copy of the decision in Australian Catholic University before withdrawing. Quite properly, Ms Walker also drew my attention to this decision in her submissions on the motion.
11. That decision, in this Court, dealt with an application to permit the use of a pleaded defence that had been filed in those proceedings for extra-curial purposes concerning an application being considered by the Planning Assessment Commission. The application to permit the use of those pleadings was refused.
12. I am satisfied that Australian Catholic University is to be distinguished from the present circumstances as the documents in these proceedings are ones that predate this litigation and cannot be regarded as being created for the purposes of litigation. They are also part of the ordinary business records of each of the subpoenaed parties.
13. In the Australian Catholic University case, the document was a document prepared specifically for the purposes of the litigation; it was a document setting out matters that would arise to be tested, in circumstances of controversy, in those proceedings, and where that testing had not yet occurred. These fundamental differences, in my view, make those circumstances entirely different to those here applicable.

Disclosure to the council's lawyers

1. It was my view (put to Ms Walker during the hearing of the motion) that, if there were to be disclosure by the Applicant to the legal representatives of the Second Respondent of the subpoenaed documents from Bee & Lethbridge and from Mr Kingdom, solely for the purpose of seeking to persuade the legal representatives of the Second Respondent that they should now advise the Second Respondent to cease its submitting appearance and take an active role in the proceedings, such disclosure would not require consent of the Court as the subpoenaed documents are ones to which, as already noted, general access has already been granted to all parties. This remains my view.
2. The letter from Mr Joe Vescio of Provincial Planning to the Second Respondent, dated 6 January 2015, was produced by the Second Respondent in response to the Applicant's subpoena and, self-evidently, is within the Second Respondent's existing knowledge.

Conclusion

1. I am satisfied that the use to which the Applicant proposes to put the documents is, at least in part, one properly potentially engaged by the determination process being undertaken by the Council for the new development application lodged with the Council by the First Respondent.
2. Permission to disclose the subpoenaed documents to the General Manager of the Second Respondent should be confined to the purposes of permitting the General Manager to advise the elected councillors as to whether or not the 2009 development consent has lapsed.
3. I am satisfied that, to a more limited extent than sought, special circumstances exist that warrant approval for disclosure of the subpoenaed documents - with this disclosure being limited to the second purpose set out in the orders sought but as specified in the immediately preceding paragraph.
4. As earlier explained, use of the documents for the first purpose is not, in my view, a use requiring permission of the Court.

Orders

1. For the reasons set out above, the orders of the Court are: 1. In these orders: (a) "the Subpoena Documents" are: (i) the documents dated between 22 September 2014 and 20 December 2014 produced by Bee & Lethbridge Pty Ltd in response to the Applicant's subpoena; (ii) the documents dated 5 November 2014 to 20 December 2014 produced by Advanced Treescape Consulting in response to the Applicant's subpoena; and (iii) a letter from Joe Vescio of Provincial Planning to the Second Respondent dated 6 January 2015, produced by the Second Respondent in response to the Applicant's subpoena. (b) "the Implied Undertaking" is the undertaking impliedly given by the parties to the Court not to use documents obtained under the compulsory processes of the Court for collateral purposes. 1. Declare that the provision by the Applicant of the Subpoena Documents to the councillors and the General Manager of the Second Respondent would not constitute a breach of the Implied Undertaking, if the documents are provided for the purpose of allowing the councillors who are elected members of the Second Respondent to form their own view as to whether or not Development Consent Number 09-1019 has lapsed, in the context of considering a fresh application for the same development, and to be advised on that matter by the General Manager. 2. The exhibits are returned.

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: 02 October 2015