Bungendore Residents Group Inc v Palerang Council and Navaroo Constructions Pty Ltd

Land and Environment Court (NSW)|2006-09-06|Before: Pain J, Mr J

CITATION : Bungendore Residents Group Inc v Palerang Council and Navaroo Constructions Pty Ltd [2006] NSWLEC 557

APPLICANT Bungendore Residents Group Inc PARTIES : FIRST RESPONDENT Palerang Council SECOND RESPONDENT Navaroo Constructions Pty Ltd

KEY ISSUES: Evidence :- leave to rely on interrogatories relating to a council's collective consideration

Bank of Russian Trade Ltd v British Screen Productions Ltd [1930] 2 KB 90; Blair v Queanbeyan City Council 88 LGERA 247 ; Hospital Action Group Association Inc v Hastings Municipal Council 80 LGERA 190; Kelly v Raymor (Illawarra) Pty Ltd [1981] 1 NSWLR 720 ; Parker v Auburn Council 108 LGERA 216 ; Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 ; Potts v Invercargill City Council [1985] 1 NZLR 609; CASES CITED: Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130; Sharpe v Smail (1975) 49 ALJR 130 ; Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd (1969) 123 CLR 514 ; Southwark Water Co v Quick (1878) 3 QBD 315; Spedley Securities Ltd (In liq) v B R Yuill (No 4) (1991) 5 ACSR 758 at 762; Stanfield Properties Ltd v National Westminster Bank plc [1983] 2 All ER 249; Sumitomo Life Realty (Australia) Ltd v Grace Bros Holdings Ltd, Coles Myer New South Wales Ltd and Sydney City Council 83 LGERA 46 ; Tooth & Co Ltd v Lane Cove Municipal (No 4) [1968] 2 NSWLR 17

APPLICANT Mr J Johnson (barrister) SOLICITORS Environmental Defender's Office LEGAL REPRESENTATIVES: FIRST RESPONDENT Submitting appearance SECOND RESPONDENT Mr C Leggat SC SOLICITORS Harris & Company

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40302 of 2005 Bungendore Residents Group Inc v Palerang Council and Navaroo Constructions Pty Ltd

JUDGMENT ON INTERROGATORIES 1 Her Honour: An issue has arisen in the hearing of this Class 4 matter as to whether I should allow the Applicant to rely on three answers to interrogatories given by the Council the First Respondent. The challenge to the Applicant relying on the interrogatories is made by the Second Respondent. The Council has issued a submitting appearance in the hearing and was not present at all at the hearing or for the argument on interrogatories. The judicial review proceedings seek a declaration that a development consent granted to the Second Respondent by the Council is void. 2 Michael Glen, senior town planner of the Council, swore two affidavits dated 5 August 2005 and 28 April 2006 attaching answers to interrogatories and stating how the answers were prepared.

3 The three interrogatories sought to be relied on were attached to the first affidavit of Mr Glen and are: 1. In determining the subject Development Applications did Council have regard to information or advice in relation to the following matters: (c) whether each allotment to be created has a practical building precinct.

If the answer to the above is yes … (a) is the information or advice contained in item 1 of the Council's report to the Extraordinary Council Meeting 24 on 21 December 2004? Response: Yes (b) Did that report contain all the information or advice that the Council had regard to in determining the application?

Response: Yes Second Respondent's submissions 4 I should not follow Sumitomo Life Realty (Australia) Ltd v Grace Bros Holdings Ltd, Coles Myer New South Wales Ltd and Sydney City Council 83 LGERA 46 and Parker v Auburn Council 108 LGERA 216 but should follow Street in Tooth & Co Ltd v Lane Cove Municipal (No 4) [1968] 2 NSWLR 17 and the New Zealand Court of Appeal in Potts v Invercargill City Council [1985] 1 NZLR 609. Interrogatories which seek to distil the council's collective mind should not be admissible. 5 Further, it is clear from answers to other interrogatories that the answers sought to be relied on are misleading. If the Court does decide to allow the Applicant to rely on these three interrogatories, it should also allow in the answer to interrogatory 3(a) and the clarification of those answers set out in par 2(a) and (b) in the affidavit of Mr Glen dated 28 April 2006. Applicant's submissions 6 I should follow Sumitomo and Parker because they are correct and also in the interests of judicial comity. The court had ordered that interrogatories be administered in this case (although not necessarily the precise form of the interrogatories), no objection to answering them was raised by the Council and it is appropriate to rely on them as it shortens the necessary hearing time. Finding 7 The Council's collective mind is generally gleaned from the consideration of objective facts such as the material before it and general local knowledge of the councillors: see Schroders Australia Property Management Ltd v Shoalhaven City Council (1999) 110 LGERA 130; Hospital Action Group Association Inc v Hastings Municipal Council 80 LGERA 190.

8 Interrogatories are an aid to resolving issues in proceedings and to help identify those matters about which evidence needs to be called. 9 Part 24 r 10 Supreme Court Rules 1970 adopted by the Land and Environment Court Rules 1979 provides: (1) A party may tender as evidence - (a) one or more answers to interrogatories without tendering the others; (b) part of an answer to an interrogatory without tendering the whole of the answer. (2) Where the whole or part of an answer to an interrogatory is tendered as evidence, the Court may - (a) look at the whole of the answers; and (b) if it appears to the Court that any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without that other answer or part, the Court may reject the tender unless that other answer or part is also tendered . 10 In Sumitomo Bignold J considered that interrogatories posed to the Central Sydney Planning Committee were allowed in relation to questions about the "state of mind" of the committee and chose not to follow Street J in Tooth.

11 In Tooth Street J said (see 19-20): Where a suit raises as a relevant issue the state of mind of an individual, then a properly framed interrogatory directed to the ascertainment of ingredients in that state of mind would no doubt be allowed. Where, however, the suit concerns the act of a municipal corporation it appears to me to be unreal to direct to that corporation an interrogatory upon what matters were present to its mind in relation to a particular event. The inferences drawn and conclusions reached by courts upon purpose, intention or opinion on the part of municipal corporations are drawn and reached as a result of evidence of objective facts. But the fact that in those cases decisions are made that a municipal corporation had a particular mental state does not travel to the extent of raising the fiction that the corporation has in truth a mind, the processes of which can be examined through medium of interrogatories, as is the case with personal party.

12 Bignold J in Blair v Queanbeyan City Council 88 LGERA 247 also allowed interrogatories which concerned the Council's "state of mind".

13 In Parker the Court was asked to consider whether a response to various interrogatories by the Respondent's counsel were adequate. Sheahan J considered numerous authorities including McClelland J in Kelly v Raymor (Illawarra) Pty Ltd [1981] 1 NSWLR 720 and New Zealand Court of Appeal in Potts and distinguished Tooth on the basis it was before the EP&A Act was enacted. He also referred to a number of decisions which have considered the administration of interrogatories to a corporation. Sheahan J essentially confirmed at [27] that particular interrogatories relating to a Council's "state of mind" can be administered. In doing so he referred to numerous decisions which had previously considered the question of a corporation answering interrogatories. In Bank of Russian Trade Ltd v British Screen Productions Ltd [1930] 2 KB 90, Greer LJ said at 96 that a company is bound to answer interrogatories: …according to information and belief acquired or formed from personal knowledge or from information obtainable from others who are servants or agents of the party answering and have acquired the information in that capacity…

14 In that same case, Slesser LJ at 96-97, quoted Cotton LJ in Southwark Water Co v Quick (1878) 3 QBD 315 at 321: The directors of a company, in answering interrogatories, must not only answer as to their individual knowledge, but in answering for the company they must get such information as they can from other servants…who personally have conducted the transaction in question, and they cannot properly answer interrogatories by saying they know nothing about the matter, when it is in their power to obtain information from other servants of the company who may have personal knowledge of the facts.

15 Sheahan J also referred to the headnote in Stanfield Properties Ltd v National Westminster Bank plc [1983] 2 All ER 249, which stated that Sir Robert Megarry V-C held: A director, liquidator or other officer of a limited company who answers interrogatories administered to the company in the course of proceedings is under a duty to make all reasonable inquiries which are likely to, or may, reveal what is known to the company relevant to the interrogatories; for the question is not what is known to the individual, but what is known to the company.

16 Sheahan J then referred to Cole J's summary of the relevant principles applicable to interrogatories in Spedley Securities Ltd (In liq) v B R Yuill (No 4) (1991) 5 ACSR 758 at 762, where Cole J applied Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 at 111 and Smith Kline & French Laboratories Ltd v Inter-Continental Pharmaceuticals (Australia) Pty Ltd (1969) 123 CLR 514 at 518 and stated: The object of interrogatories is to discover the truth. It has also the advantage of saving expense. When inquiry is made as to a matter which is entirely within the knowledge of the defendant and not within the knowledge of the plaintiff, and is relevant to the case, I do not know of any rule why the defendant should not be interrogated about it.

17 I consider that in line with Sumitomo and Parker, including reliance on the cases where the administration of interrogatories to corporate bodies is approved, that interrogatories can be administered to a Council in relation to its collective "state of mind" but clearly care must be exercised in doing so. Given that the Court ordered that interrogatories be administered and the Council has answered these without dispute, the Applicant is entitled to seek to rely on them. In light of the Second Respondent's submissions in relation to answer 3(a) and the clarifying statements in the second affidavit of Mr Glen and considering Pt 24 r 10(2) I will only allow the tender of the three answers to interrogatories the Applicant wishes to rely on if the additional interrogatory response 3(a) and paragraph 2(a) and (b) in the affidavit of Mr Glen dated 28 April 2006 is also tendered.

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.

(1999) 110 LGERA 130

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