Elanor Investors Limited v Sydney Zoo Pty Limited

Consideration

The submissions from the Respondent is that on its construction of the Summons and Points of Claim, the categories of documents sought under the Subpoena and the Notice to Produce cannot be justified and is tantamount to a substitute for discovery.
Counsel for the Applicant put to me that the construction of the substantive proceedings put forward by the Respondent is not the Applicant's case. He made submissions about each paragraph in the Notice to Produce and Subpoena (T22.02.19 pp15-28, and the Applicant's submissions of 22 February 2019, pars 14-62) and I now go through each of these paragraphs in turn. 1. Paragraph 1 and 2 of the Notice to Produce (and Subpoena) "1 A copy of any marketing documents (including any brochures, advertisements, pamphlets, flyers, posters and the like) prepared by, or on behalf of, Australian Attractions for the Respondent promoting Sydney Zoo and/or Bungarribee Wildlife Park. 2 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between Australian Attractions and any day tour operators, inbound tour operators, international tour groups and travel agents in relation to the Marketing Material which is attached at Annexure A to the Summons."
The Applicant put to me that the marketing material being sought is evidence of whether or not the Respondent is indicating by that material that it is going to operate in breach of the Differentiation Obligations in the development consent. The Differentiation Obligations are expressly pleaded as individual grounds in the Summons and the Points of Claim (at paragraph 12). I consider the production of material under these paragraphs "will materially assist on an identified issue" in the proceedings and that it is "on the cards" that such material will be relevant". 1. Paragraph 3 of the Notice to Produce "3 A copy of any Aboriginal Heritage Experience Strategy (including all drafts) prepared by, or on behalf of, the Respondent for the purposes of condition C21 of Development Consent SSD7228 granted on 8 September 2017 for Sydney Zoo (Development Consent)."
The Applicant contends that paragraph 12(c) of the Points of Claim obliges the Respondent to offer encounters with Australian animals primarily occurring as part of an integrated Aboriginal cultural experience. The Applicant alleges that Sydney Zoo is not proposing to operate in accordance with that condition of consent. I consider production of this document would "throw light on the issues in the main case" and materially assist on this identified issue, namely the allegation of breach at paragraph 12(c) of the Points of Claim. 1. Paragraphs 4, 5 and 6 of the Notice to Produce (and 3 and 4 of the Subpoena) "4 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between the Respondent, or the Respondent's representatives, and the NSW Department of Planning and Environment since 8 September 2017 in relation to: (i) the type of facility proposed at Sydney Zoo (including any correspondence in relation to the proposed Bungarribee Wildlife Park); (ii) proposed pricing for Sydney Zoo; (iii) the type of Australian animal encounters proposed at Sydney Zoo; (iv) the amount and type of Australian species proposed at Sydney Zoo; (v) the amount and type of exotic species proposed at Sydney Zoo; and (vi) the status of Sydney Zoo's compliance with Condition 87 of the Development Consent. 5 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between the Respondent, or the Respondent's representatives, and any day tour operators, inbound tour operators, international tour groups and travel agents since 8 September 2017 in relation to: (i) the type of facility proposed at Sydney Zoo (including any correspondence in relation to the proposed Bungarribee Wildlife Park); (ii) proposed pricing for Sydney Zoo; (iii) the type of Australian animal encounters proposed at Sydney Zoo; (iv) the amount and type of Australian species proposed at Sydney Zoo; and (v) the amount and type of exotic species proposed at Sydney Zoo. 6 A copy .of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between the Respondent, or the Respondent's representatives, and Australian Attractions Pty Ltd since 8 September 2017 in relation to: (i) the type of facility proposed at Sydney Zoo (including any correspondence in relation to the proposed Bungarribee Wildlife Park); (ii) proposed pricing for Sydney Zoo; (iii) the type of Australian animal encounters proposed at Sydney Zoo; (iv) the amount and type of Australian species proposed at Sydney Zoo; and (v) the amount and type of exotic species proposed at Sydney Zoo."
The Applicant submitted that material sought in these paragraphs goes directly to the allegations made by the Applicant in clause 12 of the Points of Claim. As such, I consider the production of material in response to these paragraphs as materially assisting on an identified issue. 1. Paragraphs 7, 8, 9 and 10 of the Notice to Produce (and 5, 6, 7 and 8 of the Subpoena) "7 A list of the adult nett/trade rate being offered by, or on behalf of, the Respondent to day tour operators, inbound tour operators, international tour groups and travel agents as at the date of this Notice to Produce. 8 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the adult nett/trade rate being offered by, or on behalf of, the Respondent to day tour operators, inbound tour operators, international tour groups and travel agents as at the date of this Notice to Produce. 9 A list of any day tour operators, inbound tour operators, international tour groups and travel agents who have entered into any agreement with the Respondent in relation to trade rates for the period commencing 1 April 2019 at Sydney Zoo, together with the agreed trade rate for those operators, groups or agents (as applicable). 10 Any agreement, and any documents (including any letters, emails, file notes and minutes of meetings) relating to any agreement between any day tour operators, inbound tour operators, international tour groups and travel agents and the Respondent in relation to trade rates for the period commencing 1 April 2019 at Sydney Zoo, together with the agreed trade rate for those operators, groups or agents (as applicable)."
Paragraph 12(b) of the Points of Claim alleges that in breach of the conditions of consent. I consider production of this material to be relevant to paragraph 12(b) of the Points of Claim and "will materially assist on an identified issue" in the substantive proceedings. 1. Paragraphs 11 to 18 of the Notice to Produce "11 A list of the species of native animals that the Respondent proposes to exhibit at Sydney Zoo. 12 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the species of native animals that the Respondent proposes to exhibit at Sydney Zoo. 13 A list of the species of native animals that the Respondent has secured as at the date of this Notice to Produce to be exhibited at Sydney Zoo by 1 April 2019. 14 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the species of native animals that the Respondent has secured as at the date of this Notice to Produce to be exhibited at Sydney Zoo by 1 April 2019. 15 A list of the exotic species nominated in the Additional Information (as that term is defined in the Development Consent) that Sydney Zoo intends to have on display at opening. 16 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the exotic species nominated in the Additional Information (as that term is defined in the Development Consent) that Sydney Zoo intends to have on display at opening. 17 A list of the exotic species nominated in the Additional Information (as that term is defined in the Development Consent) that the Respondent has secured as at the date of this Notice to Produce to be exhibited at Sydney Zoo by 1 April 2019. 18 A copy of any documents (including any letters, emails, file notes and minutes of meetings) relating to the exotic species nominated in the Additional Information (as that term is defined in the Development Consent) that the Respondent has secured as at the date of this Notice to Produce to be exhibited at Sydney Zoo by 1 April 2019."
Paragraph 12(d) of the Points of Claim alleges that the Respondent will exceed the maximum number of native animals permitted at Sydney Zoo. Paragraph 12(e) of the Points of Claim alleges that the Respondent will not achieve the mandatory two-thirds exotic species requirement at opening. A list of those species is relevant to these two pleadings and will "materially assist on an identified issue". 1. Paragraph 19 of the Notice to Produce "19 A copy of the Table contained at pages 37 to 39 of Section 3.6 of the "Response to the Planning Assessment Commission's Request for Further Information" prepared by the Respondent dated April 2017."
Paragraph 12(e) of the Points of Claim alleges that the Respondent will not achieve the two-thirds exotic species requirement that is part of the Differentiation Obligations. That requirement flows from condition B7 of the development consent which requires Sydney Zoo to have at least two-thirds of the exotic species nominated in the Additional Information (as that term is defined in the development consent).
The exotic species nominated in the Additional Information is the 'Table contained at pages 37 to 39 of Section 3.6 of the "Response to the Planning Assessment Commission's Request for Further Information" prepared by the Respondent dated April 2017. As such, this material is relevant to an issue, pleaded at Paragraph 12(e) of the Points of Claim. 1. Paragraph 20 "20 The date on which Sydney Zoo intends to commence operations."
The date on which Sydney Zoo intends to commence operations will assist the Court in its determination of the allegation that there is a threatened or apprehended breach of the Differentiation Obligations in the development consent and, as such, "could possibly throw light on the issues in the main case".
I accept the explanations provided by the Applicant and the justifications advanced for seeking these documents and I accept that the principles outlined above (at [14]) have been satisfied.

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Judgment (7 paragraphs)

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