Elanor Investors Limited v Sydney Zoo Pty Limited

The Challenged Notice to Produce to Court and Subpoena

1. For completeness, I now set out the wording of the Notice to Produce and Subpoena presently before the Court: 1. The Applicant's Notice to Produce to Sydney Zoo "1 A copy of any marketing documents (including any brochures, advertisements, pamphlets, flyers, posters and the like) produced 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 the Respondent, or the Respondent's representatives, 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. 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).' 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; and (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. 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). 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. 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. 20 The date on which Sydney Zoo intends to commence operations." 1. The Applicant's Subpoena to Australian Attraction Pty Limited "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. 3 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between the Australian Attractions, or Australian Attraction'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. 4 A copy of any documents (including any letters, emails, file notes and minutes of meetings) in relation to communications between Australian Attractions Pty Ltd, or Australian Attraction's representatives and the Respondent and 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. 5 A list of the adult nett/trade rate being offered by, or on behalf of, Australian Attractions for the Respondent to day tour operators, inbound tour operators, international tour groups and travel agents as at the date of this Subpoena to Produce. 6 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, Australian Attractions for the Respondent to day tour operators, inbound tour operators, international tour groups and travel agents as at the date of this Subpoena to Produce. 7 A list of any day tour operators, inbound tour operators, international tour groups and travel agents who have entered into any agreement with Australian Attractions and/or 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). 8 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 with Australian Attractions and/or 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)."
2. The Subpoena contains 8 paragraphs which are largely the same as paragraphs 1, 2, 5, 6, 7, 8, 9 and 10 of the Notice to Produce. As such, the parties have relied on the same arguments for each of these corresponding paragraphs.

Applicable Principles for Notices to Produce to Court and Subpoenas

1. In relation to Notices to Produce to Court, rule 34.1 of the Uniform Civil Procedure Rules 2005 (UCPR) provides: (1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner: (a) at any hearing in the proceedings or before any such examiner, or (a1) at any time fixed by the court for the return of subpoenas, or (b) by leave of the court, at some other specified time, any specified document or thing. (2) The other party must comply with a notice to produce: (a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or (b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.
2. In relation to subpoenas to produce, rule 33.4 of the UCPR provides: (1) The Court may, on application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The Court may order that the Applicant give notice of the application to any other party or to any other person having a sufficient interest."
3. The Respondent relies on rule 33.4 of the UCPR which permits a party to apply to set aside a subpoena issued to a non-party: Commonwealth of Australia v Randwick City Council [2000] NSWLEC 171, at [43] to [48]; Port Macquarie-Hastings Council v Mansfield [2018] NSWLEC 107 at [11]).
4. Judicial consideration of the rules governing notices to produce to Court and subpoenas has been extensive. In Rinehart v Rinehart [2018] NSWSC 1102 at [43] to [54], Ward CJ in Eq reviewed the authorities. That decision has been applied by the Land and Environment Court in Gertos Holdings Pty Limited v Roads and Maritime Services [2018] NSWLEC 172 at [87] where his Honour Moore J extracted the applicable legal principles: 1. "As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: " ...it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will'; 2. Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]): "... the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise". 3. In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw Iight on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340. 4. More recently, Gleeson JA, in the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]); 5. Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA); 6. Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said: "A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. lf, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere 'fishing expedition';"
5. I rely on these principles in determining the present Notice of Motion.

Consideration

1. 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.
2. 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."
3. 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)."
4. 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."
5. 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)."
6. 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."
7. 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."
8. 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).
9. 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."
10. 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".
11. 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.

Conclusion and Orders

1. The Subpoena and Notice to Produce should be allowed to stand.
2. The orders of the Court are: 1. The Respondent's Notice of Motion filed on 21 January 2019 is dismissed. 2. Costs are reserved. 3. The proceedings are listed before the List Judge for further case management on 26 April 2019.

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: 17 April 2019