Elanor Investors Limited v Sydney Zoo Pty Limited

The present dispute

1. The paragraphs of the Notice to Produce that are disputed are: 2 All Documents concerning Rates for admission to Featherdale created in the period 1 July 2017 to date, including but not limited to: (a) consideration of the level of Rates (or potential Rates) for admission to Featherdale; (b) negotiations or communications with customers (or potential customers) as to Rates for admission to Featherdale; (c) the Rates being offered, or that might be offered, for admission to Featherdale; and/or (d) any potential response in Rates (or potential Rates) for admission to Featherdale having regard to Sydney Zoo. 3 All Documents recording or concerning communications between the Respondent (or its representatives) with any Operators from 1 July 2017 to date in relation to: (a) Rates (or potential Rates) for admission to Featherdale; (b) Sydney Zoo (including any marketing in respect of Sydney Zoo); (c) the product offerings of Featherdale or Sydney Zoo; (d) patronage or potential patronage of Featherdale; and/or (e) ceasing patronage or potentially ceasing patronage (in whole or in part) of Featherdale. … 5 All Documents concerning, or involving any consideration of, marketing by, or in respect of, Sydney Zoo. … 8 All documents concerning the preparation of (including input for, instructions in relation to the preparation of, drafts and comments on drafts) of the following documents: (a) the documents listed at paragraph 13 of Affidavit of Glenn Willis sworn on 21 December 2018; (b) the "Deloitte Report" referred to in paragraph 15 of Affidavit of Glenn Willis sworn on 21 December 2018; and (c) the report by Urbis referred to in paragraph 17 of Affidavit of Glenn Willis sworn on 21 December 2018. … 11 All financial reports or projections concerning revenue, expenses, profitability and/or value of Featherdale for the financial year ended 30 June 2016 and any other period from July 2015 to date.
2. The Applicant contends that the Notice to Produce requires production of documents that are not relevant. In addition, with respect to paragraph [3] of the Notice to Produce, the production sought is oppressive.

Principles relating to relevance

1. In order for a party to be entitled to require production of documents by Notice to Produce the documents must have some forensic relevance (commonly referred to as "adjectival relevance"). Such forensic relevance is distinct from evidentiary relevance in the sense that the threshold for determining forensic relevance is much lower than the threshold for evidentiary relevance. Therefore, it is not appropriate to consider whether the material sought could be admitted in the proceedings (evidentiary relevance), but rather, whether the documents may reasonably assist (or such other formulations of words referred to below) with respect to the issues in the proceedings (forensic relevance).
2. This concept of forensic relevance has been the subject of judicial consideration, including recently by Ward CJ in Eq in Rinehart v Rinehart [2018] NSWSC 1102. For the purposes of determining whether there is forensic relevance for the documents sought I adopt the principles as outlined in Rinehart (as did Pain J in Elanor Investors Limited v Sydney Zoo Pty Limited (No. 2) [2019] NSWLEC 121 at [42]) that provides at [43]-[51]: [43] 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. [44] 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. [45] 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 light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306). [46] More recently, Gleeson JA, in 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]). [47] 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) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), 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). [48] 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. If, 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". Where the objection to a subpoena is that it is a misuse of the process of the Court for the purpose of discovery, what is usually meant is that it is an abuse of process to require a person not a party to litigation to form a judgment as to what is relevant to the issues joined in a proceeding to which he is not a party: National Employers' Mutual Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at p 382. It does not follow that a subpoena, issued in circumstances where the person requesting its issue is uncertain whether any documents exist which fall within the description in the subpoena, that description being otherwise precise, will be bad… [51] It is well recognised that a subpoena may be set aside as an abuse of process where it is used as a substitute for discovery or discovery against a third party (see Associated Dominions Assurance; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed)).

Principles relating to oppression

1. If documents have been established to be of forensic relevance the requirement for the production of those documents may be struck out if the production is too onerous such that it is oppressive. As was observed in Rinehart at [49]-[50]: [49] Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena is oppressive and/or constitutes "fishing". [50] In Universal Press Pty Limited v Provest Limited [1989] FCA 402, Hill J stated (at [9]-[10]): Like Clark J, as his Honour then was, in Southern Pacific Hotel Inc v Southern Pacific Hotel Corporation (1984) 1 NSWLR 710 at p 717, I am of the view that there are two separate grounds for setting aside a subpoena that are often confused. The first, to which I have already referred, is the ground that the subpoena is so widely framed as to be burdensome and oppressive and therefore an abuse of process. The second, often linked with the first, is that the subpoena requires the addressee, being a third party to the litigation, to produce all documents which may afford evidence of the matters in dispute between the parties, is thus used as a way of obtaining discovery against a person not party to the litigation and so should be set aside (cf Small's case supra).
2. Such principles were also identified in Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90, in the following terms at 102-103: The general test for present purposes is well settled. The issue of a subpoena will be an abuse of process if it is not used for a legitimate forensic purpose ……. But, as Deane and Gaudron JJ observed in Hamilton v Oades (1989) 85 ALR 1 at 11, the court's general powers in this area have a dual aspect: "The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice …[This] power … is not restricted to defined and closed categories … In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms 'oppressive' and 'vexatious' are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in an appropriate context, the meaning that the proceedings are 'seriously and unfairly burdensome, prejudicial or damaging' and 'productive of serious and unjustified trouble and harassment': Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 62 ALJR 389 per Deane J at 411; 79 ALR 9 at 45." In other words, the present inquiry is not limited to an analysis of the true purpose of Arnotts in procuring the issue of the subpoena. It is also material to look at the impact of the subpoena upon Mattingly. Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions: (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of Arnotts. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of Mattingly.

Applicant's submissions

1. With respect to each of the paragraphs in dispute the Applicant submitted that each of the disputed paragraphs should be struck out as the documents requested do not serve a legitimate forensic purpose as described in Rinehart as the classes of documents go well beyond the scope of the issues in dispute. Further, there is no possible connection between the documents sought and the issues in dispute. The Applicant described the issues in dispute as they relate to the documents sought as effectively being: whether the Respondent has not complied or is threatening not to comply with the differentiation requirement having regard, in particular, to the Respondent's marketing material.
2. It was further contended that the Court would, in the context of general case management principles, decline to permit the Respondent to serve a Notice to Produce at such a late stage of the proceedings, when the Applicant has filed all of its evidence many months ago and the Respondent is now in breach of the Court's directions for the service of evidence.
3. An additional submission was made with respect to disputed paragraph [3] of the Notice to Produce. The evidence of Mr Chiefari attested that the scope of the request in this paragraph required almost every document produced by its marketing department to be examined in order to identify a very broad scope of documents. It noted that the particulars in (a)-(e) of the paragraph do not limit the scope of the category but reinforce its breadth. It is said that it will take three employees 38 hours per week each for four weeks to collate this material. On these bases it is said that the paragraph is excessive and oppressive.

Respondent's submissions

1. The Respondent contended that the Applicant had adduced evidence in support of the proceedings which called into question: 1. The viability of the Applicant's wildlife park in the event of non-compliance with the differentiation provisions. For example, the affidavit of Mr Chiefari sworn 21 December 2018 at [36] where he deposes: If Featherdale had to offer a trade rate of $12 it is likely to adversely impact the commercial feasibility of Featherdale, and its ability to maintain programs which have significant social, educational, employment and conservation benefit. 1. The scope and range of conversations with third party tour providers - of which only a limited number of those conversations were deposed to in detail in the affidavits of Ms Zhai and Ms Kim. It submitted, therefore, that it was entitled to consider what other material evidencing these conversations were available. 2. Marketing strategies generally and in particular that used by Featherdale and Sydney Zoo are the subject of affidavit evidence of (in particular) Ms Sara Ang sworn 21 December 2018 wherein she attests as to her understanding of market response and understanding of certain marketing strategies. 3. The capacity of the Applicant financially to continue to provide community works and the like in the event that the Respondent did not comply with the differentiation provisions: Affidavit of Glenn Willis sworn 21 December 2019 where it is asserted at [18]: If the New Zoo does not comply with the differentiation obligations required by the Development Consent so that the new facilities are differentiated and complimentary, it is likely that this will have a material impact on visitor numbers to Featherdale and on the ability of Featherdale to maintain programs which have material positive environmental and social benefits. 1. The reliance of the Applicant of reports prepared by experts, that are not tendered in these proceedings as expert evidence (the authors of which who have not sworn affidavits in the proceedings) to evidence financial and socio-economic impact: Affidavit of Glenn Willis sworn 21 December 2019 [15]-[17]. It was also contended that as the Applicant in Exhibit 2 had represented to the Registrar that the two expert reports were the only evidence capable of meeting the description of documents concerning the value, financial position of viability or profitability of Featherdale as was required to be produced to answer paragraph [10] of the Notice to Produce the Respondent was entitled to the material that were the foundation for the opinions expressed in the reports.
2. Further, to the extent that the Applicant contended that a base price above the Applicant's ticketing pricing was asserted to be required by the condition of the Development Consent the Respondent was entitled to know how and in what manner the Applicant's ticket pricing was determined and what responses it would or could make in the event of lower ticket prices for the Sydney Zoo.
3. The Applicant also sought to emphasize that the Notice to Produce was drafted similarly to the Notice to Produce issued by the Applicant to the Respondent. As the Respondent was required by Pain J in Elanor (No. 2) to produce large amounts of documents (which was opposed by them) the Applicant should be required to do the same.
4. In reliance upon the WA Supreme Court decision of Van Duren v Hammond and Roberts Pty Ltd [2017] WASC 308 it was also submitted that the following principles should be borne in mind: Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceeding: at [29(2)]; Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination: Apache Northwest Pty Ltd v Western Power Corporation [1998] WASCA 127; (1998) 19 WAR 350, 374; Stanley v Layne Christensen Co [2004] WASCA 50 [9]; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [18].: at [32] Ultimately the relevance of the documents produced will be a question for determination at the trial. It is not appropriate for the court to embark on a detailed preliminary enquiry involving evidence from the party seeking to issue the subpoenas and the recipient of the subpoenas: Apache Northwest Pty Ltd (379).: at [32]
5. It was submitted that bearing these principles required a recognition that the threshold for relevance was extremely low such that I should not embark upon any detailed analysis of the relevance of the material having regard to the prospect that any finding of the material having no forensic relevance would be "rare".
6. With respect to the assertion that paragraph [3] of the Notice to Produce was oppressive such evidence should not be accepted as it does not identify with particularity why the staff would be required to interrogate the documents (that could be left to others) and it was capable of being achieved by identifying appropriate "key words" and searching the documents that responded to such key words.

Findings

1. Both parties agreed that whilst the Notice to Produce sought to strike out the whole of the nominated paragraphs it was within my discretion to retain parts or vary parts of the paragraphs where such variations were justified on a proper application of the principles to the facts of this case.
2. Whilst the pleadings in this matter do indicate quite a narrow scope of challenge as described by the Applicant in its submissions in this case the evidence that has been served to prove that case does go beyond the confined scope as described. It is, I accept, inappropriate for the Court at this stage to determine whether that evidence will be relied upon or admitted at the trial, rather, for present purposes the evidence serves to delineate the boundaries of the Applicant's intended case and what it contends will be relevant to the determination of the issues in dispute. On this basis, notwithstanding the limited scope of the pleadings, I accept that the Respondent is entitled to interrogate the possible material that may be "on the cards" relevant to that evidence. That being said, I do not accept the submission of the Respondent that the threshold for relevance in cases such as this are so low such that there should be no (or very little) consideration of relevance. The necessary considerations are those set out above in Rinehart and whilst the threshold is low for the determination of relevance such requested documents must be established to meet that low threshold.
3. Applying the principles in Rinehart below I find that the Respondent is entitled to some of the documents it has requested.
4. Paragraph [2] of the Notice to Produce is well beyond even a low threshold of relevance. I consider that the use of the term "concerning" in the preamble to the particularised paragraphs renders the request too broad, such that it is likely to extend well beyond the issues in these proceedings. Additionally, the period of time requested for the documents seems to have no real connection to a period of time in which the Respondent's zoo could have had an impact. The issue of the Applicant's rates has been made relevant both by the condition of the Development Consent and the Applicant's pleadings and evidence such that I consider (with some modification) the Respondent is entitled to require production of the documents in 2. The balance of paragraph [2] seeks material that underlies those rates or material that relates potentially to matters that has no connection to the actual rates offered. I therefore find that those sub paragraphs are not relevant in that it cannot be said that such material could be said to be "on the cards" as being relevant to an issue in the proceedings. I therefore find that paragraph [2] of the Notice to Produce should be amended to reflect the following drafting: 2. All Documents concerning that evidence the Rates for admission to Featherdale created in during the period 1 July 20187 to date, including but not limited to: (a) consideration of the level of Rates (or potential Rates) for admission to Featherdale; (b) negotiations or communications with customers (or potential customers) as to Rates for admission to Featherdale; (c) the Rates being offered, or that might be offered, for admission to Featherdale; and or (d) any potential response in Rates (or potential Rates) for admission to Featherdale having regard to Sydney Zoo.
5. As to paragraph [3] of the Notice to Produce, I make the same findings as I did with respect to paragraph [2] as it relates to the preamble words and paragraph 3. I note that the amended paragraph [2] will address this request and therefore it is inappropriate that it be repeated here. As to subparagraphs (c) and (d) I find that conversations with third party operators as to the produce offerings or patronage are not remotely relevant to the case as pleaded or the evidence adduced even on the low threshold I am required to apply and therefore strike those sub paragraphs.
6. I allow subparagraphs 3 and (e) with some modifications as such documents directly respond to the evidence adduced by the Applicant with respect to the risks to its business and the market response to the Respondent's marketing.
7. I therefore find that paragraph [3] of the Notice to Produce should be amended as follows: All Documents recording or concerning communications between the Respondent Applicant (or its representatives) with any Operators from 1 July 20187 to date in relation to: a) Rates (or potential Rates) for admission to Featherdale; b) Sydney Zoo (including any marketing in respect of Sydney Zoo); c) the product offerings of Featherdale or Sydney Zoo; d) patronage or potential patronage of Featherdale; and/or e)c) ceasing patronage or potentially ceasing patronage (in whole or in part) of Featherdale due to the opening or potential opening of Sydney Zoo.
8. As to the claim for oppression as it relates to paragraph [3], I accept that the original drafting of the claim in the paragraph was extremely broad and was tantamount to discovery. The use of the phrase "recording or concerning communications" requires an assessment of every document to determine not only if it records communications but whether it concerns communications that have been had. Further, I accept the evidence of Mr Chiefari as to the estimate of time and in light of the peripheral relevance such material could have I accept that the request is oppressive. However, I do find that the Respondent is entitled to production of a more limited class of such documents and with the amendment to this paragraph as outlined above the requirement will not be so oppressive that I would not require the production of the more limited class of documents.
9. Paragraph [5] of the Notice to Produce seeks internal considerations of the Marketing of Sydney Zoo. There appears to be no issue identified to which these documents could possibly relate. Whilst the marketing is relevant, the relevance relates to the perception in the market place not in the offices of the Applicant. Even in so far as the Applicant's marketing staff have sworn affidavits as to their opinions on the marketing such evidence does not raise for relevant consideration of what the Applicant thought about the Sydney Zoo marketing - which is in effect what this paragraph requires. I am not persuaded that such considerations by the internal personnel of the Applicant is relevant to the case as pleaded or the evidence adduced even on the low threshold I am required to apply and therefore strike out that paragraph.
10. As to Paragraph [8] of the Notice to Produce, I accept the submissions of the Applicant that as the report has not been tendered as expert evidence in the proceedings, but rather is produced as the material that formed the Applicant's submission that was considered by the PAC in the determination of the Development Application, the material requested is not relevant to an issue in the proceedings. The affidavit evidence that refers to (and attached those reports) does not expand the issues in the case such that the material that underlies the reports could be relevant to an issue in the proceedings.
11. Further, to the extent that the reports were produced in response to paragraph [10] of the Notice to Produce I accept the Applicant's submission that complying with a request to produce the documents does not elevate them to becoming expert evidence in the proceedings, or alter the manner in which they have been sought to be utilised in the Applicant's evidence. For those reasons I strike out paragraph [8].
12. As to paragraph [11], I accept the Respondent's submission that the Applicant has, through the evidence it has served, raised the issue of the viability of both Featherdale generally and its associated programs and initiatives. As a result the Respondent is entitled to production of documents that relates to that evidence. To ensure that it relates to the relevant material I will allow paragraph [11] in the form amended below: 11. All annual and half yearly financial reports and or projections concerning revenue, expenses, profitability and/or value of Featherdale for the financial year ended 30 June 2016 and any other period from July 2015 to date.

Orders

1. For the reasons above the Court Orders that: 1. The Applicant's Notice of Motion dated 11 November 2019 is upheld in part; 2. Paragraphs 5 and 8 of the Notice to Produce dated 11 October 2019 are struck out; 3. Paragraphs 2, 3 and 11 are to be amended to read: (2) All Documents that evidence the Rates for admission to Featherdale during the period 1 July 2018 to date,: (3) All Documents recording communications between the Applicant (or its representatives) with any Operators from 1 July 2018 to date in relation to: (a) Sydney Zoo (including any marketing in respect of Sydney Zoo); (b) ceasing patronage or potentially ceasing patronage (in whole or in part) of Featherdale due to the opening or potential opening of Sydney Zoo. (11) All annual and half yearly financial reports and projections concerning revenue of Featherdale for the financial year ended 30 June 2016 and any other period from July 2015 to date. 1. Costs are reserved; 2. The Motion is otherwise dismissed; 3. The exhibits are returned.

Amendments 04 March 2020 - Name of case updated to include 'No 4'. 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: 04 March 2020