Eodo Pty Ltd v Blue Mountains City Council & Ors

Land and Environment Court (NSW)|2001-06-01|Before: Sheahan J, Mr J

The applicant having called upon its subpoenas in the class 4 proceedings on Tuesday last, the Registrar referred the three respondents' Notices of Motion to me, as Duty Judge, for immediate hearing.

The First Respondent suggests that appropriate directions should be given for particulars, Points of Claim, affidavits, Points of Defence and discovery, and that the subpoenas should be set aside.

The Second and Third Respondents agree that the subpoenas should be set aside, but suggest, as an alternative, that the class 4 proceedings, subpoenas and Notices of Motion should all be now stood over until the class 1 proceedings have been finalised.

For reasons beyond the control of the parties, the court will not be able to conclude the part-heard class 1 proceedings until after I return to duty in the court on or after 17 August 2001. The applicant has every right to challenge, in class 4 of the court's jurisdiction, the making of LEP 25, and it is not necessary that those proceedings be heard by the same Judge as the class 1 proceedings. In all the circumstances, it would not be appropriate to make the alternative order suggested by the Second and Third Respondents.

I turn, therefore, to the question of whether or not the subpoenas should be set aside, as all three respondents submit.

Mr Simpson, for the applicant, points out that probably all documents relevant to the question in the class 4 proceedings are in the hands of the respondents, that probably none of those documents are in the hands of his clients, and that, apart from the comment in par 19 thereof, the Practice Direction is silent on when subpoenas may properly be issued.

Ms Fitzhardinge, for the Second and Third Respondents, argues that public sector parties, like the Minister and the Director General, should, in such matters, be treated no differently from private parties, and that the applicant can obtain its evidence by other means in the ordinary course.

Mr McKenzie, for the First Respondent, argues that the subpoenas are "premature", and are designed to go "fishing" for evidence to found a case against the validity of the LEP. Subpoenas should not be issued until after discovery, when the trial of the issues, suitably "narrowed" by the court's usual pre-trial procedures, is "in prospect", and the "relevant evidence" can be identified defined and properly sought. Issuing these subpoenas, in their current form, at this very early stage, is an abuse of the court's "salutary procedure" - it is done for an "ulterior" purpose (i.e. "fishing"), and they are "both too wide and too early", and should be set aside.

The leading NSW authority, to which reference is frequently made in cases like this, is Commissioner for Railways v Small (1938) 38 S.R.564, in which Jordan CJ traced the relevant history of writs of subpoena, and restated the need for "particularity" as to the documents required to be produced. He noted the obligations of parties (c.f. strangers) to give discovery, and criticised "fishing" which he defined (at 575) as "endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all".

Jordan CJ's comments were adopted and applied in this court, for example, in Talbot J's judgment of 7 August 2000 in Commonwealth of Australia v Randwick Council [2000] NSWLEC 171 (at pars 23 and 26).

Mr Simpson referred the court to the judgment of Moffitt P in Waind v Hill & Anor [1978] 1 NSWLR 377. Moffitt P discussed Small and other authorities at length, but I can find, in his judgment, nothing to support the applicant's position; indeed (at 382) there are comments which refute it.

In this case it is clearly arguable that all the documents listed in the schedule to the subpoenas could well prove to be relevant to the question of the plan's validity, so I will not prejudge the subpoenas on the basis of their "width". However, a conclusion that they are part of "a fishing exercise" is virtually inevitable, as they have been issued when the only substantive document in the court file is the class 4 application. In the discovery process the parties must decide what documents they possess are relevantly related to an issue taken in the proceedings (Talbot J par 35), but the issues in this matter are yet to be defined, and it is not appropriate to subpoena any documents until they are.

I have concluded that this litigation should be allowed to follow the usual course envisaged by the Practice Direction. With that in view, the court orders: (i) the subpoenas for production issued by the applicant to the First, Second and Third Respondents, on 16-17 May 2001, in the terms referred to in par 1 of this judgment, are set aside. (ii) the class 4 proceedings will be listed for callover by the Registrar next Wednesday 6 June 2001, with a view to her giving the parties appropriate directions to progress them. (iii) The applicant will pay the costs of all three Respondents in respect of their Notices of Motion dated 25 May 2001.

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.

CITATION : Eodo Pty Ltd v Blue Mountains City Council & Ors [2001] NSWLEC 106 APPLICANT Eodo Pty Ltd FIRST RESPONDENT PARTIES : Blue Mountains City Council SECOND RESPONDENT The Minister for Urban Affairs and Planning THIRD RESPONDENT The Director-General of Urban Affairs and Planning FILE NUMBER(S) : 40076 of 2001 CORAM: Sheahan J KEY ISSUES: Practice & Procedure :- subpoenas LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Cecil D Barker & Co v Blue Mountains City Council (10915 of 2000) part-heard; CASES CITED: Commissioner for Railways v Small (1938) 38 S.R. 564; Commonwealth of Australia v Randwick Council [2000] NSWLEC 171; Waind v Hill & Anor [1978] 1 NSWLR 377 DATES OF HEARING: 29/05/2001 DATE OF JUDGMENT: 06/01/2001

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