Jacfin Pty Ltd v TransGrid

The Notice to Produce 3The primary order sought by TransGrid is for production by Jacfin of a category of documents. That category of documents was originally described in a Notice to Produce dated 5 June 2013. The Notice required production of documents by 20 June 2013. 4The description of documents required was amended by letter from TransGrid's solicitors dated 3 July 2013. The amendment then made reduced by two years the period to which the documents sought related. In its amended form, the documents required to be produced are described in the following way: "All correspondence, diary notes, minutes of meetings and other Documents created between 1 July 2009 and 24 October 2011 (inclusive) evidencing communications between Jacfin Pty Limited and JBAPlanning or between Jacfin Pty Limited and any other consultants engaged by or on behalf of Jacfin Pty Limited in relation to any prospect of development of Lot 12 in DP 1157491."

Background 5Jacfin was the owner of a parcel of land at Ropes Creek in Western Sydney. That parcel of land comprised Lots 12 and 15 in DP 1157491. A portion of Lot 12 that became Lot 120 in DP 1175762 was compulsorily acquired by TransGrid on 5 October 2012. At the same time, TransGrid also acquired an easement for energy transmission across the south-eastern corner of Lot 121 in the latter DP, that being the residue of the former Lot 12 after acquisition of Lot 120. 6In January 2010 Jacfin engaged JBA Urban Planning Consultants Pty Limited to advise upon the development of its landholding at Ropes Creek, including Lot 12, and to prepare an application for concept plan approval and project approval under the provisions of Pt 3A (since repealed) of the Environmental Planning and Assessment Act 1979 (the EPA Act). Applications under that Part were lodged with the Director-General of the Department of Planning on 6 August 2010 (s 75E(3)) 7The concept plan was for both earthworks and development of the land as an industrial park comprising warehouses, distribution centres and light industries, the provision of a regional road together with internal roads and associated infrastructure. The project approval sought was for Stage 1 of development contemplated by the concept plan and was for the development of two warehousing and distribution buildings, access roads, subdivision and installation of services. 8Approvals were granted by the Minister for both the concept plan (s 75O(1)) and Stage 1 of the project (s 75J(1)) on 24 October 2011, that is, almost 12 months prior to the date of compulsory acquisition of Lot 120 and an easement over the south-eastern corner of the residue land retained by Jacfin. The land acquired by TransGrid affected the land that was the subject of the Stage 1 project approval.

The evidence 9The evidence relied upon by TransGrid in support of its motion for production of documents is within a narrow compass. In short, it relies upon passages from two expert reports and an expert affidavit filed in the principal proceedings in accordance with directions given in that regard by the Court. It also relies upon a Schedule of Disturbance Losses under s 59(a)-(e) of the Compensation Act, again being a document filed in accordance with the Court's directions in the principal proceedings. 10The expert report relied upon is that prepared by Julie Bindon, a consultant town planner and director of JBA Urban Planning Consultants Pty Limited, filed on behalf of Jacfin together with the report of Garth McKenzie, a consultant town planner and principal of McKenzie Land Planning Services, a report filed on behalf of TransGrid. Although each of these reports are lengthy documents, in substance, each planner indicates the advice that would be given as to the highest and best use of the acquired land at the date of compulsory acquisition. 11While there would appear to be agreement between the planners that ultimate use of both the acquired land and the residue land would be for an industrial purpose in accordance with its current industrial zoning, the reports prepared by the respective planners demonstrate disagreement as to the appropriateness of the design and layout of development identified in the concept plan approval given by the Minister. The reports also indicate disagreement as to both the timing and staging of the development in accordance with that approval. 12In section 5 of Ms Bindon's report she opines as to the highest and best use of the land at the date of acquisition as being an industrial use conformably with the zoning of the land at that date under State Environmental Planning Policy (Western Sydney Employment Area) 2009. Under that instrument the land (at least as relevant to the acquisition) was zoned as IN1 General Industrial. She identified the form and manner of that use as being "clarified, and confirmed, by the approvals granted by the Minister's delegate on 24 October 2011", being the Pt 3A approvals to which I have earlier referred. She also contended that staging of the development, given the need for appropriate infrastructure, to be generally in accordance with the staging identified in the concept plan approval. 13Mr McKenzie states in his report that at the date of acquisition of the land by TransGrid, there was "no immediate or short-term development potential" for that land. The land was then used for cattle grazing. It is his position that the land that is the subject of the concept plan approval would remain undeveloped until a number of infrastructure works had been completed. This opinion also appears to impact upon the staging of the project, rendering it inappropriate to implement the concept plan approval granted by the Minister. Ultimately he opines (at [151]) as to the form and nature of industrial development that he would advise would be appropriate. Development in the form contemplated by him does not accord with the form or layout of development for which approval has been obtained by Jacfin from the Minister. 14As will become apparent, the issue between the planners in this regard is said to found a basis for production of the documents sought by TransGrid. 15The second piece of evidence relied upon by TransGrid in support of its present motion is a letter annexed to an affidavit of Mark Tooker sworn 16 August 2013 and filed on behalf of Jacfin. Mr Tooker is a civil engineer who has been a consultant to Jacfin for 14 years. The letter relied upon is a letter dated 7 May 2010 from Mr Tooker to Jacfin in which he provides advice to the company as to the appropriate development for lands owned by Jacfin in Western Sydney, including the land at Ropes Creek. 16The letter of 7 May is said to reflect the kind of advice that TransGrid anticipates may have been provided by other consultants in relation to development of Jacfin's land. As a consequence TransGrid has sought production of documents described in the form earlier identified from any other consultants retained by Jacfin. 17The final piece of evidence relied upon by TransGrid is Jacfin's Schedule of Disturbance Losses filed in accordance with the Court's directions. That Schedule indicates that for disturbance claims referable to s 59(a)-(e) of the Compensation Act, the aggregate sum sought is $498,895.48. Within that sum, are substantial fees claimed for payments made to JBA Planning and also to a number of engineering consultants. The manner in which this evidence is said to be material to TransGrid's present application will be addressed shortly. 18For its part, the evidence relied upon by Jacfin is an affidavit of its solicitor, John Cooper, sworn 14 October 2013. Relevantly, Mr Cooper deposes to the time, expense and inconvenience that would be occasioned in attempting to comply with the requirement to produce the documents that TransGrid has sought. He identifies the number of employees needed to search emails over a period of two years; the fact that documents sought are not all in the possession of Jacfin, necessitating enquiry of about eight or nine consultants as well as enquiry from the solicitors formerly retained by Jacfin. There would then be a need to scrutinise documents to determine whether inspection should be withheld on the basis that a document is a privileged communication.

The principle 19The principle by which TransGrid's application should be determined is not seriously in dispute. As I have indicated, TransGrid's motion seeks production of documents by reference to a notice to produce earlier served upon Jacfin. An order for production of a category of documents would not ordinarily be made if the category of documents sought would be liable to be set aside when expressed in that form in a notice to produce or a subpoena. As a consequence, TransGrid must demonstrate that the documents sought will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely the documents will assist on such an issue (Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 at [32] - [38] and the cases there cited). 20Given that the substance of the application made by TransGrid is by reference to a notice to produce given pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 21.10, consideration of the terms of that rule is relevant. Subrule (1) of the rule enables a notice to be issued requiring production of documents that fall into two broad categories. That category of documents identified in paragraph (b) of the subrule is relied upon by TransGrid. It enables a notice to issue for "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue." 21Also to be noticed by reference to the rule addressing notices to produce before hearing are the provisions of r 21.9(2), identifying those documents that are taken to be "relevant to a fact in issue". Expressly excluded by reference to the subrule are documents "relating solely to the credibility of a witness".

Consideration 22There are four bases upon which TransGrid contends that it is entitled to have the documents produced that it seeks from Jacfin.

Weight to be given to Ministerial approvals 23First, it submits that the documents are relevant to assess the weight to be given to the approvals granted by the Minister in 2011 under Pt 3A of the EPA Act. As I understand the submission, the highest and best use of the land in question is in contest between the planners, it being contended by TransGrid that the fact of those approvals having been granted does not demonstrate the highest and best use of the land at the date of acquisition. This, in turn, raises the issue as to whether the layout, timing and staging of development reflected in those approvals is consistent with the highest and best use. 24TransGrid apprehends that the Court will be urged to infer that the development that was the subject of the Ministerial approvals would determine the highest and best use. It submits that this is the case because it could be assumed that Jacfin acted rationally in pursuing the form of development that it did. TransGrid will be seeking to have an inference drawn that the form of development proposed and the timing of the application to the Minister were made in full knowledge of the proposed acquisition and made with a view to maximising the compensation to which it may ultimately be entitled rather than achieving the highest and best use of the land. Thus, so it is submitted, the Court should not be left to decide these competing inferences on the basis of speculation and that the documents passing between Ms Bindon or other engineering consultants and Jacfin prior to submission of the applications to the Minister may illuminate this issue. 25I do not accept this submission. As earlier identified, the question to be considered by the Court, as a step in determining the market value of the land as required by s 55(a) of the Compensation Act, will be the advice that would be given to a hypothetical purchaser as to the highest and best use of the land in question at the date of acquisition. Whether, at that date, development in accordance with the approvals granted in 2011 was likely to be implemented immediately, deferred for a number of years or not implemented at all, at least in the form identified in the approvals, are matters that no doubt will be agitated in evidence at the hearing. However, the determination of those matters cannot relevantly be informed by an understanding of private correspondence passing between Jacfin and Ms Bindon or other consultants prior to the Pt 3A applications being lodged with the Director-General or even after the grant of approvals just prior to the date of acquisition by TransGrid. Further, the motivation of Jacfin, assuming it was conveyed in some document addressed to Ms Bindon (the existence of which can only be the subject of speculation), is also irrelevant to the issue that arises when determining the highest and best use of the land. 26In advancing this submission, TransGrid referred to a passage in Ms Bindon's report in which she stated that she had been involved in the planning of the Jacfin land at Ropes Creek since January 2010 when her company "was approached by Jacfin for planning advice" and to prepare the applications subsequently made to the Minister under Pt 3A. That statement, so it was submitted on behalf of TransGrid, demonstrated a foundation for production of the documents sought on the basis that it was entitled to have the advice then given to Jacfin. That advice may have identified proposals for development that differed from that ultimately expressed in the applications submitted to the Minister. Whether that advice was in writing and whether it reflected the matters to which the submission adverted were unknown. 27The context in which Ms Bindon identified her prior involvement needs to be understood. It was at the commencement of her report wherein she was identifying compliance with the Expert Witness Practice Direction as well as the direction given to experts in the Court's Practice Notes dealing with Class 3 Compensation Claims. In the paragraph of her report immediately preceding that upon which reliance is placed, Ms Bindon has identified the documents which she had taken into consideration when preparing that report. That list does not identify any document falling within the category of documents that are the subject of the present motion. Moreover, I am told that each of these documents so identified have been provided to TransGrid. 28Paragraph 53 of the Court's Practice Note requires that an expert witness identify any pre-existing relationship between that witness and the party to the litigation. Disclosure in accordance with that requirement does not provide a foundation for production of the documents sought. Having regard to the terms and context of the statement to which reference is made, there is no basis beyond speculation that Ms Bindon might have given inconsistent advice to Jacfin. In any event, for reasons earlier indicated, a document which could only be relevant to challenge the credibility of a witness should not be made the subject of an order which, in substance, seeks to enforce compliance with a notice to produce. 29The weight to be given to the approvals granted by the Minister cannot rationally be addressed by a detailed search of correspondence passing between an applicant seeking those approvals and the consultants who prepared the application on behalf of the client. I reject this ground as a basis for requiring production of the documents sought.

The Tooker letter of advice 30I have earlier identified the letter from Mr Tooker to Jacfin dated 7 May 2010. The letter contains advice as to the appropriate form of development of Jacfin's land. As the letter does not, in terms, identify any request for the advice given, the argument on behalf of TransGrid seems to be that it should be entitled to inspect the request for advice, assuming it to be in writing, and as well should be provided with any other advice that Jacfin received from any other consultant as to the appropriate means of developing the land. Jacfin is not entitled, so it is submitted, to be selective in tendering the pre-approval advice it received. 31The letter of 7 May does not address any issue of staging, said by TransGrid to be an important issue between the parties, nor does it identify any other document that was considered by Mr Tooker. There can only be speculation on the part of TransGrid that either there was a written instruction to Mr Tooker requesting the advice or that some other document by way of advice was received from another consultant. The request for documents passing between Jacfin and Mr Tooker or other consultants does not seem to me to meet the threshold test of documents relevant to a fact in issue. I have already referred to the manner in which the question of highest and best use may be debated in the context of this case. The documents sought cannot be relevant to that issue. 32Once again, those documents sought, assuming they exist, could only be relevant to credit and an order to produce them on that basis will not be made. 33I reject this ground as a basis for requiring the production of the documents sought.

Relevance of documents to s 56(1) of the Compensation Act 34The third basis upon which TransGrid seeks to sustain an order for production of the documents is their potential relevance to the application of s 56 of the Compensation Act. As I understand the submission it involves these steps: (i)the proposal by TransGrid to acquire land for its statutory purpose was made known to the applicant by early 2010, if not before; (ii)the knowledge of a proposed acquisition caused Jacfin, through its consultant, to make the Pt 3A application when it did and in the form that it did; (iii)the approval of the application in October 2011 by the Minister in the form proposed by Jacfin affected the value of both the acquired land and the residue land; (iv)the extent to which that value was so affected must be disregarded, having regard to the provisions of s 56(1)(b) of the Compensation Act. The documents sought are therefore relevant to determine whether the applicant was motivated to design the development that it did so as to enhance the value of its land, having regard to the intended acquisition by TransGrid. 35Correspondence concerning the proposed acquisition by TransGrid was received by or on behalf of Jacfin in 2009. However, no legal requirement is imposed upon a landowner to stall any development proposal for land simply because a public authority signals an intention to acquire some part of that land at some time in the future, particularly when the area to be taken is left uncertain. This being so, knowledge of a foreshadowed acquisition cannot be a basis to require production of the documents sought. 36In making its submissions under this head, Transgrid identified no case in this Court or any other court upon which there has been identified support for the proposition that it advances. The circumstance in which the "disregard" required under s 56(1) of the Compensation Act has been addressed are cases involving actions by the acquiring authority itself or some other public authority acting at the behest of the acquiring authority, involving actions affecting the manner in which the land may be used prior to its acquisition for a public purpose. 37No case has been identified in which the conduct of a private individual is seen to engage the provisions of the section. Moreover, it is not suggested that the Minister, in granting the approval that he did in October 2011, did so in a way which sought to affect the purpose for which TransGrid proposed to carry out its public purpose. 38More particularly, in a letter dated 20 December 2010 from TransGrid to the Department of Planning, sent as a result of the public notification of Jacfin's applications for approvals under Pt 3A, indicated its intention to acquire some part of the land then being considered. Nonetheless the Minister granted consent in the face of that submission. Importantly, the letter indicates that the precise area of land intended to be acquired by TransGrid for its statutory purpose was not settled. 39It was not until 6 June 2012 that a proposed acquisition notice was given to Jacfin under the provisions of the Compensation Act, identifying the land ultimately acquired. That notice was given some eight months after the Minister's approval had been granted. No basis is therefore made out for production of the documents sought on the ground that they are potentially relevant to a "disregard" under s 56(1).

Disturbance Claim 40The final basis upon which TransGrid seeks to have the documents identified produced is to examine the claim made by Jacfin for disturbance. The essential problem with this basis for requiring production of the documents sought is one of prematurity. The Court has, in accordance with its practice, given directions to the parties since the commencement of these proceedings, requiring the filing of evidence. Among the directions given is one requiring that Jacfin provide evidence in support of its claims for disturbance. That evidence is required to be filed by Friday next. Thus the determination of the present motion is premature. 41It must be anticipated, in accordance with the directions given, that evidence will be filed which seeks to substantiate each of the claims that Jacfin makes under this head, including those claims that pertain to fees sought for engineering consultants. Only after evidence is filed in accordance with that direction will there be scope for any allegation that there are other documents potentially relevant to those claims which should be provided. It cannot be assumed, in advance, that the evidence to be filed will be inadequate. It follows that there is no utility to be served in requiring production of documents sought in the present motion as their relevance to this issue cannot be determined.

Other considerations 42At a more general level, I should add that the prematurity of the application made generally has been the subject of submission made on behalf of Jacfin. There is some substance in that submission. Expert planning evidence has only recently been filed. In accordance with the Court's directions there is a requirement for joint conferencing between those experts and the preparation of a joint report. Neither event has yet occurred. 43In accordance with the obligation imposed upon those experts under the Expert Witness Practice Direction, they are to be objective and to have their joint conference independently of the position which their respective clients may take. What the result of that joint conferencing process may be is unknown. In accordance with the purpose the joint conference is intended to serve, it may well be that planning issues are narrowed, if not resolved completely. I do not assume that to be the case, but equally I cannot assume that the issues that emerge from their respective reports will remain. 44In that context there remains the distinct possibility that some, if not all of the documents that are the subject of the present motion, will be irrelevant to the issue, if any, that remains. 45I am therefore of the view that there is substance in the submission made in this regard by Jacfin. However, I do not decide the matter on this basis, given the reasons earlier expressed for rejecting the specific grounds argued by TransGrid in support of its motion. 46Further, I do not decide the matter on the basis that production of the documents sought is oppressive. I have earlier identified the submission by Jacfin that as the motion is founded upon the notice to produce served in June last under UCPR r 21.10, the lack of specificity required by the rule would be sufficient to deny TransGrid entitlement to the documents it seeks. While there is substance in that submission, having regard to the different terms in which documents required for production under the UCPR are expressed (compare those that pertain to discovery and to subpoenas), it is unnecessary that I decide the motion on this basis.

Conclusion and orders 47In conclusion I have determined that none of the four bases upon which TransGrid seeks to establish its entitlement to have the documents produced, has been made out. 48In those circumstances I make the following orders:

1. The respondent's Notice of Motion filed on 2 October 2013 is dismissed.
2. The respondent must pay the applicant's costs of that Motion.
3. The exhibits, all being documents filed in the proceedings, will be retained on file.

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: 29 October 2013