Jong Mi Hong v Blacktown City Council

Land and Environment Court (NSW)|2021-04-21|Before: Pepper J

State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 Verde Terra Pty Ltd v Central Coast Council [2019] NSWLEC 166 Waind v Hill [1978] 1 NSWLR 372 Winky Pop Pty Ltd v Mobil Refinery Australia Pty Ltd [2013] VSC 315 Category: Procedural rulings Parties: Jong Mi Hong (First Applicant) Min Kyung Hong (Second Applicant) Blacktown City Council (Respondent) Secretary, Department of Planning, Industry and Environment (Intervenor) Representation: Counsel: M Astill (Respondent) P Singleton (Intervenor) Solicitors: Dentons (First and Second Applicant) Maddocks (Respondent) Crown Solicitor for NSW (Intervenor) File Number(s): 2020/219176 Publication restriction: Nil

Context in Which the Subpoena Was Requested to be Issued

The subpoena sought production of the following documents: 1. the documents numbered 1, 4, 8, 13 and 20 in the list of documents annexed and marked "Annexure A" to this subpoena; and 2. the final version of the 'rezoning package' referred to at item 4.1 of the table annexed and marked "Annexure B" to this subpoena.
Annexure A comprised a table of documents subject to a claim for public interest immunity by the Secretary produced in respect of an earlier subpoena issued by the applicants in the principal proceedings: Documents subject to claim for public interest immunity 1 Briefing submission to Minister (signed by A/Executive Director, Strategy and Infrastructure Planning and A/Deputy Director General, Strategies and Land Release and Departmental contact officer) regarding pending interdepartmental meeting. 2 Another version of Document 1, but without attachment 3 Another version of Document 1, but with fewer signatures and no attachments 4 Submission to Minister (signed by Deputy Secretary, Growth, Design and Programs, Secretary and Minister) on question of approval to exhibit proposed amendments to a statutory instrument 5 Draft of Document 4 with annexures 6 Same as Document 4 7 Same as Document 4 but with fewer signatures 8 Submission to Secretary (signed by contact officer, Executive Director, Infrastructure, Housing and Employment, Deputy Secretary, Growth Design and Programs, and Secretary) on question of approval to exhibit proposed amendments to a statutory instrument 9 Same as document 8 but with fewer signatures and no annexures 10 Same as document 8 11 Same as document 8 but with fewer signatures and no attachments 12 Same as document 8 but with fewer signatures and no attachments 13 Submission to Minister (signed by contact officer, Chief Planner, Deputy Secretary, Growth Design and Programs, Secretary and Minister) regarding question of Minister advising the Governor to make a statutory instrument 14 Same as document 13 but with fewer signatures and no attachments 15 Same as document 13 but with fewer signatures and no attachments 16 Same as document 13 but with fewer signatures and no attachments 17 Same as document 13 but with fewer signatures and no attachments 18 Same as document 13 but with fewer signatures 19 Parliamentary counsel's opinion dated 11 July 2016 20 Submission to Deputy Secretary (signed by Executive Director and Deputy Secretary) on a question of adopting amendments to a plan under a statutory instrument 21 Same document as 20 but with only one signature 22 Same document as 20 23 Same document as 20 but unsigned 24 Minute Paper for the Executive Council

Annexure B is a document entitled "Project Control Group - Status Report" dated 20 June 2016. Item 4.1 referred to therein was in the following terms: 4 Riverstone East 4.1 For information Post-Exhibition Review • The rezoning package for Stages 1 and 2 is being finalised to be forwarded to the Executive for approval in June, 2016.
The principal proceedings are in Class 3 of the Court's jurisdiction and concern the judicial determination of compensation for compulsory acquisition of land by the Council. The applicants to the principal proceedings are Jong Mi Hong and Min Kyung Hong ("the Hongs"). The acquired property is located at 6 Oak Street, Schofields being Lot 30 in DP 39341 ("the land").
As part of their preparation, on 11 December 2020 the Hongs requested that a subpoena be issued to the Secretary seeking production of documents relating to the North West Growth Areas ("the Hong subpoena"): Copies of all documents including, but not limited to, reports, assessments, studies, counts, tables, results, investigations, summaries, opinions, plans, maps, surveys, photographs, montages, memorandums, agendas, minutes, submissions, correspondence and notes, whether in paper or electronic form, in relation to the preparation and making of: a) the Cudgegong Road Structure Plan - for the period 1 January 2010 up to the making of that Plan in September 2013 b) Stages 1 and 2 of the Riverstone East Precinct Plan - for the period 1 January 2013 up to the making of the Plan in August 2016 c) Schedule 8 of the Blacktown City Council Growth Centre Precincts Development Control Plan 2010 - for the period 1 January 2013 up to the making of the Riverstone East Precinct Plan in August 2016.
Between 28 January and 19 March 2021, a number of documents were produced by the Secretary in answer to the Hong subpoena.
On 15 March 2021 the Crown Solicitor's Office forwarded to the Hongs and to the Council a list of documents in respect of which the Secretary resisted production under the Hong subpoena on the basis of public interest immunity. These were the documents identified in Annexure A (see above). Relevantly, these documents include: 1. a briefing submission to the Minister regarding a pending interdepartmental meeting; 2. a submission to the Minister on a question of approval to exhibit proposed amendments to a statutory instrument; 3. a submission to the Secretary on a question of approval to exhibit proposed amendments to a statutory instrument; 4. a submission to the Minister regarding a question of the Minister advising the Governor to make a statutory instrument; and 5. a submission to the Deputy Secretary on a question of adopting amendments to a plan under a statutory instrument.
The Hongs did not challenge the public interest immunity claim made by the Secretary and the documents were not produced.
The Council now seeks disclosure of some of the documents identified in Annexure A, together with the document referred to in item 4.1 of Annexure B from the Secretary.
The Secretary filed an affidavit of Brett Whitworth, the Deputy Secretary (Greater Sydney Place and Infrastructure) of the Department of Planning, Industry and Environment ("the Whitworth affidavit"), affirmed 8 April 2021.
The Whitworth affidavit revealed that the Secretary claims: 1. public interest immunity over the documents sought in the subpoena on the basis of a class claim; and 2. legal professional privilege over certain documents relating to opinions sought and obtained from Parliamentary Counsel.
The Council no longer seeks production of the documents over which the claim for legal professional privilege had been made by the Secretary (the document at item 13 of Annexure A).
In order to understand why both the Hongs and the Council issued subpoenas to the Secretary and the relevance of the documents sought, it is necessary to examine the issues in the principal proceedings and the planning context within which they arise.

Planning Context to the Compulsory Acquisition Proceedings

The land is zoned part RE1 Public Recreation and part SP2 Classified Road under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 ("the Growth Centres SEPP"), which was gazetted on 28 July 2006, and is located within the Riverstone East Precinct ("the Precinct").
In August 2013 the then Minister for Planning ("the Minister") released the Precinct for urban development under cl 276 of the Environmental Planning and Assessment Regulation 2000.
Between 12 August and 18 September 2015, the draft Precinct planning package for Stages 1 and 2 of the Precinct were publicly exhibited.
At present, the publicly available documents include those which were published by the then Department of Planning ("the Department") as part of the precinct planning process for the Precinct, including the making of the Growth Centres SEPP.
The documents include the Riverstone East Priority Precinct Stages 1 and 2 - Finalisation Report published by the Department in June 2016 ("the Finalisation Report").
The Finalisation Report noted that, "this report plus supporting documents seeks to rezone land within Stages 1 and 2 of the Riverstone East Priority Precinct" and that it "documents the public consultation process, summarises the issues raised in submissions and reports on how those issues have been addressed to finalise the precinct plan".
The Finalisation Report also stated the following: 4.5.3 Stage 1 active and passive open space adjoining the Sydney Metro Trains Facility A large area of active and passive open space is proposed north of the SMTF. This includes 6 Oak Street and 67, 77, 83 and 87 Tallawong Road. See Figure 3. Passive open space is proposed at 6 Oak Street, Schofields and a double playing field, drainage supporting a creek and passive open space is proposed across the Tallawong Road properties. There is also an area of existing native vegetation (ENV) that is being retained across the southern portion of the entire open space area in accordance with the biodiversity certification requirements for the Precinct and the North West and South West Priority Growth Areas as a whole (see Section 6.4 for further details).
At section 4.7 concerning "Acoustic Impacts", the Finalisation Report said: 4.7 Acoustic Impacts The Department's acoustic consultant, Renzo Tonin, reviewed submissions made by Transport for NSW and landowners at 67 and 87 Tallawong Road and 6 Oak Street. These properties are located to the north of the SMTF. See Figure 6. The acoustic advice confirmed that the land immediately north of the SMTF is required to be retained as open space to act as a noise buffer to the SMTF. This includes 67 and 77 Tallawong Road and 6 Oak Street. As outlined in the Environmental Impact Statement (EIS) for the SMTF and reiterated in the Riverstone East Precinct Noise and Vibration report, the land use planning immediately surrounding the SMTF should aim to incorporate less noise sensitive development or provide some buffer to noise sensitive development. This recommendation is based on a precautionary approach particularly as the detailed design of the SMTF is still ongoing and the site will not be fully operational for up to 30 years. If the land at 83 and 87 Tallawong Road was not proposed for playing fields, these lots would not be required as a buffer to the SMTF and could be developed for residential purposes. This is not however proposed as detailed in Section 4.5.3.
On 22 August 2016, pursuant to Pt 3 of the Environmental Planning and Assessment Act 1979 ("the EPAA"), the Minister rezoned the land to part local road (SP2) and part public open space (RE1) by gazettal of the State Government Planning Policy (Sydney Region Growth Centres) Amendment (Blacktown Growth Centres Precinct Plan) 2016 ("the Growth Centres SEPP Amendment").
Prior to this rezoning, the land was zoned Primary Production Small Lots (RU4), under the Blacktown Local Environment Plan 2015.
The Council is nominated as the acquiring authority of land zoned for RE1 under the Growth Centres SEPP. Accordingly, upon the making of the Growth Centres SEPP Amendment it was obliged to acquire the Hongs's land, which it did, thereby resulting in the commencement of the principal proceedings.
The purpose given for the acquisition was "for RE1 Public Recreation and SP2 Classified Road for future public road". As at the date of acquisition the zoning of the property was consistent with this purpose.

Issues in the Compulsory Acquisition Proceedings Relevant to the Determination of the Application to Set Aside the Subpoena

A central issue for determination in the principal proceedings joined in the pleadings (see at paragraph 11 of the points of claim and the defence) is the underlying zoning of the property.
The Hongs have prepared a valuation on the assumption of an alternative zoning of the property, namely, R3 Medium Density Residential, and moreover, that the highest and best use of the property is for the purpose of a residential flat building that is permissible with consent in that zone with a market value of over $15,000,000. The Council, as the acquiring authority, pleads in its defence that as at the date of the acquisition the property would have been zoned IN1 - General Industrial, and that the highest and best use was light industrial with a consequent market value of $7,200,000 (see at paragraph 8 of the points of claim and the defence).

Should the Subpoena be Set Aside on the Basis that No Legitimate Forensic Purpose is Established by the Council?

The Court has the power to set aside the subpoena pursuant to r 33.4(1) of the Uniform Civil Procedure Rules 2005 ("UCPR"): 33.4 Setting aside or other relief (cf SCR Part 37, rule 4) (1) The court may, on the 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.
The party calling on a subpoena to produce must identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought. A subpoena to produce is not a substitute for discovery and cannot be used to embark upon a "fishing expedition" (Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 to 575 and Lane v Registrar, Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245 at 259).

Who Bears the Onus?

At the outset of the hearing of the notice of motion an issue arose as to who should initially address the Court on the application. Notwithstanding that the Secretary was the moving party, the Secretary submitted that because the Council bore the onus of identifying and establishing that there was a legitimate forensic purpose in seeking access to the documents produced pursuant to the subpoena, it was the Council that ought to address the Court first.
Ultimately the issue did not fall for determination because the Secretary was content to commence oral submissions. However, a nice question is raised by the issue as to the correct practice to be followed in such applications. The prevailing procedure in this Court is that the moving party to a motion to set aside a subpoena precedes the party resisting any attempt to set it aside. This position is typically reflected in the directions made by the Court for the filing and serving of written submissions for the purpose of the motion; the applicant is ordered to file and serve their submissions prior to those of the respondent. In circumstances where, as in the present application, the motion is silent as to the grounds for setting aside the subpoena, the efficient conduct of the application may be compromised if the moving party does not address the Court first.
In this context, I note for the sake of completeness that the authorities that the Secretary relied upon in support of its contention as to onus were, in my opinion, equivocal (Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [64] and NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [21] and [22]). Chidgey and Tuxford do no more than state the orthodoxy that unless a party calling upon a subpoena to produce documents identifies the legitimate forensic purpose for which access is sought, access should be refused.

Test for Setting Aside the Subpoena Issued to the Secretary

The service of a subpoena results in several steps involving different issues and legal tests. As was explained by the Court of Appeal in Waind v Hill [1978] 1 NSWLR 372 (at 381E-F per Moffitt P): …there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise… In these three steps the stranger and the parties have different rights, and the function of the judge differs.
It is not sufficient for a party seeking production or access to documents to merely establish that the documents are, or may be, relevant (Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 181-182 per Mahoney AP and Chidgey at [60]-[63] per Beazley JA, as her Honour than was). Put another way, if the subpoenaing party wishes "to see the document to see if it may assist my case", this will not suffice (Carroll at 182 and Chidgey at [60]-[63]).
A survey of the case law reveals that the test for whether or not a subpoena is valid has been variously formulated in the courts and may differ depending on whether the subpoena was issued in criminal or civil proceedings (although even this is not clear: see ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [19] per Tobias JA, with whom Basten JA and Handley AJA agreed).
Notwithstanding the Court of Appeal's remarks in Lott v Council of the New South Wales Bar Association [2017] NSWCA 145 that "the principles are well established and uncontroversial" (at [24]), it would appear that the test to be applied in setting aside a subpoena in civil cases at least remains to be authoritatively settled. Perhaps "at the end of the day" the formulations "do not differ in substance" (ICAP at [14] per Tobias JA), with each case turning on its specific context.
In criminal cases, the correct test is that articulated by Simpson J (as her Honour then was) in R v Saleam [1999] NSWCCA 86 (at [11] as quoted in Chidgey at [64] per Beazley JA): The correct test 64. The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999] NSWCCA 86 at [11], in the following terms: The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.
In civil jurisdictions, however, the statement of the test has been more equivocal. Thus in Rinehart v Rinehart [2018] NSWSC 1102 Ward CJ in Eq summarised the legal principles to be applied in establishing whether a legitimate forensic purpose exists and identified no less than four separate formulations of the test (at [43]-[48] and [51], emphasis added): Relevant legal principles 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". … 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)).
Her Honour repeated these principles more recently in Colombini v De Berigny [2021] NSWSC 374 (at [127]-[130]). Ward CJ in Eq concluded by stating that, "what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings" (at [128]).
The Court of Appeal's decision in ICAP (which was not referred to at [47] by her Honour in Rinehart) endorsed Nicholas J's reasoning at first instance in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [8]-[9], [13]-[14] and [21]-[22], emphasis added): 8 It would seem that the principles relevant to the setting aside of the subpoena upon the basis that it did not have any legitimate forensic purpose were not in dispute before the primary judge. His Honour cited from the relevant authorities at [25]-[28] of his judgment, referring to the review of the authorities by McClellan J (as his Honour then was) in Travel Compensation Fund v Blair [2002] NSWSC 1228 in which his Honour referred to Commissioner for Railways v Small (1938) 38 SR (NSW) 564; New South Wales Commissioner of Police v Tuxford [2002] NSWCA 139 and Air Canada v Secretary of State for Trade [1983] 2 AC 394, amongst other authorities. His Honour also referred to the decision of Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 and to the judgment of Gibbs CJ in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404. Furthermore, his Honour referred to the test as expressed by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306 and to the discussion of that test by Spender J in Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432. 9 At [30] his Honour stated the test in the following terms: "[I]t 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." … 13 The applicants submit that his Honour erred in his statement of the test at [30] of his judgment which I have set out at [9] above. It was submitted that there was no warrant for his Honour's requirement that it is "likely" that the documents sought "will materially assist" on any identified issue. Yet the authorities to which his Honour and the applicants referred use both expressions. Thus in Alister v The Queen the test is framed (at 414) in terms of it appearing "to be 'on the cards' that the documents will materially assist". The word "likely" is also used in other authorities such as in this Court in National Employers' Mutual General Association v Waind and Hill [1978] 1 NSWLR 372. 14 In my view I do not regard his Honour's summary of the relevant principles at [30] of his judgment as involving any error of principle or misstatement of the test which has been described in various ways in the authorities but in a manner which, at the end of the day, do not differ in substance. Accordingly, I do not detect that his Honour in applying the test he adopted to the terms of the subpoena before him misstated that test or committed some relevant error of principle. In my view the present is not an appropriate vehicle which would justify any reconsideration of, or expression of the limits of, the test of legitimate forensic purpose. … 21 Accordingly, there is more than sufficient authority to support his Honour's reference at [30] of his judgment to the requirement that the documents the subject of the subpoena "will materially assist" the applicants' case. 22 As to his Honour's use of the expression "it must be shown that it is likely [that] the documentation will materially assist on an identified issue" and his alternative statement that there be a "reasonable basis beyond speculation that it is likely" the documentation will so assist, I do not regard his use of the word "likely" as being any different in the context of a case such as the present to the expression "on the cards" which finds its genesis in the judgment of Gibbs CJ in Alister at 414. The word "likely" has a number of different shades of meaning depending on the context in which it is used and in the present context I see no reason to regard his Honour's use of the word as having any different meaning to the concept to which the Chief Justice was referring in Alister and which his Honour articulates at [27] of his judgment.
In ICAP the Court of Appeal rejected any suggestion that the word "likely" in Nicholas J's statement of the test meant "more likely than not". The word "likely" means a reasonable probability (at [25] and [26]).
Most recently in Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24, the Court of Criminal Appeal quoted (at [30]) the test stated in Chidgey per Beazley JA following the summary provided by Simpson J in Saleam. The Court went on to say (at [31]-[32]): 31 Beazley JA noted that the genesis of the expression "on the cards" was in the judgment of Gibbs CJ in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85. In that case, his Honour used the expression in contrast to "a mere 'fishing' expedition" (Chidgey at [65]-[66]). 32 The Court of Appeal reviewed these authorities in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 and at [22] and [25] concluded that whilst it is necessary that it be shown that "it is likely [that] the documentation [subpoenaed] will materially assist on an identified issue", the word "likely" was not used in that formulation in the sense of "more likely than not".
In this Court, unsurprisingly, the formulation of the test has also been variously expressed. Most recently in Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 6) [2021] NSWLEC 28, a criminal case, Robson J said (at [40]): 40 In considering legitimate forensic purpose, I have considered the cases referred to by the parties (and the cases referred to as authorities in those cases). This includes the succinct analysis of what is a legitimate forensic purpose for subpoenas and notices to produce of Ward CJ in Eq in the civil case Rinehart v Rinehart [2018] NSWSC ('Rinehart') at [43] to [54], in which her Honour noted the following: (1) It must be shown that the documents sought will materially assist the case, or that there is a reasonable basis beyond speculation that they are likely to assist: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9], [13]-[14]; (2) The context of the particular case, or identified issue, is relevant to the determination of legitimate forensic purpose: ICAP Pty Ltd v Moebes [2009] NSWSC 306 ('Moebes') at [33]; (3) The task to be undertaken is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings: Rinehart at [47]; and (4) Without legitimate forensic purpose, issuing a subpoena may be a fishing expedition: Rinehart at [48].
His Honour, however, ultimately adopted the use of the "on the cards" formulation and concluded that "it must be shown that it is 'on the cards' that the documents sought in the Notice will materially assist the Harris Parties' defence of their case" (at [48]).
In the earlier decision of Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd (No 3) [2020] NSWLEC 35, the test was put in the following terms (at [67]-[68]): 67. While I respectfully adopt the analysis of Ward CJ in Eq in Rinehart and note that the principles have been frequently considered and applied (including by this Court in Azar at [20] and recently in Verde Terra Pty Ltd v Central Coast Council [2019] NSWLEC 166 at [71]), on the basis as considered below that there is an identified issue, the relevant test can be formulated as whether it is "on the cards" the documents would materially assist in relation to the identified issue; whether the material "could possible throw light on" the identified issue; or whether it can be shown that there is a likelihood (or a reasonable basis beyond speculation that there is a likelihood) that the documentation will materially assist on that identified issue. 68. The two-step process, that is the establishment of a legitimate forensic purpose and that it is "on the cards" that the document will materially assist a party's case, is now well established in both civil and criminal proceedings: R v Saleam (1989) 16 NSWLR 14 at 18, Alistair v R (1984) 154 CLR 404 at 414; [1984] HCA 85, Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at [64].
Similarly, in Black Hill Residents Group Incorporated v Marist Youth Care Limited [2019] NSWLEC 112, after quoting from Rinehart, the Court said (at [13]): 13. It is trite to state that before an order to produce documents is made, the applicant must identify a legitimate forensic purpose for which access is sought and establish that it is "on the cards" that the documents will materially assist its case: Regina v James Saleam [1999] NSWCCA 86 at [11] and Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 ('Chidgey') at [64].
Black Hill was followed and applied in Verde Terra Pty Ltd v Central Coast Council [2019] NSWLEC 166 (at [73]).
The above survey of the case law is relevant because the Secretary submitted that the formulations of the test in Black Hill and Verde Terra were correct insofar as the documents had to materially assist the subpoenaing party's case and not merely assist the case or an issue more generally, but conversely, were wrong insofar as the test adopted as a threshold for access whether it was "on the cards" that the documents would assist. The Secretary submitted that recourse to the more liberal "on the cards" test was appropriate for use only in criminal, and not civil, proceedings, where the documents might assist an accused person whose liberty was at stake.

"On the Cards"

The use of the phrase "on the cards" as part of the test to establish legitimate forensic purpose in civil proceedings is somewhat vexed. Several Court of Appeal authorities have employed that phrase in formulating the test (see Carroll at 170 and ICAP at [22]-[23]). The Secretary asserted that the expression ought properly be reserved for establishing a legitimate forensic purpose in criminal proceedings only.
The appropriateness of the use of the expression "on the cards" test in civil litigation may be questionable given that: 1. the origin of the expression derives from the decision in Alister, criminal proceedings, where Gibbs ACJ emphasised that (at 414, footnotes omitted): Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ''fishing'' expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence… 1. a more generous attitude is taken to accessing documents produced upon subpoenas issued by the accused in criminal cases than exists in civil cases (see Caroll at 170 citing Brennan J in Alister at 456 and Harris (No 6) at [47]). As Brennan J stated in Alister with respect to criminal proceedings (at 456): …it is appropriate to adopt a more liberal approach to the inspection of documents by the court. The more liberal approach is required to ensure, so far as it lies within the court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law.
Most of the authorities cited in support of the "on the cards" statement of the test of legitimate forensic purpose are criminal (see the decisions cited in Rinehart at [47] and most recently in Tropic Asphalt at [30]-[31]).
The "on the cards" test was nevertheless adopted in Carroll which was a case in the Court of Appeal's civil jurisdiction. However, that case came before that Court in somewhat unusual circumstances. The issuing party sought the production of documents for the purpose of assisting his argument that warrants permitting the installation of listening devices were invalid. Information obtained using those listening devices formed the basis of criminal charges laid against him.
According to Ward J (as she then was) in One.Tel Ltd (in Liq) - Singtel Optus Pty Ltd v Weston [2010] NSWSC 1491, the "on the cards" test has not been broadly embraced in civil proceedings (at [30] and see also the observations by Whealy J in R (C'Wealth) v Baladjam (No 37) [2008] NSWSC 1457 at [11]).
Based on a review of these and other authorities, it would therefore appear that the expression "on the cards" should be used cautiously in the context of an application to set aside a subpoena in civil matters, unless the ultimate subject-matter of the controversy is criminal in nature. Having said this, ultimately it may not matter if those words are construed to mean "likely" as in "a reasonable probability" (ICAP at [25]).

"Material Assistance"

Debate also surrounds whether it is necessary that the documents simply provide material assistance to the identified issues in the proceedings or whether the documents must provide material assistance to the party seeking access to them (a more onerous burden). The Secretary contended for the latter, whereas the Council claimed that the former was sufficient. Again, the authorities conflict on this point. Brereton J (as he then was) in A v Z [2007] NSWSC 899; (2007) 212 FLR 255 noted the divergent views (at [4]-[18]).
In Alister Gibbs ACJ's judgment emphasised the need for the documents to assist the party seeking disclosure (at 414-415): Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.
Likewise, Saleam advanced the proposition that it is for the issuing party to establish that the documents sought will materially assist it (at [11]). Saleam has been applied in subsequent civil decisions at an appellate level (see Carroll at 170 and Commissioner of Police v Hughes [2009] NSWCA 306 at [74]).
However, the Court of Appeal in ICAP expressly endorsed the test as described by Nicholas J in the court below. No subsequent Court of Appeal decision has resiled from this formulation.
But in Tropic Asphalts the Court of Criminal Appeal referred approvingly to the test as articulated in both Saleam and ICAP (at [30] and [32]). In Saleam the formulation was that "it is 'on the cards' that the documentation will materially assist his [the subpoenaing party] case" (at [11]), whereas in ICAP it was held that it was necessary that it be shown that "it is likely the documentation will materially assist on an identified issue" (at [22]).
ICAP is directly binding on this Court in these proceedings, arising as they do in the Court's Class 3 civil jurisdiction. Accordingly, in order to establish a legitimate forensic purpose in the context of this application it must be shown by the Council that it is likely that the documentation will materially assist on an identified issue, or that there is a reasonable basis beyond speculation that it is likely that the documentation will materially assist on an identified issue, and not that the documentation will materially assist the Council's case.
Finally, it should be noted for the sake of completeness that the issuing party is not required to conclusively establish that the material will assist on an identified issue, merely that it is likely that the documents will do so.

Is a Legitimate Forensic Purpose Disclosed?

There are two reasons why there is a legitimate forensic purpose in the Council seeking the documents in Annexures A and B to the subpoena. First, it was common ground between the parties to the principal proceedings that the RE1 zoning of the Land by the Minister in 2016 under the Growth Centres SEPP Amendment is required to be disregarded under s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 ("the Just Terms Act"). It is therefore necessary for the Court, in exercising its statutory role as the judicial valuer, to determine what alternative zoning the Minister would have applied to the land (Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298).
The Hongs assert that if the Minister had not made the decision that he did, then he would have rezoned their land Medium Density Residential; the Council's contention is that the Minister would have rezoned the land General Industrial. The difference between the two zonings is a value of approximately $7.8 million. Prior to the Growth Centres SEPP Amendment the land was zoned Primary Production RU4. Accordingly, a central issue between the parties is, disregarding the acquisition zoning as is required under s 56(1)(a) of the Just Terms Act, what would the land have been zoned?
The Council argued that the rezoning package, advice, and briefing material sought by the subpoena was among the documents considered by the Minister at the time the Minister rezoned the land RE1 pursuant to the Growth Centres SEPP Amendment. These documents can therefore be expected to throw some light on what alternative zoning the Minister would have zoned that land if the original zoning is disregarded. The documents sought therefore have "a sufficient apparent connection" to the issue to "justify their production or inspection" (Rinehart at [45]).
The Secretary accepted that it is likely that the subpoenaed documents would reveal factors taken into account when the Minister made his rezoning decision. However, it submitted that this was different from showing what decision the Minister would have made if he had not made the decision that he did. Even assuming that the documents were likely to show that the Minister weighed up the decision recommended to him, there was nothing to indicate that the documents would reveal: 1. whether the Minister addressed the matter as a choice between options or as choice between accepting or rejecting a particular recommended proposal (or whether some other approach was followed); 2. what the alternative options were; 3. what option the Minister would have chosen had he not made the choice that he did; or 4. that the Minister would have chosen the option for which the Council contends.
Therefore, the Council's justification for its subpoena rose no higher than an impermissible desire to examine the documents in order to ascertain whether or not they would assist the Council's case. This involved speculation that would need to be resolved favourably to the Council, and about which nothing was known. Given that it was not even known whether the documents would reveal an alternative decision by the Minister, it could not be said that the documents rose to the level of general relevance, let alone relevance in the sense of assisting the Council's case. Accordingly, the Council's subpoena was a fishing exercise and should be set aside.
As concluded above, I do not consider that, on the correct formulation of the test for legitimate forensic purpose, it is necessary for the Council to demonstrate that the documents sought to be produced would materially assist its case. Rather, it is sufficient to establish that the documents would assist on an identified issue, namely, what would the land have been zoned disregarding the acquisition.
The concession made by the Secretary that the subpoenaed documents would disclose factors that the Minister considered in making his rezoning decision is, in my opinion, sufficient to dispose of the application to set aside the subpoena on the ground that it lacks legitimate forensic purpose. In light of this admission, it may readily be found that the documents sought in the subpoena have a sufficient apparent connection to the rezoning issue to justify their production and inspection (D v Australian Financial Security Authority, formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50 at [56]). This conclusion is reinforced when regard is had to the schedule to the Hong subpoena in answer to which these documents were produced. The Hong subpoena sought documents relating to the rezoning issue.
It follows that I do not accept that the Council was required to demonstrate that the documents were likely to show the alternative rezoning options before the Minister and that he would have selected an option favourable to it. The four scenarios posited by the Secretary are premised upon a formulation of the test for demonstrating legitimate forensic purpose that is too onerous and does not accord with authority.
Second, there is a subsidiary issue between the parties as to what was known about the acoustic environment as at the date of the rezoning. As quoted above, the Finalisation Report notes that a potential constraint on the land was the need for it to act as an acoustic buffer against the noise impacts from the adjoining Sydney Metro Trains Facility ("SMTF"). The parties to the Class 3 proceedings dispute whether, having regard to such a constraint, the Minister's alternative zoning of the land would have been general industrial IN1 or medium density residential R3. The subpoenaed material includes documents such as the rezoning package, in order to illuminate what that alternative zoning may have been, based on the advice before the Minister at the time he made his decision to rezone the land. In determining the alternative zoning, it is inconceivable that the Minister would not have taken into account any advice before him concerning the constraints on the land discussed in the Finalisation Report. It is therefore more than likely that this advice will materially assist on the rezoning issue.
Accordingly, I find that the Council has a legitimate forensic purpose for issuing and pressing the subpoena to the Secretary and that the subpoena ought not be set aside.

Is the Claim for Public Interest Immunity Established by the Secretary?

Further, and in the alternative, the Secretary claimed public interest immunity to resist production of the documents sought at items 1, 4, 8, and 13 of Annexure A and the document referred to at item 4.1 in Annexure B, pursuant to s 130 of the Evidence Act 1995, and in particular, according to the Whitworth affidavit, s 130(4)(f) of that Act.
Section 130 of that Act relevantly provides that: 130 Exclusion of evidence of matters of state (1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. … (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would - … (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters - (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor, (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication, (e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant - whether the direction is to be made subject to the condition that the prosecution be stayed.
By s 131A of the Evidence Act, s 130 is applicable to the Secretary's objection to producing the documents pursuant to the Council's subpoena.
The Evidence Act does not define "public interest" but s 130 substantially reflects the common law, and consequently, common law principles assist in informing the content and operation of that provision (Ku-ring-gai Council v Garry West as Delegate of the Acting Director-General, Office of Local Government [2017] NSWCA 54; (2017) 95 NSWLR 1 at [84] per Basten JA).

Applicable Legal Principles in Determining a Claim of Public Interest Immunity

The common law recognises that there are certain documents that, by their very nature, belong to a class of documents that should not be disclosed, irrespective of the individual contents of the documents. In this instance it is accepted that there may be a public interest in such documents being immune from disclosure (HT v The Queen [2019] HCA 40; (2019) 278 A Crim R 133 at [28] per Kiefel CJ, Bell and Keane JJ).
Public interest immunity is therefore a basis for objecting to the production of a document by the executive of otherwise admissible evidence in the course of litigation (HT at [69] per Gordon J). But it is "the duty of the court and not the privilege of the executive government" to decide whether the public interest which requires that evidence should not be produced outweighs the "competing public interest that a court should not be denied access to relevant and otherwise admissible evidence" (HT at [70] per Gordon J quoting Sankey at 38). In the present proceedings, it is more than arguable that the competing public interest in disclosure is all the more acute given that in Class 3 merits proceedings under the Just Terms Act the Court is under a positive obligation to determine for itself the compensation, if any, to be awarded to a dispossessed owner. This is expanded upon below.
Documents such as cabinet minutes and material which concerns the framing of government policy at a high level may fall within this class, as do documents relating to national security (HT at [28]).
The general principles to be applied in the operation of the common law immunity are well known and were discussed in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, and in the reasons of the majority in Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604 (at 614-619). In short, when a claim of public interest immunity is made the Court embarks upon a two-stage process both under s 130 of the Act and at common law (State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [42] per Allsop P as he then was): 1. first, there is an assessment of the character of the information or document (as state papers or as relating to a matter of state); and 2. second, the Court must weigh or balance the public interest in disclosure against the public interest in non-disclosure to decide whether or not the disclosure of the information would prejudice the proper functioning of the government.
The nature of the weighing up exercise is central to disputes concerning public interest immunity. In Northern Land Council the majority (at 616-617) approved a passage from the judgment of Gibbs ACJ in Sankey (at 43) which described this balancing process in the following terms: The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made.
In Garry West, Basten JA further observed that (at [85]): 85 Two things should be stated about the correct approach to the consideration of objection on the grounds of public interest immunity, in a case where s 130 is engaged. First, the statutory structure should be followed. That requires identification of the scope, content and importance of (a) the public interest in admitting information or a document into evidence, and of (b) the public interest in preserving secrecy or confidentiality in relation to that information or document. It is only when the latter outweighs the former that the court is empowered to direct that the information or document not be adduced in evidence.
The principles were more specifically summarised in Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2003] NSWLEC 322 (at [19]): 19 It is sufficient for present purposes to provide a summary of the relevant principles relating to public interest immunity. They seem to me to be as follows: 1. There is no absolute immunity from production and inspection of cabinet documents: Sankey at 43, 58-59, 95-96; Northern Land Council at 616. In this context "cabinet documents" extends to: (a) Cabinet minutes or other records of Cabinet discussions and records of discussions between heads of departments; (b) papers prepared as submissions to Cabinet; (c) any documents which relate to the framing of government policy at a high level Sankey at p 39. 2. The general rule is that a court will not order the production of a document although relevant and otherwise admissible if it would be injurious to the public interest to disclose it. 3. The public interest has two aspects: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered: Sankey at 38, Conway v Rimmer (1968) AC 910 at 940. 4. The court must weigh the competing elements of the public interest: Sankey at 43, 60-64, 98-99. 5. A claim for immunity for a class of documents as opposed to a claim in relation to individual documents will be upheld only if it is really necessary in the public interest or the proper functioning of the public service: Sankey at 39. 6. The court has power to inspect the documents in order to determine any claim. However, there remains some controversy as to the circumstances in which that power should be exercised. If the documents clearly fall into a class which attracts immunity they should not be inspected: Northern Land Council at p 617. 7. Documents recording the actual deliberations of cabinet are more likely to attract immunity than documents prepared outside Cabinet such as reports or submissions for the assistance of Cabinet: Northern Land Council at 614-615. 8. Documents relating to a topic which is current or controversial will attract a high level of confidentiality: Northern Land Council at 617-618. 9. Documents in relation to a matter which has passed into history attract a lesser level of confidentiality, as do documents which may have been already published. 10. The intended use of documents, particularly if required to found a defence to a criminal charge, is a relevant consideration. Where a person's liberty is at stake production is more likely to be ordered: Sankey at 42 and 61-62. 11. (a) It is unlikely that disclosure of the records of Cabinet deliberations upon current matters would be appropriate in civil proceedings: Northern Land Council at 618. (b) Documents and communications passing between a Minister and the head of his department relating to cabinet proceedings and material prepared for Cabinet are likely to be protected: at Sankey 99. (c) Reports relating to important matters of policy between public servants and Ministers or between senior public servants also warrant a high level of protection: at Sankey 99.
This summary has been applied in this and other courts (see, for example, Betfair Pty Ltd v Racing New South Wales (No 7) [2009] FCA 1140; (2009) 181 FCR 66 at [5] per Jagot J). It is relevantly similar to the distillation by Allsop P set out in Public Transport Ticketing Corporation (at [45]-[47]).
The Court should accord "proper respect" and "full weight" to the views of senior government officers who adduce evidence in support of a public interest claim (Sankey at 43-44; Gaudioso v Roads and Maritime Services (No 2) [2020] NSWLEC 51 at [23]; and Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 3) [2020] FCA 1766 at [55]).
As is evident from the Whitworth affidavit, the present claim for public interest immunity is a class claim. That is, the class of documents sought by the Council's subpoena relates to "matters of state" within the meaning of s 130(1) of the Evidence Act and the release of documents within this class would prejudice the proper functioning of the government of New South Wales under s 130(4)(f) of that Act. Documents relating to the framing of government policy at a high level are typically included in a class of document that, by their very nature, should not be disclosed (Sankey at 39-40 per Gibbs ACJ).
Generally, a class claim is upheld only if it is "really necessary" for the proper functioning of the public service to withhold documents from that class for production (Sankey at 39-40 per Gibbs ACJ). The onus on the party claiming immunity in respect of a class of documents has been described as a "heavy burden" (Sankey at 62 per Stephen J).
Turning to the Whitworth evidence, the affidavit did no more than provide evidence at a very high level of the general content of briefing notes to a Minister. Whitworth deposed that briefing notes are, by their very nature, succinctly drafted and do not always provide a full and balanced discussion of the issues they address. Furthermore, briefing notes are drafted on the basis that they will remain confidential.
Having said this, Whitworth candidly admitted that the content of the documents the subject of the present public interest immunity claim were "not very sensitive" and that the claim was being made "in principle (because of the class of the documents) and the Department understands that the importance of that principle [that confidentiality will be respected unless there is an overriding necessity to the contrary is inducive to better public policy development] must be balanced against the needs of the present litigation".
The Whitworth evidence was reflected in the Secretary's candid submissions who "accepted that the claim has neither the strength of claim related to Cabinet deliberations nor the added strength of a claim over documents that are sensitive because of their content."
It was for this reason that the Secretary neither objected to the Court examining the documents the subject of the public interest immunity claim for itself to ascertain whether or not they advanced a proper purpose nor did the Secretary press the Court for a confidentiality regime to be put in place if production and access to the documents occurred in order to limit their disclosure.

The Public Interest Immunity Claim Must be Rejected

There is no doubt that documents created at the departmental level (that is, below Cabinet level) are amenable to a claim of public interest immunity (see, for example, Betfair at [18]-[20]).
The Council argued that the class of documents sought by its subpoena did not relate to matters of state within the meaning of s 130 of the Evidence Act because the documents were in respect of the rezoning of land by Minister pursuant to an exercise of the statutory function vested in him pursuant to Pt 3 of the EPAA. This function was administrative or statutory, and therefore, not a matter related to the determination of government policy and hence not a matter of state. I do not agree.
The word "policy" is a very broad concept. As Allsop P observed in Public Transport Ticketing Corporation, "it is notoriously difficult to differentiate between 'policy' and 'operation' in some contexts" (at [53]). In that case his Honour employed the word in the sense of "the consideration of approaches and conduct for the present and future assessed by reference to the general interests of society" (at [53]).
The decision to rezone land is undeniably a decision premised on policy, as described above in Public Transport Ticketing Corporation. While the process of rezoning of land occurs pursuant to an exercise of statutory power, this does not mean that the underlying decision by the executive to exercise this power is not policy driven. It is. As the parties conceded, the rezoning of land often gives rise to considerable controversy both within and outside the affected community. In Winky Pop Pty Ltd v Mobil Refinery Australia Pty Ltd [2013] VSC 315 similar documents were considered to be amenable to a claim of public interest immunity.
Nevertheless, having regard to the discretionary matters set out in s 130(5) of the Evidence Act, I have determined that in the interests of the administration of justice, the balance favours disclosure in this application.
First, as the Secretary admitted, the documents are not especially sensitive. An inspection of the documents by the Court for the purpose of the claim for immunity confirmed this concession.
Second, the documents are not particularly secret or confidential insofar as the decision to rezone the land is susceptible to judicial review in this Court by any person (see s 9.45 of the EPAA). In those circumstances it would be almost unarguable that the documents would be protected from disclosure on the basis of public interest immunity.
Third, their disclosure could not reasonably be expected to prejudice the proper functioning of the government of this State. There is nothing in the Whitworth affidavit that indicates, other than at the very highest level of generality, that this would be the case. The onus requires the Secretary to "establish a real rather than some or any detriment to the public interest" from disclosure of the documents (Sankey at 62 and Betfair at [13] and see the cases referred to thereat by Jagot J). Whitworth has not demonstrated that the disclosure and inspection of the rezoning package, advice, and briefing material before the Minister when he rezoned the land would have the effect of inhibiting the Minister's advisors of providing the Minister with anything other than full and candid advice on similar matters in the future. No nexus is established in the Whitworth evidence between the disclosure of these documents and any future chilling effect on the guidance provided by advisers in respect of any decision to rezone land.
In any event, as the Council submitted, courts do not appear to have placed great emphasis on this factor, expressing doubt as to whether a perceived lack of frankness and candour on the part of public officials resulting from disclosure is likely to be a sufficient basis for claiming the immunity (Northern Land Council at 615; Betfair at [43]-[44]; Garry West at [91] per Basten JA where this proposition was described as "fanciful"; Gaudioso at [41]; and Winky Pop at [57]).
Fourth, the sensitivity of documents has become attenuated by the passage of time (Betfair at [33]). The documents the subject of the subpoena are almost five years old and it is difficult to see how, given that the rezoning decision is no longer a matter of political debate, disclosure of the material could impact upon the current functioning of the NSW Government (Gaudioso at [41]).
Fifth, having regard to the nature of the proceedings (see s 130(5)(c) of the Evidence Act), these are proceedings in Class 3 of the Court's jurisdiction where the Court is tasked not with setting aside an executive decision (judicial review) but determining for itself (merits review) the value of the acquired land and the amount of compensation, if any, the Hongs ought to be awarded. Accordingly, not only are these documents of relevance to the parties, they are also central to the Court in carrying out its curial evaluative function under the Just Terms Act.
Sixth, to reiterate, it was common ground that that the RE1 zoning of the land by the Minister in 2016 under the Growth Centres SEPP Amendment must be disregarded under s 56(1)(a) of the Just Terms Act. Accordingly, a critical issue for the parties, and the Court in exercising its role as judicial valuer, is to determine what alternative zoning the Minister would have applied to the land. The advice and briefing notes before the Minister regarding the impact of constraints such as the noise from the SMTF on the land and how it ought to be addressed at the time that he made his decision are likely to have been highly relevant to his decision, and therefore, to the matters for determination by this Court.
I accept the assessment of the Council that there is a real likelihood that the subpoenaed documents will materially affect the outcome of the principal proceedings. Given that the determination of the rezoning issue could result in a difference of $7.8 million in public monies in the amount of compensation awarded to the Hongs, a substantial injustice to both parties could result by the non-disclosure of the documents.

Orders

Having determined that the subpoena is valid and that the documents sought in it do not attract public interest immunity, the Secretary's notice of motion is dismissed.
Costs are reserved and the exhibits are to be returned.

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: 28 April 2021

(2009) 170 LGERA 298

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