Karimbla Constructions Services (NSW) Pty Ltd v Premier of New South Wales

Land and Environment Court (NSW)|2019-05-31|Before: Moore J, Mr J

Introduction

In 2018, Karimbla Construction Services (NSW) Pty Limited (the Company) was given a Gateway Determination as the first step to permitting it to seek an alteration to the planning controls, set by the Ryde Local Environmental Plan 2014 (the RLEP 2014), for a site at 112 Talavera Road, Macquarie Park (the site). The proposed alterations sought to the controls applying to the site would permit a significantly larger development to be capable of being approved for construction on the site.
The subsequent processes for progressing the proposals contemplated by the Gateway Determination have stalled. This stalling has been occasioned by a New South Wales Government policy determination that there should be a moratorium on changes to land use zonings and other planning controls in the Ryde local government area (the Ryde LGA) pending the conducting, by the Greater Sydney Commission (the GSC), of an assurance review into, and providing an assurance report on, broader issues relating to increases in development densities in that local government area.
The moratorium was in effect at the time these proceedings commenced.
The assurance review process was triggered by a request from the Premier of New South Wales (the Premier) to the Chairperson of the GSC. That request was conveyed by letter written on 23 November 2018 (Affidavit of Megan Caristo of 27 May 2019, at [8], as to date of that letter and Annexure D to this affidavit for a copy of the letter).
The assurance review process was expected to have reported by the end of May 2019 but has not yet done so. For the purposes of that with which I am dealing in these interlocutory proceedings, I have no information as to when that assurance review process might be completed but, it is to be noted, its completion plays no part in the matters that I am required to determine on the various motions being dealt with by this decision.

The proceedings

The Company is one within the Meriton Group of development companies. The Company has commenced these Class 4 proceedings seeking, primarily, to force the relevant state planning authorities to make a determination to effect the outcome of the process which the Company has pursued for changing the planning controls applying to the site following the Company being granted a Gateway Determination (as one of the milestone triggers for that control-changing process). It is to be observed that the public exhibition process for the proposed changes, a necessary element of the process which follows from the granting of the Gateway Determination, was completed toward the end of 2018.
The present Respondents to the Class 4 proceedings commenced by the Company are:

Premier of New South Wales;
New South Wales Minister for Planning;
Secretary of the Department of Planning and Environment; and
Greater Sydney Commission.

Three Notices of Motion are filed

Three Notices of Motion have been filed in the proceedings. Two of them have been filed for the Company, and one of them for the Premier. The Company's motions sought: 1. leave for the Company to rely upon an Amended Summons; and 2. orders for each of the Respondents to provide discovery to the Company (the terms proposed for this being set out later in this decision).
The third motion is an application by the Premier to be removed as a respondent to the proceedings.
The three motions came on for hearing before me as the List Judge on Friday 31 May 2019. This decision addresses the determination of each of them.

The legal representatives

The Company was represented by Mr David Bennett AC QC and Mr Scott Nash, barrister. The First, Second and Third Respondents were represented by Mr Jeremy Kirk SC and Ms Zelie Heger, barrister.
The Fourth Respondent, the GSC, has entered a submitting appearance.

The relevant legislation

Although the processes with which the Company has engaged for its Gateway Determination-based proposal to change the RLEP 2014 are contained in the Environmental Planning and Assessment Act 1979 (the EP&A Act), it is not necessary for present purposes to set out any of the provisions of that legislation.
However, the concept of an assurance review, as required to be considered in these proceedings, is one set out as part of the (now operative) functions of the GSC set out in s 10(1) of the Greater Sydney Commission Act 2015 (the GSC Act). This provision is in the following terms: 10 Functions of Commission (1) The Commission has the following functions: (a) to provide advice and make recommendations to the Minister on matters relating to planning and development in the Greater Sydney Region, (a1) to provide advice and make recommendations to the Minister administering this Act, and other Ministers with the approval of the Minister administering this Act, on matters relating to land use and infrastructure in the Greater Sydney Region, (b) to prepare and provide reports to the Minister on the implementation (including any impediments to the implementation) of any plan or proposal relating to development in the Greater Sydney Region, (c) to provide advice and make recommendations to the Minister on any impediments to the implementation of any plan or proposal relating to development in the Greater Sydney Region, (c1) to provide progress and assurance reports to the Minister administering this Act, and other Ministers with the approval of the Minister administering this Act, on matters relating to the preparation and implementation of any plan or proposal relating to development in the Greater Sydney Region, (d) to provide advice to the Minister on the application of any development fund created under section 7.35 of the Planning Act in respect of land in the Greater Sydney Region, (e) to assist local councils in the Greater Sydney Region and other government agencies (including an agency of the Commonwealth) on the implementation of any plan or proposal relating to development in the Greater Sydney Region, (f) to provide the Minister with such information, advice or reports as the Minister may request, (f1) to provide the Minister administering the Planning Act with any information, advice or reports requested by the Minister administering the Planning Act, (g) if requested to do so by a Minister other than the Minister administering this Act or the Minister administering the Planning Act (the other Minister), to provide the other Minister with such information, advice or reports as may be requested by the other Minister.
It is to be noted that, relevantly, the function established by s10(1)(c1) was inserted in the GSC Act by amendments effected by the Planning Legislation Amendment (Greater Sydney Commission) Act 2018 by Sch 2[12]. This new function took effect from 10 December 2018, the date upon which this and other amendments to the GSC Act took effect.
It is also to be noted that the term "assurance reports" (as used in s 10(1)(c1)) is not defined in the GSC Act, nor is a meaning for it to be found in any other legislation that would mandate how those words in the GSC Act should be interpreted. It is, therefore, appropriate to turn to the Second Reading Speech in the Legislative Council when the amendments were introduced (s 34(2)(f) of the Interpretation Act 1987 (the Interpretation Act). The relevant extract from the Second Reading Speech introducing the Bill is recorded in the parliamentary debates (Hansard, 17 October 2018) in the following terms: Items [11] and [12] expand the functions of the Greater Sydney Commission to confer on the commission the functions of providing advice and making recommendations on matters relating to land use planning and infrastructure in the Greater Sydney Region, and providing progress and assurance reports on matters relating to the preparation and implementation of any plan or proposal relating to development in the Greater Sydney Region. This advice and the recommendations and reports can be provided to the Minister administering the Greater Sydney Commission Act and to any other Minister with the approval of the Premier in her capacity as the Minister who administers the Act [emphasis added].
The explanatory notes with the first print of the Bill (s 34(2)(e) of the Interpretation Act) were, relevantly, in the following terms: Schedule 2[12] confers on the GSC the functions of providing progress and assurance reports to the Minister administering the Greater Sydney Commission Act 2015, and other Ministers with the approval of the Minister administering the Act, about the preparation and implementation of plans or proposals relating to development in the Greater Sydney Region.
As can be seen, neither of the above extracts explains precisely what might be contemplated by an "assurance report" as provided for in s 10(1)(c1) of the GSC Act.
However, for the purposes of these motions, this lack of terminological precision requires no exploration.

The order for dealing with the motions

At the commencement of the hearing of these motions, Mr Kirk indicated that the application to rely upon an Amended Summons was not opposed by the active Respondents. As a consequence, this matter was dealt with first.
I then proposed that the motion seeking the removal of the Premier as a respondent should be the next to be dealt with as, if the application for discovery being made by the Company was to be granted, it was appropriate to be granted only to those who remain as Respondents at the time when it was determined. This was the appropriate course, in my view, to accommodate the potentiality that I might determine that the Premier should be removed as a respondent. This course was adopted without objection.

Hearing dates

One of the matters that also arise for consideration during the hearing of these motions was the fact that dates had not yet been allocated for the substantive hearing of the proceedings. In order to ensure a timely hearing, after consultation with the advocates as to available dates, I set the matter down for hearing on 21 and 22 August 2019.

The pre-hearing timetable

The parties agreed to settle a timetable leading up to that hearing. That agreed timetable was provided to me, after completion of the hearing of these motions and prior to the date of this decision. Orders to give effect to it were made by me in chambers on 4 June 2019. Those orders included liberty to relist on two days' notice.
In addition to the general provision of such liberty, the position potentially arose that the amount of time which would have been necessary, on the Respondents' evidence, to satisfy any order for discovery which I might make would potentially have required revision of the timetable and, possibly, revisiting the hearing dates.
However, as I have determined that the application for discovery should be rejected, the potential for revision of the timetable for this reason will not arise.

Leave to rely on an Amended Summons

Permitting the Company to rely on an Amended Summons was not opposed by the active Respondents. Therefore, during the course of the hearing of the first of the motions, I granted such leave, subject to the formal filing of the Amended Summons.
There was also no objection to the active Respondents being granted leave to rely on Amended Points of Defence in response to the Amended Summons.
Orders to give effect to these outcomes were incorporated in the timetable orders made, as earlier noted at [23].

Introduction

The removal motion seeks an order that the Premier be removed as a respondent to the proceedings. The power to order the removal of a party is contained in Pt 6, r 6.29 of the Uniform Civil Procedure Rules 2005 (the UCPR). This rule is in the following terms: 6.29 Removal of parties by order The court may order that a person: (a) who has been improperly or unnecessarily joined, or (b) who has ceased to be a proper or necessary party, be removed as a party.
Prayers 1 and 2 of the Amended Summons are in the following terms: 1 A declaration that, by operation of section 30(1)(c) the Interpretation Act 1987 (NSW), the Fourth Respondent does not have the function to provide advice and recommendations by way of 'assurance report' as that term is used in section 10(1)(c1) of the GSC Act as amended by the Amendment Act on 31 October 2018, to the First or Second Respondents in relation to plans or proposals or planning proposals prepared under the EPA Act before 31 October 2018. 2 In the alternative, a declaration that, by operation of section 30(1)(c) of the Interpretation Act 1987 (NSW), the Fourth Respondent does not have the function to recommend or advise the First or Second Respondents to 'pause the finalisation of any existing residential planning proposal in the Ryde LGA for a 12 month period' as recommended, advised or posited by the Fourth Respondent in its report to the First Respondent dated 25 February 2019.
To understand, properly, what is sought by each of these prayers, it is appropriate to set out the terms of s 30(1)(c) of the Interpretation Act. This provision is in the following terms: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) …, or (b) …, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

The submissions on behalf of the Premier

The submissions on behalf of the Premier commenced by referring to Pt 6, r 6.24(1) of the UCPR, this being the rule which provides the basis for a court to join a non-party to proceedings. This rule is in the following terms: 6.24 Court may join party if joinder proper or necessary If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. [emphasis added in written submissions for the Premier].
In the position advanced for the Premier, it is submitted that, effectively, an absence of any basis upon which a party might be joined pursuant to r 6.24(1) provides an appropriate and sufficient basis to exercise the discretion pursuant to r 6.29(a) for removal of a party. I am satisfied that this is an appropriate lens through which to view this removal application.
The submission puts that the Premier has never had any basis (whether arising from the original Summons or from the Amended Summons for which leave has now been granted) to be made a party to the proceedings. There is, therefore, in this submission, no necessity to consider any potential operation of r 6.29(b) of the UCPR.
The Premier submitted that the approach to be taken in considering these questions was that discussed by the Queensland Court of Appeal in China First Pty Ltd & Anor v Mount Isa Mines Limited & Ors [2018] QCA 350 where it was observed at [60]: These cases reveal a systematic approach taken by courts to the determination of whether orders made or sought have had, or if made, will have, a direct effect on a legal right or liability. That approach has involved an identification of the specific legal right or liability said to have been affected or liable to be affected, and an assessment of its legal characteristics. Next, the court has inquired into whether the right or liability itself has been affected, or is liable to be affected.
The submissions on behalf of the Premier, after setting out the above passage, continued: 4. Of course, r 6.24(1) acknowledges that a party who is not "necessary" to be joined may still "ought to be joined". Likewise, under r 6.29, a party may still be a "proper" party, even if not a "necessary" one. However, the authorities suggest that, to be a "proper" party, the proceedings must still affect the rights and liabilities of the party in some way. In News Ltd v Australian Rugby Football League (1996) 64 FCR 410 at 524, the Full Court cited the following observations of Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (made in relation to a rule equivalent to r 6.24(1); emphasis added): In their Lordships' view one of the principal objects of the rule is to enable the Court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard.
Whilst it was conceded that, in Peters v Coastace [2006] NSWSC 289, there had been a conclusion that, although the proposed defendants were not necessary parties to those proceedings, they ought to have been joined because of the peculiar circumstances there applicable, the submission on behalf of the Premier was that there were no such circumstances in these proceedings - a proposition with which I concur.
The submissions for the Premier then addressed the terms of Prayers 1 and 2 of the (now) Amended Summons. It is appropriate to set out those in full. They are in the following terms: 7. First, prayers 1 and 2 of the Summons (or prayers 1 and 2 of the proposed Amended Summons) raise the question whether the Greater Sydney Commission (GSC) had the power under the Greater Sydney Commission Act 2015 (NSW) (GSC Act) to conduct the Assurance Review. The Applicant presumptively will submit that: (a) the GSC could only have had the power to conduct the Assurance Review under s 10(1)(c1) of the GSC Act; (b) s 10(1)(c1) was inserted by the Planning Legislation Amendment (Greater Sydney Commission) Act 2018, which commenced on 10 December 2018; (c) by operation of s 30(1)(c) of the Interpretation Act 1987, the insertion of s 10(1)(c1) cannot have affected any right (etc) already accrued (etc) by the Applicant under that Act; (d) prior to 10 December 2018, the Applicant had accrued a right to have its planning proposal determined in accordance with the EPA Act; and (e) the insertion of s 10(1)(c1) cannot have affected that right, by conferring a power on the GSC to conduct the Assurance Review, and therefore s 10(1)(c1) can have no effect in relation to the Applicant's planning proposal. 8. As such, the express terms of prayers 1 and 2, and the arguments that will be put, are directed to the powers of the GSC under the GSC Act to conduct the Assurance Review; not any power of the First Respondent. What is alleged to have affected the Applicant's "accrued right" is the GSC's power to conduct the Assurance Review, and the resulting content of that review, not the bare request by the First Respondent for the review to be undertaken. 9. In para 91 of their Reply, the Applicants allege that the First Respondent is a proper/necessary party because prayers 1 and 2 are sought as a "direct consequence" of the First Respondent's decision to commission the "Assurance Review" and that prayers 1 and 2 therefore "relate" to the exercise of the First Respondent's powers under the GSC Act. It is true that it was the First Respondent who requested the GSC to undertake the Assurance Review. That matter is admitted at paragraph 52 of the Respondents' Points of Defence (POD), and is established by the First Respondent's letter of 23 November 2018 to the GSC. That the conduct of the Assurance Review was prompted, as a matter of fact, by the First Respondent's request does not render her a necessary/proper party. The Applicant's submission is akin to saying that, wherever the exercise of a statutory power is prompted by a third party request (eg, a complaint by a member of the public and request that the matter be investigated), the member of the public is a necessary or proper party to the proceedings. 10. Of course, the fact that the First Respondent has, since 1 July 2018, had administration of the GSC Act does not render her a necessary or proper party. Otherwise, the responsible Minister should or could be joined to any proceeding raising a question of statutory construction. Nor is the assistance of the First Respondent required to construe the GSC Act; the Minister for Planning is a party to these proceedings and is able to make those submissions.
The submissions for the Premier then advanced reasons why it was expected that the submissions on behalf of the Company would assert that the role of the GSC and the assurance report currently being developed through the processes of the GSC was potentially to be regarded as defective. In response to what was anticipated to be advanced on behalf of the Company, the submissions on behalf of the Premier can be summarised as being: 1. The submissions conceded that, since 1 July 2018, the Premier has been the Minister responsible for the GSC and the legislation establishing it; 2. However, although it was conceded that the Premier requested the assurance report with which the GSC's processes are currently engaged, it was put there was nothing in Prayers 1 and 2 of the (now) Amended Summons that seeks to question any role of the Premier; rather, they challenge various roles and activities of the GSC, challenges that do not involve any necessary participation by the Premier, nor does it involve any potential affectation of the rights or responsibilities of the Premier; 3. Finally, it was submitted that the remaining prayers for relief (Prayers 3 to 8 inclusive) of the now Amended Summons involve elements of relief sought solely concerning the engagement (or lack of engagement) by the Second and/or Third Respondents in the failure to progress the Company's application for the site.
Whilst these attacks on the action (or rather inaction) of the Second and/or Third Respondents in the exercising of functions under the EP&A Act, these relate to the rights and liabilities of those Respondents and not of the Premier.
It was also submitted for the Premier that, although the Premier requested the assurance report, any delay by the Second and/or Third Respondents in the exercise of their functions under the EP&A Act (particularly whether such delays were or were not unreasonable) potentially arose from the GSC's processes and were matters for the Second and/or Third Respondent to address, being matters which did not, in any fashion, involve either rights or liabilities of the Premier and, therefore, did not provide any proper basis upon which she should be joined as a party to the proceedings.
The last point in the written submissions on behalf of the Premier was: Finally, the fact that the Applicant is has corresponded with the first Respondent on planning matters generally, including the relevant planning proposal (POC paras 36, 42, 43, 68, 69), does not mean that her rights or liabilities are affected by any of the orders sought.

The submissions for the Company

To understand the position advanced for the Company on the removal motion, two paragraphs from the written submissions on behalf of the Company provide the critical elements essential to understanding the Company's position as to why the Premier should remain a respondent in the proceedings. These are (2) and (10) of the written submissions. These are reproduced below: 2. The substantive relief sought in these proceedings is an order in the nature of mandamus requiring the Minister for Planning to make a decision in relation to the Applicant's proposal to amend the Ryde Local Environmental Plan 2014 by increasing the FSR and Height Control relating to the land located at 112 Talavera Road, Macquarie Park. 10. Further, the Summons seeks an order for mandamus arising as a direct consequence of actions taken by the Premier in commissioning the Assurance Report, in purported reliance on specific powers under s 10 of the Greater Sydney Commission Act 2015. This is to be distinguished from executive responsibility for the administration of a broad 'body of law'.
At (14) of the written submissions, the Company's position was summarised as: 14. In summary, the Applicant submits that: a. In circumstances where declaratory Orders 1 and 2 in the Summons filed herein are sought as a direct consequence of the First Respondent's decision to commission or instigated the 'Assurance Review' and therefore relate to the exercise of powers of the First Respondent under the Greater Sydney Commission Act 2015 (which is thus relevant not only to these proceedings, but the potential future use of such powers); and b. Having regard to the associated allegations in pars [75], [79(f)] and [80(f)] of the Statement of Claim filed herein; the First Respondent is a proper and/or necessary party to be joined to these proceedings for the determination of all matters in dispute, which includes ancillary or preliminary questions (Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34 at 38).
There are a number of matters that are put on behalf of the Company that are, in one view, speculative concerning the Premier's position with respect to these proceedings. These can be seen from (11), (13) and (15) of the submissions made on behalf of the Company. These paragraphs are set out below: 11. In the circumstances, the Premier is a necessary party to the proceedings as it would clearly be expected that the Premier may wish to be heard on the claims for relief in the Summons. As the Court observed in the Murraylink decision, the test is whether all questions in the appeal could be determined without the participation of, as in this case, the Premier, and whether the 'legal rights' of, again as in this case, the Premier, would stand to be affected by the relief sought. … 13. The Premier also has the option of filing a submitting appearance, as has been done by the Commission. It is also to be noted that the Crown Solicitors Office represents the Second and Third Respondents in these proceedings, and therefore there is no additional cost to the First Respondent's continued joinder to the proceedings. … 15. A potential 'cure' to the Respondent's motion would be to clarify that the declaratory orders challenge the power of the Premier to have commissioned the Assurance Report. However, it is submitted that such a step is unnecessary - the Summons makes clear, in those orders, that the Applicant challenges that power. The injunctive orders directly follow on from those declarations (for the reasons set out in the Statement of Claim), and the Applicant's success in the proceedings is not dependent on whether the declarations are made. Despite that fact, the Applicant is entitled to argue that the declarations ought be made, and those declarations directly affect the Premier's power to commission 'assurance reports' in relation to planning proposals commenced before 31 October 2018. Accordingly, the Premier was and remains a necessary party to the proceedings.
With respect to these propositions, it is to be observed that, contrary to what is put in (11), it is quite clear, if only by virtue of this motion, that the Premier does not wish to be heard on the claims for relief in the Amended Summons. Indeed, there is nothing in the first two prayers of the Amended Summons, being, effectively, ones which attack the role of the GSC, that goes beyond calling into question only the rights and liabilities of that body by those elements of the relief sought in the Amended Summons.
Whilst whatever might be the outcome of those challenges has the potential to circumscribe the activities of the GSC, it is to be noted that that which is sought by Prayer 1 is confined to a limited class of plans or planning proposals that were prepared before 31 October 2018. Whatever might be the position thus arising with respect to the particular planning proposal for 112 Talavera Road, Macquarie Park (the Company's planning proposal process falling within such a confined class), that which is sought in these proceedings does not involve any general or specific engagement with the rights or liabilities of the Premier.
In (13), the Company proposed that the Premier might have simply filed a submitting appearance, as had been done by the GSC. It is, however, reasonable (if only for the purposes of these interlocutory proceedings) to assume that the GSC has entered a submitting appearance consistent with the principle in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 (Hardiman). The Premier's position is distinctly different because the application of that principle to the matters in contest concerning the GSC are ones for which it could only have been inappropriate for the GSC to have taken an active part.
Whilst the Premier was potentially properly made a respondent at the commencement of the proceedings, it is not now inappropriate to question whether she should so remain.
In (15), it was proposed on behalf of the Company what the Company said was a potential cure to what is sought by the removal motion. The written submissions for the Company on this point were earlier set out.
Although it was submitted for the Company, in both its written submissions and in Mr Bennett's oral submissions, that there would be no additional cost if the Premier remained a respondent (on the assumption that the Crown Solicitor and counsel briefed would represent all active Respondents), this, it seems to me, is a matter of convenience and economic efficiency but does not, in any way, give rise to issues relating to the rights and/or liabilities of the Premier.

Consideration

It is appropriate to remove the Premier as a respondent to the proceedings generally for the reasons advanced on her behalf (which are to be preferred to those on behalf of the Company).
It seems to me that the proposition advanced on behalf of the Premier, summarised in (8) of the written submissions on her behalf, properly sets out what is actually sought by the first two prayers in the Amended Summons. This paragraph of the written submissions is in the following terms: 8. As such, the express terms of prayers 1 and 2, and the arguments that will be put, are directed to the powers of the GSC under the GSC Act to conduct the Assurance Review; not any power of the First Respondent. What is alleged to have affected the Applicant's "accrued right" is the GSC's power to conduct the Assurance Review, and the resulting content of that review, not the bare request by the First Respondent for the review to be undertaken.
In addition, it is to be observed that the provision which was inserted into the GSC Act (s 10(1)(c1)) did not commence until 10 December 2018. It is to be noted that the Premier's request to the GSC was by letter of 23 November 2018. No attack has been sought to be made in these proceedings that the Premier acted in excess of power. As I pointed out to Mr Kirk during the course of the hearing, the letter made a request (being so described specifically in the letter), rather than being a direction pursuant to a statutory power yet to come into effect.
In circumstances where it is self-evident that the Premier does not assert that any of her rights and/or liabilities have been called into question by these proceedings, and where Prayers 1 and 2 of the Amended Summons go directly to quite confined questions as to the function of the GSC and do not seek any relief in any way directed to the Premier, it is not appropriate that the Premier remain a party to the proceedings.
Prayers 3 to 8 of the Amended Summons also cannot involve the Premier, as they are directed solely to the actions (or inaction) of the Second and/or Third Respondents.

Introduction

The Company seeks discovery pursuant to r 21.2 of the UCPR. The nature of the material sought if discovery is to be ordered is defined in the order proposed in the Company's motion: (1) The Respondents are to give discovery of the following class of documents in accordance with PT 21.2 of the Uniform Civil Procedure Rules 2005: All correspondence, emails, letters, facsimiles, memoranda, minutes of meeting, reports (both draft and final), notes and/or texts or instant messaging service messages, which were prepared, sent or received by any of the 1st to 4th, respondents (inclusive) between the dates 27 July 2018 and 12 April 2019 relating to: (a) The Applicant's request for amendment to the Ryde Local Environmental Plan 2014 to change the height and floor space ratio controls applying to the property situated at 112 Talavera Road, Macquarie Park; (b) The Fourth Respondent's "Assurance Report" or "Assurance Review" conducted at the request of the first Respondent relating to planning in the Ryde local government area; (c) The property situated at 112 Talavera Road, Macquarie Park. (2) The Respondents are to provide a list of documents in accordance with part 21.3 of the Uniform Civil Procedure Rules 2005 relating to the order for discovery within 28 days from the date of order one (accompanied by an affidavit in accordance with part 21.4 of the Uniform Civil Procedure Rules 2005.
Discovery was opposed by the active Respondents (those being, after my removal of the Premier, now confined to the Second and Third Respondents).

The Company's submissions

The Company's written submissions in support of this motion were commendably concise. First, the Company put, in (6)(a) to (f) of its written submissions, that: 6. Importantly, note Rule 21.2(2) of the UCPR. The Applicant submits: a. This case concerns the failure of the Respondents to make reasonably timely decisions relating to the Revised Planning Proposal (or Final Planning Proposal) following on from the Revised Gateway Determination; b. The date of '12 April 2018' should be deleted and replaced with, at least, '31 May 2019', to account for what is pleaded in the Points of Defence at par [75(a)(ii)]; c. The order is confined only to written material prepared, sent or received by the Respondents and no other persons, and is appropriately confined in terms of the date range of materials sought; d. The order is confined to the subject matter of the proceedings and does not extend beyond matters the subject of the planning proposal for 112 Talavera Road, Macquarie Park, and the 'assurance review' which was triggered by the Applicant's planning proposal; e. The Applicant is entitled to know the full context for the reasons for delay, and in particular noting what is pleaded in the Points of Defence at par [75(b)] and the denial of par [75] of the Statement of Claim as confirmed at par [75(c)] of the Points of Defence. The Applicant is entitled to interrogate and test the veracity of par [75(b)]. It can only do so with access to the range of documents sought in the discovery motion; f. The Respondents complain about the specificity of the 'date' from which the unreasonable delay occurred (see pars [79(a)] and [80(a)] of the Points of Defence). Production of the documents sought in the discovery motion may assist in identifying more precisely when the unreasonable delay 'commenced';
It was submitted on behalf of the Company that that which was sought to be ordered was compliant with r 21.2(3)(b) in that the nature of the documents specified to be sought was sufficiently defined: By description of the nature of the documents and the period within which they were brought into existence (r 21.2(3)(b)).
The Company's submissions defined the fact in issue in the proceedings as being: 8. The 'fact in issue' is whether the Respondents have unreasonably delayed in making decisions concerning the Revised Planning Proposal (or Final Planning Proposal) following on from the Revised Gateway Determination. Accordingly, Rule 21.2(4) is also satisfied, as the documents sought are confined to this issue.
The Company also submitted that there were exceptional circumstances that warranted discovery being granted in these proceedings. This submission was in the following terms: 9. Finally, as to 'exceptional circumstances', it is difficult to envisage a more appropriate case for discovery and the existence of 'exceptional circumstances' justifying such an order. The Respondents are the only persons or entities in possession of the knowledge, information and material explaining why a decision relating to the Applicant's planning proposal has been so inordinately delayed. The Respondents ought to be required to make available all documents which have the potential to shed light on the reasons for the inordinate delay, noting that more than 6 months has now passed since the conclusion of the public exhibition of the planning proposal, and critical investments decisions cannot be made until the planning proposal is determined.
This element of the Company's submissions was advanced in response to the position that the Court's Class 4 Practice Note provides, at (22), that: Directions for formal discovery and interrogatories will only be made in exceptional circumstances and will generally be confined to particular issues. A party seeking such directions must provide the Court with the draft list of categories of documents to be discovered or draft interrogatories.
The Company submitted that it was entirely appropriate to permit discovery in these circumstances.

The submissions on behalf of the Respondents

The Respondents advanced six general bases why discovery should not be permitted and a separate, confined basis as to why discovery should not be permitted against the GSC (because it was a submitting party). The reasons advanced can be summarised as follows: 1. The sole issue as pressed arising out of Prayers 1 and 2 of the Amended Summons is confined to issues of statutory construction. It was submitted that the resolution of this required no documents beyond what was particularised in the Company's Points of Claim and the Respondents' Points of Defence. In (7), the Respondents set out what they considered would be the range of necessary documents for addressing those prayers and put that all of those matters are agreed on the pleadings and can, in any event, be evidenced by the Applicant without the need for discovery; 2. The matters raised by Prayers 3 to 8 in the Amended Summons were addressed entirely to the action (or rather inaction) of the Second and Third Respondents. The Respondents' submissions, at (9), said: 9. The only potentially controversial factual allegations in the POC appear to be those at paras 75 and 79-80. The terms of the discovery order sought travel well beyond those paragraphs. But in any event, discovery is not necessary in respect of those allegations: In respect of para 75, the Applicant has pleaded that the Assurance Review is the sole or substantial cause of the fact that the Secretary and Minister have not yet exercised functions under ss 3.36(1) and 3.36(2) of the EPA Act. The First to Third Respondents have pleaded that the causes of that fact are: a) the Assurance Review; and b) the separate, anticipated, advice from the GSC regarding the Applicant's planning proposal. There is thus no need for discovery to establish whether, in fact, the Assurance Review is a cause of the delay. To the extent the Applicant seeks discovery to ascertain whether there were any other causes of the delay, that would be a classical fishing expedition. In respect of paras 79-80, all of the matters there alleged are either admitted, or can be proven on the Applicant's own documents. The only potential exception is para 79(g) and 80(g), however the Applicant has clarified, in its letter of 20 May 2019 responding to the a request for particulars, that the basis for the knowledge there asserted is what was said by the Applicant's counsel in open court at the directions hearing on 12 April 2019. Again, that knowledge can be proven on the Applicant's own documents, including any transcript of that hearing. Again, it would be a fishing expedition if the Applicant were to seek documents evidencing the Respondents' knowledge in this regard, or to seek documents in an attempt to uncover other grounds on which it might be alleged that the alleged delay is unreasonable (as suggested by para 79(h) and 80(h)). 1. The material discovery sought with respect to the Premier and the GSC that was not prepared or sent or received by the Second and/or Third Respondent that were in the possession of the Premier or the GSC that were outside the scope of the documents in the possession of the Second and/or Third Respondent could not be relevant to any matters arising from Prayers 3 to 8; 2. The scope of the range of documents sought by discovery would extend beyond those issues that are genuinely in dispute between the parties to these proceedings. This position arose because of the assurance review being conducted by the GSC (and, therefore, the assurance report being prepared by it) did not relate specifically to the Company's seeking of amendments to the planning controls applicable to the site, but covered matters falling within the description of planning in the Ryde LGA. Documents of that breadth could not conceivably relate to matters in dispute in these proceedings; 3. The scope of the proposed discovery covered a time period which was unnecessarily wide. The period covered commenced prior to relevant triggering events concerning the Company's application for alteration to the planning controls for its site; and 4. Compliance with the discovery order (if made) would be oppressive. This element of the submissions sets out (reproduced later) what would need to be undertaken by each of the Respondents in order to satisfy the proposed required discovery.
Finally, a specific submission was made with respect to the application for discovery directed to the GSC, as that body had filed a submitting appearance and it would not be appropriate to order discovery against that body as cause should be shown before doing so (citing Murex Diagnostics Australia Pty Limited v Chiron Corporation (1994) 55 FCR 194 at 198-200).

Consideration

It is not necessary to address all the bases upon which discovery is resisted. This is because, arising from them, there are three separate (each sufficient) reasons advanced that are ones rendering discovery inappropriate. They are dealt with below.
As Lindgren J discussed, in Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426, at 437-438, discovery cannot be used to mount a "fishing expedition". His Honour explained this proposition in the following terms (citations omitted): It remains to consider the submission that discovery should not be ordered because the Commission seeks to use it as a "fishing expedition". It has often been said to be a ground on which discovery (and interrogatories) will not be ordered, that the purpose is to carry out a "fishing expedition". What does the reference to a "fishing expedition" mean? After all, ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware (similarly, the administering of interrogatories will often, if not always, reveal information of which the other party was not previously aware). What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists.
It seems to me that what is here sought for the Company falls into this category - what is sought seeks to establish whether some other, not pleaded in the Amended Summons, case exists rather than seeking material in support of the case actually pleaded in the Amended Summons.
Permitting discovery for such a purpose would be to condone a "fishing expedition" and is inappropriate.
Even if potentially permissible (and not, contra my above finding, to be regarded as an impermissible "fishing expedition"), I must undertake a balancing exercise between potential relevance and the likely time and costs' burden for the Respondents involved (see the decision of Adamson J in Commonwealth Bank of Australia v Goater [2016] NSWSC 710 (Goater) at [31]).
There is nothing inherently unreasonable in the evidence summarised in (14) of the active Respondents' submissions opposing discovery as to the extent of that which would be required to satisfy discovery if ordered. That summary was in the following terms: Sixthly, compliance with the discovery order sought would be oppressive. The Affidavit of Megan Frances Caristo, dated 31 May 2019, demonstrates, in summary, that: (a) As for the First Respondent, the Department of Premier and Cabinet have already spent 15 hours searching for relevant documents, and estimate they will need to spend a further 25 hours to search for all documents falling within the scope of the order; (b) As for the Second Respondent, it will take approximately three days to search for documents held by the Officer of former Minister Roberts (who was the Planning Minister during 27 July 2018 to 12 April 2019) falling within the scope of the order; (c) As for the Third Respondent, the Department of Planning and Environment have so far identified 19 staff and 10 members of the Department's leadership team who may hold documents falling within the scope of the order, and there are likely to be more staff identified as the documents are searched (eg as emails are uncovered that identify further senders/recipients, noting that some emails may have up to 10 recipients). The Department has already spent approximately 12 hours searching for relevant documents, uncovering 1100 emails as potentially falling within the scope of the order. The Department estimates it would take a further 75 hours to conduct a complete search. (d) As for the Fourth Respondent, the GSC conducted the Assurance Review, and the Review was active during the period 27 July 2018 to 12 April 2019. The order seeks any documents prepared, sent or received by the GSC "relating to" the Assurance Review. It is therefore likely that there are a very large number of documents falling within the scope of the order. The GSC estimates that it would take a single officer, dedicating their time exclusively to responding to the discovery application, approximately 4 weeks to search and review documents and a further 2 weeks to catalogue them.
As this element of the Respondents' submissions proposes, requiring such an extensive response would be oppressive.
Adamson J also observed in Goater, at [32]: … it is necessary, before an order for discovery is made, for the Court to be satisfied that it is in the interests of justice and consistent with the just, quick and cheap determination of the real issues in the proceedings, having regard to ss 56, 57, 58, 59 and 60 of the Civil Procedure Act 2005 (NSW).
Mr Bennett observed, concerning the costs being borne by the Company by the delay to finalisation of its proposal to alter the planning controls (Transcript, 31 May 2019, page 22, lines 28 to 37): Your Honour will have seen from the affidavit of Matthew Lennartz the amounts involved in this application. Your Honour will see that the amount that the State - well, the amount that we're contributing, effectively, from the whole development is over 300 million. There's over 1,000 residential units involved, there's over 4,000 workers jobs involved and the - of course we can't build until we know because the foundations are different for a 20 or 40 storey building. Assessed in para 16, it's costing us about - over $50,000 a day in holding costs.
As earlier set out, I have set hearing dates for the proceedings in the latter portion of next August. If discovery was to be permitted, in light of the time necessary to comply and making allowance for time for the Company to examine the discovered material, there would be a real risk that these hearing dates could not be held. If that was to occur, there is no guarantee that other early and suitable dates would be available.
As a consequence, in addition to the extent of compliance with discovery afforded being oppressive, I am also satisfied that it would be contrary to the just, quick and cheap resolution (in a broad public policy/public interest sense if not a strict and narrow legal sense) of the issues genuinely in dispute between the parties (s 56 of the Civil Procedure Act 2005).

Costs

With respect to the motion by the Company seeking leave to rely on an Amended Summons, there was no objection raised to me granting leave for this to occur. There was also no objection from the Company to the proposition on behalf of the Respondents that they should be permitted to rely on Amended Points of Defence in response to the Amended Summons. Little time of the hearing was taken up with respect to the disposal of this motion. It is appropriate that there be no order for costs on this motion.
With respect to the motion on behalf of the Premier that she be removed as the First Respondent, the Company was entirely unsuccessful in resisting this application. In the notice of motion seeking removal, costs were sought on behalf of the Premier in the following terms: 2. The Applicant pay the First Respondent's costs of the motion on a party/party basis from 14 March 2019 to 11 April 2019. 3. The Applicant pay the First Respondent's costs of the motion on an indemnity basis from 12 April 2019.
As can be seen, the two costs' outcomes were put in the alternative. No submissions were put to me on the question of costs for this motion during the course of the hearing concerning it. As a consequence, the prima facie appropriate position with respect to the costs' outcome of this motion is that the Company should pay the Premier's costs of the motion on an ordinary basis (Latoudis v Casey (1990) 170 CLR 534; r 42.1 of the UCPR).
As there is presently no basis for departing from the presumption that the Company should pay the Premier's costs of this motion on an as agreed or assessed basis, the appropriate outcome is to make an order in those terms, but to provide the opportunity for the Premier to seek some alternative order if such alternative costs order was to be pressed.
With respect to the motion seeking discovery, the Company has been entirely unsuccessful with respect to the outcome sought and it is appropriate that a similar order for costs should be made (that the Company is to pay the Respondents' costs on an as agreed or assessed basis), unless some alternative costs order is sought.
If some alternative costs order is sought with respect to either of the motions where the Company has been unsuccessful, I propose that the party seeking the alternative costs order should provide written submissions (not exceeding five pages) to me by the close of business on 14 June 2019, with the party resisting such an alternative costs order providing reply submissions (not exceeding five pages) by the close of business on 21 June 2019. The issue of costs will then be dealt with on the basis of those submissions without further oral submissions, unless either party notifies my Associate that it wishes to be heard in support of the outcome for which it advocates concerning the alternative costs outcome on either or both motions.

The removal motion

With respect to the motion seeking removal of the First Respondent, the orders of the Court are: 1. Pursuant to r 6.29(a) of the Uniform Civil Procedure Rules 2005, the First Respondent (Premier of New South Wales) is removed as a respondent in Matter No 81668 of 2019; and 2. The Applicant (Respondent on the motion to remove the First Respondent as a respondent to the proceedings) is to pay the costs of the First Respondent (Applicant on the motion to remove the First Respondent as a respondent of the proceedings), as agreed or assessed unless either party to this motion notifies the other party and my Associate by the close of business on Wednesday 12 June 2019 that some alternative costs order is sought. If some alternative costs order is sought, the process set out in [83] is to apply.

The discovery motion

With respect to the motion seeking discovery, the orders of the Court are: 1. The Applicant's motion seeking orders for discovery is dismissed; and 2. The Applicant is to pay the costs of the Respondents, as agreed or assessed unless either party to this motion notifies the other party and my Associate by the close of business on Wednesday 12 June 2019 that some alternative costs order is sought. If some alternative costs order is sought, the process set out in [83] is to apply.

Directions

I therefore give the following directions 1. The matter is adjourned until 16 August 2019 at 10.00 am for mediation pursuant to s 26 of the Civil Procedure Act 2005 before a Commissioner; and 2. If the mediation in (1) is vacated by consent, the matter is adjourned for hearing for two days commencing in Court at 10.00 am on 21 August 2019.

Amendments 11 June 2019 - A draft version of his Honour's judgment uploaded in error. 11 June 2019 - Duplication of paragraph numbering. 10 July 2019 - Class of proceedings amended from Class 1 to Class 4. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2019

Greater Sydney Commission Act 2015(NSW)

dcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426 Category: Procedural and other rulings Parties: Karimbla Construction Services (NSW) Pty Limited (Applicant) Premier of New South Wales (First Respondent) New South Wales Minister for Planning (Second Respondent) Secretary of the Department of Planning and Environment (Third Respondent) Greater Sydney Commission (Fourth Respondent) Representation: Counsel: Mr D Bennett AC QC/Mr S Nash, barrister (Applicant) Mr J Kirk SC/Ms Z Heger, barrister (First to Third Respondents) Submitting appearance (Fourth Respondent)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)

Cited By (1)