[1983] 2 WLR 494
Alexandria Landfill Pty Ltd v Roads and Maritime Services
Source
Original judgment source is linked above.
Catchwords
[1983] 2 WLR 494
Alexandria Landfill Pty Ltd v Roads and Maritime Services
Judgment (9 paragraphs)
[1]
Solicitors:
Johnson Winter & Slattery (Applicant, and Colinta Holdings Pty Ltd)
Moray & Agnew Lawyers Newcastle (Respondent)
File Number(s): 2018/2427602018/242761
[2]
Introduction
This judgment deals with various Notices of Motion ("NOM") regarding the parties' deployment of Notices to Produce ("NTP"), and subpoenas (collectively "disclosure documents"), in these Class 3 proceedings.
The substantive Class 3 proceedings are "categorisation" appeals brought by the Applicant company against the deemed refusal by the Respondent Council of an application, made to it by the Applicant, for a change in the categorisation of two parcels of land, for rating purposes, from "mining" to "farmland".
They are "merits appeals", brought pursuant to s 526(1) of the Local Government Act 1993 ("the LGA"), and the Applicant alleges that Council adopts an inconsistent approach across its area on such categorisation issues (Applicant's subs 28 November 2018, par 10).
On 7 December 2018, I heard argument on (1) a NOM filed by the Respondent Council on 2 October 2018, seeking to set aside disclosure documents directed by the Applicant to the Respondent Council and two neighbouring councils, and (2) a NOM filed by the Applicant on 19 November 2018, seeking formal leave to amend them, so that they are in "a narrower and potentially more acceptable form" (T07.12.18 p1, LL24-25 - see MFI1).
Despite the Council's submissions of 27 November 2018 (pars 18-22), the case was argued by counsel for both parties on the assumption that those amendments had been made, and I reserved my decision.
On 5 February 2019, before judgment was given, I heard argument on (3) a NOM filed by the Applicant on 4 December 2018:
(3.1) challenging a NTP issued to it by the Respondent Council on 23 November 2018; and
(3.2) seeking to set aside a subpoena issued by the Council to Colinta Holdings Pty Ltd ("Colinta"), also on 23 November 2018.
The Applicant was represented on both occasions by Mr C Ireland of counsel, and the Respondent Council by Mr R Lovas of counsel. Mr Ireland also appeared for Colinta on 5 February 2019.
This judgment deals with all three NsOM.
The substantive hearing is presently listed to commence on 15 July 2019.
[3]
Background
The Applicant contends that the Respondent Council, consistent with a strategy adopted among Upper Hunter councils, is seeking to "characterise land owned by a mining company, but not actually the subject of mining, as 'mining' as a rating category, rather than a category reflecting its true and proper characterisation based on its actual use, in this case as farmland" (T07.12.18 p1, LL45-49).
Colinta has a land access licence agreement (T05.02.19 p18, LL35-49) with the Applicant (commencing 18 July 2016, and included in Exhibit R1), under which it grazes the subject land. The two companies have, at least, a common secretary.
Prior to 4 August 2017, the subject lands were categorized as "farmland". On or about 4 August 2017, the Respondent Council is said to have decided to leave the subject lands - and/or to have those lands declared to be - in the mining category, with effect from 1 July 2016.
The Respondent alleges that, pursuant to s 517 of the LGA, the "dominant use" of the subject lands has been, and remains, as or for a "coal mine", since at least 1 July 2016. "Dominant use" is a question of fact and degree.
The Applicant's application to Council to change the category was lodged on 30 May 2018.
Council did not determine that application within 40 days.
Therefore, as at 9 July 2018, a deemed declaration took effect retaining the land within the mining category.
The Applicant submits that its appeal is against a declaration made on 4 August 2017, but the Respondent contends that it is, in reality, against the deemed declaration of 9 July 2018.
In either event, the Court must adjudicate if the disclosure documents are to stand, on the basis that the (only) factual issue to be tried at the substantive hearing is (as articulated in Council's subs dated 31 January 2019, par 6):
What was the dominant use of each of these two parcels of land in or over the relevant period; in particular, in respect of each of them, was its dominant use for a coal mine or did its dominant use include being held for any mining purpose?
or (in the Applicant's subs dated 28 November 2018, par 4):
The nature and extent of use of the land as at 1 July 2016 ... Whether the land is held and used for grazing, or held to comply with the Mangoola Project Approval conditions ...
That question crystallizes a major dispute between the parties as to the application of the statutory definition of the term "mine" in the present context (see [24] below). In his written submissions in support of Council's NOM (of 20 October 2018 - no (1)), Mr Lovas said (par 8):
There is a contentious legal issue between the parties as to whether land can have a dominant use of 'for a coal mine' if it is merely being "used or held for any mining purpose" (per the definition of mine). The Council says that the definition applies; Mangoola says it does not. That question of statutory construction is for the trial judge to decide. The Council must be allowed to present its factual case on the extended definition of mine - that is, to adduce evidence as to what the subject lands were being held for as well as what they were being used for. That can only be answered by evidence of Mangoola's actual conduct and purposes. Self-evidently, Mangoola's records are likely to be very weighty evidence in proving the reasons for which it was holding and using the subject lands.
His submissions go on to list (in par 20) eighteen facts, "among others", that are in dispute between the parties. In his conclusion (par 24) he says:
All of the documents sought in the Council's Disclosure Documents go to the "facts and circumstances" concerning Mangoola's mining activities or Colinta's alleged grazing activities on the subject lands. Any such evidence sourced from Mangoola's own reports and returns about its mining activities are likely to be weightier than those sourced elsewhere. Accordingly, it is not merely "on the cards" but it is very likely that the documents will materially assist the Council in rebutting Mangoola's allegation that the dominant use of the subject lands was for farming rather than for a coal mine.
The Respondent Council also relies, in part, on the Chief Judge's reasoning in Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council [2013] NSWLEC 86 - in respect of which leave to appeal was refused by the Court of Appeal (Mid-Western Regional Council v Peabody Pastoral Holdings Pty Limited [2013] NSWCA 322) - but, at the substantive hearing, the Council will seek to persuade the trial judge that the primary decision in Peabody ought not be followed.
[4]
The Challenged Disclosure Documents
For completeness, and in fairness to all the arguments advanced, I now set out the wording of the prayers for production in the various disclosure documents presently before the Court:
(a) The Applicant's NTP to the Council, dated 20 September 2018:
1 All documents relating to the assessment and categorisation of land for Property Rate Assessment No. No 113969 and Property Rate Assessment No. 121111 for each rating year from the 2011/2012 rating year to the 2018/19 rating year;
2 Any Muswellbrook Shire Council policies, directives or any similar documents (whether internal or external documents) relating to the categorisation of land as 'mining' for the purposes of rates;
3 All documents relating to the formulation, assessment, consideration and inclusion of the new sub-categories of rates being 'Farmland - Offset' and 'Farmland - Affected by Mining' in the Revenue Policy which forms part of the Muswellbrook Shire Council Draft Operational Plan 2018-2019;
4 Any correspondence between Muswellbrook Shire Council's staff, including internal policy officers, and any other member of Council, including the General Manager and/or Councillors, relating to the categorisation of land within the Muswellbrook Shire Council local government area as 'Mining-General' or 'Mining - Underground Coal Mining' or the sub-categorisation of land as 'Farmland - Offset' and 'Farmland - Affected by Mining' from 1 January 2016 to the present;
5 Any correspondence between any employee or Councillor of Muswellbrook Shire Council and any employee or Councillor of Mid-Western Regional Council regarding the categorisation of land as 'mining' and/or the creation of subcategories of rateable land of 'Farmland - Offset' and 'Farmland - Affected by Mining' by Muswellbrook Shire Council (or any similar sub-categories) and/or any potential or proposed categorisation of land under such sub-categories from 1 January 2016 to present; and
6 Any correspondence between any employee or Councillor of Muswellbrook Shire Council and any employee or Councillor of Singleton Council regarding the categorisation of land as 'mining' and/or the creation of sub-categories of rateable land of 'Farmland - Offset' and 'Farmland - Affected by Mining' by Muswellbrook Shire Council (or any similar sub-categories) and/or any potential or proposed categorisation of land under such sub-categories from 1 January 2016 to present.
7 For the purposes of the above, the term 'documents' includes, but is not limited to any file notes, diary notes, minutes of meeting, photographs, videos, briefing notes, memorandum, emails, letters and reports whether in draft or final form.
(b) The Applicant's subpoenas to each of Singleton and Mid-Western Regional Councils, dated 20 September 2018:
Any correspondence, including emails, or any file notes, diary notes or records of meetings relating to communications between any employee or Councillor of [your] Council and any employee or Councillor of Muswellbrook Shire Council regarding:
1. The categorisation of land in either [your Council's] Local Government Area or the Muswellbrook Shire Council Local Government Area as 'mining' for the purposes of rates under section 517 of the Local Government Act from 1 January 2016 to present; and
2. The creation of sub-categories of rateable land of 'Farmland - Offset' and 'Farmland - Affected by Mining' by Muswellbrook Shire Council (or any similar sub-categories) and/or any potential or proposed categorisation of land under such sub-categories from 2016 to present.
(c) The amended versions of the NTP, and the subpoenas to Singleton and Mid-Western Regional Councils, sought by the Applicant in its NOM, dated 19 November 2018 (as per MFI1):
(c1) The NTP
1 All documents considered by the Respondent for the purpose of the assessment and categorisation of land by the Respondent for Property Rate Assessment No. No 113969 and Property Rate Assessment No. 121111 (Properties) as at 1 July 2016.
2 All reports, memoranda or briefing notes (external or internal addressing the following matters as referred to in 'Part B' of the Respondent's Statement of Facts and Contentions filed in the proceedings:
a. the suitability of the Properties for agricultural purposes;
b. the area of the Properties used for agricultural purposes;
c. the extent of grazing on the Properties;
d. whether the land is held or used for any mining purpose;
e. any actual or present advantage that the Applicant is deriving in holding or using the land for a mining purpose.
All Muswellbrook Shire Council policies, directives, guidelines or any similar documents (whether internal or external documents) considered by the Respondent for the purpose the categorisation of the Properties as 'mining' for the purposes of rates with effect from 1 July 2016.
3
4 All documents considered by the Respondent for the purposes of its decision to include the new sub-categories of rates being 'Farmland - Offset' and 'Farmland - Affected by Mining' in the Revenue Policy which forms part of the Muswellbrook Shire Council Operational Plan 2018-2019.
5 Any correspondence between Muswellbrook Shire Council's staff, including internal policy officers, and any other member of Council, including the General Manager and/or Councillors, relating to the categorisation of land within the Muswellbrook Shire Council local government area as 'Mining-General' from 1 January 2016 to the present.
7 For the purposes of the above, the term 'documents' includes, but is not limited to any file notes, diary notes, minutes of meeting, photographs, videos, briefing notes, memorandum, emails, letters and reports whether in draft or final form.
...
(c2) Subpoena to Singleton Council
Any correspondence, including emails, or any file notes, diary notes or records of meetings relating to communications between any employee or Councillor of Singleton Council and any employee or Councillor of Muswellbrook Shire Council regarding:
1. The categorisation of land in the Muswellbrook Shire Council Local Government Area as 'mining' for the purposes of rates under section 517 of the Local Government Act from 1 January 2016 to present.
...
(c3) Subpoena to Mid-Western Regional Council
Any correspondence, including emails, or any file notes, diary notes or records of meetings relating to communications between any employee or Councillor of Mid-Western Regional Council and any employee or Councillor of Muswellbrook Shire Council regarding:
1. The categorisation of land in the Muswellbrook Shire Council Local Government Area as 'mining' for the purposes of rates under section 517 of the Local Government Act from 1 January 2016 to present.
(d) The Respondent's NTP to the Applicant, dated 23 November 2018:
1 All aerial photographs and/or footage of the land subject of rating assessment numbers 113969 and 121111 (subject land) from 1 January 2016 to the present.
2 All annual returns submitted pursuant to section 58 of the Local Land Services Act 2013 for the subject land from 1 January 2016 to the present.
3 All data recorded and documents submitted to or received from the National Livestock Identification System in relation to the subject land from 1 January 2016 to the present.
4 All records recording the purchase and sale of livestock, including mortality rates, on the subject land or any part thereof from 1 January 2016 to the present.
5 All communications or documents made or exchanged between Mangoola Coal Operations Pty Limited ABN 54 127 535 755 or its employees, contractors, agents or officers (Mangoola) and Colinta Holdings Pty Limited ABN 76 010 031 017 or its employees, contractors, agents or officers (Colinta) pursuant to clause 6 of the "Land access licence agreement" between Mangoola and Colinta dated 18 July 2016 (Licence Agreement).
6 All communications or documents made or exchanged between Mangoola and Colinta pursuant to clause 16.1(c) of the Licence Agreement from 1 January 2016 to the present.
7 All documents disclosing the location of any environmental monitoring unit or continuous noise monitoring unit on the land subject to the Licence Agreement from 1 January 2016 to the present.
8 All water access licences or approvals (Water Licences) issued pursuant to the Water Management Act 2000 or the Water Management Act 1912 held by Mangoola or Colinta which permit the use of water on or for the subject land.
9 All logbooks or other records recording water taken under the Water Licences from 1 January 2016 to the present.
10 All Noise Management Plans (however styled) prepared or effective pursuant to Condition 9 of Schedule 3 of the Project Approval application number 06_0014 (Consolidated Project Approval) at any time from 1 January 2015 to present.
11 All Air Quality Management Plans (however styled) prepared or effective pursuant to Condition 23 of Schedule 3 of the Consolidated Project Approval at any time from 1 January 2015 to present.
12 All Site Water Management Plans (however styled) prepared or effective pursuant to Condition 28 of Schedule 3 of the Consolidated Project Approval at any time from 1 January 2015 to present.
13 All Biodiversity Offset Strategies (however styled) prepared or effective pursuant to Condition 34 of Schedule 3 of the Consolidated Project Approval at any time from 1 January 2015 to present.
14 All Biodiversity Management Plans (however styled) prepared or effective pursuant to Condition 39 of Schedule 3 of the Consolidated Project Approval at any time from 1 January 2015 to present.
15 All Aboriginal Cultural Heritage Management Plans (however styled) prepared or effective pursuant to Condition 41 of Schedule 3 of the Consolidated Project Approval at any time from 1 January 2015 to present.
16 All Rehabilitation Management Plans (however styled) prepared or effective pursuant to Condition 60 of Schedule 3 of the Consolidated Project Approval at any time from 1 January 2015 to present.
17 All Environmental Management Strategies (however styled) prepared or effective pursuant to Condition 1 of Schedule 5 of the Consolidated Project Approval at any time from 1 January 2015 to present.
18 All Annual Reviews submitted to the Department of Planning and Environment (or equivalent) pursuant to Condition 6 of Schedule 5 of the Consolidated Project Approval at any time from 1 January 2015 to present.
19 All Independent Environmental Audits commissioned pursuant to Condition 7 of Schedule 5 of the Consolidated Project Approval at any time from 1 January 2015 to present.
20 All Environmental Assessments listed in Condition 2 of Schedule 2 of the Consolidated Project Approval.
21 All Annual Returns submitted to the NSW Environment Protection Agency pursuant to Condition R1 of Part 6 of Environment Protection Licence Number 12894.
22 All Mining Operations Plans, including all amendments, approved pursuant to clause 3 of Mining Lease Number 1626 (ML 1626) from 1 January 2016 to the present.
23 All Environment Management Reports lodged pursuant to clause 4 of ML 1626 from 1 January 2016 to the present.
24 All Exploration Reports (however styled) provided pursuant to clause 11 of ML 1626 from 1 January 2016 to present.
25 All Mining Operations Plans, including all amendments, approved pursuant to clause 3 of Mining Lease Number 1747 (ML 1747) from 1 January 2016 to the present.
26 All Rehabilitation Reports prepared pursuant to clause 3 of ML 1747 from 1 January 2016 to the present.
27 All Compliance Reports submitted to the Minister pursuant to clause 4 of ML 1747 from 1 January 2016 to the present.
28 All Environmental Incident Reports submitted pursuant to clause 5 of ML 1747 from 1 January 2016 to the present.
29 All annual reports prepared and lodged pursuant to section 163C of the Mining Act 1992 and clause 57 of the Mining Regulation 2010 or clause 59 of the Mining Regulation 2016.
(e) The Respondent's subpoena to Colinta, dated 23 November 2018:
1 All aerial photographs and/or [aerial - T05.02.19 p5, L5-p6, L2] footage of the land subject of rating assessment numbers 113969 and 121111 (subject land) from 1 January 2016 to the present.
2 All annual returns submitted pursuant to section 58 of the Local Land Services Act 2013 for the subject land from 1 January 2016 to the present.
3 All data recorded and documents submitted to or received from the National Livestock Identification System in relation to the subject land from 1 January 2016 to the present.
4 All records of the delivery to, removal from, natural increase on, natural loss on and stock numbers from time to time on the subject land or any part thereof of livestock from 1 January 2016 to the present.
5 All records of purchases or acquisitions of fodder for livestock on the subject land from 1 January 2016 to the present.
6 All communications or documents made or exchanged between Mangoola Coal Operations Pty Limited ABN 54 127 535 755 or its employees, contractors, agents or officers (Mangoola) and Colinta Holdings Pty Limited ABN 76 010 031 017 or its employees, contractors, agents or officers (Colinta) pursuant to clause 6 of the "Land access licence agreement" between Mangoola and Colinta dated 18 July 2016 (Licence Agreement).
7 All communications or documents made or exchanged between Mangoola and Colinta pursuant to clause 16.1(c) of the Licence Agreement from 1 January 2016 to the present.
8 All documents disclosing the location of any environmental monitoring unit or continuous noise monitoring unit on the land subject to the Licence Agreement from 1 January 2016 to the present.
9 All water access licences or approvals (Water Licences) issued pursuant to the Water Management Act 2000 or the Water Management Act 1912 held by Mangoola or Colinta which permit the use of water on or for the subject land.
10 All logbooks or other records recording water taken under the Water Licences from 1 January 2016 to the present.
[5]
Relevant Statutory Provisions
Sections 514, 515, 517, 521, 525, and 526 of the LGA provide (most emphasis mine):
514 Categorisation of land for purposes of ordinary rates
Before making an ordinary rate, the council must have declared each parcel of rateable land in its area to be within one or other of the following categories:
• farmland
• residential
• mining
• business.
Note. Land falls within the "business" category if it cannot be categorised as farmland, residential or mining. The main land uses that will fall within the "business" category are commercial and industrial.
515 Categorisation as farmland
(1) Land is to be categorised as farmland if it is a parcel of rateable land valued as one assessment and its dominant use is for farming (that is, the business or industry of grazing, animal feedlots, dairying, pig-farming, poultry farming, viticulture, orcharding, bee-keeping, horticulture, vegetable growing, the growing of crops of any kind, forestry or aquaculture within the meaning of the Fisheries Management Act 1994, or any combination of those businesses or industries) which:
(a) has a significant and substantial commercial purpose or character, and
(b) is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made).
(2) Land is not to be categorised as farmland if it is rural residential land.
(3) The regulations may prescribe circumstances in which land is or is not to be categorised as farmland.
...
517 Categorisation as mining
(1) Land is to be categorised as mining if it is a parcel of rateable land valued as one assessment and its dominant use is for a coal mine or metalliferous mine.
(2) The regulations may prescribe circumstances in which land is or is not to be categorised as mining.
...
521 When does the declaration of a category take effect?
A declaration that a parcel of land is within a particular category takes effect from the date specified for the purpose in the declaration.
...
525 Application for change of category
(1) A rateable person (or the person's agent) may apply to the council at any time:
(a) for a review of a declaration that the person's rateable land is within a particular category for the purposes of section 514, or
(b) to have the person's rateable land declared to be within a particular category for the purposes of that section.
(2) An application must be in the approved form, must include a description of the land concerned and must nominate the category the applicant considers the land should be within.
(3) The council must declare the land to be within the category nominated in the application unless it has reasonable grounds for believing that the land is not within that category.
(4) If the council has reasonable grounds for believing that the land is not within the nominated category, it may notify the applicant of any further information it requires in order to be satisfied that the land is within that category. After considering any such information, the council must declare the category for the land.
(5) The council must notify the applicant of its decision. The council must include the reasons for its decision if it declares that the land is not within the category nominated in the application.
(6) If the council has not notified the applicant of its decision within 40 days after the application is made to it, the council is taken, at the end of the 40-day period, to have declared the land to be within its existing category.
526 Appeal against declaration of category
(1) A rateable person who is dissatisfied with:
(a) the date on which a declaration is specified, under section 521, to take effect, or
(b) a declaration of a council under section 525,
may appeal to the Land and Environment Court.
(2) An appeal must be made within 30 days after the declaration is made.
(3) The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires.
The Dictionary in the LGA includes the following definition:
mine means land, on or below the surface or partly on or partly below the surface, used or held for any mining purpose.
As already noted ([19]), the parties do not agree on the application of this definition of "mine" to the present circumstances, namely the question: can land have a dominant use "for a coal mine" if it is merely being "used or held for any mining purpose"? Mr Lovas, on behalf of Council, says that "the definition applies, but [the Applicant] says it does not" (Council subs 31 January 2019, par 8).
By way of a "gloss" on the above categories, the Respondent Council has introduced two (new) rating subcategories of "farmland", namely "Farmland - Offset" and "Farmland - Affected by Mining", as intermediate alternatives to the mining category (T07.12.18 p13, L9).
The Uniform Civil Procedure Rules 2005 ("the UCPR") include the following relevant Rules (emphasis mine):
33.3 Form of subpoena (cf SCR Part 37, rule 3)
...
(4) A subpoena to produce must:
(a) identify the document or thing to be produced, and
(b) specify the date, time and place for production.
...
34.1 Notice to produce to court (cf SCR Part 36, rule 16; DCR Part 28, rule 18; LCR Part 23, rule 9)
(1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner:
(a) at any hearing in the proceedings or before any such examiner, or
(a1) at any time fixed by the court for the return of subpoenas, or
(b) by leave of the court, at some other specified time,
any specified document or thing.
(2) The other party must comply with a notice to produce:
(a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production ...
[6]
The Principles
The parties are agreed on the principles to be applied, and also agree that the same principles apply to setting aside all disclosure documents, whether NTP or subpoena.
I had reason to review the relevant authorities, as they then stood, in Young v King (No 3) [2012] NSWLEC 42.
Inter alia, I said in that judgment (at [41]-[66]):
41 Production of documents on subpoena or in response to a NTP will not be required or enforced by a court unless the subpoena or NTP has what is regularly called "a legitimate forensic purpose". (See NSW Commissioner for Police v Tuxford & Ors [2002] NSWCA 139).
...
51 Put simply, as mentioned above ([41]), the party seeking production of documents bears the onus of establishing that they are required for a legitimate or "proper forensic purpose", i.e. they have a high probability of proving to be "relevant" to the "main case", and may materially assist in the resolution of the issues in that case.
...
55 The test, in cases such as this, of the relevance of documents sought by NTP or subpoena which the court is asked to set aside, is well articulated in the major authorities.
56 The classic statement of the test is generally said to be found in the judgment of Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors ("Arnotts") (1989) 88 ALR 90; (1989) 21 FCR 306, at 103 of the ALR report. According to Arnotts, the correct questions for the court are (emphasis added):
Does the material sought have an apparent relevance to the issues in the principal proceedings, ie is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? ... Is the subpoena seriously and unfairly burdensome or prejudicial? ... The test of adjectival relevance is satisfied if the material has apparent relevance.
57 His Honour concluded (also at 103, with emphasis again added) that the test was satisfied in that case because the documents sought "could possibly throw light on the issues in the main case".
58 The use of the word "possibly" in His Honour's finding has been said, by Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation ('Cosco') [(1997) 37 ATR 432] at 439, to mean that:
The material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made. (emphasis mine).
59 Brereton J noted in Portal Software International Pty Ltd v Bodsworth ("Portal") [2005] NSWSC 1115, at [22], that it had become clear by that time that absence of apparent relevance is a sufficient ground to set aside a subpoena or a NTP. Where it is asserted that there is an abuse of process, "some onus would lie on the person contending that ... to make that allegation good" (at [28]), but where the question of relevance is raised it must be shown by the party issuing the notice rather than refuted by the producer (at [29]).
60 In ICAP Pty Ltd & Ors v Moebes & Anor ('ICAP') [2009] NSWSC 306, Nicholas J agreed with the construction adopted in Cosco , and in an unreported judgment in McLaughlin v Dungowan Manly Pty Ltd ('McLaughlin' - NSWSC 4924/06) on 14 July 2009, Ward J agreed with Nicholas J.
61 Ward J also noted (at [28] of McLaughlin ) that Nicholas J had expressed caution in ICAP about application of a test of "legitimate forensic purpose" which incorporates phrases like "on the cards" or "could possibly throw light on", but that Beazley JA (in Attorney-General (NSW) v Chidgey ('Chidgey') [2008] NSWCCA 65; (2008) 182 A Crim R 536) had found no reason to depart from the test or from the language adopted by Gibbs CJ in Alister v R ("Alister") (1984) 154 CLR 404. I will return to Alister and Chidgey. (See below, at [71] and [85] respectively).
62 Ward J noted (at [32]) that Nicholas J had stated the test (in [30]), in civil proceedings, in terms that (emphasis added):
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.
63 Her Honour then observed (at [33]):
That requires a consideration of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena.
...
66 It is not contested that the same principles apply, in both civil and criminal matters, to setting aside a NTP (to a party), as to setting aside a subpoena (to a stranger): R v Saleam ("Saleam") [1999] NSWCCA 86, at [11]; Bailey v Beagle Management Pty Ltd [(2001) FCA 60; (2001) 105 FCR 136].
I went on, in Young v King (No 3), to adopt also the summary of principles stated by Craig J in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation ("Azar") [2010] NSWLEC 110, at [20]-[21]:
20. A consideration of the arguments advanced before me on 28 May indicated that the Subpoenas and Notice were framed in terms that did not enable it to be positively established that a legitimate forensic purpose was served by the Subpoenas and the Notice (Commissioner for Railways v Small (1938) 38 SR (NSW) 564; NSW Commissioner of Police v Tuxford [2002] NSWCA 139; Travel Compensation Fund v Blair [2002] NSWSC 1228). Whether such purpose is met in a given case will turn upon the connection between the issues raised in the proceedings and documents which are the subject of a subpoena or notice to produce. The requisite connection to be established has been variously described. Without intending to be exhaustive, it is apparent that a subpoena or notice to produce will be liable to be set aside where the party seeking production of documents cannot establish:
(i) that it is "on the cards" that the documents will materially assist on an identified issue: Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam [1999] NSWCCA 86 at [11]; Attorney-General for NSW v Chidgey [2008] NSW CCA 65; 182 A Crim R 536 at [58] - [69];
(ii) that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings: Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90 at 103; Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432;
(iii) that there is a reasonable basis for supposing that the material called for will likely add to the relevant evidence in the case: A v Z (2007) 212 FLR 255 at [4];
(iv) that it is likely the documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will do so: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494; ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307.
21. The principle was extensively discussed in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd. Tobias JA (in whose judgment Basten JA and Handley AJA agreed) considered at [22] the requirement for it to be shown that it is "likely" that the documentation sought will materially assist on an identified issue or the alternative requirement that there be a reasonable basis beyond speculation that it is likely the documentation will so assist was not relevantly different to a requirement that it be "on the cards" that the documents would materially assist on an identified issue. Importantly, all the tests, however stated, require identification of an issue or issues in the proceedings with some modicum of particularity which then becomes the measure against which the forensic purpose of the documents can be determined. It is that identification which must inform the requirement to produce the documents sought.
I then exhaustively reviewed the authorities (at [67]-[97]) before concluding (at [109]):
109 High Court and Court of Appeal decisions have set important restrictions and laid down clear principles, and I have surveyed many first-instance applications of those principles. You cannot compel production of documents to see if they may be relevant and/or of assistance. ...
So far as I am aware, my lengthy analysis in Young v King (No 3) has never been questioned, but it has, rather, been endorsed and applied many times; e.g. Pepper J followed it, as well as Azar, in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122, and Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32.
I had to revisit this area of the law myself in Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Limited v Roads and Maritime Services (No 3) ("ALF No 3") [2017] NSWLEC 183 (see [13] to [27]). In ALF No 3 I drew attention (at [20]-[27]) to some additional authorities put to me, but to which I was not taken in Young v King No 3. I found them supportive of my position in Young v King No 3 (see ALF No 3 at [36]).
I recently applied the principles again in Gaudioso v Roads and Maritime Services ("Gaudioso") [2019] NSWLEC 10, a case in which the party seeking production voluntarily narrowed the scope of its disclosure documents in a way I found satisfactory.
It is to these principles that I again resort in determining the present NsOM, accepting that a non-party such as Colinta is entitled to expect them to be applied to it with "greater strictness" (T05.02.19 p12, L28) than a party can expect.
[7]
Consideration
There was no real dispute between counsel that the Court has, and often exercises, the power to amend disclosure documents, whether under s 68 of the Land and Environment Court Act 1979, s 64 of the Civil Procedure Act 2005, or rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005: see, generally, Marshall Rural Pty Ltd v Basscave Pty Ltd (No 2) [2017] NSWLEC 137.
However, the Respondent Council formally opposed its exercise in favour of the Applicant in the present case (T07.12.18 p36, LL12-13).
I reject those submissions of the Council, and would allow the amendments.
There were submissions made in both stages of this hearing that the parties whose disclosure documents were under challenge had cast their nets too widely - for example, Mr Ireland described the Council's disclosure documents (in [22] (d) and (e) above), as adopting a "broad brush or scattergun" approach (T05.02.19 p4, L40), or making "broad and undiscriminating request[s]" (Tp6, L36).
Mr Ireland also complained that many of the documents sought from the Applicant were "publicly available". I cannot see how that circumstance should lead to a finding that their production in response to disclosure documents cannot satisfy the "materially assist" case or the "forensic purpose" test (c.f. Applicant's subs 31 January 2019, pars 6 and 15, and T05.02.19 pp17-18).
Clearly the Respondent is closely interrogating the documentation which could indicate the "fact and degree" of farming activity on the subject land, and Mr Lovas was able to justify each of the items specified in the relevant disclosure documents (T05.02.19 pp15-19, and his subs of 1 February 2019, pars 22-23).
I accept the explanations given, and the justifications advanced, for each party seeking the documents they have nominated.
In the Applicant's case that acceptance was made possible by the "narrowing" amendments it sought to make to its disclosure documents. As I found in Gaudioso (at [57]):
I would have had some reservations about the breadth of the disclosure documents, in their original form, but, in their narrowed form, I am satisfied that they should be complied with.
I accept that the principles outlined above ([28]-[36]) have been satisfied.
[8]
Conclusion and Orders
The challenged disclosure documents, upon which each party seeks to rely, should be allowed to stand, as amended.
The formal orders of the Court will be:
1. The Applicant's Notice of Motion of 19 November 2018 is upheld, and the leave sought in each of paragraphs 1 to 3 of it is granted.
2. The Council's Notice of Motion of 2 October 2018 and the Applicant's Notice of Motion of 4 December 2018 are dismissed.
3. Costs are reserved.
4. Exhibits A1 and A2, together with MFI1, and two bundles of authorities, are returned to the Applicant, and Exhibit R1 to the Respondent.
5. The proceedings are to be listed before the Registrar for further case management on Wednesday, 27 March 2019.
[9]
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: 20 March 2019