McIlveen v Baiada Poultry Pty Ltd

ROBERT DOUGLAS McILVEEN Applicant v BAIADA POULTRY PTY LTD Respondent

By notice of motion, the respondent, Baiada Poultry Pty Ltd, seeks the setting aside of a notice to produce dated 21 June 2002 served upon it by the applicant, Mr R D McIlveen.

The substantive proceedings concern a claim by the applicant that the respondent is using land at West Tamworth ("the premises") as a poultry abattoir and poultry processing and packaging factory contrary to the relevant provisions of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The applicant seeks declaratory and injunctive relief.

A copy of the notice to produce is annexed to this judgment. In summary, the notice to produce requires the production of different sets of documentary records in respect of monthly and annual periods from 1 September 1980 to date in relation to (a) the numbers of birds slaughtered and products processed at the premises, (b) compliance with relevant statutes; (c) the number of persons employed at the premises; and (d) money expended or work undertaken in respect of buildings and equipment.

The respondent claims that the documents sought by the notice to produce are irrelevant to the issues in the case, and that the notice to produce is oppressive and a "fishing expedition" by the applicant.

In order to consider the respondent's claim to have the notice to produce set aside, it is necessary to examine in some detail the class 4 application, the points of claim and the points of defence.

In his class 4 application, the applicant seeks, principally, five orders as follows:

(1) A declaration that the respondent is using the premises for the purpose of a poultry abattoir and/or a poultry and/or poultry by-product processing and packaging factory ("the impugned use");

(2) A declaration that the respondent is not entitled to use the premises for the purpose of the impugned use without development consent having first been obtained;

(3) Alternatively, a declaration that the respondent is not entitled to use the premises for the impugned use so as to slaughter and/or process and/or package more than 9000 birds per day;

(4) An order restraining the respondent from using the premises for the impugned use unless and until development consent has been granted;

(5) Alternatively, an order restraining the respondent from using the premises for the slaughter and/or processing and/or packaging of more than 9000 birds per day.

In his points of claim, the applicant outlines his case in the following way. Since 1980, the various environmental planning instruments that have successively applied to the premises have zoned the land upon which the premises are erected in such a way that its use as an abattoir has been prohibited. No development consent has been granted for the use of the premises as an abattoir. Furthermore, between September 1980 and the present date, the use of the abattoir has significantly intensified, in respect of which claim the applicant has supplied the following particulars: PARTICULARS OF PEAK KILLS

1980 9000 birds per day 1986 9000 birds per day 1993 22,000 birds per day 1997 50,000 birds per day 1999 72,500 birds per day 2000 84,000 birds per day

As at the present time, the abattoir is slaughtering and processing poultry at between 65,000 and 84,000 birds per day.

The respondent, in its points of defence, denies the applicant's claims generally. In particular, the respondent claims that its use of the premises is for industrial purposes, and that use has existed since prior to 1940. It admits that the industrial use includes the slaughter of poultry, and the processing and packaging of poultry and poultry products. It claims that its use of the premises as an industry has been permissible under various environmental planning instruments, but if, on the contrary, its use was prohibited at the date of coming into force of a relevant environmental planning instrument, then the use was an existing use within the meaning of s 106 of the EP&A Act and it may continue without development consent in accordance with the provisions of the EP&A Act.

To make good the respondent's claim that the notice to produce is oppressive, that it calls for documents that are irrelevant to the issues in the case and that it is no more than a "fishing expedition" by the applicant designed to discover the case to be made, Mr Galasso, appearing for the respondent, made the following submissions:

(1) Much of the material that could be elicited from the documents is already in the pleadings or in evidence. Thus, the points of claim lists the peak kill for several years during the 22 years in question, and that information, as well as information about the number of employees in various years appears in the affidavits of the applicant sworn on 5 March 2002 and 15 March 2002, and the affidavit of Mr G R Thompson sworn on 8 March 2002. (2) That affidavit evidence has been filed and served and the respondent has not filed and served any countervailing evidence (except in relation to discretion) and does not intend to do so. Accordingly, so Mr Galasso submitted, there is unchallenged evidence of the number of birds slaughtered, the number of persons employed and the nature and configuration of the premises at September 1980 and at the present day. This is enough to prove the purpose for which the premises were used in 1980 and the purpose for which they are now used. Increases in the numbers of birds slaughtered or processed or in the numbers of employees for various periods over 22 years is irrelevant, in his submission, to the nature and purpose of the use prior to September 1980 and its intensification since then. If 9000 birds were slaughtered in 1980 and more than 9000 are being slaughtered now, then that is sufficient in his view, to establish the factual basis for a claim of intensification, and the details of numbers during the interim period is irrelevant.

(3) Documents relating to the number of employees, compliance with relevant statutes and the respondent's revenue can have no possible relevance to the issues in the case.

(4) As appears from the affidavit of Ms C V M Barton, the respondent's solicitor, sworn on 26 July 2002, the number of documents for which the notice to produce calls runs into many thousands and will require considerable effort to locate.

In response, Mr Maston, appearing for the applicant, pointed to the fact that the respondent had made no concessions at all in relation to the facts and circumstances of the case. A notice to admit facts had been served, and the respondent had refused to admit any part of it. Accordingly, the fact that there is no evidence contrary to the evidence in the applicant's affidavits does not amount to an admission of all the relevant facts nor preclude the respondent from presenting a case contrary to the applicant's claims. In his submission there are three live issues in the case. They are:

(a) whether the respondent has existing use rights;

(b) whether s 107 or s 109 of the EP&A Act operates to permit the continuance of the use; and

(c) whether, as a matter of discretion, the Court should grant the relief sought by the applicant.

Furthermore, Mr Maston pointed out that there have been a series of environmental planning instruments that have applied to the premises. Accordingly, the purpose for which the premises were being used and the intensity of that use is relevant at the date of coming into force of each of those instruments, and at the date of the coming into force of both s 107 and s 109 of the EP&A Act.

Mr Maston pointed to the fact that the documents sought are likely to be reasonably accessible, because the respondent is a large organisation and has been carrying on business for many years and he cited comments along these lines by Smithers J in Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555 at 571. In this connection, Mr Maston pointed to the fact that Ms Barton's affidavit does not suggest that the documents do not exist.

Nor, in Mr Maston's submission, could the notice to produce be regarded as a "fishing expedition". The points of claim and the affidavit evidence already filed and served establish a prima facie case. The documents are being sought as direct evidence to support the applicant's case, not as to whether he has a case at all.

My conclusion is that the notice to produce should not be set aside in its entirety, but that paragraphs 2 and 6 should be set aside.

The case is not simply about the nature of the use of the premises prior to September 1980, and whether that use has intensified as at the present time. It is about whether the use of the premises is lawful. The determination of that issue will depend upon a number of issues, not the least of which is the question of whether the respondent has the benefit of existing use rights. In turn that will require consideration of the nature and lawfulness of the use of the premises immediately before the coming into force of an environmental planning instrument prohibiting that use or requiring consent for its continuation. In this connection, Mr Maston is correct in identifying a number of critical dates over the period from 1980 to the present time. There have been a number of environmental planning instruments applying to the premises, and ss 107 and 109 of the EP&A Act have come into force at different dates. It will be necessary for the applicant, who bears the onus of proving his case, to meet the respondent's claim of existing use rights by exposing the nature and lawfulness of the use of the premises at the various critical dates.

The issue of lawfulness of the use of the premises also raises a question of intensification or expansion of the use, and whether, if it has intensified or expanded, development consent was required but not obtained. I agree with Mr Maston's submission that this cannot be done simply by the production of records for a particular single date in comparison with another more recent date. It may be necessary to demonstrate a trend in the number of birds slaughtered and/or the quantity of products processed and packaged in order to prove an intensification in the use of the premises. I accept that, for this reason, documents have been sought in relation to monthly and annual periods.

I also accept that proof of the nature of the use of the premises over any period of time, and proof of any intensification or enlargement of that use, may require more than proof of the number of birds slaughtered. There will be many factors that may tend to prove the nature and extent of the use. The quantities of poultry processed and delivered from the premises may be relevant in this connection, as may be the number of employees of the respondent from time to time, and likewise the nature and extent of the buildings, fit out and equipment at the premises.

I am not satisfied that the facts which may be elicited from the documents that are sought are already proved by affidavit evidence. The applicant has given evidence of facts within his knowledge; but the direct evidence is in the hands of the respondent. Although the managing director of the respondent, Mr J Camilleri, has sworn an affidavit, it deals principally with matters relevant to the exercise of discretion rather than the nature and extent of the respondent's use of the premises over time.

These matters lead me to conclude that paragraphs 1, 3, 4 and 5 of the notice to produce should not be set aside. Compliance will require the collection of a large number of documents but they are likely to be relevant to the issues and "… to add, in the end, in some way or other, to the relevant evidence in the case", see Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927. In the balancing act which is required, the burden of compliance is outweighed by the desirability of having possibly relevant material available to the applicant so that it may advance its case, see Southern Pacific Hotel Services Inc v South Pacific Hotel Corporation Ltd (1984) 1 NSWLR 710 at 720.

I take a different view of paragraphs 2 and 6 of the notice to produce. Paragraph 2 requires documents created, received or retained for the purpose of compliance with various statutes. I fail to see the possible relevance of such documents to the matters I have outlined as being in issue. They do not seem to me to be likely to constitute direct or inferential evidence about the nature and lawfulness of the use of the premises (in a planning sense). I propose therefore to set aside paragraph 2 of the notice to produce.

As paragraph 6 of the notice to produce indicates, the respondent has produced to the applicant various documents entitled "Baiada Poultry Profit Actuals". The figures disclosed in these documents are difficult to comprehend. They are stated to refer to "profit actuals". Mr Maston told the Court that paragraph 6 was not directed to profit but rather to the number of birds etc. If that is so, then the information the notice to produce is intended to elicit is likely to be found in the documents produced in response to other paragraphs of the notice to produce rather than this paragraph. Furthermore, the very need to explain that to which paragraph 6 is directed points to its uncertainty and causes it to fall foul of the requirement that a notice to produce should be couched in terms of reasonable particularity (Southern Pacific Hotel Services Inc v South Pacific Hotel Corporation Ltd at 719). For these reasons, I propose to set aside paragraph 6 of the notice to produce.

There remains outstanding the question of the time for compliance with the remaining paragraphs of the notice to produce. The notice to produce originally set 24 July 2002 as the day fixed for compliance by the Court. In the course of the hearing of this notice of motion, Mr Maston suggested that the date should be extended to 27 August 2002, and Mr Galasso suggested that, in view of the matters set out in Ms Barton's affidavit to which I referred in par 9, the respondent should have a period of six weeks to comply. Ms Barton's evidence of the number of documents likely to be required to comply with the notice to produce should be accepted, and, accordingly, a period of six weeks would be a reasonable time within which to comply.

In accordance with the foregoing, I make the following orders:

(1) I set aside paragraphs 2 and 6 of the notice to produce dated 21 June 2002.

(2) I extend the time for compliance with the remaining paragraphs of the notice to produce to 20 September 2002.

(3) I stand the proceedings over to a callover before the Registrar on 24 September 2002 for further directions.

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