[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
PAYNE JA: This dispute was referred to me and heard in the referrals list on 3 July 2023. The applicants seek access to certain documents contained from a Land and Environment Court file.
The documents are sought in aid of judicial review proceedings brought in this Court, in which the applicants challenge a decision of a Land and Environment Court Commissioner. The judicial review proceedings are listed for hearing in this Court on 28 July 2023. The applicants have filed their written submissions and evidence in support of that application. The respondents' submissions and materials were filed on 4 July 2023. The applicants' reply submissions are due on 20 July 2023.
The applicants in the judicial review proceedings are Julie-Anne McMillan, Frances Ezra, Jack Ezra, Michael Hammond, Lisa Stephens, neighbouring home owners of the first and second respondents, Campbell Taylor and Sarah Curtis who own the property at the centre of this dispute and who oppose the application. The third and fourth respondents, respectively the Land and Environment Court of NSW and the Council of the Municipality of Woollahra, have entered submitting appearances.
The applicants challenge the Commissioner's decision in Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 1658. In that decision, the Commissioner disposed of an appeal against a refusal of development consent in accordance with a conciliation agreement dated 16 November 2022 made between Woollahra Council and the first respondent. That agreement was made under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which provides:
34 Conciliation conferences
(1) If proceedings are pending in Class 1, 2 or 3 of the Court's jurisdiction, the Court -
(a) may arrange a conciliation conference between the parties or their representatives, with or without their consent, and
(b) if it does so, must notify the parties or their representatives of the time and place fixed for the conference.
(1A) It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference.
(2) A conciliation conference is to be presided over by a single Commissioner.
(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner -
(a) must dispose of the proceedings in accordance with the decision, and
(b) must set out in writing the terms of the decision.
(4) If no such agreement is reached, the Commissioner must terminate the conciliation conference and -
(a) unless the parties consent under paragraph (b), must make a written report to the Court -
(i) stating that no such agreement has been reached and that the conciliation conference has been terminated, and
(ii) setting out what in the Commissioner's view are the issues in dispute between the parties, or
(b) if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings -
(i) following a hearing, whether held forthwith or later, or
(ii) with the consent of the parties, on the basis of what has occurred at the conciliation conference.
(5) The Commissioner, when giving his or her decision under subsection (4)(b), is to give reasons for the decision -
(a) in writing, or
(b) orally and recorded by means that can be reproduced.
(6) If satisfied that there is a good reason to do so, the Commissioner may adjourn the conciliation conference to a time and place fixed in consultation with the Registrar.
(7) Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3) or (4)(b) has and may exercise the functions of the Court.
(8) The decision of the Commissioner under subsection (3) or (4)(b) is taken to be the decision of the Court.
(9) If a report is made to the Court under subsection (4)(a), it must, as soon as practicable, furnish a copy of the report to each of the parties.
(10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement.
(10A) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to -
(a) a conciliation conference, and
(b) a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged.
(10B) The privilege conferred by subsection (10A) extends only to a publication made -
(a) at a conciliation conference, or
(b) in a document or other material sent to or produced to a Commissioner, or sent to or produced at the Court or the registry of the Court, for the purpose of enabling a conciliation conference to be arranged.
(11) Subject to subsections (10) and (12) -
(a) evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before any court, tribunal or body, and
(b) a document prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.
(12) Subsection (11) does not apply with respect to any evidence or document if the parties consent to the admission of the evidence or document.
(13) The Commissioner presiding over a conference under this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree.
(14) Unless otherwise directed by the Chief Judge, the Registrar may preside over a conference under this section and, in that event, a reference in this section to a Commissioner includes a reference to the Registrar.
The applicants twice unsuccessfully sought to be joined as parties to the proceedings which were resolved by the s 34 agreement: Campbell Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 96; Campbell Taylor v Council of the Municipality of Woollahra (No 2) [2022] NSWLEC 106. No appeal was brought from those decisions but, rather, the judicial review proceedings were launched.
On 30 March 2023, after commencing the review proceedings, the applicants served a notice to produce seeking access to the entire court file in the Land and Environment Court proceedings. It appears that no production was made under that notice to produce but that on 3 May 2023, the file was obtained by the Registrar of the Court of Appeal, in accordance with the Court's usual practice.
The Registrar allowed first access to that file to the first respondent. On 19 May 2023, the first and second respondents sent to the applicants a schedule of documents in the file which they claimed should not be produced by reason of s 34(11) of the LEC Act. Originally, the applicants sought access to draft versions of the s 34 agreement. In the course of argument on 3 July, following production to the applicants by the first respondent of the final s 34 agreement, the claim for drafts was not pressed.
What remains in issue are the following categories of documents:
1. Documents 2 and 25, which are expert reports. The applicants submit I should conclude that the parties obtained the reports for the purpose of the contested hearing that would have occurred if no s 34 agreement had been reached and that, thus, the documents are not caught by s 34(11);
2. Documents 4, 28, 30 and 35, which are bundles of documents that the applicants submit were created for the purpose of the contested hearing that would have occurred if no s 34 agreement had been reached and that, thus, are not caught by s 34(11).
The applicants press their claim for access to these documents. They no longer rely on the 30 March notice to produce, but instead on the power in r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) which provides:
33.13 Documents and things in the custody of a court
(cf SCR Part 37, rule 13)
(1) A party who seeks production of a document or thing in the custody of the court or of another court may inform the registrar in writing accordingly, identifying the document or thing.
(2) If the document or thing is in the custody of the court, the registrar must produce the document or thing -
(a) in court or to any person authorised to take evidence in the proceeding, as required by the party, or
(b) as the court directs.
(3) If the document or thing is in the custody of another court, the registrar must, unless the court has otherwise ordered -
(a) request the other court to send the document or thing to the registrar, and
(b) after receiving it, produce the document or thing -
(i) in court or to any person authorised to take evidence in the proceeding as required by the party, or
(ii) as the court directs.
When a party seeks a document or thing from a court's registrar, then under subrule (3), the registrar must take certain steps unless the court has "otherwise ordered". The real question is therefore whether I should "otherwise order" in relation to the documents sought by the applicants. I have decided to "otherwise order".
This is because I am satisfied that in the present circumstances to allow access to the file would be inconsistent with the dictates of Part 6 of the Civil Procedure Act 2005 (NSW).
The applicants seek those documents in aid of grounds 3 and 4 of the judicial review application. Grounds 3 and 4 are:
(3) The decision to grant the Development Consent was also affected by jurisdictional error, or alternatively by error on the face of the record as the decision maker did not take into consideration the amended Clause 6.2 of the Woollahra Local Environment Plan 2014 (WLEP), as it was a mandatory relevant consideration
(4) The decision to grant the Development Consent was affected by jurisdictional error, or alternatively by error on the face of the record as the decision maker did not take into consideration the draft amended clause 4.4 of the WLEP, which were each a mandatory relevant consideration
As I have said, the applicants' evidence and submissions in support of these grounds have already been filed. I am satisfied that the documents sought are "confidential" within the meaning of s 34(11) of the LEC Act. In context, "purpose" within the meaning of s 34(11) seems to me to mean dominant, in the sense of ruling or prevailing, purpose.
In addressing dominant purpose, it is relevant that in proceedings concerning development applications of the present kind a conciliation conference is mandatory: s 34AA of the LEC Act. It seems tolerably clear from the schedule's description of the documents that they were prepared for the dominant purpose of use in the compulsory conciliation which led to the s 34 agreement. That is: the documents were likely prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, within the meaning of s 34(11)(b) of the LEC Act.
I reject the applicants' attempt to characterise the documents as prepared for the dominant purpose of a future hearing. The better characterisation, given the compulsory conciliation here engaged is that these were documents made for use in that conciliation.
Because I find the documents sought are confidential within the meaning of s 34(11)(b), they could not be admissible in the judicial review proceedings, absent consent of the respondents. The applicants submitted that, although s 34(11) renders inadmissible the documents it captures, the section does not in terms prevent their access to documents. It was submitted that the respondents may in future consent to their tender.
When it comes to consent, the first and second respondent have clearly stated their position: they do not consent to granting access to the applicants to the outstanding documents. I am satisfied that position will not change. It would not be in accordance with the dictates of Part 6 of the Civil Procedure Act to go through the solemn farce of providing access to the documents so that the respondent can refuse consent to their tender. The applicants have suggested no other purpose for access other than tender in evidence.
Even if I had not reached this conclusion on case management grounds, there may well be an additional reason not to permit access. The respondents submitted that r 1.9 of the UCPR, along with the definition of "privilege" in the dictionary, allowed the Court to determine an objection to production on the basis of s 34(11). Rule 1.9 relevantly provides:
1.9 Objections to production of documents and answering of questions founded on privilege
(cf SCR Part 36, rule 13; DCR Part 28, rule 16)
(1) This rule applies in the following circumstances -
(a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,
(b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer,
(c) if a question is put to a person in the course of an examination before the court or an authorised officer.
…
(3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.
(4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.
(4A) If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled.
The UCPR Dictionary's definition of "privileged document" and "privileged information" is:
privileged document means a document that contains privileged information.
privileged information means any of the following information -
…
(h) information -
(i) the disclosure of the contents of which, or
(ii) the production of which, or
(iii) the admission or use of which,
in the proceedings would be contrary to any Act (other than the Evidence Act 1995) or any Commonwealth Act (other than the Evidence Act 1995 of the Commonwealth)
The documents sought in these proceedings were privileged under (h)(iii), because their admission would be contrary to "any Act", namely s 34(11) of the LEC Act. Even if I had been persuaded on case management grounds to permit the applicants to obtain access to the documents, the respondents are entitled to object to production on the grounds of privilege, under r 1.9(3). It would then be open to the Court to uphold or overrule the objection under r 1.9(4). Given the conclusions I have reached it is unnecessary finally to determine the correct construction of UCPR r 1.9.
Neither is it necessary to determine the operation of s 131A of the Evidence Act 1995 (NSW) and whether, as the applicants submitted, s 131A applies to the present dispute.
Given the time which has elapsed and the state of the proceedings which are all but ready for hearing and are listed within a few weeks, it would not be an appropriate exercise of the Court's powers to permit access to the Land and Environment Court file in circumstances where I am satisfied that the documents concerned are in any event not admissible pursuant to s 34 of the LEC Act, without the consent of the respondent which I am comfortably satisfied would not be given.
Despite the way the argument developed, for abundant caution, I will set aside the applicants' notice to produce dated 30 March 2023.
Accordingly, I make the following orders:
1. Set aside the applicants' notice to produce dated 30 March 2023.
2. Refuse the application under UCPR r 33.13 for access to the file
3. Costs of the application are costs in the cause.
[3]
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: 06 July 2023