Milne v Minister for Planning & Anor

Environmental Planning and Assessment Act 1979 s 79C, s 98 LEGISLATION CITED: Land and Environment Court Act 1979 s 38, s 39, s 63 Land and Environment Court Rules 1996 Pt 16 r 4 Local Government Act 1993

CASES CITED: Apache Northwest Pty Ltd and Ors v Western Power Corporation (1998) 19 WAR 350; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195

APPLICANT Mr A Oshlack (agent) SOLICITORS N/A

FIRST RESPONDENT LEGAL REPRESENTATIVES: No appearance SOLICITORS Department of Planning

SECOND RESPONDENT Mr J Kildea SOLICITORS Bartier Perry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MINISTER FOR PLANNING First Respondent

JUDGMENT Jagot J: Introduction 1 I will now deliver my reasons for ruling with respect to the respondent's notice of motion. These are proceedings under s 98 of the Environmental Planning and Assessment Act 1979 in which Ms Milne, an objector to a development application for designated development who was dissatisfied with the determination of the consent authority to grant development consent to the second respondent, appealed to the Court as provided for in that section.

2 An appeal under s 98 of the EPA Act is one where the procedures of the Court are largely regulated by ss 38 and 39 of the Land and Environment Court Act 1979 and where substantive considerations are regulated by s 79C of the EPA Act.

3 The Minister for Planning granted the development consent on 6 April 2006, the Minister being the relevant consent authority because at the time the development application was made it proposed what was then known as State significant development. The proposed development is described in the development consent granted by the Minister as the extension of the Chinderah Marina, which includes an additional eighty-six marina berths, a fifty-two space car park, a fuel storage tank and pipeline, and a public jetty with a fuel and sewerage pump out facility.

4 Ms Milne, the applicant in these proceedings, served a subpoena on the Tweed Shire Council. The Council is not a party to the proceedings because it was not the consent authority for the proposed development, that being the Minister for Planning. Nevertheless, the amended statement of issues filed on behalf of Ms Milne identifies a number of issues in which the Council is expressly mentioned. Those issues include issue (2) under the heading "the public interest", issue (3) under the heading "lack of support from council", and issue (4) "sale of riverfront land, economic feasibility and integrity of the project." I should also say there is an issue (5) "socio-economic issues" to which reference has been made in the arguments on the notice of motion.

5 The subpoena contained three substantive paragraphs seeking (in effect) all documents relating to two development applications; all documents relating to the environment, hydrology, water quality and marine ecology of the Tweed River at Chinderah and adjacent areas; and all documents "from" those above two paragraphs being documents and contracts of transfers of land either by fee simple or lease between the Council, the second respondent and/or another named entity whom I understand to be related to the second respondent.

6 The Council apparently produced to the Court a large number of documents in response to the subpoena. In the meantime the second respondent had filed its notice of motion seeking various orders, including that para 3 of the subpoena be set aside, as well as orders that enabled the second respondent first access to the documents produced by the Council to enable it to identify documents which the second respondent wished to contend were commercial documents to which the applicant should not be granted access.

7 On 12 October 2006, Biscoe J made orders 2, 3 and 4 in accordance with the second respondent's notice of motion and adjourned the balance of the motion in order to enable the second respondent to take steps pursuant to those orders, including inspecting the documents which the Council had produced and isolating those documents where the second respondent contended there should be no order for access in favour of the applicant.

8 In accordance with those orders, the second respondent identified a small number of documents where it said, first, that there was no legitimate forensic purpose in the applicant inspecting those documents and, secondly, that the documents were commercially confidential. I have read the documents separated out by the second respondent and placed in an envelope for the purpose of complying with Biscoe J's directions.

9 It is difficult to see how para 1 of the notice of motion can be pressed in its present form given that the documents produced to the Court by the Council include, as I infer, documents under to para 3 of the subpoena that the second respondent does not suggest should be the subject of any special order either denying the applicant access or requiring some arrangement over and above the usual implied undertaking when a court grants any party access to documents produced under subpoena - namely, that the documents be used for the purpose of the proceedings only. That is, I do not see that it is now practically possible simply to set aside para 3 of the subpoena when it has already been answered and in circumstances where the second respondent's issue relates only to a small number of documents produced under that para. Accordingly, I construe the notice of motion as now being to the effect that para 3 of the subpoena should be set aside only insofar as it relates to the small number of documents isolated by the second respondent and placed in the enveloped marked "privileged".

10 I propose now to deal with the second respondent's commercial confidentiality claim. This claim has to be approached in the following factual context. First, the Council, being the person in possession of the documents, has not itself made any claim for confidentiality. Secondly, although Mr Johnson's affidavit (Mr Johnson being the solicitor employed by the solicitor for the second respondent) annexes various documents, it does not contain any explanation of the facts or circumstances that would give these documents the status of commercially confidential documents. There is no information in Mr Johnson's affidavit from which I am able to understand how or the extent to which the interest of any person might be adversely affected by production pursuant to the subpoena in these proceedings on the basis of the usual implied undertaking.

11 Mr Kildea of counsel, appearing for the second respondent, drew my attention to certain references in the documents and suggested that disclosure of those matters might enable third parties to exploit knowledge of those matters presumably to the disadvantage of the second respondent. However, having read those documents nothing on the face of them allows me to draw that inference with any reasonable degree of confidence, particularly in circumstances where there is no confidentiality in the fact that the documents comprise communications between the second respondent and the Council and that the Council is a public authority subject to the provisions of the Local Government Act 1993. That Act, I note, includes s 12A to the effect, for example, that a council which refuses to provide access to a document to the public must give written reasons for its decision. And of course there remains one significant circumstance that I have already mentioned - that the Council itself has produced the documents under the subpoena without raising any issue about their commercial confidentiality or sensitivity.

12 In Apache Northwest Pty Ltd and Ors v Western Power Corporation (1998) 19 WAR 350 there is a useful discussion of the competing considerations that arise when a claim for commercial confidentiality is asserted. In short, that discussion discloses that commercial confidentiality is not ordinarily a sufficient reason to deny inspection by another party to proceedings and that the requirements for the administration of justice mean that claims for commercial confidentiality generally are not seen as a reason to set aside a subpoena.

13 Here the evidence put forward by the second respondent does not satisfy me that the documents are commercially confidential in the sense that their disclosure would cause some unreasonable harm to the interests of the second respondent or some third party. I am not able to infer any such damage from the contents of the documents themselves or the submissions made by Mr Kildea.

14 There was some reference by the second respondent in this context to the fact that an agent who is not an admitted practitioner of the Court represents the applicant in these proceedings. It is not entirely clear to me that I understand the significance of that, but it might be some concern on the part of the second respondent that the usual implied undertaking, or any other arrangement that I might require as a condition of access, may not have the same efficacy as it might have if the applicant were legally represented. If I correctly draw that inference about the import of the submission, then I must observe that s 63 of the Land and Environment Court Act 1979 expressly provides that a person is entitled to appear before this Court either in person or by a barrister or solicitor or, except in proceedings in Classes 5, 6 or 7 of the Court's jurisdiction, by an agent authorised by the person in writing. These are not proceedings in Classes 5, 6 or 7 and it necessarily follows that the applicant is entitled to appear in these proceedings by its agent Mr Oshlack. Moreover these are proceedings in Class 1 of the Court's jurisdiction where procedural requirements are largely regulated at the hearing by s 38(1) and (2) which provide that these proceedings are to be conducted with as little formality and technicality as the requirements of the Act and of every other Act and the proper consideration of the matters before the Court permit, and that the Court is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate. It seems to me that these provisions could be rendered unworkable if I were to accept a distinction between parties in Class 1 proceedings who were legally represented and parties in such proceedings who were not legally represented relating to essential preliminary matters such as the inspection of documents under subpoena.

15 For these reasons I do not accept the second ground upon which the second respondent seeks to set aside para 3 of the subpoena insofar as it relates to the documents in the envelope or, indeed, that on the basis of the evidence presently before me, there would be any reason to make any special order over and above the usual implied undertaking.

16 I now must move to the first ground - that is the contention that there is no legitimate forensic purpose in the applicant being granted access to inspect the documents because in short they are, the second respondent says, "utterly irrelevant to the issues requiring resolution in the proceedings".

17 There is no dispute about the relevant principles (articulated in many decisions that I need not record), namely, that a party who issues a subpoena must be able to point to a legitimate forensic purpose for the documents sought. Secondly, the only legitimate forensic purpose is to add to the relevant evidence at the hearing. However, a document need not itself be admissible in order to satisfy the applicable standard, which at this stage in the proceedings, is apparent or sufficient relevance. A document will meet that standard even if it may do no more than assist in cross-examination of a witness or lead to information that will itself add to the relevant material at the hearing. Apparent or sufficient relevance is not an onerous standard.

18 Here, pursuant to ss 38 and 39(2) of the Land and Environment Court Act 1979, the Court in exercising the functions of the consent authority will be bound to have regard to such of the considerations in s 79C of the EPA Act as are of relevance to the determination of this development application.

19 The applicant's statement of issues in the proceedings expressly raises the issue of the public interest in the context of, what I understand to be, contentions about the way in which the development uses and alienates public foreshore land. The public interest is a matter expressly referred to in s 79C of the Act. Moreover as the Court of Appeal said in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 210 [82], "nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the 'public interest'. For one thing the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest."

20 There are references throughout the documents isolated by the second respondent to various development consents, to conditions of those development consents and to matters which prima facie relate to either the development site itself or land in the vicinity of the development site, which in my view satisfy the sufficient and apparent relevance test recognising the broad nature of relevant considerations under s 79C, the particular issues raised by the applicant in these proceedings and the nature of this appeal given the provisions of the Land and Environment Court Act 1979.

21 Although I invited the second respondent to take the opportunity to consider whether there were particular parts of these documents that could be identified as irrelevant or commercially confidential in a specific respect, the second respondent declined the opportunity to do so. Accordingly, I have reviewed the documents and have identified these various references scattered throughout the documents. It necessarily follows that on the state of the evidence before me, I am satisfied that the documents contain information which meet the apparent or sufficient relevant test. Hence, there is a legitimate forensic purpose in the applicant inspecting those documents.

22 Given that conclusion and that I am not able to be satisfied on the evidence that there is commercial confidentiality in the documents (certainly not such as would warrant setting aside of the subpoena to any extent, or indeed warranting any special arrangements for inspection by the applicant over and above the ordinary requirement of which every person must be aware inspecting documents subject to a subpoena - namely that they may only be used for the purpose of the proceedings), I must dismiss para 1 of the notice of motion. I grant access to all parties to inspect documents produced by the Council in response to the applicant's subpoena including the documents in the envelope marked "privileged" bearing number 7749. I propose to so order now: (1) Para 1 of the second respondent's notice of motion dated 6 October 2006 is dismissed.

(2) Grant access to all parties to inspect the documents produced by Tweed Shire Council in response to the applicant's subpoena including the documents in the envelope marked "privileged" and bearing number 7749. [The applicant's agent and counsel addressed on costs of the notice of motion]

23 Mr Oshlack now seeks an order for costs relating to the second respondent's notice of motion, not on the basis of any suggestion of Mr Oshlack charging a fee for his work as the applicant's agent in this matter, but on the basis that the applicant will meet certain out of pocket expenses which have in fact been incurred in order for him to appear before me today as the applicant's agent and before Biscoe J previously.

24 Mr Kildea for the second respondent says that the question of costs, even on this notice of motion, must be approached through Pt 16 r 4 subr 2 of the Land and Environment Court Rules 1996 which provides that no order for the payment of costs will be made in proceedings to which the rule applies unless the Court considers that the making of a costs order is in the circumstances of the particular case fair and reasonable.

25 I accept Mr Kildea's submission that I should approach this question through Pt 16 r 4 subr 2, which means I must focus on the circumstances of the particular case, that is, that there should be no order for costs unless there are such circumstances making a costs order fair and reasonable.

26 In my view what occurred before Biscoe J is separate from what occurred before me today. Before Biscoe J, the second respondent's notice of motion put in place directions facilitating a review of documents by the second respondent in order for a further decision to be made about pressing para 1 of the notice of motion.

27 It seems to me that in the particular circumstances of the case it would not be fair and reasonable for me to make an order that the second respondent pay the applicant's costs of the attendance before Biscoe J.

28 However, there are circumstances that in my view operate in relation to the attendance of the applicant's agent before me today. In particular, if I treat the "case" relevantly as the notice of motion, the fact is that the applicant has been wholly successful with respect to the notice of motion. Given the nature of the order sought by the second respondent it seems to me that there are circumstances which make it fair and reasonable that the applicant's costs of the attendance before me today should be paid by the second respondent as agreed or as assessed and I propose so to order, as order (3): (3) The second respondent is to pay the applicant's costs, limited to the applicant's out of pocket expenses, of attending before the Court on 10 November 2006 with respect to the second respondent's notice of motion, as agreed or as assessed.

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