Milne v Minister for Planning & Anor

Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Pt 16 LEGISLATION CITED: Land and Environment Court Act 1979 s 39(4), s 63 Land and Environment Court Rules 1996 Pt 4 r 4A, Pt 6 r 1(1) Supreme Court Rules 1970 Pt 37 r 11

Danieletto v Khera (1995) 35 NSWLR 684; Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284; CASES CITED: Hagan and Others v Waterhouse and Others [No 2] (1992) 34 NSWLR 400; Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77; Milne v Minister for Planning & Anor [2006] NSWLEC 745; Triotas Pty Ltd v Rohn, NSWSC, unreported, 20 May 1993, Young J

DATES OF HEARING: 30/1/2007, 6/2/2007, 7/2/2007

APPLICANT Mr A Oshlack (agent) SOLICITORS N/A

FIRST RESPONDENT No Appearance SOLICITORS Legal Services Branch - Department of Planning LEGAL REPRESENTATIVES: SECOND RESPONDENT No Appearance SOLICITORS Bartier Perry

TWEED SHIRE COUNCIL Mr N Eastman SOLICITORS Stacks The Law Firm

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MINISTER FOR PLANNING First Respondent

JUDGMENT Jagot J: 1 On 7 February 2007, I reserved the question of costs and expenses relating to a subpoena issued on 8 December 2006 at the request of the applicant, Ms Katie Milne, and addressed to the Tweed Shire Council, and a substitute for that subpoena issued on 6 February 2007. These reasons deal with the Council's application for expenses incurred in complying with each subpoena pursuant to Pt 37 r 11 of the Supreme Court Rules 1970, which applies to proceedings in Class 1 of this Court's jurisdiction by Pt 6 r 1(1) of the Land and Environment Court Rules 1996. Part 37 r 11 provides that: (1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. (2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs. (3) An amount fixed under this rule is separate from and in addition to: (a) any conduct money paid to the addressee, and (b) any witness expenses payable to the addressee.

2 To determine the Council's claim, it is necessary to consider the context in which the claim arises.

3 Ms Milne was an objector to a development application for designated development determined by the Minister for Planning by the grant of consent. Ms Milne exercised her right of appeal to this Court in accordance with s 98 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The development application proposed the extension of the Chinderah marina - a 29 berth marina approved by the Council on 21 June 2000. The 29 berth marina has not yet been constructed. The Council granted development consent to the 29 berth marina subject to a deferred commencement condition requiring the proponent to demonstrate that the sale and/or lease of certain land had been finalised in accordance with a Council resolution of 17 May 2000. The Council confirmed that this deferred commencement condition had been satisfied on 30 June 2005. Before that, the proponent lodged the application to extend the marina by 86 berths. The Minister, rather than the Council, was the consent authority for that application by operation of State Environmental Planning Policy No 71 - Coastal Protection. The marina expansion as proposed in the application before the Minister was physically integrated with the 29 berth marina and associated shore facilities granted consent by the Council.

4 The Council was not a party to the appeal, the respondents being the Minister for Planning (as consent authority) and Rivercolt Pty Ltd (as the proponent of the development). In her amended statement of issues dated 11 August 2006, Ms Milne raised issues about the foreshore land that the Council had owned and transferred to the proponent, as referred to in the deferred commencement condition of the consent for the 29 berth marina.

5 Ms Milne was represented in the appeal by an agent, who was not a legal practitioner (as provided for in s 63 of the Land and Environment Court Act 1979). On or about 6 October 2006, Ms Milne's agent took out a subpoena addressed to the Council requiring the production of documents relating to both the 29 berth marina development application and the application for its extension. Paragraph 3 of that subpoena also required the Council to produce "all documents from above to include all documents and contracts of transfers of land either by fee simple or lease between Council, the second respondent and/or Geographie Pty Ltd (sic)". Geographe Point Pty Ltd was the original proponent of the application to extend the marina, Rivercolt being its successor. The Council produced documents in answer to that subpoena. Rivercolt was granted first access and identified certain documents that it asserted ought not to be produced to Ms Milne. The Council made no claim in relation to that subpoena other than, apparently, a claim for legal professional privilege that was not disputed by Ms Milne. Accordingly, Rivercolt filed and served a notice of motion seeking to set the subpoena aside. On 10 November 2006, I dismissed Rivercolt's notice of motion and granted access to the documents produced by the Council (Milne v Minister for Planning & Anor [2006] NSWLEC 745).

6 Ms Milne's appeal was fixed for hearing on 30 January to 8 February 2007. Ms Milne's agent took out a further subpoena addressed to Tweed Shire Council on 8 December 2006, requiring production of certain documents by 20 December 2006. This subpoena required production of "all documents including correspondence, deeds, leases and contracts of transfers of land either by fee simple or lease between Council and any third party on land described as Lots 1 - 8 in Deposited Plan 1080842" and contained a note as follows: "Note: any document already produced in the previous subpoena need not be produced again". Apparently, this subpoena was taken out because Ms Milne held the view that the Council had not produced documents relating to the transfer of land from the Council as required by the earlier subpoena of 6 October 2006. This course of action was inappropriate. Issues about alleged non-compliance with a subpoena are not resolved through the taking out of a further subpoena to the same general effect. Be that as it may, at the return of the subpoena on 20 December 2006, production under the subpoena was adjourned to the first day of the hearing on 30 January 2007.

7 On 30 January 2007, the Council appeared (with the documents) and indicated that it would seek to set the subpoena aside on various grounds, particularly that the subpoena had not been issued for a legitimate forensic purpose. I made orders by consent that any notice of motion to set aside the subpoena be returnable before me at 10.00am on 5 February 2007, because a view of the site and its surrounds, and the taking of evidence in the locality, had been arranged between 31 January and 2 February 2007. I made consequential directions for the filing and service of evidence in support of any such notice of motion, as well as a direction requiring Ms Milne to notify the Council of the forensic purpose of the subpoena by 4.00pm on 2 February 2007.

8 The Council filed a notice of motion to set aside the subpoena and certain affidavits in support on 31 January 2007. Rivercolt did not join in this application. Ms Milne did not provide notice of the forensic purpose as required. When the motion was returned on 5 February, and oral notice was given about the purpose, the Council requested an adjournment because it was not ready to proceed. Accordingly, I heard the Council's motion on 6 February 2007. First, the Council submitted that the subpoena was invalid because Ms Milne's agent had not obtained leave to issue the subpoena (Pt 4 r 4A of the Land and Environment Court Rules 1996). Secondly, the Council claimed that the subpoena was not for a legitimate forensic purpose and should be set aside. Thirdly, the Council claimed legal professional privilege over a number of documents. Finally, the Council submitted that, in the alternative, access to the documents should be limited in certain ways.

9 Ms Milne's agent conceded that the subpoena had been issued without leave. I held that the subpoena was too broad, but that there was a legitimate forensic purpose insofar as Ms Milne sought to have the Council produce the deeds, leases and contracts for the transfer or lease of lots 1 - 8 in deposited plan 1080842. This was the land referred to in the deferred commencement condition of the consent granted by the Council for the 29 berth marina. Given the physical relationship between the proposed extension and the 29 berth marina and associated foreshore development, I was satisfied that there was a legitimate forensic purpose in these documents being produced to the Court in the context of the issues raised in the appeal by Ms Milne. Accordingly, I granted leave to Ms Milne to issue a subpoena to the Council requiring these documents to be produced. The Council requested an opportunity to review the documents again. This subpoena was returned before me on 7 February 2007, when I made orders for access to the documents and reserved the question of costs and expenses.

10 The Council claimed its expenses in complying with the subpoena dated 8 December 2006 and the substituted subpoena of 6 February 2007. It submitted that, as a third party to the proceedings, it should be paid its expenses on an indemnity basis, including for all legal advice. The Council relied on Danieletto v Khera (1995) 35 NSWLR 684 at 688 and Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284. The Council observed that the documents ultimately required were limited to the transaction documents, in contrast to the large number of documents originally required. The Council submitted that it had also succeeded in its claim that the 8 December 2006 subpoena was invalid, as it had been issued without leave. It said that the circumstances surrounding the first subpoena of 6 October 2006 were irrelevant - the Council had received the subpoena of 8 December 2006 and was entitled to take the steps that it did to obtain legal advice about that subpoena and seek to have it set aside. The Council could not quantify its expenses immediately, but indicated that they were not insignificant and likely to be in the order of $6000 or more.

11 Ms Milne's agent submitted that the Council's application could not be determined other than in the context of the first subpoena of 6 October 2006. He acknowledged that he had not understood that issues about non-compliance with a subpoena should be dealt with in the context of that subpoena. He was also unaware that leave was required for an unrepresented applicant to take out a subpoena. He submitted that Ms Milne had been successful in the dispute with the Council, as the key part of the subpoena - requiring the Council to produce the deeds, leases and contracts for sale with respect to the foreshore land - was held to be for a legitimate forensic purpose, when the Council had sought to withhold production of those documents. Further, the Council had not incurred expenses by reason of the failure to obtain leave - the documents were in Court and the Court granted leave for a subpoena to be issued requiring the Council to produce those documents. Moreover, the Council could readily have been a party to the proceedings. Ms Milne had taken the proceedings at her expense in the public interest. It was obvious that there were public interest issues relating to the use of the foreshore land, which had previously been public land. The Council's approach to the subpoena had been excessive. It should have produced the documents under the first subpoena, but had not. It should have made the transaction documents available for the purpose of the proceedings without a subpoena, but had not. It did not need to take legal advice about any proper claim for legal professional privilege, which Ms Milne would have accepted. It did not need legal representation with respect to any appropriate undertaking about the use or copying of the documents, which Ms Milne would also have accepted. In this context, for Ms Milne to be made liable for thousands of dollars claimed in expenses by the Council would be unjust and be seen to be unjust. Ms Milne's agent submitted that the Council should be responsible for Ms Milne's costs with respect to the subpoena, that each party should pay its own costs and expenses or, at worst, that the Council should recover its expenses limited to the costs of copying documents.

12 In Danieletto v Khera, the recipient of the subpoena was a stranger to the proceedings. The proceedings were conventional civil litigation. The recipient applied to set the subpoena aside, but the defendant subsequently informed the recipient that compliance with the subpoena was no longer required. Accordingly, the subpoena was never put to the test. In the ordinary course, I accept that the observations of Bryson J in Danieletto v Khera will apply - in particular, the observation that: If the Court is invoked by a party to use public power to compel a person to give attention to preparation to hear litigation, there is a just entitlement to payment for the time of the person whose attention is thus required and whose liberty and freedom of action are thus interfered with. A law which entitled a party to conscript the time and attention of others without paying for it would be oppressive. It would also be very poor policy as it would tend to generate resistance to the ordinary administration of justice. (at 688B-C).

13 These observations operate at the level of principle and are not to be inflexibly applied, irrespective of the nature and justice of the particular case. In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77 at [31], Levine J observed that he could not "see any basis in justice for the successful issuing party to have to pay any costs in regard" to unsuccessful arguments made by the recipient of the subpoena. In so doing, Levine J referred to Kearney J's comment in Hagan and Others v Waterhouse and Others [No 2] (1992) 34 NSWLR 400 at 405B that "the overriding objective must be to make an order which is appropriate to the justice of the case". Levine J also expressed his general agreement with certain observations of Young J in Triotas Pty Ltd v Rohn, NSWSC, unreported, 20 May 1993, Young J (at [26] - [27]) that: It is not to be thought that Pt 37 r 9 is to cover every expense which a person who gets a subpoena has to pay. The community still expects people to assist in the ascertainment of truth in actions before the Court, even though it is inconvenient. It seems to me that it is only in the Withers type case where a substantial amount of time and trouble is spend in searching for material and photocopying it, and obtaining legal advice in connection with complying with the subpoena, that there is a valid claim within the rule.

14 Although the Council is not a party to the appeal, there is something distinctly artificial about characterising it as a stranger to this litigation, at least in any conventional sense. The Council is the public authority constituted by the Local Government Act 1993 for the local government area of the Shire of Tweed. In that capacity, the Council is the consent authority in relation to development applications within its local government area unless the EPA Act, the regulations or an environmental planning instrument specifies a Minister or other public authority as the person having the function to determine the application (s 4(1) of the EPA Act).

15 The Council was the consent authority for the 29 berth marina and associated foreshore facilities. The present development application, as noted, proposed an extension of facilities granted consent by the Council. The extension depended on, and was physically integrated with, the 29 berth marina approved by the Council.

16 Because the development application concerned the development of land in the Council's local government area, documents of primary importance in the appeal were mainly those of the Council - Tweed Local Environmental Plan 2000, the Upper Tweed Estuary Management Plan, the Lower Tweed Boating Study, the Tweed River Estuary Bank Management Plan, the Tweed Shire Council's Social Plan 2005 - 2009 and the Tweed Economic Growth Management Strategy, for example. In other words, the planning policy objectives of the Council were fundamental to the assessment of the development application.

17 Moreover, it is apparent that the Council did not see itself as a disinterested stranger with respect to the development application. Detailed reports to the Council were prepared relating to the application and considered on 17 September 2003 and 17 March 2004. The Council provided those reports to the Department, presumably to ensure that they were taken into account in the Minister's assessment. The Council was also an approval authority with respect to the development application under the integrated development provisions of the EPA Act, providing its general terms of approval to the Minister on 17 November 2005. The Council made representations to the Department with respect to the development application, including by letter from its administrators on 9 November 2005 and by letter from its Director of Engineering Operations on 14 November 2005.

18 Another important fact is that, in exercising its functions under the EPA Act to determine the development application for the 29 berth marina, the Council imposed a deferred commencement condition requiring the sale and/or lease of certain land in accordance with a Council resolution. Documents evidencing the sale and/or lease of that land, accordingly, became part of the essential context of the consent for the 29 berth marina. Development consents are public documents (Pt 16 of the Environmental Planning and Assessment Regulation 2000). Documents that enable a deferred commencement condition to be satisfied, in the ordinary course, have the same public character because they are part of the exercise of a public function.

19 Finally, Class 1 proceedings involving appeals against the refusal or grant of development consent are litigation of a particular kind. Under s 39(4) of the Land and Environment Court Act 1979, the Court is specifically directed to make its decision having regard to, amongst other things, "the circumstances of the case and the public interest". In so doing, the Court is not bound by the rules of evidence and may inform itself as it thinks appropriate (s 38).

20 Against this background, the observations of Young J in Triotas Pty Ltd v Rohn appear particularly apt to this case. To adapt Young J's language, in the ordinary course, the community is entitled to expect that a council of a local government area within which a development is proposed to be carried out will assist the Court in a Class 1 appeal to ascertain the true position with respect to matters relevant to the development application, even though that council is not the consent authority for that application and that assistance may cause the Council inconvenience.

21 Moreover, the Council failed in its argument that there was no legitimate forensic purpose in having the transaction documents produced. Leaving aside the fact that those documents satisfied a deferred commencement condition of consent and thus, in my view, had an essentially public character, the transactions by which the proponent obtained control over the foreshore land were central to the development of the 29 berth marina and thus central to the proposed expansion. Those documents were part of the essential background to the appeal. The Council's arguments to the contrary were unsustainable.

22 Although the Council succeeded with respect to its claim that the 8 December 2006 subpoena was invalid, I do not consider that fact significant. The Council did not raise that issue until 6 February 2007, after it had taken the steps necessary to comply. The Council's delay, including that it only moved to set aside the subpoena on 31 January 2007, increased the Council's costs in a manner that I do not think reasonable to impose on Ms Milne.

23 To order Ms Milne to indemnify the Council for all of its expenses in complying with the subpoena of 8 December 2006 and the substituted subpoena of 6 February 2007 would not accord with the interests of justice in this case. I do not consider that these expenses, in the circumstances I have described, should be characterised as "reasonable" within the meaning of Pt 37 r 11. I also do not accept the argument of Ms Milne's agent that the Council should pay Ms Milne's costs associated with the subpoena. In particular, the subpoena issued on 8 December 2006 was too broad. The Council thus incurred certain expenses unnecessarily, by reason of the failure of Ms Milne's agent to draft the subpoena properly. For this reason also, requiring each party to pay its own costs and expenses is inappropriate.

24 The Council did not have available a schedule of expenses at the time its application was heard. I am reluctant to resolve this matter in a manner that exposes either the Council or Ms Milne to further costs and expenses. Moreover, Pt 37 r 11(2) provides that, if an order is made under sub-rule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs. I consider that, having regard to the circumstances set out above, an order should be made in the Council's favour under Pt 37 r 11(1) limited to: - (i) the costs of photocopying the documents for production under the subpoena of 8 December 2006 and 6 February 2007, and (ii) the costs of the attendance of the Council before the Court on 6 February 2007, including preparation for that attendance. Despite the absence of a schedule of expenses from the Council, I am also satisfied that I should fix a maximum amount that the Council may recover under these orders to ensure that the expenses recovered are reasonable in the particular circumstances of this matter. Finally, each party should pay its own costs of the Council's notice of motion.

25 Accordingly, I order that: (1) The applicant, Ms Katie Milne, is to pay the reasonable losses and expenses incurred by the Tweed Shire Council in complying with the subpoena dated 8 December 2006 and the subpoena dated 6 February 2007 limited to: (i) the costs of photocopying documents for production under each subpoena, and

(ii) the costs of the attendance of the Council before the Court on 6 February 2007, including preparation for that attendance, such amount not to exceed the sum of $800.00. (2) The applicant, Ms Katie Milne, and Tweed Shire Council are otherwise to pay their own costs of and incidental to the subpoena dated 8 December 2006, the subpoena dated 6 February 2007 and the notice of motion dated 31 January 2007.

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.