Randren House Pty Ltd v Water Administration Ministerial Corporation

History of the proceedings

1. In the period spanning from 22 June 2015 (the commencement of the proceedings) and 4 August 2017, the final hearing of these proceedings has been delayed by a succession of procedural disputes between the parties. In this period, the matter came before the Court on no less than 15 occasions. Of the numerous disputes, the following procedural disputes should be identified. 1. On 29 February 2016, the Applicant filed a Notice of Motion seeking, inter alia, an order that the Respondents provide a statement of reasons for the identified decisions and directions for discovery. The Court declined, on 4 March 2016, to make these orders but did order that some categories of items be provided by way of informal discovery. 2. On 25 August 2016, the matter came before the Court for a directions hearing due to an ongoing dispute with respect to the production of various documents. The Court made orders requiring, inter alia, the Applicant to file and serve points of claim and the Respondents to file and serve their defence. 3. During a directions hearing on 9 December 2016, the Court confirmed to the Applicant that no general orders for discovery had been made by the Court and that the usual course was for the Applicant to issue a notice to produce and/or subpoena. 4. On 17 November 2016, the Respondents filed a Notice of Motion seeking, primarily, orders striking out the Applicant's Points of Claim filed on 21 September 2016 and dismissing the proceedings pursuant to the Uniform Civil Procedure Rules 2005. This dispute was resolved by way of the Court making orders by consent on 14 March 2017 that the Applicant serve an amended points of claim. 5. On 20 April 2017, the Applicant filed a Notice of Motion seeking leave to file a 'draft' Revised Points of Claim due to the Respondents not consenting to the filing of this Revised Points of Claim. On 25 May 2017, the Court made orders by consent granting leave to the Applicant to file (an amended) Revised Points of Claim.
2. As mentioned above, on 4 August 2017, more than two years after the commencement of these proceedings, the Court made orders fixing the matter for hearing on 27-30 November 2017 and establishing an appropriate case management timetable leading up to this hearing. I reiterate that the Court ordered that: the Applicant was to file and serve its evidentiary material by 1 September 2017, the Respondents were to file and serve their evidentiary material by 29 September 2017, and the Applicant was to file and serve any reply material by 13 October 2017.
3. Given the history and nature of these proceedings, it could be said that there has already been a significant failure to realise the just, quick and cheap resolution of the real issues in the proceedings: contrary to Div 1 of Pt 6 of the Civil Procedure Act 2005.

Case management guiding principles

1. The principles which guide the Court with respect to case management and interlocutory matters are outlined in Div 1 of Pt 6 of the Civil Procedure Act 2005. In particular, s 56 sets out the overriding purpose of the Act and relevant rules of Court: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. …

Joinder of parties

1. The power of the Court to order that a person be joined as a party to proceedings is conferred by rule 6.24 of the Uniform Civil Procedure Rules 2005: 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. (2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.
2. The relevant test for joinder was set out in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [51]-[55]: The test for joinder [51] It is settled law that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders. [52] In the Superleague case (News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410) at 524-526, the Federal Court (Lockhart, von Doussa and Sackville JJ) applied the test stated by Lord Diplock delivering the advice of the Judicial Committee of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 criticising the dichotomy between "legal" and "commercial" interests. His Lordship said at 56: "A better way of expressing the test is: will [a non-party's] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?" [53] That test has very regularly been followed. Most recently, in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [131], a unanimous High Court said: "Walker Corporation submitted that where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined. That submission is correct." [54] Sometimes it is said, as it was said in the present appeal, that merely giving notice to the person affected by the order is sufficient. It will be necessary to return to this in more detail below, but it should be recognised immediately that joinder, not notice, is the default position. In the Superleague case, their Honours said at 526: "In our opinion, the notice given to the players before trial does not, and could not, extend the jurisdiction of the Court to make orders which offend the test stated in Pegang Mining. Absent an application for joinder by a defendant, or by a third party who claims to be directly affected by the proposed orders, it is for the party prosecuting the proceedings to choose who are the necessary parties to enable the Court to make the orders sought. Generally speaking, to permit [the party prosecuting the proceedings] to transfer to others who might be affected by the outcome of the proceedings the responsibility of deciding whether or not they should apply to be joined could be productive of uncertainty and inconvenience. At times, it could lead to the need to halt expensive litigation part-way through, because a third party insufficiently understood the proceedings, or, through impecuniosity or some other reason, was not adequately advised." (emphasis added) [55] In John Alexander's Clubs the last two sentences of that passage were reproduced, and endorsed by the High Court in these terms at [140]: "News Ltd v Australian Rugby Football League Ltd was a case where players who had not been joined in the proceedings but only informed of them were not debarred from attacking the orders made. There is no doubt that Walker Corporation was aware of the first proceedings, and it informed the Court of Appeal of that fact. Walker Corporation said there was a reasonable explanation for its delay in seeking to be joined. Whether or not that is so, it had no duty to seek to be joined, and its delay does not in this case call for explanation."

Setting aside Notices to Produce to Court

1. The power for a party to issue a Notice to Produce to Court is conferred and governed by rules 34.1 and 34.2 of the Uniform Civil Procedure Rules 2005: 34.1 Notice to produce to court (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, or (b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production. 34.2 Production under notice to produce to court (1) Unless the court orders otherwise, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession. (2) (Repealed) (3) Except by leave of the court, a party may not search for, or inspect, any document or thing that has been produced by another party under this rule but not admitted into evidence.
2. However, the privilege of issuing a notice to produce is not unfettered. Rather, I repeat what I said in Marshall Rural Pty Ltd v Basscave Pty Ltd (No 2) [2017] NSWLEC 137 at [10]: As identified in Attorney General for New South Wales v Chidgey, for the Applicant to be justified in gaining access to the documents that it seeks, it must establish that: (1) the documents are sought for a legitimate forensic purpose, and (2) that it is "on the cards" that the documents will materially assist the Applicant's case. It is not sufficient for the Applicant to show that there is a defined category of documents that may be relevant to an issue in the proceedings. In fact, it is not open for the Applicant to call for the production of a broad class of documents unless, perhaps, the class of documents implicitly identifies a number of specific documents, such as bank statements relating to a bank account: See In the matter of Colorado Products Pty Ltd [2013] NSWSC 392 at [17]-[18].
3. The accepted principles governing legitimate forensic purpose were set out in Attorney General for New South Wales v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at [58]-[80]. In that decision, Beazley JA, as Her Honour then was, synthesised the relevant case law and set out a statement of the correct test at [64]. I gratefully repeat what Her Honour said from [58]-[64]. Principles governing legitimate forensic purpose [58] The principles that govern the application of a party to produce documents pursuant to a subpoena are well settled. In this regard, the basic principle was stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575: "… a party is no more entitled to use a subpoena … than he is a summons for interrogatories, for the purposes of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all …" (Emphasis added) (Citations omitted) Mere relevance not sufficient [59] It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181: "… the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding." (Emphasis added) [60] His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough". His Honour continued: "In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion or belief' referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." [61] Senior counsel for the respondent submitted that the judgment of Mahoney AP did not represent a majority statement on this issue, nor had it been endorsed or applied in later decisions. [62] Neither Kirby ACJ (as his Honour then was) (who dissented on the facts) nor Hunt AJA (who agreed with Mahoney AP in the result) made any reference to "mere relevance". However, each applied a test of "forensic purpose" and the need for it to be "on the cards" that the documents would "materially assist the accused". Accordingly, the second element of the 'test', that is, that it must be "on the cards" that documents would materially assist the case, subsumes in it the notion that "mere relevance" is insufficient. Documents may be relevant even if they do not assist a party's case. To that extent therefore, there is no difference in principle in the test applied by each of the members of the Court. [63] But in any event (and contrary to the respondent's submissions) the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria: see Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278 at 282-283; Bruce Harvey v State of New South Wales (Supreme Court of New South Wales, per Johnson J at 3-4, 15 June 2005, unreported); R v Robinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6]. The correct test [64] The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: "The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was."
4. As adopted by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 at [35], the decision of Craig J in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 at [20] sets out a further useful summary of some of the circumstances in which a Subpoena or a Notice to Produce (which are relevantly subject to the same principles) will be liable to be set aside on the basis that no legitimate forensic purpose can be established.

Amending the Summons

1. The general power of the Court to order that documents be amended or to grant leave for documents to be amended is conferred by s 64 of the Civil Procedure Act 2005: 64 Amendment of documents generally (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. …
2. In understanding the role of the Court in determining whether or not to permit an amendment, it is important to have regard to what was said by the plurality of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [95]-[99] (citations omitted): The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others. An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power. The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory. Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.

Mr Paul Andrews

1. The Applicant submitted that Mr Paul Andrews should be joined to the proceedings because he will be directly affected by the orders sought in the proceedings and is therefore a necessary party. The reason why the Applicant says that Mr Paul Andrews will be directly affected is because he is the occupier and manager of the relevant land said to be adversely affected by the challenged water management related decisions of the Respondents.
2. As identified above, the Respondents do not contest the joinder of Mr Paul Andrews if the Court determines that he ought to be joined to the proceedings. However, the Respondents maintained their long-held position that as Mr Paul Andrews does not hold a relevant water entitlement, it is difficult to see how he is a necessary party (Exhibit 1, p 2).

The Minister

1. The Applicant submitted that the Minister administering the Water Management Act 2000 ought to be joined to the proceedings "…because the Minister made the final decision on the [relevant] decision memorandum provided in the Respondents' tender bundle …. [and] to ensure that natural justice is observed by giving the Minister an opportunity to be heard as a party as the plan decision-maker".
2. As identified above, the Respondents do not contest the joinder of the Minister if the Court determines that the Minister ought to be joined to the proceedings.

Setting aside the Notice to Produce

1. The Respondents provided comprehensive written submissions in support of their Notice of Motion to set aside all of the categories in the Notice to Produce save for categories 9-12. The starting point, according to the Respondents, is to understand that "[w]here a notice to produce is served shortly before a trial and 'imposes a considerable obligation and thus disruption on parties and practitioners already deeply immersed in the preparation for and conduct of the trial', it may be unreasonable and vexatious": citing Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283 at [8]. Moreover, the Respondents emphasised that, in judicial review proceedings, the Court will only make directions for formal discovery in exceptional circumstances.
2. On this basis, the Respondents proceeded to challenge categories 1-8 and 13-17 of the Notice to Produce seriatim.
3. In short, the Respondent submitted that with respect to items 2-8 and 15-17 of the Notice to Produce in particular, the sought production of these items impermissibly constitutes a fishing expedition which calls for a wide range of documents - in the nature of discovery by disguise - over an extensive period of time. Accordingly, no legitimate forensic purpose is disclosed and, given the maturity of the proceedings and the filing of the Notice to Produce after the deadline for filing evidence; these parts of the Notice to Produce are unreasonable and vexatious.
4. With respect to item 1, the Respondents submitted that calling for this category of documents constitutes an abuse of process because the Court has already declined to make orders for formal discovery and the relevant informal discovery ordered by the Court has occurred.
5. With respect to item 13, the Respondents submitted that it was inappropriate to require production of an original map and, in any event, there is nothing to produce because there is no "original".
6. With respect to item 14 (specifically 14(1A) - given that the documents in 14(1)-(3) have been produced), the Respondents submitted that the relevant class of documents does not disclose a relevant legitimate forensic purpose because the proceedings are not a general challenge to all ministerial water sharing decisions affecting Yanco Creek.
7. Ultimately, the Respondents submitted that the items which they challenge in their Notice of Motion do not form part of a demand to produce specified documents that disclose a legitimate forensic purpose but, rather, the Notice to Produce impermissibly and unreasonably demands the production of wide categories of unspecified documents to assist the Applicant in determining whether it has a case.
8. Conversely, the Applicant submitted that the Notice to Produce should not be set aside and that the Respondents should produce the relevant documents listed therein.
9. First, the Applicant argued that the legitimate forensic purpose of the Notice to Produce (as a whole), is demonstrated by the fact that the Respondents have already produced a significant number of documents.
10. Secondly, the Applicant submitted that the imminent hearing of the proceedings is not a relevant reason to set aside the Notice to Produce in circumstances where the Notice to Produce is directed at assisting the Court in understanding and testing the Respondents' evidence.
11. Thirdly, the Applicant submitted that the decision of Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Ltd is distinguishable because, in the present proceedings, the matter was fixed for hearing before the Respondents' evidence was served and the "issues raised by the notice go directly to the issues at trial". Moreover, the Applicant claimed that the Respondents were aware that it was not satisfied with the informal discovery ordered by the Court.
12. On this basis, the Applicant proceeded to rebut the Respondents' challenge to categories 1-8 and 13-17 of the Notice to Produce seriatim.
13. First, the Applicant submitted that the documents in item 1 are necessary to discern what was in the relevant licensing file referred to in the Respondents' evidence but conceded that the category could be limited to the originals of documents in the file of documents referred to in the Respondents' evidence.
14. Secondly, the Applicant submitted that the documents in items 2 and 4 could be limited to the file of documents referred to in the Respondents' evidence, so as to be confined to documents concerning Yanco Creek.
15. Thirdly, the Applicant submitted that items 5-8 are specific and arise directly out of the Respondents' evidence and concern the issues pleaded; specifically (with respect to items 5-6), the issue of the Respondents consideration of environmental impacts.
16. Fourthly, with respect to item 10 (which is not challenged), the Applicant stated that it requires "any correspondence to and from Mr Warren relating to the making of the draft report and the report".
17. Fifthly, with respect to item 13, the Applicant submitted that it requires an original of the map.
18. Sixthly, with respect to item 14, the Applicant submitted that the documents in 14(1A) are relevant because they relate to reports to the relevant Minister concerning material water sharing decisions.
19. Seventhly, with respect to items 15, 16 (in an amended form) and 17, the Applicant submitted that a legitimate forensic purpose is disclosed justifying the production of these categories of documents and that such production is not oppressive.

The amendment

1. The Applicant submitted that the relevant amendment of the extant Summons, to add an additional order to the orders sought, is necessary and appropriate because it is directed at protecting against the alleged ongoing environmental damage to Yanco Creek and is substantially similar to the existing relief sought. Hence, the Applicant submitted that no prejudice would be caused to the Respondents by allowing the amendment to be made.
2. Conversely, the Respondents submitted that the relevant amendment is not - to use the language of s 64 of the Civil Procedure Act 2005 - "for the purpose of determining the real questions raised by or otherwise depending on the proceedings … [or] avoiding multiplicity of proceedings".
3. Moreover, given that the amendment has been made at such a late stage in the proceedings (and may require the Respondents to prepare and file a revised response), the Respondents submitted that it would not be consistent with the overriding purpose of civil litigation to permit the amendment: citing Aon Risk Services Australia Ltd v Australian National University.

Mr Paul Andrews

1. For the reason given by the Applicant, I accept that Mr Paul Andrews ought to be joined to the proceedings because he will be directly affected by the orders sought. However, I note that the basis for joinder was only properly disclosed yesterday and that the Respondents' decision not to consent to the joinder was, therefore, proper.

The Minister

1. Similarly, for the reason given by the Applicant, I accept that the Minister administering the Water Management Act 2000 ought to be joined to the proceedings. However, I note that the basis for joinder was only properly disclosed yesterday and that the Respondents' decision not to consent to the joinder was, therefore, proper.

Setting aside the Notice to Produce

1. The Respondents should be excused from producing items 2-8 and 15-17 of the Notice to Produce because the Applicant has not established that the documents are sought for a legitimate forensic purpose and that it is "on the cards" that the documents will materially assist the Applicant's case. Rather, the sought production of these broad categories of documents amounts to an unacceptable (and, additionally, extremely late) fishing expedition that effectively seeks discovery of unspecified documents in the mere hope that some of the relevant documents will assist with the Applicant's case. I reiterate that it is not sufficient for the Applicant to show that there is a defined category of documents that may be relevant to an issue in the proceedings.
2. Moreover, the Court accepts and adopts the Respondents' proposition that "[w]here a notice to produce is served shortly before a trial and 'imposes a considerable obligation and thus disruption on parties and practitioners already deeply immersed in the preparation for and conduct of the trial', it may be unreasonable and vexatious". Here, the service of this burdensome Notice to Produce (with respect to items 2-8 and 15-17) 'at the heel of the hunt' (and after the close of all the evidence) constitutes an unacceptable disruption at a critical stage of the proceedings. Accordingly, requiring the Respondents to comply with these items of the Notice to Produce (regardless of any proven capacity of the Respondents to produce various documents) would undermine the just, quick and cheap resolution of the real issues in the proceedings: contrary to Div 1 of Pt 6 of the Civil Procedure Act 2005.
3. Accordingly, I reject the above mentioned submissions of the Applicant relating to items 2-8 and 15-17. Although the Applicant asserts that these items meet the requisite tests, it is clear on the face of the Notice to Produce that they do not. Additionally, to the extent that the Applicant appears to claim that there is a global legitimate forensic purpose of the Notice to Produce, such an approach is not to be accepted. The question is whether the production of specific documents in the Notice to Produce would serve a legitimate forensic purpose. Furthermore, the Applicant's suggestion that the actual production of various documents constitutes evidence that the relevant items called for in the Notice to Produce were appropriately sought is erroneous.
4. With respect to item 1, the Court agrees with the Respondents, for the reasons that they give, that the call for the documents in this item constitutes an abuse of process in that it seeks to circumvent previous decisions of the Court not to make formal orders as to discovery. In any event, the Applicant has also not established that the documents are sought for a legitimate forensic purpose and that it is "on the cards" that the documents will materially assist the Applicant's case. Additionally, the Court does not accept the Applicant's claim that the call for production is in response to the evidence of the Respondents.
5. With respect to item 13, the Applicant has not provided any compelling reason why an 'original' map is required to be produced and the Court accepts that the Respondents have nothing further to produce.
6. Finally, with respect to item 14(1A), the Court has concluded that the Applicant has not established that the documents are sought for a legitimate forensic purpose and that it is "on the cards" that the documents will materially assist the Applicant's case. As the Respondents submitted, the decision to make the identified water sharing plan is not challenged in these proceedings and the proceedings are not (and cannot be) a broad-brush challenge to all ministerial decisions affecting Yanco Creek over a number of years. Hence, the Applicant has not explained how the specified documents will materially assist the Applicant to make its case.
7. Hence, for all of the above reasons, it is appropriate to grant the Respondents' motion to be excused from producing the documents sought in the Applicant's Notice to Produce to Court, pursuant to the Uniform Civil Procedure Rules 2005, save for items 9-12. Given that the Respondents have been entirely successful on their motion and considering all of the circumstances, it is also appropriate that the Applicant be required to pay the Respondents' costs of the motion.

The amendment

1. The Applicant clearly proposes to make a significant amendment to the extant Summons. It seeks to include a sought order in the nature of a writ of prohibition and/or injunctive relief to prevent the Respondents from directing particular water flows into Yanco Creek or, alternatively, prevent unreasonable use of the waters of Yanco Creek. The Applicant's position is that this amendment is necessary and appropriate because it would protect against the alleged ongoing environmental damage to Yanco Creek.
2. However, these judicial review proceedings do not centrally concern whether or not the Respondents have caused environmental damage and, if so, how they should be restrained. Rather, these judicial review proceedings concern whether or not the Respondents have made particular decisions (which, to be sure, may affect Yanco Creek and its surrounding environment) unlawfully by, for example, failing to have regard to mandatory relevant matters for consideration. The proposed amendment, therefore, does not pertain to a real question raised or otherwise depending on the proceedings. Additionally, a decision not to permit the amendment would not result in any lack of finality to the ultimate resolution of the proceedings or a realistic risk of a multiplicity of proceedings. The critical questions of whether or not the challenged decisions are lawful cannot be dependent on what happens after the proceedings are resolved.
3. Moreover, the risk that separate proceedings may be commenced to address any ongoing environmental damage to Yanco Creek cannot be appropriately addressed by amending the Summons in the manner proposed by the Applicant. The question is whether or not the proceedings will result in finality as to the legality of the relevant decisions of the Respondents. The question is not whether the proceedings will result in finality as to the dispute between the Applicant and the Respondents as to the environmental condition of the Yanco Creek.
4. Additionally, it is of some significance that the application to amend was made informally by way of an attachment to a letter annexed to an undated affidavit on 4 August 2017 (or 8 August 2017). In circumstances where the initiating Summons was filed on 22 June 2015, this request for amendment 25 months later and after no less than 15 earlier interlocutory hearings in the matter, is (without a compelling explanation) entirely unacceptable and even more inappropriate just 12 working days from the commencement of the trial. In all of the circumstances, I find that the Respondents would likely suffer prejudice if the amendment were to be allowed and that so to do would not be consistent with the overriding purpose of civil litigation: Aon Risk Services Australia Ltd v Australian National University.

Orders

1. The Court orders: 1. The Respondents' motion filed on 1 November 2017 to set aside, in part, the Notice to Produce to Court is granted; 2. The Respondents are excused from producing the documents sought in the Applicant's Notice to Produce to Court filed on 23 October 2017 pursuant to the Uniform Civil Procedure Rules 2005, save for items 9-12; 3. The Applicant is to pay the Respondents' costs of the motion filed on 1 November 2017 to set aside the Notice to Produce to Court; 4. The Applicant's applications to join Mr Paul Andrew Andrews to the proceedings as an applicant and the Minister administering the Water Management Act 2000 as a respondent are granted; 5. The Applicant's application to amend the extant Summons so as to include proposed Order 2 contained in the Amended Summons annexed to the affidavit of Mr John Andrews is dismissed; and 6. The Court makes no order as to the costs of the Applicant's applications to join Mr Paul Andrew Andrews to the proceedings; join the Minister administering the Water Management Act 2000; and amend the extant Summons.

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: 15 November 2017