Residents Against Intermodal Developments Moorebank Incorporated v Independent Planning Commission and Anor

The Development

1. The Development is part of the development of a large intermodal terminal facility on the east and west sides of Moorebank Avenue, Moorebank (the 'Moorebank Intermodal Terminal'). The development of the Moorebank Intermodal Terminal is governed by several different regulatory approvals (and modifications of those regulatory approvals).
2. Relevant to the Development, on 3 June 2016 the Planning Assessment Commission of NSW granted approval to the Moorebank Precinct West Intermodal Facility Concept Plan Approval and Early Works (Stage 1) (SSD 5066) (the 'Concept Approval'). The Concept Approval provides for the development of the western side of Moorebank Avenue as an intermodal facility (the 'Moorebank Precinct West Project'), in four stages. The Concept Approval has been modified since its initial approval.
3. The Development constitutes the second stage of the Moorebank Precinct West Project, with a capital investment value of $533m. The Development is State Significant Development under cl 19 of the State Environmental Planning Policy (State and Regional Development) 2011 ('SEPP SRD'). It was approved by the IPC pursuant to Pt 4 of the EPA Act.
4. The Application for the Development relates to the construction and operation of an intermodal terminal facility comprising a rail intermodal area; warehousing and distribution facilities; road and rail infrastructure; loading; unloading; storage and maintenance areas; and associated works.
5. Also relevant to the Development is the Voluntary Planning Agreement dated 21 March 2019 ('VPA') (pursuant to s 7.4 of the EPA Act), the effect of which is that the proponent of the Development is to provide a monetary contribution in the sum of $48m to address the regional road infrastructure needs that arise from the Development.

The appeal proceedings

1. RAID has brought the appeal proceedings as an objector to the Application, and seeks the rescission and vacation of the approval of the Application.
2. In its statement of facts and contentions filed 8 July 2020 ('SOFAC'), RAID articulates 10 (sometimes overlapping) contentions in relation to the Application and the approval of the Application (each followed by detailed particulars) being: first, the Development exceeds the capacity of the traffic network with or without mitigation measures or upgrades; second, there was a failure to disclose the traffic model and traffic modelling results (which RAID contends were not prepared in accordance with the environmental assessment requirements for the Development ('SEARS'); third, the environmental impact statement ('EIS') for the Development did not use an appropriate traffic model (or did not disclose the results of its use); fourth, the traffic assessment failed to consider the cumulative impacts of traffic from the Development and from adjoining developments; fifth, the traffic modelling used was out of date; sixth, no adequate traffic modelling of impacts has been undertaken, with particular reference to methodology; seventh, the mitigation measures for the traffic impact of the Development through the VPA are inadequate, untimely and uncertain; eighth, the consequential impacts of errors in the traffic modelling are significant; ninth, in breach of former s 78A(8A) of the EPA Act, the Application was not accompanied by an EIS prepared in the form prescribed by the Environmental Planning and Assessment Regulation 2000 (NSW) ('EPA Regulation'); and tenth, concerns in regard to the conditions of the Approval relating to diesel trains, container stackers, diesel trucks and, the timing of offsite works to relieve congestion in the traffic network.
3. As is clear from the contentions, RAID expresses concern in relation to the nature and quality of the traffic assessment that was undertaken on behalf of Qube, and considered by the IPC, when approving the Application. This includes the manner in which traffic modelling was undertaken (in relation to the traffic network generally, and certain intersections and roads specifically) and the reliability of the results of that traffic modelling. Additionally, RAID contends that the cumulative traffic impacts of the Development were not considered. RAID points to conditions of the Concept Approval and the requirements in the SEARS, which require various traffic matters to be assessed in the process of seeking approval for the Development, and contends that the assessment was contrary to certain conditions of the Concept Approval and SEARS requirements. As a result, RAID's position is that the traffic assessment was not adequate.
4. RAID also has practical concerns in relation to the capacity of the traffic network to support the Development, notwithstanding the mitigation measures or upgrades that are planned to be undertaken as part of the Development. RAID has concerns as to how the terms of the VPA, and the mitigation measures contained in the VPA, were developed. RAID contends that the mitigation measures proffered by Qube for the traffic network are inadequate.
5. I note for context that the traffic models referred to in RAID's contentions include the Sydney-wide Aimsun software traffic model, and the Moorebank Intermodal Terminal Road Access (MITRA) model and the Liverpool Moorebank Arterial Roads Investigation (LMARI) model.
6. At the time of hearing the motion, there was an ongoing dispute between the parties to the appeal proceedings as to the adequacy of the replies to RAID's SOFAC by both the IPC and Qube. It is sufficient to note that at the time of the hearing, each of RAID's contentions was disputed.
7. During the course of the appeal proceedings, RAID issued several subpoenas under r 33.3 of the UCPR to TfNSW seeking the production of documents in respect of assessments of the traffic modelling undertaken for the Application. Apart from the Subpoena, RAID issued subpoenas filed on 3 December 2020 and 4 February 2021.
8. It is apt to note that in circumstances where the former Roads and Maritime Services ('RMS') is now part of and referred to as TfNSW, for clarity references to the actions and activities of TfNSW in relation to the Application and the Development include the actions and activities of the former RMS (unless otherwise required by the context).

The current motion to set aside part of the Subpoena

1. The Subpoena, as originally filed on 24 December 2020 and issued to TfNSW, sought production of the following documents: "… 1. The following AIMSUN traffic models and their documentation: a. The final version of the Aimsun MITRA/LMARI traffic models delivered by Jacobs to RMS including the 2015 Base Model, the 2026 Base Do Minimum Model and the 2036 Base Do Minimum Model b. The version of the MITRA/LMARI traffic model provided by RMS to Arcadis by RMS, if different to 1(a). c. The version of the LMARI traffic models updated by Arcadis to create the 2015 Updated Aimsun Model, the 2029 Updated Base Aimsun Model and the 2029 with MPW Stage 2 Aimsun models as referred to in "MPW Stage 2 Tech note 4 Proposed Modelling Methodology_Arcadis.pdf". The 2029 Aimsun models are those where the turning volumes at the 8 key intersections referred to in the MPW Stage 2 EIS match the input turning volumes reported for the Arcadis' 2029 SIDRA Models d. Any other Aimsun model not referred to in 1(a) to 1(d) which has been created or modified by RMS for the determination of future year upgrades for the MITRA strategy and/or for the apportionment calculations for the VPA, including the model referred to as the "RMS static model". 2. The following SIDRA models created by Arcadis for the MPW Stage 2 EIS and any documentation related to them that was not included in the EIS: a. The 2019 calibrated models and their documentation (if they exist) b. The 2029 Do Minimum and 2029 With Development Models 3. The following input set out in a. and b. being inputs to the 2026 and 2036 models and their documentation that were used by or created by WSP / PB in its over-arching assessment of the ultimate development of the precinct referred to in Slide 5 of MPW Stage 2_AIMSUN Modelling_RevD.pdf: a. Itemisation of Trip Generation Assumptions that were defined via workshops with Neil Matthews Consulting. b. All input reports and assumptions from Neil Matthews Consulting for each of the three PB Traffic Generation and Assumptions Memos 4. Full and complete copy of the MITRA Strategy 5. The container flow and OD distribution assessment prepared by Arcadis and applied in the MPW Stage 2 EIS for the following scenarios: a. MPW Stage 2 b. MPE Stage 2 c. Full Build 6. Documents and correspondence between the RMS and Qube Holdings Limited, its representatives, consultants and agents in respect of issues or concerns with the calibration, validation or performance of any version of the MITRA/LMARI Aimsun models referred to in Item 1."
2. By letter of 20 January 2021, TfNSW's solicitor indicated that TfNSW objected to the production of a number of documents sought in the Subpoena, including paragraph 6 (hereafter 'Item 6'), on the basis that there is no legitimate forensic purpose for the production of the correspondence sought and that it is a fishing expedition. TfNSW also stated that a number of the documents sought had already been produced in response to an earlier subpoena.
3. In response, by email dated 25 January 2021 to TfNSW, RAID withdrew the request for the documents called for in Items 1(a), 1(b), 1(c), and 5, did not press the documents called for in Item 3, noted that Item 4 was being dealt with in relation to an earlier subpoena, amended the wording of Item 1(d) and, relevant to the motion presently before the Court, amended the wording of Item 6 so that it now provides: "For the period from 16 November 2015 to 21 March 2019 documents and correspondence between the RMS/TfNSW, its consultants and agents and Qube Holdings Ltd and its consultants and agents in respect of the basis of calculation of the apportionment in the VPA, and in respect of the RMS static model in connection with the apportionment calculations in the VPA. For the period from 16 November 2015 to 31 May 2019 documents and correspondence between the RMS, its consultants and agents and Qube Holdings Ltd, its consultants and agents in respect of the calibration validation or performance of any version of the MITRA/LMARI/AMSUN models referred to in item 1 in connection with the development the subject of the appeal."
4. On 1 February 2021, TfNSW filed the motion currently before the Court seeking orders setting aside amended Item 6 ('Amended Item 6') of the Subpoena.
5. RAID presses the call for the documents (the 'contested documents') in Amended Item 6 of the Subpoena. TfNSW maintains that there is no legitimate forensic purpose for the production of the contested documents.
6. While maintaining this objection, TfNSW offered to produce two documents that address TfNSW's position regarding the calculation and apportionment in the VPA. TfNSW has produced one of those documents.

Evidence

1. In support of the motion, TfNSW reads the affidavit of Helen Maamary affirmed 4 February 2021 and the affidavit of Rachael Knapman affirmed 22 February 2021. In opposing the motion, RAID reads the affidavit of Bruce Woolf sworn 16 February 2021, and tenders two exhibits being the Moorebank Intermodal Terminal Road Access Strategy Overview dated November 2015 and the Mezoscopic Network Representation Protocols for Model Handling.
2. Ms Maamary is a solicitor for TfNSW. Ms Maamary deposes to the background to TfNSW filing the notice of motion to set the Subpoena aside and attaches correspondence between TfNSW and RAID in relation to TfNSW's responses to items in the Subpoena, and RAID's amendments to, and withdrawal of, certain of the items.
3. Ms Knapman is a solicitor for TfNSW. Ms Knapman's affidavit is structured as a reply to the affidavit of Mr Woolf. She deposes as to the documents already produced by TfNSW in response to the Subpoena and two earlier subpoenas issued by RAID and that she is instructed that apart from the items of the Subpoena that are not pressed by RAID and Amended Item 6, there are no further documents to produce in response to the Subpoena.
4. Ms Knapman also deposes as to various documents related to traffic and transport issues in relation to the Application which are in the public domain, including TfNSW's comments on, and responses to, the Application and the entry into the VPA between TfNSW and Qube. Finally, Ms Knapman deposes as to the traffic engineering evidence being prepared in the appeal proceedings.
5. Mr Woolf is the solicitor for RAID. Mr Woolf deposes as to the background to the issuance of the Subpoena, the (partial) production of the documents by TfNSW called for by the Subpoena, and the amendment of the call for production in Item 6 of the Subpoena. Mr Woolf also deposes to various processes related to the Development, and documents created during these processes, with a focus on how traffic and transport issues were dealt with, and the VPA. In particular, Mr Woolf deposes as to correspondence and meetings involving the RMS (now TfNSW) in relation to traffic and transport issues. Annexed to Mr Woolf's affidavit are copies of RAID's SOFAC, the Concept Approval dated 3 June 2016, the SEARS, various correspondence, a transcript of a meeting between TfNSW and the IPC on 2 July 2019, and the Statement of Reasons of the IPC dated 11 November 2019.

TfNSW's position

1. TfNSW submitted that RAID had failed to identify the legitimate forensic purpose of the call to produce the contested documents "expressly and with precision", where this is clearly required by the authorities. Rather, RAID "expanded" its initial characterisation of the forensic purpose in detailed oral submissions (as set out below at [45]), but this did not assist with the identification of the legitimate forensic purpose.
2. TfNSW submitted that Amended Item 6 of the Subpoena should be set aside on the basis that there is no legitimate forensic purpose for the production of the contested documents, and as such Amended Item 6 constitutes impermissible discovery or a "fishing expedition". In summary, TfNSW contended, first, that RAID has failed to identify any issues in contention which the production of the contested documents will assist (in circumstances where documents have already been produced and are publicly available); second, the contested documents will not "materially assist" on an identified issue; and third, the scope of the contested documents is not appropriate.
3. TfNSW noted the need for the issues in the appeal proceedings to be identified, in order to consider the legitimate forensic purpose of the contested documents (noting the contentions set out in RAID's SOFAC were disputed in Qube's statement of facts and contentions in reply filed on 10 August 2020 ('SOFAC in Reply')). With reference to the decisions of Registrars of this Court, Gloucester Resources Limited v Minister for Planning and Environment [2018] NSWLEC 1185 ('Gloucester') and Project 28 Pty Ltd v Minister for Planning [2016] NSWLEC 1363 ('Project 28'), TfNSW also noted that the Court must have regard to the nature of the Court's powers in the appeal proceedings.
4. TfNSW's position was that the Court's determination of the issues in the appeal proceedings will turn on, first, the relevant expert evidence placed before the Court (where the Court has made directions for the filing of expert traffic engineering evidence); second, the Court's assessment of the relevant planning documents and environmental reports; and third, the legislation including the EPA Act, and the planning instruments made thereunder, as well as the circumstances of the case and the public interest.
5. TfNSW submitted that material informing the Court's consideration of the traffic modelling and the calculation of apportionment in the VPA, issues raised by RAID, has either been produced by TfNSW in response to the Subpoena and earlier subpoenas or is already in the public domain. In particular: 1. TfNSW has already produced the models, spreadsheets, calculations, reports and submissions made by, or on behalf of, TfNSW with respect to the assessment of the Application and the apportionment calculations in the VPA under the Subpoena and one of the earlier subpoenas; 2. The VPA is exhibited to Ms Knapman's affidavit, and there are further specific documents related to the VPA which are publicly available. The VPA is evidence of the entire agreement between TfNSW and Qube (with any antecedent correspondence expressly irrelevant): cl 15.2 of the VPA; and 3. Comments from TfNSW on the Application (and Qube's response to those comments and the assessment of the then Department of Planning and Environment ('Department') of those comments) are publicly available.
6. In these circumstances, TfNSW submitted that the production of the contested documents will not assist the Court's consideration of whether to approve or refuse the Application. TfNSW contended that the individual views of TfNSW employees, agents or consultants, to the extent they are relevant to the Court's consideration, are encapsulated in the "final assessment documents" which have either already been produced or are publicly available. Accordingly, TfNSW submitted that the Court would find that RAID has failed to identify any issues to which the contested documents may or will relate to (which the Court does not already have material on).
7. TfNSW also submitted that RAID has not demonstrated, and the Court would not find, that it is likely that the contested documents exist and will "materially assist on an identified issue, or that there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]" RAID's case on an identified issue: Rinehart v Rinehart [2018] NSWSC 1102 ('Rinehart') at [47].
8. TfNSW noted mere relevance is insufficient to meet this test. TfNSW dismissed RAID's contentions about the existence of the contested documents - including that "we are reasonably sure" and "we believe" the documents exist: Tcpt, 23 February 2021, p 33(30-40) and p 36(0-5) - as speculative.
9. TfNSW submitted that RAID misconstrued the question by focusing on whether there were "communications" between TfNSW and Qube, as the question is rather whether or not the Court would be satisfied, on the evidence, that there is a basis "beyond mere speculation" to find that the contested documents will "materially assist" RAID's case. TfNSW submitted that RAID has not led the requisite evidence to make this out. Further, on TfNSW's submission, there is evidence to the contrary indicating that TfNSW did not have "doubts" as to the "capacity and power of the model" and/or "uncertainty that the impacts were mitigated" (with reference to correspondence from TfNSW to the Department dated 25 March 2019 and the transcript of the meeting between TfNSW and the IPC on 2 July 2019 which indicated the TfNSW representative was satisfied the traffic modelling undertaken was appropriate). In these circumstances, Amended Item 6 is being utilised as a substitute for impermissible discovery or for the purpose of a "fishing expedition".
10. In support of its submission that RAID has not demonstrated that it is "on the cards" that the documents and correspondence sought in Amended Item 6 will "materially assist on an identified issue", TfNSW noted that: 1. The appeal proceedings are conducted de novo. The Court will receive evidence from traffic engineering experts, who can assess whether there are any issues as to: 1. the reliability, calibration or validation of the traffic models that informed TfNSW's final views of the traffic impacts of the Development; and 2. the adequacy of the contributions in the VPA on the basis of information either already produced or publicly available. 1. This evidence will allow the Court to determine the traffic engineering issues raised in RAID's contentions. TfNSW is not a party to the proceedings and will not be leading any expert evidence; 2. The views expressed by TfNSW (through its officers, agents or contractors) to Qube would not be afforded significant weight in the appeal proceedings when determining the issues in contention, and, in any event, are "necessarily superseded" by TfNSW's final views which are either publicly available or already produced; 3. TfNSW has already produced the base models, spreadsheets, calculations, reports and submissions made by, or on behalf of, RMS/TfNSW with respect to the assessment of the Application and the apportionment calculations in the VPA in response to the earlier subpoenas; and 4. Contrary to RAID's suggestion that the "change" in the development contribution in the VPA (from $60m to $48m) was "unexplained", it is clear from the material presently before the Court how the development contribution was calculated.
11. Although TfNSW does not raise oppression per se, it aired a number of criticisms in relation to the scope of documents sought in the call for production. The contested documents in Amended Item 6 are categorised by TfNSW as being "in respect of" three categories: first, "the basis of calculation of the apportionment in the VPA"; second, "the RMS static model in connection with the apportionment calculations in the VPA"; and third, "the calibration validation or performance of any version of the MITRA/LMARI/AMSUN models referred to in item 1 in connection with the development the subject of the appeal". TfNSW took issue with the breadth of "in respect of", suggesting this was indicative of discovery or a "fishing expedition". TfNSW submitted that this scope would require TfNSW to examine "entire records" for the Application within the specified period and make subjective judgments (which would require efforts to obtain instructions from the authors of each document) in circumstances where the categories of documents sought are "highly technical". In this respect, the documents for production would not be able to be identified on their face.
12. TfNSW referred the Court to the approach of Barrett J in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 ('Patonga') at [20], and by Leeming JA in Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465 ('Loulach') at [15] in relation to similar terminology in calls for production. It submitted that the Court would find that Amended Item 6 is "fishing" in its terms.
13. As a result, TfNSW submitted that RAID has not discharged its onus of demonstrating that there is a legitimate forensic purpose for the production of the contested documents.

RAID's position

1. RAID submitted that there is a legitimate forensic purpose for the production of the contested documents sought in Amended Item 6. RAID referred to the characterisation of the test in Sklavos v Australasian College of Dermatologists [2014] FCA 476 ('Sklavos') (upheld by the Full Court in Wong v Sklavos [2014] FCAFC 120; (2014) 319 ALR 378), where Jagot J at [6] said: "'[i]f it appears an issue may arise in litigation to which the documents may relate', is the test of apparent relevance routinely applied in order to determine whether a subpoena has been issued for a legitimate forensic purpose".
2. Initially, in correspondence from RAID's solicitors to TfNSW's solicitors dated 25 January 2021, RAID characterised the legitimate forensic purpose of Amended Item 6 as follows: "The above first paragraph [of Amended Item 6] is relevant to and assists in the consideration of paragraph 7 of the contentions that "The mitigation measures for model impacts are inadequate, untimely and uncertain" as the mitigation measures are partly and to a significant extent set out in the VPA. The documents are relevant to consideration of whether there can be confidence in the apportionment (7g) whether or not the VPA provides sufficient, certainty, whether the outcomes of VPA are uncertain. The above second paragraph within 6 above is relevant and assists in the consideration of paragraphs 2,3,5 and 6." In oral submissions, senior counsel for RAID noted the need to read this correspondence in full, and also to have regard to Item 1 of the Subpoena, when considering the legitimate forensic purpose.
3. Other formulations of the legitimate forensic purpose were advanced by RAID in the course of detailed oral submissions. These included: 1. Where RAID contends that TfNSW had doubts about the adequacy, capacity and power of the traffic modelling, the contested documents are important for ascertaining whether TfNSW had confidence in the traffic models and will "assist in proving that the model used by [TfNSW] for this purpose was inadequate and they knew it was not fit for purpose"; 2. The details of the traffic models used, assumptions, assessments of the models, validation, and peer review sought in the contested documents are "relevant factors" when understanding how TfNSW reached its conclusions on the VPA (including the data it relied on) - where RAID contends that the apportionment in the VPA is inadequate, and anticipates Qube will contend that the Court should not look behind the VPA and certification of the development contribution; and 3. The traffic modelling process is fundamental to the contentions made by the applicants in the appeal proceedings (for example, RAID contended that documentation of traffic model validations is "actually relevant to the critical part of the case that we are presenting").
4. RAID refuted the allegation that Amended Item 6 constituted a "fishing exercise", as it knew that the contested documents existed. In this regard, RAID pointed to: 1. The need for TfNSW's expertise to be utilised by Qube when preparing the Application, by virtue of the Concept Approval and the SEARS; 2. Correspondence between TfNSW and Qube dated 8 May 2018 referring to "ongoing discussions regarding the adequacy of traffic modelling"; 3. The existence of guidelines which TfNSW would have used to calibrate and validate the traffic modelling; 4. The indication that the traffic modelling was peer reviewed by three separate organisations in the IPC's reasons when approving the Application; and 5. That TfNSW "changed its mind" and reduced the amount of the development contribution by $12m.
5. It was a key tenet of RAID's submissions that TfNSW had an important and ongoing role in relation to traffic modelling for the Development and the decision-making process for the approval of the Development (and as such was "no stranger" to the Development or the appeal proceedings). On RAID's characterisation, TfNSW was effectively in control of the traffic modelling process: it developed the model; it stipulated what the modelling process was; and Qube's consultants then put the traffic data into the model and published the outcome. RAID noted that traffic modelling predicts the traffic impacts of the Development, and that traffic impacts are key considerations in the various approvals of the Development.
6. As a result, in the course of the appeal proceedings RAID seeks to interrogate TfNSW's decision-making process in relation to the Development. RAID posited that this remains relevant in the appeal proceedings because: first, as part of the Application, the environmental impact statement ('EIS') is effectively a mandatory consideration for the Court (where the EIS includes traffic modelling); second, the reasons of the IPC when approving the Application are relevant to the Court's consideration (where these reasons were based on the opinions of TfNSW about traffic modelling); and third, where the IPC's decision to approve the Development was based on the traffic solution certified and found in the VPA, this may be relied upon by the Court.
7. In this respect, while acknowledging that further expert evidence is being marshalled in relation to the traffic impacts of the Development, RAID submitted that TfNSW's opinions, and thus the contested documents, are relevant to the appeal proceedings. RAID submitted that there is no restriction on the use of evidence from TfNSW (as the entity that was "delegated the task of determining what contribution was necessary in order to obviate the impact of traffic from this development") to demonstrate why the traffic modelling that underlies the development contribution was impaired.
8. RAID outlined its substantive contentions in the appeal proceedings (as set out at [12]-[14] above), highlighting the relevance of the contested documents to these contentions. For example, RAID seeks the contested documents to demonstrate that TfNSW agreed with RAID's contention that the approval of the Development is inconsistent with the Concept Approval because movements of container freight exceeds transport network capacity, and to confirm that TFNSW agrees that certain elements of the SEARS have not been adequately addressed.
9. RAID also submitted that the minimal detail provided by Qube in its SOFAC in Reply meant that: 1. First, RAID was unable to identify whether the facts asserted by RAID in its SOFAC are controverted or questions at law which arise are answered (citing the Court of Appeal in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 ('Warkworth Mining') as authority for the proposition that if evidence is required to meet an issue, the party asserting the factual basis for the issue raised bears the responsibility for adducing the necessary evidence, and that this proposition applies in Class 1 appeals of this Court); and 2. Second, and as a consequence, RAID must assume that it is required to prove all facts. In these circumstances, RAID submits that the breadth of the issues in the appeal proceedings, and what is relevant to the issues in the proceedings, is broad.
10. For example, where RAID cannot ascertain from the SOFAC in Reply Qube's position on the payment of the development contribution, RAID seeks evidence, in the form of the contested documents, to guard against a submission that the certification settles the payment of the development contribution.
11. RAID sought to distinguish the decisions of Registrars of this Court relied upon by TfNSW (noted at [32] above), on the basis that they related to different regulatory regimes. Rather, RAID submitted that the State Significant Development process must have primacy, and took the Court to relevant provisions in the EPA Act and the broader statutory scheme.
12. RAID provided details of where traffic modelling has been used in the history of the planning approvals for the Development and the Moorebank Intermodal Terminal more generally. (In passing, I note that there was a difference of opinion between the parties in relation to reliance on this, where TfNSW submitted that if the details are relied upon as evidence in the motion, they would need to be proven; while RAID submitted it was only required to demonstrate "apparent relevance" for the purposes of the motion.)
13. Finally, RAID disagreed with the TfNSW's contention that the scope of Amended Item 6 meant that TfNSW had to undertake an inquiry to determine the relevance of documents when responding to the Subpoena. RAID submitted that the four points of reference that regulate the term "in respect of" have the effect of narrowing the call. Further, from a practical perspective, RAID noted the issues in contention are relatively narrow, no evidence has been led as to any difficulty in locating the contested documents and TfNSW has specific internal groups that would undertake the relevant activities and generate the documents allowing for easier identification of the contested documents. Further, TfNSW has led no evidence and made no submissions as to oppressiveness.

Consideration

1. Rule 33.4 of the UCPR provides as follows: 33.4 Setting aside or other relief (1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.
2. As set out above, TfNSW contends that there is no legitimate forensic purpose for the production of the contested documents, and Amended Item 6 is a fishing expedition or impermissible discovery. It is the party who has issued the Subpoena, being RAID, who must establish that it has a legitimate forensic purpose in seeking the contested documents: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20].
3. In considering the detailed submissions of both RAID and TfNSW and in deciding the motion, I keep in mind the relevant legal principles, comprehensively stated by Ward CJ in Eq in Rinehart at [43]-[48], [51]: "[43] As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: … it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will. [44] Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]): … the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise. [45] In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306). [46] More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]). [47] Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA). [48] Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said: A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition". … [51] It is well recognised that a subpoena may be set aside as an abuse of process where it is used as a substitute for discovery or discovery against a third party (see Associated Dominions Assurance; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed))."

The issues in proceedings

1. I consider the approach of TfNSW, of starting with the identification of the issues in contention in the proceedings, to be apt. As stated by Craig J in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 ('Azar') at [21], "… all the tests, however stated, require identification of an issue or issues in the proceedings with some modicum of particularity which then becomes the measure against which the forensic purpose of the documents can be determined." More recently, in Colombini v De Berigny [2021] NSWSC 374 ('Colombini'), Ward CJ in Eq repeated at [128] that, "… what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings".
2. The issues in proceedings can be ascertained from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings: In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 ('Force Corp') at [25]; citing Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 ('Portal Software') at [25]. Making out a legitimate forensic purpose will be difficult if the issues in proceedings cannot be identified due to omission from pleadings or particulars, or due to obscure and imprecise expressions: ICAP Pty Ltd v Moebes [2009] NSWSC 306 at [33]; Force Corp at [25].
3. Having regard to RAID's SOFAC, Qube's SOFAC in Reply, and RAID's detailed oral submissions, I consider that the issues in contention in the appeal proceedings relate to the capacity of the traffic network, the adequacy of the traffic modelling undertaken for the Development, and the mitigation measures or upgrades that are being undertaken to minimise traffic impacts of the Development (including through the VPA). In this way, I accept that the focus of the parties in the appeal proceedings relates to the traffic impacts of the Development.
4. In considering the issues in contention in the proceedings, I also take into account the manner in which this Court conducts Class 1 merit appeal proceedings (which contrasts with other civil proceedings such as Class 4 judicial review proceedings). In Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; (2013) 194 LGERA 347 at [7]-[11], Preston CJ of LEC summarised the Court's role and powers in Class 1 proceedings as follows: "[7] On the appeal, the Court re-exercises the statutory power originally exercised by the Minister to determine Warkworth's project application by either approval or disapproval. The Court stands, metaphorically speaking, in the shoes of the Minister and determines for itself, on the facts and law that exist at the time of determination of the appeal, whether to approve or disapprove the application for the Project. [8] In hearing and disposing of the appeal, the Court has all of the functions and discretions that the Minister had in respect of Warkworth's project application: s 39(2) of the Land and Environment Court Act 1979 ('the Court Act'). [9] The appeal is by way of rehearing and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision by the Minister may be given on the appeal: s 39(3) of the Court Act. The Court is required to determine the appeal on the issues raised and the evidence given on the appeal. [10] In making its decision, the Court is to have regard to the Court Act and any other Act including the EPA Act, any instrument made under any such Act, the circumstances of the case and the public interest (s 39(4) of the Court Act). [11] Because new issues may be raised and different emphasis may be placed on other issues, and new or difference evidence may be given, compared to the issues or evidence before the Minister as the original decision-maker, the preferable decision to be reached by the Court on the appeal may be different to the decision of the original decision-maker. This is the nature and consequence of external merits review of administrative decisions."
5. I am cognisant of the Court's broad role in the appeal proceedings as the de novo decision-maker who is standing in the shoes of the original decision-maker and exercising all of the functions and discretions of the original decision-maker through a rehearing: s 39 of the Land and Environment Court Act 1979 ('LEC Act'). I therefore find that the issues in the proceedings can be correctly expanded from those specific contentions made by the parties to the appeal proceedings, to cover other impacts of the Development as these aspects are also before the Court in the appeal proceedings.
6. TfNSW directed the Court to Gloucester and Project 28, which considered setting aside subpoenas and notices to produce in the context of Class 1 merit appeal proceedings. In both cases, the Court had regard to the Class 1 application, any statement of facts and contentions, and the Court's powers in Class 1 merit appeal proceedings when identifying the issues in the proceedings.
7. I find that the issues in contention in the appeal proceedings should be construed broadly, and can be identified as the traffic impacts and other impacts of the Development. While this scope of the issues in contention in the appeal proceedings clearly encompasses the subject of the call for production in Amended Item 6 (being adequacy of the traffic modelling undertaken to assess the traffic impacts of the Development, and the confidence in, and calculation of, the apportionment in the VPA as mitigation for those traffic impacts), the materiality of the contested documents to the issues in contention becomes determinative. In this way, the proper identification of the issues in the appeal proceedings is not the end of the inquiry, but rather facilitates an assessment being made as to the relevance of the documents sought to the issues in the proceedings: Rinehart at [47].

Will the contested documents materially assist?

1. In Azar at [20], Craig J noted that the "requisite connection to be established [between the issues in proceedings and the documents sought] has been variously described", and indicated that a subpoena may be liable to be set aside where the party seeking production of documents cannot establish: "(i) that it is "on the cards" that the documents will materially assist on an identified issue: Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam [1999] NSWCCA 86 at [11]; Attorney-General for NSW v Chidgey [2008] NSWCCA 65; 182 A Crim R 536 at [58]-[69]; (ii) that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings: Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90 at 103; Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432; (iii) that there is a reasonable basis for supposing that the material called for will likely add to the relevant evidence in the case: A v Z (2007) 212 FLR 255 at [4]; (iv) that it is likely the documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will do so: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494; ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307."
2. I accept that there are various formulations of the "requisite connection" between the issues in the proceedings and the documents sought in the call for production, consistent with the discussion of Ward J in the extract from Rinehart set out above (and confirmed recently by Ward J in Colombini at [127]).
3. I note RAID's references to the formulation of "apparent relevance" adopted by Jagot J in Sklavos when describing the test to determine whether a subpoena has been issued for a legitimate forensic purpose. I consider this to be another formulation of the "requisite connection" referred to by Craig J in Azur, particularly in circumstances where apparent relevance is contrasted with relevance that is dependent upon an "unreal, fanciful or speculative" view.
4. Insofar as more might need to be said in this regard, I do not consider the test of "apparent relevance" to import a lower standard of relevance than the formulation proffered by TfNSW, of whether the contested documents will materially assist, or that there is a reasonable basis beyond speculation that it is likely the documentation will materially assist. In this respect, on either formulation, mere relevance is insufficient to establish a legitimate forensic purpose: Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 ('Chidgey') at [59]-[60].
5. I am cognisant that this motion has been brought in civil proceedings. Therefore, to the extent that the formulation of a legitimate forensic purpose differs between the civil and criminal context (to reflect that special weight should be attached to fact that documents may assist in the criminal defence of an accused: Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 at 414), in these civil proceedings I adopt the formulation endorsed by the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [21]-[22]. That is, it must be established that the documents will materially assist, or that there is a reasonable basis beyond speculation that it is likely the documents will materially assist, an issue in proceedings: Jong Mi Hong v Blacktown City Council [2021] NSWLEC 38 at [62]; In the matter of One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [31].
6. With this in mind, I consider the nature of the connection between the contested documents and the issues in contention in the appeal proceedings and I take into account the following matters, discussed further below: first, the nature and extent of the material about traffic modelling and mitigation measures to minimise traffic impacts of the Development which has been already produced by TfNSW in relation to the various subpoenas issued by RAID (specifically identified in the affidavit of Ms Knapman at [10] and [13]); second, the nature and extent to which this same material is otherwise publicly available to RAID; third, the manner in which Class 1 merit appeal proceedings are conducted in this Court (and the differences between Class 4 judicial review proceedings); fourth, the relevance (or otherwise) of the individual views of employees, agents or consultants of TfNSW and Qube in respect to the traffic modelling; and fifth, the evidence relied upon by RAID in support of its submission that there is a "reasonable basis beyond speculation" that the documents will materially support its case on an identified issue.
7. I accept the uncontested evidence of TfNSW that it has already produced base models, technical notes, spreadsheets, calculations, internal memoranda and reports that relate to the traffic modelling undertaken to assess the traffic impacts of the Development, and the apportionment in the VPA, in response to various subpoenas. In producing the documents sought in Item 1 of the Subpoena, TfNSW has provided RAID with specific traffic models and their supporting documentation. TfNSW has also produced excel spreadsheets setting out development contributions in relation to the VPA, and correspondence from TfNSW to the Department in relation to the VPA.
8. I am conscious that, taking into account those documents which have been produced, or are now not sought, save for Amended Item 6, no further documents are required to be produced in accordance with the Subpoena. The documents produced by TfNSW in relation to the various subpoenas issued by RAID amount to an extensive body of material, which is relevant to the issues in the proceedings, and is available to RAID.
9. Further, I accept that there is also material available in the public domain in relation to the traffic impacts of the Development, including comments from TfNSW in relation to the Application, the responses to those comments by Qube, and the Department's assessment of these comments. This material is again relevant to the issues in the proceedings, and is available to RAID. Finally, I note that TfNSW has also provided discrete documents to RAID which are relevant to the issues in the proceedings.
10. In these circumstances, I find that the nature and extent of the material which has been produced to, obtained by, or is otherwise available to, RAID, means I am satisfied that the production of the contested documents will not materially assist RAID in relation to the issues in the proceedings. Where there is an extensive body of material already accessible, I find that the contested documents do not meet the requisite threshold of materiality for production.
11. In addition to this, I also find that the Court's role in the appeal proceedings of determining whether to approve or refuse the Application, and the manner in which Class 1 merit appeals are conducted in this Court more generally, also weigh against a finding that the contested documents will materially assist an issue in the proceedings. In this respect, I note documents sought as evidence of an error, inaccuracy or miscalculation in the previous decision-making process undertaken by TfNSW in relation to traffic impacts of the Development are not necessarily pertinent where the Court is remaking the decision de novo.
12. As noted by the Court of Appeal in Warkworth Mining at [233]-[234], in relation to Class 1 merit appeal proceedings, "notwithstanding the terms of s 38 of the Court Act, an appeal to the court is conventionally conducted in an adversarial or quasi-adversarial context" and expert (and non-expert) evidence is "invariably" challenged by cross-examination (and met by contrary expert and non-expert evidence) and there may also be questioning by the Judge or Commissioner hearing the matter. The result is that the Court's judgment in the appeal proceedings will reflect what occurs in the proceedings before it, rather than a "perfected" version of the evidence before the IPC when deciding to grant approval to the Application.
13. I accept that, as submitted by TfNSW, that at the hearing of the appeal proceedings, the Court will be informed by, and the determination in the appeal proceedings in relation to the issues, will turn upon: 1. The expert (and non-expert) evidence put before the Court (in circumstances where directions had been made for the filing of discrete expert traffic engineering evidence); 2. The Court's assessment of the relevant planning documents and the various environmental reports; and 3. The lens of the EPA Act and the various relevant planning instruments made thereunder.
14. In a similar manner, I accept TfNSW's submission that the individual views of TfNSW employees, agents or consultants and employees, agents or consultants who may have been retained by Qube, in relation to the decision-making process that was undertaken to support the approval of the Application, are unlikely to be material to the Court's consideration in the appeal proceedings. The individual views of personnel in relation to the previous decision-making process would likely have been incorporated in the various assessment reports and commentary.
15. While I do not regard the previous decisions of the Court in Gloucester and Project 28 to be determinative (it is trite that these matters are decided upon their own facts), I note my finding is consistent with the conclusions of the Court in those cases.
16. In any event, in relation to the specific contention that personnel at TfNSW had "doubts" as to either the "capacity and power of the model" and/or "uncertainty that the impacts were mitigated" (as noted at [45] above), I am not satisfied that RAID has established this on the evidence before the Court. In forming my view I have considered, and place weight on, the correspondence from TfNSW to the Department dated 25 March 2019 as well as the transcript of the meeting between TfNSW and the IPC on 2 July 2019. In contrast, I place less weight on the somewhat oblique comment from TfNSW that there were "ongoing discussions" between the relevant parties regarding the adequacy of the traffic modelling at a certain point during the assessment process in 2018. I consider that this comment does not persuasively establish that there were substantive doubts held by TfNSW as to the adequacy of the traffic modelling undertaken.
17. As a result, I accept TfNSW's submission that individual views of TfNSW personnel, to the extent that they are relevant to the Court's consideration, are and would be encapsulated in the final assessment documents prepared by TfNSW, which have either been produced to RAID or are publicly available.
18. I note that if there were some significant and discrete allegations in relation to the conduct of TfNSW (or its personnel) and that went beyond mere speculation (which, to the extent that there may be an inuendo in RAID's submissions, I do not consider it amounts to this), then my conclusions in relation to the relevance of the individual views of TfNSW personnel and the present motion may well have been different.
19. I have considered the evidence relied upon by RAID to support its submission that the contested documents have a legitimate forensic purpose. Although I do not accept TfNSW's submission that RAID has not demonstrated that the documents in fact exist, I find that RAID has not demonstrated a "reasonable basis beyond speculation" that the contested documents (if these documents exist) will materially support RAID's case on an identified issue, again, accepting that mere relevance is insufficient to meet this test. In coming to this conclusion, I take into account RAID's oral submissions that "we are reasonably sure" that certain documents exist (noted at [37] above).
20. As a result, I consider that RAID's justification for the production of the contested documents rose no higher than an impermissible desire to examine documents in order to ascertain whether they would in fact assist RAID's case. This necessarily involves speculation as to what assistance may be gleaned from the contested documents. Moreover, as noted by Beazley JA (as her Excellency then was), in Chidgey at [60], a claim that "I wish to see the document to see if it may assist my case" is not sufficient to force production. The contested documents (and therefore Amended Item 6) is an attempt to gather evidence, and therefore in my view amounts to a fishing expedition (in the well-known sense as described in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254).
21. Finally, I have considered the specific submission that TfNSW "changed its mind" and that the amount of the development contribution provided in the VPA reduced from $60m to $48m. I consider that the mere fact that the amount of the development contribution changed over time is not indicative of whether or not the contribution as otherwise provided in the VPA was adequate. In this respect, I do not consider that the contested documents relating to the basis of the calculation of the apportionment in the VPA would be material to whether the development contribution in the VPA was adequate. Rather, I consider that this is a matter which is able to be considered in the appeal proceedings based on the evidence before the Court.
22. In this regard I accept TfNSW's submission that the "change" is not "unexplained" as submitted by RAID (Tcpt, 23 February 2021, p 35(26-27)) in circumstances where there is evidence before the Court that the change to the monetary contribution under the VPA is explained by reference to TfNSW's explanation to the IPC at their meeting, and various correspondence, including correspondence between TfNSW and Qube dated 8 May 2018; internal TfNSW memorandum in relation to the VPA; and a spreadsheet dated 21 March 2019 setting out contributions in relation to the VPA and related modelling ­- all of which the affidavit of Ms Knapman indicates was produced in response to an earlier subpoena issued by RAID.
23. I have little doubt that the Court in the appeal proceedings will consider the adequacy of the VPA (on the basis of evidence that is otherwise properly before the Court) and I do not consider RAID's concern, that Qube may contend that the Court should not look behind the VPA and the certification that satisfactory arrangements have been made, to be persuasive. While I accept the traffic modelling process in and of itself is fundamental to the contentions made by RAID in the appeal proceedings, I consider that in the light of the material already produced and the evidence before the Court and the evidence that is likely to be before the Court at the time of the appeal proceedings, the contested documents will not materially assist RAID in its case.
24. In summary, I am not satisfied that RAID has established that the contested documents will materially assist, or that there is a reasonable basis beyond speculation that it is likely that the documents will materially assist, an identified issue in the proceedings. My finding would remain having regard to various formulations of the "requisite connection" discussed at [66]-[70] above. Put another way, I do not consider that the disputed documents have "a sufficient apparent connection to justify their production or inspection": Portal Software at [24]; Colombini at [128]. In these circumstances, RAID has not established that there is a legitimate forensic purpose for Amended Item 6, and Amended Item 6 must be aside.
25. I note that failure to obtain the contested documents does not necessarily prevent RAID from interrogating TfNSW's decision-making process in relation to the consideration of the Application in the appeal proceedings. RAID properly concedes that further expert evidence is being marshalled in relation to traffic assessments, traffic modelling that was undertaken, and the traffic impacts of the Development - where the material already available to RAID will inform the considerations of any expert retained by RAID. This evidence will continue to inform the Court at the hearing of the appeal proceedings.

Scope of contested documents

1. TfNSW's submissions raised the issue of Amended Item 6 constituting, as a result of its broad terminology "in respect of", "impermissible discovery". Given my findings above, whether the scope of Amended Item 6 falls into impermissible discovery is not material to my decision on the motion. However, having received detailed submissions, for completeness I note the following.
2. It is uncontroversial that the documents the subject of the call for production in a subpoena must be "specified with reasonable particularity": Commissioner for Railways v Small (1938) 38 SR (NSW) 564 ('Small'). In Small, at 573, Jordan CJ found that it was impermissible for third parties to be required by a subpoena to "… search for and produce all such documents as he may have in his possession or power relating to a particular subject matter."
3. In Patonga at [15], Barrett J articulated a "like principle" to the requirement for particularity, being that the recipient of a subpoena or notice to produce "… must not be put into a position of having to judge the legal effect of a document or its capacity to prove something." In this way, the document which is the subject of the call for production must be able to be identified on its face, without the recipient being required to make a subjective judgment. A related issue was identified by Leeming JA in Loulach at [13]-[14], where his Honour found that where "… it is impracticable if not impossible to attempt to achieve compliance without taking efforts to obtain instructions from the authors of the document", the call for production fell into the category of impermissible discovery. Both of these cases were brought to the Court's attention by TfNSW, who submitted that the "highly technical nature" of the documents sought by Amended Item 6 meant that the call also fell into impermissible discovery and is "fishing" in its terms.
4. The effect of the terminology of the call for production was considered as a factor in whether the scope of the call fell into impermissible discovery. In both Patonga and Loulach the broad terminology used to describe the documents the subject of the call - being "concerning" and "used for or referred to" respectively - contributed to the calls being set aside. Pertinently, in circumstances where "the recipient of a subpoena must take it as he or she finds it and comply faithfully regardless of views he or she may have about its intended scope or purpose" (Patonga at [20] citing Lane v Registrar of the Supreme Court (1981) 148 CLR 245; [1981] HCA 35), a narrow interpretation of the scope of a call for documents cannot be adopted to better reflect the issues in the proceedings.
5. I accept the submission of RAID and find that while the use of the terminology "in respect of" in Amended Item 6 "generally should be avoided" - in that it tends to import an element of imprecision in relation to the documents being sought in Amended Item 6 - the inclusion of the specific "points of reference" in Amended Item 6 regulate and narrow that terminology, such that I would have (otherwise) found that the call is not impermissibly broad. In this respect, I find that the description of the matters which the documents and correspondence must be in respect of, to be sufficiently precise and clear. I do not accept the submission of TfNSW that their "entire records" over the relevant date periods would need to be examined to identify the documents and correspondence sought.
6. The combination of the terminology of "in respect of" and the scope of Amended Item 6 in seeking documents and correspondence which were produced by TfNSW and Qube, and their respective "employees", "agents" or "consultants" has the potential to include a large number of documents and correspondence from a range of people. However, I consider this scope to be expected in circumstances where the regulatory approval process for the Development involved a large number of people.
7. I acknowledge TfNSW's contentions around the difficulty of identifying these documents, having regard to their highly technical nature. However, absent specific evidence to the contrary, I not accept that this difficulty necessarily requires TfNSW to make subjective judgments as to whether documents or correspondence fall within the call for production (including through obtaining instructions from the authors of documents and correspondence). I consider that the description of the documents and correspondence provides for the objective identification of documents that are sought by Amended Item 6. I consider the technicality of the documents sought to be a natural corollary of the complexity of the Development and the environmental assessment that has been undertaken for the Development. The fact that a document is technical in nature, or created by a technical specialist, is not a reason to resist production of the document.

Costs

1. Although TfNSW has sought an order for costs of the motion, and has enjoyed success, as the Court has not received submissions in relation to costs, costs will be reserved.

Orders

1. The orders of the Court are: 1. Paragraph 6 (as amended) of the subpoena for production filed 24 December 2020 addressed to Transport for NSW, and issued by Residents Against Intermodal Development Moorebank Incorporated, is set aside. 2. Costs are reserved.

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: 01 June 2021