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[2013] NSWLEC 22
Land and Environment Court (NSW)
2013-02-21
Pain J
Original judgment source is linked above.
Judgment 1This is the determination of a Notice of Motion filed by the Council seeking leave to provide a defence filed by the Respondent, Australian Catholic University Limited (ACU), in these proceedings to the Planning Assessment Commission (PAC) today. The Notice of Motion was filed and served on Tuesday 19 February 2013 returnable that day and heard urgently late yesterday 21 February 2013 as PAC determination of a concept plan for the same Strathfield campus the subject of these Class 4 proceedings is said to be imminent. The Class 4 proceedings allege a failure by ACU to comply with development consent conditions including in relation to compliance with a cap on student numbers on the campus at any one time. 2The defence filed raises discretionary matters including cl 35(k) concerning monitoring of student numbers. The Class 4 proceedings have yet to be determined. 3An affidavit of Mr Lim, solicitor, dated 19 February 2013 was read to which relevant documents were exhibited. The parties referred to some of these documents. 4PAC is presently considering whether to approve a Part 3A concept plan from ACU that will substantially increase student numbers as part of an extensive building program proposed by ACU on the campus. The Director-General Major Development Assessment Report recommends approval subject to numerous conditions including a much larger cap on student numbers and requirements for the monitoring of student numbers. The management of student numbers and traffic impacts in the surrounding suburbs are identified as a key issue. 5The Council seeks the Court's leave to be released from its implied undertaking that the defence be used only in these proceedings so that the defence can be given to PAC. The implied undertaking obligation is articulated by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [96]: Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.... 6Special circumstances must be demonstrated to lift that obligation as identified by the full Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [31]; special circumstances do not require extraordinary factors, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of another party in other litigation or for other non-litigious purposes. 7Assuming special circumstances are demonstrated a court has broad discretion whether to lift the obligation per Liberty at [31]. That case identifies a number of relevant factors to consider such as the nature of the documents, how they came into existence, the information in the documents such as whether personal data, the way in which the documents came into the applicant's hands and the importance of achieving justice in the other proceedings cited by McDougall J in QBE Insurance (Australia) Ltd v Westpoint Realty Pty Ltd [2009] NSWSC 1298 at [35], James G Oberg (Sales) Pty Ltd v Oberg [2012] FCA 722; (2012) 292 ALR 673 at [27]. 8While special circumstances theoretically might apply to many circumstances none of the numerous cases referred to by the parties have any similarity to the circumstances here. The cases were largely concerned with the disclosure of court documents for the purposes of commencing other court proceedings or use of court documents in different litigation already on foot. The two cases in this Court I am aware of where this issue has arisen, Jali Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2011] NSWLEC 67 (whether documents obtained in other litigation could be used in Class 3 aboriginal land claim proceedings) and Newcastle Muslim Association Incorporated v Newcastle City Council [2012] NSWLEC 20; 188 LGERA 159 (whether expert reports could be released to objectors in Class 1 proceedings) concerned use of documents related in a direct way to the conduct of proceedings on foot before the Court. The only non-litigious purpose considered in the cases were newspapers wishing to report on proceedings seeking access to court files, of which there are numerous examples such as Loti Tuquiri v Australian Rugby Union Limited [2009] NSWSC 781. The principle of encouraging the conduct of court proceedings in public and of reporting on them identified in Loti Tuquiri is quite removed from the circumstances here. A further category of cases were contempt of court proceedings where people had breached an implied undertaking and used documents impermissibly for non-litigious purposes.
Jurisdiction to determine 9The implied undertaking is just that, implied, and does not arise squarely by virtue of any rule of court although it is supported by the existence of r 21.7 of the Uniform Civil Procedure Rules 2005 (the UCPR). ACU raised the issue that the Court lacked jurisdiction to waive the implied undertaking and suggested that action must lie to the Supreme Court because this is a court of limited jurisdiction. That is a surprising submission. While the Court has limited statutory jurisdiction, within that limit it can generally make orders necessary for the conduct of matters before it. I do not have time to fully investigate this issue in the time available and assume that I have jurisdiction to determine the matter and, separately, also power by virtue of s 16(1) and s 86 of the Civil Procedure Act 2005 (the CP Act) and s 16(1) and (1A) of the Land and Environment Court Act 1979 (the Court Act).
No special circumstances demonstrated 10The Council seeks leave to be released from its implied obligation in relation to ACU's defence for non-litigious reasons and must demonstrate that special circumstances exist and that the Court should exercise its discretion in its favour. A defence filed in the Court for a particular pleading purpose to put in issue matters alleged by the Council and to raise discretionary matters is sought to be placed before PAC which is conducting an administrative planning approval exercise. 11It is first necessary to emphasise the entirely different nature of these Class 4 proceedings from the process being undertaken by PAC. In the Class 4 proceedings the Council is taking civil enforcement action against ACU. Rules of court provide for the filing of pleadings and evidence in order to test the Council's claim in relation to which the Council bears the onus. The particular paragraph in the defence which the Council focussed on raises discretionary considerations ACU wishes to put before the Court if the Council is successful in establishing a breach of development consent conditions. The matter is yet to be determined. 12PAC is undertaking an administrative planning assessment process requiring an assessment of ACU's concept plan on its merits under the EPA Act. These are fundamentally different processes and to state that alone suggests the defence should not be disclosed. Contrary to the Council's submissions there is no commonality between the two different processes which justify the order sought given the fundamentally different purposes of these proceedings and the approval process administered by PAC. That the same parties have different roles to play in both and the two processes concern the same campus, while common elements of both, does not mean there is commonality between the substance of the processes. 13As ACU submitted the defence would require explanation from ACU in order to provide context to PAC. The Council appears to wish to treat the defence as some kind of admission by ACU. That is not its purpose or effect and that is the context ACU would have to explain to PAC. Further the assertions of the effect of the defence in the Council's written submissions at par 25 are not correct and over state the effect of the defence. It is hard to see how PAC could give the defence much weight given its limited, and at this stage untested, purpose. 14 While the circumstances are novel I do not consider them to be special. Further discretionary considerations are also against lifting the implied undertaking. 15The issue of student numbers and monitoring is clearly identified in the Director-General's report which also refers to this litigation as being on foot on the issue of non compliance with student numbers. It is an issue which PAC is aware of. 16The Council claims it is in the public interest that PAC be provided with the defence as it puts in issue matters relevant to the draft consent conditions proposed by the Director-General which provide for monitoring of student numbers. I do not agree for the reasons given above. 17The interest of justice submission of the Council that PAC's determination will affect these proceedings is misconceived. That the PAC approval if granted will render futile these proceedings is irrelevant to the issue before me. 18I decline to make the order sought in prayer 3 of the Council's Notice of Motion and do not grant leave to disclose the Points of Defence filed on 5 February 2013 to PAC. 19As costs ordinarily follow the event in Class 4 proceedings the usual costs order is that the Council must pay ACU's costs of this motion. I will so order on Friday 1 March 2013 unless contrary submissions are received from the Council by 5 pm Thursday 28 February 2013.
Orders 20The Court makes the following orders: (1)Prayer 3 of the Council's Notice of Motion filed 19 February 2013 is refused. (2)Leave is not granted to disclose the Points of Defence filed on 5 February 2013 to the Planning Assessment Committee. (3)On 1 March 2013 an order will be made that Strathfield Council must pay Australian Catholic University Limited's costs unless the Council files written submissions by 5pm 28 February 2013. 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 March 2013
Strathfield Council
Australian Catholic University Limited
(2008) 235 CLR 125
(2012) 292 ALR 673
(2005) 218 ALR 283
[2008] HCA 36