Strathfield Council v Australian Catholic University Limited

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.