Taylor v Port Macquarie Hastings Council

KEY ISSUES: SUBPOENA :- Application to set aside notice to produce & subpoena - whether abuse of process - whether there was a legitimate forensic purpose

Civil Procedure Act 2005 LEGISLATION CITED: Land Acquisition (Just terms compensation) Act 1991 Practice Note - Class 3 Compensation Claims

Commissioner for Railways v Small (1938) SR (NSW) 564 CASES CITED: Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 ICAP Pty Ltd v Moebes [2009] NSWSC 306 R v Dennis James Taylor [2007] NSWCCA 104

APPLICANTS Mr J Dupree SOLICITORS Russo & Partners LEGAL REPRESENTATIVES: RESPONDENT Mr J Lazarus SOLICITORS Donovan Oates Hannaford Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

05/30623 - John Henry Taylor & Anor v Port Macquarie Hastings Council

1 ACTING REGISTRAR: Before me is an application made by the respondent in the proceedings, Port Macquarie Hastings Council ("the Council"), to set aside a subpoena and a notice to produce. The subpoena was issued at the request of the applicants and required the production of documents by Environmental Resources Management Australia Pty Ltd ("ERM"). The notice to produce to the Court was issued by the applicants on 6 April 2009 and directed to the respondent. The application before me is made by notice of motion filed by the respondent on 27 April 2009, which also seeks an order for costs.

2 The proceedings concern an objection by the applicants to the amount of compensation offered by the respondent for the resumption of land owned by the applicants for the purpose of a waste transfer station. The objection is lodged pursuant to s 66 of the Land Acquisition (Just terms compensation) Act 1991 ("JTC Act"), and requires the Court to hear and dispose of the claim for compensation.

History of the proceedings 3 The date of acquisition was 1 April 2005. Subsequent to a letter from Hastings Council dated 5 May 2005 containing the Compensation Notice, the applicants commenced the proceedings by the filing of the application on 21 June 2005. Having regard to the court file, the proceedings have had a long and chequered history since that time. Whilst that history is not relevant to the present application, I outline some of that history simply by way of background. From my review of the court file, it appears that there have been at least 29 appearances in the Court by the parties. In September 2005 a subpoena was issued by the applicants to the Council ("the 2005 subpoena"). There was some dispute in relation to the sufficiency of the Council's compliance with that subpoena, and a notice of motion seeking orders in relation to the subpoena was filed by the applicants December 2005. That Notice of Motion was ultimately heard by Jagot J in February 2007. At that time Her Honour made an order that the parties proceed to a mediation and did not make any formal orders in relation to the notice of motion.

4 The parties subsequently failed to agree on a mediator and on 28 March 2007 Jagot J ordered that the Honourable Mahla Pearlman AO be appointed as the mediator. According to the court record, the mediation then took place on 10 May 2007 and the proceedings returned to the Court on 23 May 2007. At that time the parties initially indicated that they had reached an agreement. However, following discussions with Jagot J, it became clear that there was an outstanding issue in relation to the question of whether the agreement was inclusive of interest. An adjournment to 20 June 2007 was granted by Jagot J to give the parties an opportunity to resolve the outstanding issue. The matter did not resolve and on 20 June 2007 her honour ordered that the parties attend a further mediation before the Hon Mahla Pearlman AO and adjourned the proceedings to 15 August 2007 for that purpose. She also ordered that the parties inform Jagot J in chambers of the date scheduled for the mediation conference by no later than 27 June 2007. On 15 August 2007, the parties had not yet attended a further mediation or scheduled a date to do so. Jagot J confirmed her earlier orders and extended the time for notification of the date of the mediation conference.

5 The parties then participated in further mediation and the proceedings returned for further mention before Jagot J on 19 September 2007 without the matter having been resolved. By that time Supreme Court proceedings had been commenced by the applicants seeking to enforce an agreement that was purported to have been entered by the parties at the mediation of May 2007. The proceedings were then adjourned on five occasions on account of the proceedings in the Supreme Court, and on three of those occasions there were appearances by both parties.

6 Ultimately the proceedings in the Supreme Court were dismissed by consent and the present proceedings were then brought back before Biscoe J on 24 October 2008. On that date the usual directions for a first directions hearing were made in accordance with the Practice Note - Class 3 Compensation Claims. Those directions were not complied with and orders extending the time for compliance were made on 12 December 2008, 3 April 2009 and 22 May 2009. Indeed, it appears that the parties' are yet to comply with the directions that were made by the Court on 24 October 2008.

7 The subpoena the subject of this application was issued at the request of the applicants on 7 April 2009, and the notice to produce was similarly issued on 6 April 2009. On 22 April 2009 the notice to produce and the subpoena were returnable before me in the subpoena list. There was no appearance for the respondent. Mr Vergotis appeared for ERM and produced documents on its behalf. I was advised at that time by Ms Matthews, who appeared for the applicants, that the respondent had indicated its intention to apply to set aside the subpoena. On that basis, I ordered that there be no access to the material produced until further order and granted liberty to the parties to approach the Registrar in chambers for access by consent. Later that morning Ms Matthews re-mentioned the proceedings and indicated to the Court that the solicitor for the Council consented to general access being granted to the material. I revoked my earlier orders and granted general access to the documents produced. The notice of motion seeking to set aside the subpoena and the notice to produce was subsequently filed on 27 April 2009.

8 The subpoena issued to ERM seeks the production of documents in a number of categories. Paragraphs 1-5 of those categories concern the preparation by ERM of a statement of environmental effects for the proposed waste transfer station. Paragraph 1 of the subpoena seeks all "correspondence, reports, memoranda, studies, advices provided" to the Council relating to the land owned by the applicants and the quarries operated by the applicants from 2000 to the date of the subpoena. Paragraphs 2 and 3 seek the production of the statement of environmental effects in relation to the land or the quarry. Paragraphs 4 and 5 seek "all reports, memoranda, advices, valuations" from 2000 to the date of the subpoena relating to the proposal for a waste transfer station. Paragraphs 6 and 7 seek the production of "all correspondence, reports, memoranda" from 2000 to the date of the subpoena relating to a development approval for gravel or other extraction on the land or the quarry.

9 The notice to produce primarily seeks the production of documents, from 1993 to the date of the notice to produce, that relate to the proposed development of the land owned by the applicants for a waste disposal facility. Paragraph 1 seeks the production of "reports, memoranda to Hastings Council officers, environmental study reports" for the same date range in relation to the proposed development of the land as a waste disposal facility. Paragraph 2 seeks "correspondence, reports, memoranda, studies, advices" in relation to the same. Paragraph 3 seeks minutes of council meetings and paragraph 4 seeks further documents with respect to the same. Paragraph 5 is distinct from paragraphs 1-4 and seeks the production of documents that relate to the sale of the land by the Council following the date of acquisition.

10 The respondent submits that both the notice to produce and the subpoena are an abuse of process in that they were not issued for a legitimate forensic purpose. In ICAP Pty Ltd v Moebes [2009] NSWSC 306 at par 30 and 32, Nicholas J states that when the legitimate forensic purpose of a subpoena is challenged: "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. … [32] The application of the test requires consideration of the issues in the principal proceedings. These issues are usually those identified in the pleadings and the particulars of the facts and matters relied upon in support of the pleaded allegations."

11 I accept that this is the appropriate test that I ought to use in order to be satisfied that each of the subpoena and the notice to produce have a legitimate forensic purpose. In these proceedings the applicants bear the onus to establish that each of documents sought in the subpoena and the notice to produce is likely to "assist on an identified issue" in the proceedings. The issues in the present proceedings are those set out in the points of claim, the points of defence and the legislative framework that the Court will be required to consider at the hearing of the proceedings.

12 There are three grounds on which the respondent relies to demonstrate that the subpoena and the notice to produce have no legitimate forensic purpose. The first ground is that the documents sought relate to a date range that is well outside of that which can be considered by the Court in determining the value of the land. In accordance with s 55(a) of the JTC Act, in determining the amount of compensation, regard must be had only to the market value of the land "on the date of its acquisition". The question for the Court is, in the words of Biscoe J on 24 October 2008, "the price at which the hypothetical parties at that date would have been prepared to sell or buy the land" in what is assumed to be an efficient market. The respondent submits, therefore that the relevant date is only the date on which the acquisition occurred. On that basis paragraph 5 of the notice to produce is entirely objectionable, and any documents sought following the date of acquisition in the remaining paragraphs of the notice to produce and the subpoena are also irrelevant.

13 The second ground that the respondent relies upon to demonstrate that there is no legitimate forensic purpose relates the content of s56(1) of the JTC Act. Specifically, that section provides for the manner in which the market value of the land at the date of the acquisition is assessed. It states, relevantly: market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): (a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired; and …

14 Counsel for the respondent, Mr Lazarus, submits therefore that in order to assess the market value the Court must ignore the purpose or reason for which the resumption took place. Accordingly, it is submitted that the documents sought relating to the proposed waste transfer facility can have no relevance or bearing to the issues that are required to be considered by the Court in determining the amount of compensation.

15 The third ground on which the respondent says the documents sought cannot have a legitimate forensic purpose is that the documents sought have no connection with any of the issues raised in the applicants' points of claim filed in the proceedings. Whilst the points of claim raise issues in relation to the valuation of the business, nothing is raised in relation to the valuation of the waste transfer facility.

16 Further, the respondent submits that paragraphs 1-4 of the notice to produce are an abuse of process in that they replicate paragraphs 2 and 5 of the 2005 subpoena. In support of this submission, the respondent relies on the affidavit of Mr Miles sworn 27 April 2009. Mr Miles was cross-examined with respect to the content of that affidavit but much of his evidence remained unchallenged. I am satisfied as to the reliability of that evidence. That evidence demonstrates that in February 2007 Jagot J made comments in relation to the sufficiency of the Council's efforts to comply with the 2005 subpoena. The respondent submits that in light of those comments, and in light of the fact that the relevant date for ascertaining the value of the land is and remains the resumption date, it was an abuse of process for the applicants to issue a notice to produce seeking the production of documents similar to those sought in the 2005 subpoena. In support of this submission, the respondent relies on the findings of the Court of Criminal Appeal in R v Dennis James Taylor [2007] NSWCCA 104 at par 38: "it was open to Judge Sweeney to find that there was no relevant difference between the second subpoenas and the first, and that there was no relevant change in the material bearing on the issue of legitimate forensic purpose since the ruling of Judge Ainslie-Wallace. That being so, it was open to her Honour to find that the relevant paragraphs of the second subpoena… were an abuse of process." Counsel for the respondent says that the proper procedure would be to make an application for compliance with such part of the subpoena that the applicants sought to pursue.

17 Finally, it is submitted on behalf of the respondent that paragraphs 1 and 5 of the subpoena constitute a fishing expedition on the basis that those paragraphs are not refined or defined in anyway and seek an exhaustive category of documents concerning the proposal for the waste transfer facility on the land from 2000 onwards.

18 Mr Dupree, counsel for the applicants, made a number of submissions in relation to the legitimate forensic purpose of the subpoena and the notice to produce. It was submitted that the relevance is established by the reference in s 54 of the JTC Act to "relevant matters". In the applicants' submission, the value of just compensation depends upon the value of the land and the signposts put in place by the JTC Act to determine that value. The applicants also submit that in order to assess the value of the land, the Court should be fully informed of all the matters surrounding the land and its acquisition, with the concept of the willing purchaser sitting "at the cornerstone". The applicants submit that it is artificial to say that the Court cannot consider anything that occurred after the date of the resumption.

19 Further, Mr Dupree indicated that it was the applicants' understanding that the Council knew that the RTA would resume the land following the date of acquisition. It is therefore submitted that the value of the on-sale of the land to the RTA is relevant as a comparable sale.

20 The applicants also submit that the documents sought are relevant to the issue of existing use, and that there was a contracting relationship between ERM and the quarry. I note that no evidence was filed by the applicants in support of such a contract or relationship.

21 It is also submitted on behalf of the applicants that the notice to produce is not identical to the 2005 subpoena and thus cannot constitute an abuse of process. In support of that submission, counsel for the applicants also submits that I ought to place little weight on the evidence of Mr Miles and therefore that I should not accept that Jagot J commented that the Council had sufficiently complied with the subpoena.

22 The applicants further submit that I cannot set aside the subpoena in circumstances where there has been an agreement that the documents produced by the subpoenaed party are in full satisfaction of the subpoena. Finally, the applicants submit that it is inappropriate to set aside a subpoena where the documents have been produced and inspected by the parties.

23 I am not satisfied that the notice to produce is an abuse of process on the ground that it reflects the 2005 subpoena issued by the applicants. Even accepting the events that occurred before Jagot J on 22 February 2007 in accordance with the affidavit of Mr Miles, I cannot be satisfied that Jagot J made a finding that the subpoena had been complied with. In other words, whilst she may have made comments in relation to the Council's compliance with the subpoena, there was no ruling to that effect reflected in the orders made by Her Honour. Whilst I accept firstly that the proper procedure ought to be to re-agitate those parts of the schedule to the subpoena that the applicants wished to pursue, by the filing of a notice of motion or otherwise, and secondly that there was no relevant change in the issues in the proceedings, the applicants' failure to follow such a procedure by issuing a notice to produce in this instance does not constitute an abuse of process. It is not in identical terms to the 2005 subpoena, and its issue was following the passage of four years from the issue of the 2005 subpoena.

24 However, in my view the applicants have failed to demonstrate that the subpoena and the notice to produce have a legitimate forensic purpose in that they seek the production of documents likely to "assist on an identified issue" in the proceedings as set out in the points of claim, the points of defence and the JTC Act. All of the paragraphs of the subpoena and the notice to produce, save for paragraph 5 of the notice to produce, seek the production of documents that relate to the proposed waste transfer facility and therefore to the purpose for which the acquisition took place. I accept the submission of the respondent that in light of s 56(1)(a) of the JTC Act, the documents concerning the facility are relevant neither to the points of claim nor to the determination by the Court of the appropriate amount of compensation to be paid pursuant to s 54. On that basis alone, regardless of the dates for which the documents were sought, I accept that it is appropriate for me to set aside the subpoena and paragraphs 1-4 of the notice to produce. Whilst the applicants sought to rely on existing use rights to support the relevance of the material, they have failed to establish that any document sought concerning the proposed waste transfer facility, including, for example, a statement of environmental effects, would contain material that is likely to "assist on" the issue of existing use. The applicants' submission that the documents sought in the subpoena would be relevant to the issue of existing use therefore does not have any basis.

25 Further, I am not satisfied that the alleged sale of land to the RTA following the date of resumption is a comparable sale to which the Court or the experts can have regard to in valuing the land in accordance with the JTC Act. Furthermore, as set out in Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547, events after the date of acquisition are relevant only to confirm the foresight of a prudent hypothetical purchaser. The applicants have failed to establish that such relevance arises in the circumstances and therefore it is also appropriate that I set aside paragraph 5 of the notice to produce.

26 I cannot accept the submission made on behalf of the applicants that it is not appropriate to set aside the subpoena where there was apparently, to use the words of Mr Dupree, "an agreement that what has been produced has satisfied the subpoena". No evidence of such an agreement has been provided. Whilst the documents produced in response to the subpoena were tendered by the applicants at the hearing of the notice of motion, there was no reference to them in the submissions and counsel for the applicants failed to establish the relevance of those documents to the application. In any event, such a submission mistakes the nature of a subpoena. A subpoena is a court order issued at the request of a party to the proceedings. Unless there is an amendment made to the subpoena, the subpoena requires the production of the documents listed therein. Obviously, an agreement might be reached between the parties that aspects of the subpoena would not be pressed, but that agreement does not change the content of the subpoena. Unless the terms of that agreement is communicated to the other party to the proceedings, that party is entitled to assume that the subpoena in its entirety is pressed and that there is therefore utility in making an application to have it set aside. Accordingly, in determining whether I ought to set aside the subpoena I must consider the content of the subpoena as it was issued by the Court on 7 April 2009.

27 Further, the submission made on behalf of the applicants that I cannot set aside a subpoena in circumstances where the documents have been produced and inspected is unfounded. As outlined by Jordan CJ in Commissioner for Railways v Small (1938) SR (NSW) 564, there are three steps that arise when documents are required to be produced pursuant to a subpoena. The first concerns compliance with the subpoena including the determination of any objection to the subpoena or to the production of documents. The second step concerns the question of whether access ought to be granted to the documents. The third step involves the trial judge determining whether the documents ought to be admitted into evidence. I accept that it is unusual in the circumstances for the Council to agree to the second step notwithstanding their application in relation to the first step. In other words, it is unusual that the Council agreed to access being granted to the parties to inspect the documents produced in response to the subpoena notwithstanding their application to set aside the subpoena. However, it does not preclude the Court from determining the objection to the subpoena in accordance with the first step. I accept the respondent's submission that any difficulties arising as a result of my orders can be rectified with appropriate orders for the material to be returned to ERM and for all copies of the material to be destroyed.

28 The notice of motion filed by the respondent also seeks an order for costs. I accept that it is appropriate for me to make such an order. The question of costs falls within the court's discretion but in exercising that discretion costs will generally follow the event. The respondent has been successful in its notice of motion and as such I am satisfied that the applicants ought to pay the respondent's costs of the notice of motion. However, I would exclude the costs of attendance on 6 May 2009 from that costs order. On that day, the hearing of the notice of motion was adjourned and directions were made allowing the parties to file evidence in relation to the notice of motion. Specifically, there being already an affidavit filed by the respondent, directions were made for the respondent to put on further evidence and for the applicants to file and serve evidence in reply. Neither party took advantage of those directions by the filing of evidence and as a result the Court was no better off having given the parties a 9 week adjournment to enable them to do so. Accordingly, the appropriate order in relation to the attendance on 6 May 2009 is that each party pay their own costs.

29 I add also, for the sake of completeness, that the Court was not assisted by the manner in which counsel for the applicants conducted the case for the applicants at the hearing of the notice of motion. Firstly, the counsel for the applicants engaged in lengthy and unnecessary cross-examination in circumstances where he could have relied on submissions. Mr Dupree even went so far as to purport to conduct a voir dire in the cross-examination, which only served to unnecessarily lengthen the time spent on evidence on an interlocutory application. Secondly, much criticism was levelled at the respondent's solicitor, Mr Miles, by the counsel for the applicants for the failure to order the transcript of the proceedings before Jagot J in the time frame that would allow it to be available for the hearing of the notice of motion. Indeed, much of the cross-examination concerned the proceedings before Jagot J. Subsequent to that criticism and to the bulk of the cross-examination, the counsel for the applicants then produced a tape of those proceedings and played parts of it for the purpose of further cross-examination. It did not contradict the evidence given by Mr Miles, and it was not tendered into evidence. The Court was not assisted by Mr Dupree's conduct in that regard. Thirdly, the statement by the applicants' counsel that there was an agreement between the applicants and the subpoenaed party, if true, without evidence of the same or the provision of an amended subpoena caused the respondent to run what may have been a largely unnecessary application in relation to the subpoena.

30 Each of these aspects of the conduct of counsel for the applicants did not assist the Court in achieving its overriding objective to facilitate the quick, just and cheap resolution of the issues in the interlocutory proceedings in accordance with s 56 of the Civil Procedure Act 2005. Whilst I am entitled pursuant to s 56(5) to take these things into account in exercising my discretion in relation to costs, I consider it unnecessary to do so in circumstances where I have already found that it is appropriate for costs to follow the event.

31 I make the following orders: 1. The subpoena issued at the request of the applicants to Environmental Resources Management Australia Pty Ltd be set aside; 2. The notice to produce issued by the applicants on 6 April 2009 be set aside; 3. The applicants pay the respondent's costs of the Notice of Motion filed 27 April 2009, excluding the costs of attendance on 6 May 2009, as agreed or assessed; 4. Each party pay their own costs of the attendance on 6 May 2009; 5. The exhibits, except for Exhibit D, be returned to the parties; 6. The documents contained in Exhibit D, also known as Packet 8697, be returned to DLA Phillips Fox, the solicitors for Environmental Resources Management Australia Pty Ltd; 7. That all copies made of the documents contained in Packet 8697 and held by the parties, their solicitors or experts be destroyed within 7 days; 8. That the parties' solicitors notify their experts of order 7. Amendments

13/07/2009 Amendments to paragraphs 18, 19, 29 - spelling of name of counsel for the applicants.

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