Verde Terra Pty Ltd v Central Coast Council

Land and Environment Court (NSW)|2019-10-28|Before: Pepper J, Mr P

Solicitors: Ashurst (Applicant) MBM Legal (Respondent) File Number(s): 2019/101279

Central Coast Council Seeks to Set Aside Subpoenas and a Notice to Produce

In this long running and increasingly complex dispute (see the factual background, litigation history and list of issues set out below) between the applicant to Class 4 proceedings, Verde Terra Pty Ltd ("VT"), and the respondent, Central Coast Council ("the Council"), VT issued subpoenas on 9 October 2019 to P J Donnellan & Co Pty Limited ("PJD"), and Golder Associates Pty Ltd ("Golder"), and a notice to produce to the Council.
PJD, a firm of solicitors, acted for Gosford City Council ("Gosford CC") in Class 4 proceedings 2012/40900 between 2012 and 2014 ("the 2012 proceedings"). Golder is a consulting firm that was instructed by both VT and Gosford CC to provide an independent report relating to landfill management in those same proceedings.

The Council Seeks to Set Aside Consent Orders Entered Into By the Parties in 2014

The facts outlined below are contained in a statement of agreed facts filed by the parties in the proceedings.
On 3 July 1973 Gosford CC resolved to grant consent under Pt XIIA of the Local Government Act 1919 ("the LGA"), subject to conditions, for the construction of an 18 hole golf course, club house, access roads and parking, together with associated amenities, on Lots 581 and 582 DP 517322.
On 4 September 1973 Gosford CC resolved to grant consent under Pt XIIA of the LGA to amended plans for the construction of an 18 hole golf course, club house, access roads and parking, together with associated amenities, on Lots 581 and 582 DP 517322, again subject to conditions.
On 3 June 1991 DP 809570 was registered. DP 809570 was a subdivision of Lots 581 and 582 DP 517322 and created two lots, namely, Lot 584 and Lot 583.
On 21 October 1992 G & H Todd Pty Ltd ("G & H Todd") lodged development application DA 16452 with Gosford CC seeking development consent for development described on the development application form as the "Reconstruction of Existing Golf Club to Upgrade to 18 Hole Golf Course" ("the 1992 DA"). The 1992 DA identified the land the subject of the application as Lot 584 DP 809570. The 1992 DA described the existing development on the land as a "9 hole golf course".
On 8 August 1995 Gosford CC resolved to grant a deferred commencement consent to the 1992 DA subject to conditions. And on 5 September 1995, Gosford CC issued a notice of determination of deferred commencement consent in respect of the 1992 DA (DA 16452).

The 1998 Consent and its Modification

On 16 March 1998 G & H Todd lodged development application DA 23042/1998 with Gosford CC ("the 1998 DA"). The 1998 DA described the land the subject of the application as Lot 584 DP 809570.
The 1998 DA, under the heading "Description of Proposed Work", identified the "Type of Work" as being "Alteration" and "Other (specify): Remodelling Golf Course". The "Description of Proposed Development" was described as the "Reconstruction of existing Golf Course to upgrade to 18 hole Golf Course".
The 1998 DA was accompanied by an Environmental Impact Statement ("EIS") prepared by TGT Consulting Services Pty Ltd, dated 14 October 1992, entitled "Mangrove Mountain RSL Sub-Branch Environmental Impact Statement for the Reconstruction of the Mangrove Mountain Memorial Golf Course, Central Mangrove".
On 6 October 1998 Gosford CC resolved to grant consent to DA 23042 subject to conditions ("1998 consent"). A notice of determination was issued on 14 October 1998.
The development the subject of the 1998 consent was designated development within the meaning of the Environment Planning and Assessment Act 1979 ("EPAA").
On 19 September 2002 Mr Mark Hallinan of Planet Earth Support Company Pty Ltd ("Planet Earth") lodged an application to modify the 1998 consent with Gosford CC ("the 2002 modification application").
The 2002 modification application described the development allowed by the 1998 consent as "Remodelling of Golf Course". It proposed modification to various conditions (3, 4 and 31) and the deletion of condition 45 of the 1998 consent.
Later, by letter dated 25 November 2002 to Gosford CC, the Environment Protection Authority ("EPA") suggested that condition 3 of the 1998 consent be modified in an alternative manner to that proposed by the 2002 modification application.
On 25 February 2003 Gosford CC resolved to approve the 2002 modification application. And on 11 March 2003 it issued a notice of determination in respect of the 2002 modification application.
On 8 April 2008 DP 1123656 was registered. DP 1123656 was a subdivision of Lot 584 DP 809570 and Lot 48 DP 755244. It created two lots, namely, Lot 581 and Lot 582. Lot 582 DP 1123656 is known as 1752 Wisemans Ferry Road, Central Mangrove.
Subsequently, on 6 May 2008 Central Mangrove Waste lodged an application to modify the 1998 consent with Gosford CC ("the 2008 modification application").
On 1 May 2009 Gosford CC approved the 2008 modification application as amended.
From 19 August 2014 to 15 September 2014 the registered proprietor of Lot 582 DP 1123656 was R S L Custodian Pty Ltd.
From 15 September 2014 to the present date, the registered proprietor of Lot 582 DP 1123656 has been Mangrove Properties (NSW) Pty Ltd.
Part of the land currently identified as Lot 582 DP 1123656 was formerly identified as Lot 584 DP 809570.

Environment Protection Licence History

On 2 March 2001 Planet Earth applied to the EPA under the Protection of the Environment Operations Act 1997 ("POEOA") for an environment protection licence ("EPL") ("the 2001 EPL application"). On 21 November 2001 the EPA determined the 2001 EPL application and issued EPL 11395. From 21 November 2001 to 31 October 2007, Planet Earth was the holder of EPL 11395.
On 26 July 2002 Planet Earth made an application to the EPA to vary EPL 11395 (the "2002 EPL variation application").
On 11 July 2003 the EPA determined the 2002 EPL variation application and issued Notice of Variation of Licence 11395 number 1026138.
EPL 11395 was varied by the EPA on 5 April 2002, 9 September 2004, and 27 April 2006.
Subsequently, on 4 February 2008, the EPA approved a transfer of EPL 11395 from Planet Earth to VT, retrospectively coming into effect on 1 November 2007.
On 19 June 2008 the EPA issued Notice of Variation of Licence 11395 number 1082616. The Notice recorded, amongst other things, the EPA's approval of the transfer of EPL 11395 to VT. That Notice of Variation of Licence also purported to effect other variations to EPL 11395.
On 3 October and 8 December 2008 the EPA issued Notices of Variation of EPL 11395. Likewise, the EPL was varied by the EPA on 13 May 2009, 29 June 2010, 9 July and 30 August 2010, 7 November 2011 and 3 May 2012.

The 2012 Proceedings and the 2014 Consent Order

On 3 September 2012 Gosford CC commenced the 2012 proceedings in this Court against VT. The EPA was not a party to those proceedings.
On 16 July 2014 PJD wrote to Bowen Legal (acting for the former landowner, R S L Custodian Pty Ltd) in relation to the 2012 proceedings and said the following: We refer to the above and to your letter of 11 July 2014 in which you indicate that your client would object to the proposed orders to the extent that they bind the landowner and provide entitlements to Verde Terra Pty Limited and comment that this should "come as no surprise to the parties". … We are of the view that there is no necessity to bring an application under s96 for modification of the development consent at the same time as proceedings are before the Court in which the Court is being asked to exercise its powers to remediate a site under circumstances where there has been a breach of the Act. Each of the orders being sought is reasonably necessary to achieve that objective. The outcome, as the Council sees it, of the proposed consent orders will be to achieve an acceptable remediation of the site with: a. a completed 18 hole golf course within a reasonable period of 10 years; b. a specified design for the golf course; c. a specified volume of space able to be filled with waste material; d. appropriate controls and monitoring during the course of the construction of the golf course to minimise risk of environmental harm through an appropriate Landfill Environmental Management Plan and Leachate Management Plan; e. the lining and filling to industry best practice standards of the excavations referred to as Cells W, X, Y and Z; and f. the lowering of the mound of fill in the part of the site referred to as Area B to a more acceptable height. All of the above will serve to improve the quality and value of the land to the landowner's benefit while at the same time mitigating the existing environmental impacts and risks which have been brought about by breaches of the conditions of the original consent over a period of many years. … The orders sought will bind Verde Terra Pty Ltd and/or any future operator of the waste facility on the site to carry out works on the site to complete the golf course in accordance with the consent orders, the conditions of consent and the new LEMP and LMP. We see nothing objectionable in that outcome.
On 29 August 2014 Gosford CC, VT and Mangrove Mountain Landfill Pty Ltd ("Mangrove Mountain") (another respondent to 2012 proceedings) signed consent orders.
On that day, legal representatives of Gosford CC, VT and Mangrove Mountain provided "Submissions by the Applicant and First and Third Respondents for consent orders on 29 August 2014" to, and appeared before, the Court.
Later that day, the Court made orders in accordance with the agreed consent orders on the application of Gosford CC, VT and Mangrove Mountain ("the 2014 consent orders"). The other respondents to the 2012 proceedings did not oppose the 2014 consent orders being made.
The terms of the 2014 consent orders (made on 29 August 2014 and entered on 10 November 2014) were as follows: TERMS OF ORDER MADE BY THE COURT Development Consent DA23042/1998 for the landfill and proposed remodelling of the Mangrove Mountain Golf Course on Lot 584 DP809570, Wiseman's Ferry Road, Mangrove Mountain shall be carried out in accordance with the following and pursuant to s.124 of the Environment Planning & Assessment Act 1979 (as amended): 1. The first and third respondents are to comply with the terms of the Amended Landfill Environmental Management Plan 2013 prepared by Consulting Earth Scientists (CES110703-VDT-AR) ("the Amended LEMP 2013") subject to order 4 below. 2. The first and third respondents are to comply with the terms of the Leachate Management Plan 2013 prepared by Consulting Earth Scientists (CES110703-VDT-60) ("the LMP 2013") subject to order 4 below. 3. The Amended LEMP 2013 and the LMP 2013 referred to in orders 1 and 2 cannot be further altered except to: (a) amend the documents to reflect the consequences for a 6m reduction in the Mound on Area B in lieu of a 7.4m reduction, and (b) subject to subparagraph (a), any future amendment will only occur with the consent of Gosford City Council pursuant to operation of the statutory process available under the Environmental Planning and Assessment Act 1979 (or any equivalent replacement statutory scheme in the future); 4. Works to be carried out on the subject land in accordance with the Amended LEMP 2013 and the LMP 2013 be as follows, and subject to the following conditions and timeframes: 4.1 6 metres of waste from the fill mound on Area B be moved to Cell W and a 2.4 metre thick permanent final capping be placed thereon to result in a maximum height for the final landform in Area B of RL341.4; 4.2 The removal of waste and capping of the mound on Area B as set out in subparagraph 4.1 shall be completed no later than 31 August 2017 and otherwise in accordance with the Amended LEMP 2013; 4.3 The time for completion of the golf course and closure of the landfill operation will be 10 years from the date of approval of the lining of Cell W by the Environment Protection Authority of NSW, and the granting of an amended Environment Protection Licence No, 11395 to reflect the content of the Amended LEMP 2013 and LMP 2013, whichever last occurs. 4.4 The contours for the finished level of closure of the landfill and the golf course are set out in the golf course design by McKay & Sons Pty Limited which is Appendix III to the Amended LEMP 2013. The tolerance to the finished levels are plus 0.5 metres and minus 1.5 metres to enable best practice for the golf course design and are to be adjusted to reduce the Mound in Area B by 6m not 7.4m as shown, such plans to be delivered to all parties; 4.5 The total amount of VENM and ENM to be placed over the whole of the land outside the Regulated Area to construct the golf course referred to in 4.4 is 1,137,614m3. The operator of the landfill, and constructor of the golf course, shall deliver a survey of the whole of the land to Council and the EPA of NSW every six months until the golf course is completed when a final survey shall be delivered which demonstrates that there is 1,137,614m3 or less of VENM or ENM on the golf course outside the Regulated Area in situ. 4.6 The number of truck movements permitted in connection with the landfill operation and construction of the golf course will be 55 per day on average, and the operator of the landfill shall report quarterly to Council, on the periods ending 31 March, 30 June, 30 September and 31 December during the operation of the landfill and the construction of the golf course on the number of trucks transporting waste, VENM and ENM on a daily basis; 4.7 The total volume of waste material imported to the site to achieve the approved golf course design in the 10 years from the date of approval of the lining of Cell W and approval of the amended EPL 11395 will not exceed the volume required to fill 1,317,503 m3 of space available for filling with waste, whether that space comprises void space created by excavations or whether it comprises air space between the existing ground level and finished ground levels (excluding capping) in the Regulated Area in accordance with the approved golf course design; 4.8 VENM and ENM can be imported to the site for the construction of the golf course to achieve the approved golf course design; 4.9 No VENM or ENM can be exported off the site. 4.10 The surveys to be given to the EPA pursuant to EPL no. 11395 shall be delivered to the Council within 7 days of delivery of the survey to the EPA. 5. All previous orders as to costs in favour of the first and third respondents are set aside, but any costs orders made in favour of the 2nd, 4th and 5th respondents stand. 6. Otherwise, all parties will pay their own costs of the proceedings. 7. The Consent Orders hearing set down for 17 October 2014 be vacated. The Court notes the following: 1. The space available for filling with imported waste material referred to in Order 4.7 is to be within the area regulated by the Environment Protection Authority in accordance with the Environment Protection Licence no 11395 ("the Regulated Area"). 2. VENM and ENM will be excavated in the Regulated Area, and used both within and outside the Regulated Area to build the golf course in accordance with Order 4.4 above. 3. The estimated waste to be imported to the Regulated Area over the 10 year period is 1,029,299 tonnes. This estimate has been derived from the average compaction rate of one tonne to 1.28 cubic metres calculated over the 10 year period at the Mangrove Mountain Landfill from 2003 to 2013. 4. It is estimated that the lining of Cell W will be completed by 30 April 2015.

Subsequent Litigation

On 23 September 2015 VT made an application to vary EPL 11395 ("the 2015 EPL variation application").
The EPA had not determined the 2015 EPL variation application as at 31 May 2018, and therefore, on that day VT filed a Class 1 appeal in the Court purportedly appealing from the deemed refusal of the 2015 EPL variation application.
On 9 October 2018 Moore J dismissed the appeal, holding that the proceedings were commenced outside of the period in which an appeal from a deemed refusal could be brought (Verde Terra Pty Ltd v Environment Protection Authority (No 1) [2018] NSWLEC 159).
Meanwhile, on 2 August 2018 VT made another application to vary EPL 11395 ("the 2018 EPL variation application").
The 2018 EPL variation application was in materially similar terms to the 2015 EPL variation application. The EPA refused the 2018 EPL variation application on 9 August 2018.
VT filed a Class 1 appeal from the refusal by the EPA of the 2018 EPL variation application on 10 August 2018 ("the 2018 Class 1 appeal").
On 18 October 2018 Moore J delivered a judgment joining the Council (the now amalgamated council, incorporating Gosford CC) as the second respondent to the 2018 Class 1 appeal (Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161).
On 22 November 2018 the Council filed an Amended Statement of Facts and Contentions in Reply contending, among other things, that the EPA, and the Court on appeal, lacked the power to approve the 2018 EPL variation application absent further development consent to carry out the works proposed by it.
Then on 21 December 2018 VT lodged development application 5862/2018 with the Council ("the 2018 DA").
Because the Council had not determined the 2018 DA by 1 April 2019, VT filed a Class 1 application with the Court on that day, appealing from the deemed refusal of the 2018 DA ("the 2019 Class 1 appeal").
VT also commenced Class 4 proceedings by way of summons filed on 1 April 2019 ("the 2019 VT Class 4 proceedings"), relevantly seeking declaratory relief to the effect that no further development consent was required "to carry out the Mangrove Mountain Landfill & Golf Course", and that the development described in the 2018 DA constituted development "involving alterations or additions", or is ancillary to, development for which consent has already been granted.
On 1 July 2019 the Council filed a Statement of Facts and Contentions in the 2019 Class 1 appeal, contending that the 2018 DA sought consent for designated development and for alterations and additions to a use of the land for which there is no development consent, as was required.
That same day, the Council also commenced related Class 4 proceedings by way of summons against VT and the EPA, seeking orders that variations of EPL 11395 by the EPA be set aside on the basis that they authorised development which required development consent, and that no relevant consent had been granted ("the 2019 Council Class 4 proceedings").
Finally, on 26 July 2019 the Council filed a cross-summons to the 2019 VT Class 4 proceedings, naming Mangrove Mountain Landfill Pty Ltd and Mangrove Properties (NSW) Pty Ltd as the second and third cross respondents respectively. The Council seeks, among other things, declaratory relief to the effect that it was an implied condition that development consent be obtained for the development referred to in the 2014 consent orders, and an order that the 2014 consent orders be set aside on the basis that they were outside the ambit of orders that could properly be made pursuant to s 124 of the EPAA. In points of defence filed 5 September 2019, VT pleads that the Council is estopped from impugning the 1998 consent and 2014 orders, including by asserting that development consent is required to carry out the development referred to in the 2014 consent orders. It also pleads that the Council is statute barred from filing its cross-summons pursuant to r 59.10 of the UCPR.

Issues Raised by VT's Points of Defence to the First Cross-Summons Relevant to the Application to Set Aside

The pleadings filed by the parties to the proceedings are voluminous and complex. An agreed list of the real issues for determination in the proceedings seeking to synthesise all of the pleadings filed to date relevantly states as follows: The 2014 orders 1. The proper construction and effect of the orders made by consent by the Land and Environment Court on 29 August 2014 in LEC proceedings 40900 of 2012 (2014 orders), including: a) what development did the 2014 orders require and/or permit? b) whether the 2014 orders are properly to be construed as ordering the development set out therein to be carried out subject to an implied condition that any requisite development consent (and any other necessary statutory approval), be first obtained; and c) if the 2014 orders, properly construed, impose a requirement that the development therein to be carried out without any implied condition to first obtain any requisite development consent, whether the agreement of the parties to procure the 2014 orders is void for illegality or irregularity or by reason of being contrary to public policy; and d) whether the 2014 orders are void or unenforceable or incapable of being performed in the absence of requisite development consent to carry out the development described therein. Estoppel and related doctrines 2. Whether the doctrines of estoppel or related doctrines preclude the Council from contending that any further development consent is required to carry out the development referred to in the 2014 orders. 3. Whether the doctrines of estoppel or related doctrines preclude the Council from advancing the case that the provisions of the EPA&A Act require development consent for designated development must first be obtained as a pre-requisite to the lawful construction and operation of the waste facility that Verde Terra proposes to construct and operate on the subject land. 4. Whether the principles of estoppel and related doctrines have any relevant application in these proceedings. Development consent 5. Whether: (i) any requisite development consent is in force; and/or (ii) any further development consent is required, under the Environmental Planning and Assessment Act 1979 (EP&A Act) to permit the carrying out of development comprising the construction and operation of a waste facility/landfill on the subject land: a) as described by the 2014 orders; and/or b) that Verde Terra proposes to construct and operate on the subject land over a projected operational life of about 10 years. 6. Whether the development that the Verde Terra parties claim they are entitled to carry out on the subject land without further development consent, as pleaded in Prayer 1 of the Verde Terra parties Summons in LEC 2019/101279, is capable of being adequately defined, and, if so, whether that development has been adequately defined. The 1998 Consent 7. The proper construction and effect of the 1998 Consent, including: a) whether the 1998 Consent permits the construction and operation of the waste facility: i. as described by the 2014 orders; and/or ii. that Verde Terra proposes to construct and operate on the subject land over a projected operational life of about 10 years b) the purpose(s), nature and scope of the development approved by the 1998 Consent; c) the meaning and effect of Conditions 1 and 2 of the 1998 Consent, including: i. whether either or both of those conditions purport to permit variations to the nature and scope of landform modification and waste emplacement permitted under the 1998 Consent by means of a revised Landfill Environmental Management Plan (LEMP) subsequently promulgated by the beneficiary of the consent and without the need for the 1998 Consent to be modified under Part 4 of the EP&A Act and if so, to what extent; ii. whether either of those conditions purports to permit variations to the nature and scope of landform modification and waste emplacement under the 1998 Consent by reason of the operation of the environment protection licence under the Protection of the Environment Operations Act (PEO Act) that applies to the land that was granted and varied by the EPA from time to time and if so, to what extent; and iii. if, and to the extent that, either of those conditions purports to have any such effect, whether the condition is, to that extent, legally invalid and of no effect. Alterations and Additions 8. Whether the development contemplated under the 2014 orders comprises: a) "existing or approved" development; and/or b) "other development", within the meaning of clauses 35 or 37A of Schedule 3 to the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation). 9. Whether the Court can grant the declarations set out in Prayers 1 & 2 of the Verde Terra parties' Summons given that at least some of the matters referred to in clause 35 of Schedule 3 to the EP&A Regulation are matters for the opinion of the consent authority. 10. Whether development application No. DA 55862 of/2018 made on behalf of Verde Terra Pty Ltd and lodged with the Central Coast Council on or about 21 December 2018 (2018 DA) can be approved as: a) "alterations and additions to an existing or approved development"; and/or b) "ancillary to other development", and "not proposed to be carried out independently of that other development". within the meaning of clauses 35 or 37A of Schedule 3 to the Environmental Planning and Assessment Regulation 2000. 11. Whether the 2018 DA may be approved without an EIS. 12. Whether Verde Terra, unless restrained by the Court, proposes to operate a landfill on the subject land, in breach of the EP&A Act. Related issue/s in the judicial review proceedings 13. Whether UCPR 59.10 precludes the commencement of the judicial review proceedings and if so, whether the Council should be granted leave to commence the proceedings out of time. 14. Subject to the preceding paragraph, whether certain decisions made by the Environment Protection Authority to amend the PEO Act environment protection licence applying to the subject land were invalid and of no effect by reason of those amendments putatively permitting activities constituting controlled development for the purposes of s 50(2) of the PEO Act in circumstances where there was no development consent in force permitting the development. 15. If any one or more of such decisions was/were invalid, wholly or in so far as the decision/decisions purported to effect particular amendments to the environment protection licence, can any of the impugned amendments be severed from the licence? Discretion 16. Whether in the exercise of the Court's discretion, the Council should be denied relief and if so to what extent.
At paragraph 38 of its points of defence to the first cross-summons, VT has pleaded its estoppel case in the following way: 38 The cross-respondents: (a) deny that any further development consent is required to carry out works which are the subject of the 2014 Orders and the Signed Proposed Orders; (b) rely upon the matters pleaded in paragraphs 38.1 to 38.4 below; (c) say further or in the alternative that, to the extent that any development consent is required to carry out the development referred to in the 2014 Orders and the Signed Proposed Orders, it has already been obtained and is in force; and (d) otherwise deny the paragraph. 38.1 [Issue estoppel] In further answer to paragraph 38, the cross‑respondents say that the cross-applicant is estopped from asserting that development consent was and is required to carry out the development referred to in the 2014 Orders and the Signed Proposed Orders and the Heads of Agreement because: (a) the issue of whether development consent was required to carry out the development referred to in the Heads of Agreement and the 2014 Orders and the Signed Proposed Orders was an issue that was fundamental to, and therefore determined by, the Court's decision to make the 2014 Orders; and (b) the cross-respondents rely upon the matters pleaded at paragraph 34 above. 38.2 [Anshun estoppel] In further answer to paragraph 38, the cross‑respondents say that the cross-applicant is estopped from asserting that development consent was and is required to carry out the development referred to in the 2014 Orders, the Signed Proposed Orders and the Heads of Agreement because: (a) at all material times in the Class 4 Proceedings, the Council sought inter alia, the following relief against the first and second cross-respondents: i. the relief in paragraph 2 of the summons and further amended summons, being declaratory relief that the first and second cross-respondents had breached the EPA Act by carrying out development otherwise than in accordance with the conditions of the Consent; and ii. the relief in paragraph 7 of the summons and further amended summons, being injunctive relief in the form of an order that (emphasis added): a. subject to c. below, cease to threaten or carry out work that is not in accordance with the [Consent] without having obtained prior development consent according to law; ... b. do or cause to be done all things and works necessary to comply with the [Consent]; and c. do or cause to be done all things and works necessary to remove the stockpiled material and grade the land, restoring it to the finished land levels in accordance with the Consent to prepare it for its approved use as a golf course in accordance with the [Consent] ("the Works"). … (b) prior to the making of the 2014 Orders, the Council represented to the Court and/or to the first and second cross-respondents that no development consent was required to carry out the development referred to in the Heads of Agreement and the Signed Proposed Orders by engaging in at least the following conduct, each considered alone or in combination: i. entering into the Heads of Agreement on about 20 September 2013; ii. the sending of correspondence from its then solicitors PJ Donnellan & Co to the first and second cross-respondents' solicitors Hunt & Hunt including for example the letters dated 28 November 2013, 12 March 2014 and 26 June 2014; iii. endorsing to the Court the Joint Oral Submissions on 29 August 2014; iv. signing the Joint Written Submissions on about 28 August 2014; v. permitting the Joint Written Submissions to be provided to the Court on 29 August 2014; vi. signing the Signed Proposed Orders on about 29 August 2014; vii. permitting the Signed Proposed Orders to be provided to the Court on 29 August 2014; (c) in reliance on the Council's various representations: i. the first and second cross-respondents signed the Signed Proposed Orders, made the Joint Oral Submissions and made the Joint Written Submissions; ii. the third cross-respondent entered into and completed a contract of sale pursuant to which it became on 12 September 2014 the registered owner of Lot 582 of DP 1123656 in consideration for $750,000, which purchase was conditional upon consent orders being entered in the Class 4 Proceedings substantially in accordance with the Heads of Agreement; iii. the first, second and third cross-respondents have each incurred significant liabilities or expenses; (d) further: i. as a result of the Council's various representations, the cross- respondents were encouraged and/or induced to assume that the development referred to in the Heads of Agreement and the 2014 Orders and the Signed Proposed Orders could be carried out on the Land without development consent; ii. it was incumbent on the Council to dispel the cross-respondents' assumption that the development referred to in the Heads of Agreement and 2014 Orders and Signed Proposed Orders could be carried out on the Land without development consent; and/or iii. in the circumstances, it would be unconscionable for the cross- applicant to now depart from the assumption that it induced, encouraged and/or allowed the cross-respondents to rely upon, at significant expense and liability and/or potential liability; (e) the positions of the first, second and third cross-respondents would each be altered to their detriment if, contrary to the Council's various representations and/or the cross-respondents' assumptions resulting from the Council's various representations, development consent was required to carry out the development referred to in the Heads of Agreement and 2014 Orders and Signed Proposed Orders; (f) by reason of the matters pleaded at paragraphs (a) to (e) above, and each of them, the issue of whether development consent was required to carry out the development referred to in the Heads of Agreement and 2014 Orders and Signed Proposed Orders was an issue that: i. was not, but could have been raised with the Court by the Council prior to the making of the 2014 Orders; and ii. was so relevant to the subject matter of the Class 4 Proceedings that it was unreasonable for the Council not to raise it with the Court prior to the making of the 2014 Orders: and (g) the cross-respondents rely upon matters pleaded at paragraph 34 above. 38.3 [Abuse of process] In further answer to paragraph 38, the cross-respondents say that the making of the allegation in paragraph 38 constitutes an abuse of process having regard to: (a) the matters pleaded at paragraphs 38.1 and 38.2 above; (b) that, in the circumstances, the use of the Court's procedures to seek the declaratory relief corresponding to paragraph 38 would be unjustifiably oppressive to the cross-respondents; and/or (c) that, in the circumstances, the use of the Court's procedures to seek the declaratory relief corresponding to paragraph 38 would bring the administration of justice into disrepute. 38.4 [Estoppel] In further answer to paragraph 38, by reason of the matters pleaded in paragraphs 34, 38.2(a), 38.2(b), 38.2(c), 38.2(d), 38.2 (e) and 38.2(f), and each of them, the cross-applicant is estopped from asserting that development consent was and is required to carry out the development referred to in the 2014 Orders, the Signed Proposed Orders or the Heads of Agreement.

Legal Principles Applicable to the Setting Aside of the Subpoenas and the Notice to Produce

In relation to the subpoenas to PJD and Golder, r 33.3(4) proscribes that: 33.3 Form of subpoena (4) A subpoena to produce must: (a) identify the document or thing to be produced, and (b) specify the date, time and place for production.
The subpoenas may be set aside pursuant to r 33.4(1) of the UCPR which states that: 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.
The requirement under r 33.3(4) that the subpoenas "identify" the documents to be produced is to "cut the document out from the universe of documents by some description or specification" (Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [13] per Barrett J).
A subpoena to produce is not a substitute for discovery and must identify with reasonable particularity the documents the production of which is required (Lane v Registrar, Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245 at 259).
In Patonga Barrett J remarked that (at [14]-[15]): 14 It is permissible for a subpoena to call for, for example, all documents recording oral communications between A and B within a stated period and referring to a particular company: see Lane v Registrar of the Supreme Court [1981] HCA 35; (1981) 148 CLR 245. Such a subpoena satisfies the requirement that there be "specified with reasonable particularity the documents that are required to be produced". These are the words of Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573. What is impermissible, again using the words of Jordan CJ, is that a person be required to search for or produce all such documents as he or she may have in his or her possession or power relating to a particular subject matter. Jordan CJ continued: "It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents". 15 That observation was made in relation to a non-party but it holds good in the rule 34.1 context in relation to a party upon whom a notice under that rule is served. A like principle is that the recipient of a subpoena or rule 34.1 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. Thus, it is impermissible to require the production of, for example, any document proving or tending to prove that X was in Sydney at any time on 1 January 2009.
With respect to the notice to produce issued to the Council, r 21.11(1) of the UCPR provides that "unless the court orders otherwise", a party must, "within a reasonable time after being served with a notice to produce" produce the documents the subject of the notice for inspection. The documents sought must be "referred to" or "clearly identified" in the notice and must be "relevant to a fact in issue" (r 21.10(1) of the UCPR).
The phrase "relevant to a fact in issue" is defined in r 21.9(2) of the UCPR to mean: 21.9 Definitions (2) For the purposes of this Division, a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.
From the bar table, VT agreed to amend the subpoenas and notice to produce to delete the words "or evidencing", so that paragraph 1 of each compulsory process required production of the documents described in that paragraph created between the specified date "referring to communications concerning" the matters identified therein.
Subject to the threshold requirements set out in rr 21.9 and 21.10 of the UCPR, the obligations imposed by a notice to produce are similar to those imposed by a subpoena. Accordingly, the considerations that apply to the setting aside of subpoenas are generally applicable to notices to produce (Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283 at [4] per Brereton J). Therefore, a notice to produce can be set aside on the grounds of oppression, especially if the notice is served in close temporal proximity to the commencement of the hearing (Azzi at [7] and [8]), or where the range of documents called for under the notice is overly broad or voluminous (Azzi at [6] and [11] and Hamod v New South Wales (No 8) [2008] NSWSC 125 at [13]-[14]).
The relevant legal principles to be applied in determining what is a legitimate forensic purpose for the issue of compulsory process of this kind are well known. In Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Craig J formulated them as follows (at [20]-[21]): 20 A consideration of the arguments advanced before me on 28 May indicated that the Subpoenas and Notice were framed in terms that did not enable it to be positively established that a legitimate forensic purpose was served by the Subpoenas and the Notice (Commissioner for Railways v Small (1938) 38 SR (NSW) 564; NSW Commissioner of Police v Tuxford [2002] NSWCA 139; Travel Compensation Fund v Blair [2002] NSWSC 1228). Whether such purpose is met in a given case will turn upon the connection between the issues raised in the proceedings and documents which are the subject of a subpoena or notice to produce. The requisite connection to be established has been variously described. Without intending to be exhaustive, it is apparent that a subpoena or notice to produce will 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] NSW CCA 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. 21 The principle was extensively discussed in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd. Tobias JA (in whose judgment Basten JA and Handley AJA agreed) considered at [22] the requirement for it to be shown that it is "likely" that the documentation sought will materially assist on an identified issue or the alternative requirement that there be a reasonable basis beyond speculation that it is likely the documentation will so assist was not relevantly different to a requirement that it be "on the cards" that the documents would materially assist on an identified issue. Importantly, 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. It is that identification which must inform the requirement to produce the documents sought.
More recently they were summarised by Ward CJ in Eq in Rinehart v Rinehart [2018] NSWSC 1102 (at [43]-[48] and [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)).
Most recently, these principles were applied in this Court in Black Hill Residents Group Incorporated v Marist Youth Care Limited [2019] NSWLEC 112 (at [10]). In that case, Robson J further stated that (at [13]): 13 It is trite to state that before an order to produce documents is made, the applicant must identify a legitimate forensic purpose for which access is sought and establish that it is "on the cards" that the documents will materially assist its case: Regina v James Saleam [1999] NSWCCA 86 at [11] and Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 ('Chidgey') at [64].

Evidence of the Parties

The Council relied on two affidavits of Mr Martin Ball sworn 18 and 25 October 2019, respectively. Mr Ball is the solicitor on the record acting for the Council.
In his first affidavit, Mr Ball deposed to the following matters: 8. I have been instructed as follows (a) Between 10 October 2019 and the date of this affidavit the Council has allocated five staff to the task of searching for the documents called for in the Notice to Produce in the Council's electronic document management system ECM. Not all five have been engaged full time on the task. (b) Staff undertaking the searching of ECM have located approximately 1,800 records that may fall within the Notice to Produce based on the search criteria used ("hits"), although not all of them were relevant when opened in ECM and reviewed. (c) Searches of ECM using reasonable search criteria were completed late on 17 October 2019. 9. I was provided with a USB containing some 550 documents at approximately 11 am today. I anticipate that it will take me at least 2 days to review the material on the USB. 10. I have significant other work related to these proceedings to undertake at the same time. For example I am in Sydney for conferences and then the pre-trial directions hearing on Monday 21 October. 11. I anticipate it will take me until 5 pm on Wednesday 23 October to complete a review of the material to identify any documents which are subject to legal professional privilege and any material which is subject to privilege pursuant to s.131 of the Evidence Act 1995. 12. I refer to the subpoena for production served on P J Donnellan & Co Pty Ltd a copy of which is annexed and marked "C". 13. Annexed and marked "D" is an email chain between Pauline Wright of P J Donnellan & Co and Rebecca Dixon of Ashurst, the last email of which I was copied. 14. If it is necessary for me to review some 30 or more lever arch folders of the P J Donnellan & Co files for proceedings 2012/40900 in order to identify documents in respect of which the Council makes a claim for legal privilege or for privilege under s.131 of the Evidence Act 1995, I anticipate that will take me between 3 and 4 full days.
In his second affidavit, Mr Ball relevantly stated that: 4. A significant number of the documents that I have reviewed will be the subject of a claim for legal professional privilege and many of the others will be subject to a claim for privilege pursuant to s.131 of the Evidence Act 1995. 5. I am aware from the material provided to me that the Council officers who have conducted searches in ECM have used the following search criteria: Document Index
Document Index: Precis 'head' + 'agreement' + 'Verde' + Document Registered: '3 September 2012 to 10 November 2014' Subject Index
Subject Index: 'verde' + 'terra' + Document Index: Date Registered '3 September 2012 to 10 November 2014' Search broken down into manageable pieces as follows:

3 September 2012 to 31 December 2012
1 January 2013 to 30 June 2013
1 July 2013 to 31 December 2013
1 January 2014 to 30 June 2014
1 July 2014 to 10 November 2014

Subject Index: 'RSL' + 'Custodian'
Subject Index: 'sale' + '582' + '1123656'
Subject Index: 'sale' + '1752' + 'wiseman'
Subject Index: 'sale' + 'mangrove' + 'properties' Property Index
Property Index: '582' + '1123656' + Document Index: Date Registered '3 September 2012 to 10 November 2014'
Property Index: '1752' + 'wisemans ferry' + Document Index: Precis 'notice' + 'sale' + Document Index: Date Registered: '3 September 2012 to 10 November 2014' Customer Index
Customer Index: 'Verde Terra Pty Ltd' + Document Index: Date Registered '3 September 2012 to 10 November 2014'
Customer Index: 'PJ Donellan & Co' + Document Index: Date Registered '3 September 2012 to 10 November 2014' + Document Precis: 'Verde' + 'Terra'
Customer Index: 'PJ Donellan & Co' + Document Index: Date Registered '3 September 2012 to 10 November 2014' + Document Precis: 'Mangrove' + 'Mountain'
Customer Index: 'Hunt & Hunt' + Document Index: Date Registered '3 September to 10 November 2014'
Customer Index: 'Mangrove Mountain Landfill Pty Ltd' + Document Index: Date Registered '3 September 2012 to 10 November 2014'
Customer Index: 'Mangrove Properties (NSW) Pty Ltd' + Document Index: Date Registered '3 September 2012 to 10 November 2014'
Customer Index: 'RSL Custodian Pty Ltd' + Document Index: Date Registered '3 September 2012 to 10 November 2014'

I have reviewed the Notice to Produce dated 9 October 2019. 7. I note in particular the definitions in the Notice of Gosford City Council and of the Verde Terra Group and of each of the entities referenced in the definition of Verde Terra Group. 8. I do not consider that the search criteria used by the Council officers can be confidently said to have captured all records that are called for by the Notice having regard to the definitions it contains. 9. Except in the case of P J Donnellan & Co and Hunt and Hunt, the officers have not identified, or carried out any searches by reference to, any employee or agent or contractor or consultant or representative of the former Gosford City Council or any of the entities referenced in the definition of Verde Terra Group.
No doubt in response to some of the evidence deposed to by Mr Ball, VT stated from the bar table that it would not seek any further searches to be undertaken by the parties to whom the subpoenas and notice to produce had been issued. Regrettably, no transcript of this important concession was available at the time of writing this judgment. However, the Court understands this concession to mean that VT considers that production to date in answer to the Golder and PJD subpoenas is sufficient and that it does not require any further searches to be undertaken by the Council additional to those deposed to by Mr Ball.
VT relied upon an affidavit from Ms Nicole Purves, affirmed 21 October 2019. Ms Purves is a solicitor employed by the solicitor on the record for VT, Ashurst. She deposed that Golder was instructed by both VT and the Council in the 2012 proceedings to provide an independent report as to whether the leachate and sediment was being properly managed on the subject site (as evidenced by a letter of instruction dated 5 September 2013). Various correspondence was attached to her affidavit, none of which the Court was taken to.
VT also relied upon an affidavit of Ms Rebecca Dixon, a partner at Ashurst, affirmed 23 October 2019. Ms Dixon relevantly deposed that: 38 The Court on 21 October 2019 asked Senior Counsel for the Verde Terra Parties why it had delayed in issuing subpoenas to PJ Donnellan Pty Limited and Golder & Associates and a Notice to Produce to the Council seeking documents relevant to the making of the Consent Orders Agreement and the 2014 Orders. 39 The Council did not file its evidence in chief until 19 and 20 September 2019 (which is 56 days late from the original date required by the orders of 10 may 2019) and has never responded to Ashurst's inquiry about the completeness of its evidence as referred to below in paragraph 41. 40 This placed the Verde Terra Parties in the difficult position of having to quickly prepare evidence for its defence of the Council's case. 41 On 1 October 2019, Ashurst sent an email to Martin Ball asking if the Council intends to file any additional evidence. No response was ever received to this email. 42 Over the period of time since the Council's evidence was filed, the Verde Terra Parties were occupied with substantial work on these proceedings including reviewing the late expert evidence received from the Council, working with Dr Kerry Rowe to finalise his evidence in reply, reviewing documents identified by the Council in its proposed Bundle indexes provided to us on 19 September 2019, 24 September 2019 and 25 September 2019, reviewing documents produced by Council and the EPA, obtaining further documents from our clients' former solicitors, finalising our clients' Reply and preparing for the pre-trial directions hearing. This time also coincided with periods of pre-arranged annual leave for Ashurst solicitors and Senior Counsel. 43 The "Consent Orders Agreement" referred in the Council's Cross Summons Points of Claim is alleged to be partly written and partly oral: paragraph 21. In light of that pleading and the serious allegation of illegality in it, the Verde Terra Parties anticipated that the Council would seek to rely on evidence including contemporaneous documentary evidence about the "Consent Orders Agreement". The subpoenas and Notice to Produce are directed towards that contemporaneous documentary evidence.

The Subpoenas and Notice to Produce Are Not Oppressive

In my opinion, in light of the two concessions properly made by VT concerning the wording of the subpoenas and the notice to produce and the scope of the searches undertaken to date by the parties answering them, it cannot be concluded that the subpoenas and the notice to produce are oppressive.
The concession made as to wording alleviates the understandable concern expressed by the Council as to the identification of the documents. No guesswork as to the legal effect of any document potentially falling within the scope of the subpoenas or notice to produce is now required.
To issue the subpoenas and notice to produce six weeks from the commencement of the hearing is not oppressive, especially when regard is had to the unchallenged evidence of the considerable delay by the Council (56 days) in filing its evidence in chief.
Nor, limited in the manner proposed by VT at the hearing of the motion, can it now seriously be contended that the scope of the subpoenas and the notice to produce is oppressive. To search either a USB with 550 documents from Golder (of which 75% have already been reviewed) or approximately 30 boxes of lever arch folders from PJD in respect of the 2012 proceedings is not an unduly burdensome exercise four weeks from the commencement of the hearing in order to ascertain what, if any, claims for privilege may be made. Mr Ball anticipates that the latter task will take "me between 3 and 4 full days". I do not consider this to be oppressive, and moreover, if additional resources are allocated to the task it will presumably take less time. Given the size of these proceedings, and the Council's status as a model litigant, it can be presumed that the Council is adequately resourced to participate in them. There was nothing in the affidavits of Mr Ball to suggest otherwise.
Likewise, assuming that the Court's understanding of the concessions made by VT is correct, there is nothing oppressive about the scope of the notice to produce to the Council. As stated above, the concessions are important and were correctly made. Had they not been proffered, the Court's conclusion as to oppression is likely to have been different, especially given the unchallenged evidence of Mr Ball of the difficulty of searching for records in the relevant categories in light of the very broad definition of "Verde Terra Group" in the notice.

A Legitimate Forensic Purpose Exists

The documents sought by the subpoenas and the notice to produce have a legitimate forensic purpose because it is likely that the documents will materially assist in resolving the issues raised by VT's claims and defences, as is evident by the list of issues referred to above, especially the estoppel issues (see the manner by which that claim is pleaded above), and the discretionary powers of the Court to grant relief if either party is successful and to permit the Council to commence proceedings out of time under r 59.10(2) of the UCPR.
For example, estoppel of the type referred to in Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45; (1981) 147 CLR 589 arises where a matter relied upon by one party is so relevant to the subject matter of an earlier proceeding that it would have been unreasonable not to rely upon it in that earlier proceeding (Anshun at 602). As was stated by the Campbell JA in C G Maloney Pty Ltd v Noon [2011] NSWCA 397 (at [68]): 68 I agree that the evidence relevant to an Anshun estoppel is wider than the evidence relevant to res judicata or issue estoppel, and that "a broad merit-based judgment" that "takes account of all the facts of the case" would permit the court to receive the submissions of counsel in the First Proceedings. When the essential question in an Anshun estoppel case concerns the reasonableness of the manner in which litigation has been conducted, any facts that bear upon that reasonableness are relevant. The sentence on which CGM relies for this ground must, like any statement in a judgment, be read in accordance with its context: Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638; R v Beserick (1993) 30 NSWLR 510 at 517; Leaway v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757 at [75]-[84] and cases there cited. So read, I cannot accept, with respect, that it is to be taken at the face value it would have when read in isolation. It may be that there is a "not" missing from it, or that it should appear at the end of the paragraph preceding that in which it actually appears.
A similar sentiment was expressed in Australasian Memory Pty Ltd v Brien ((1998) 45 NSWLR 111 at 134-135) and Beck v Weinstock ([2012] NSWCA 289; (2012) 8 BFRA 279 at [72]).
In Timbercorp Finance Pty Ltd (in liquidation) v Collins [2016] HCA 44; (2016) 259 CLR 212 the plurality described Anshun estoppel by reference to the touchstone of unreasonableness in the following way (at [56], citations omitted): 56 An Anshun estoppel is not based upon degrees of similarity, which may be a matter of impression. It was made clear in Anshun that there could be no estoppel "unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it" (emphasis added). It was further explained: "Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding."
Likewise, in UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968 Gageler J observed that (at [68]-[69], see also Nettle and Edelman JJ at [120], citations omitted): 68 Lord Bingham's acknowledgement that an abuse of process might be established by nothing more than the bringing of a claim in later proceedings which "should" have been brought in earlier proceedings demonstrates the substantial overlap between abuse of process and the form of estoppel recognised in Port of Melbourne Authority v Anshun Pty Ltd. His Lordship's rejection, as "too dogmatic", of the equation of what "should" have been done in earlier proceedings with what "could" have been done in those earlier proceedings accords with the observation in Anshun that Lord Kilbrandon went "too far" when he spoke in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd of it becoming "an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings". 69 Lord Bingham's emphasis on the need for a "merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case" correspondingly encompasses, without necessarily being exhausted by, the enquiry mandated by the reasoning in Anshun (as a step in determining the existence of an estoppel) as to whether the claim sought to be brought in the later proceedings was so relevant to the subject matter of the earlier proceedings that it would have been unreasonable not then to have brought the claim so as to have allowed all relevant issues to have been determined in the one proceeding. The ultimate judgment to be made is in each case normative.
The concept of reasonableness is also relevant to VT's abuse of process claim, the exercise of the Court's discretion to extend time under r 59.10(2) of the UCPR, and the factors that the Court must have regard to in determining whether or not to grant the relief sought in the summonses filed in the 2019 VT and the Council Class 4 proceedings (see generally Warringah Shire Council v Sedevic (1987) 10 NSWLR 335).
In this regard, it is not correct to contend, as the Council did, that the issues raised by pleadings gave rise only to questions of law upon which the documents sought could have no bearing. While the question of whether or not development consent or a variation to the EPL is required, or the proper construction of the 2014 consent orders, are strictly questions of law, this ignores the defences raised by VT in various of its pleadings.
As VT submitted, and which I accept, the documents sought are likely to materially assist or throw light on, at the very least, the following matters: 1. the representations made by the Council in procuring the 2014 consent orders; 2. the Council's knowledge of VT's understanding of the agreement the subject of the 2014 consent orders; and 3. the Council's knowledge of the likely financial expenditure incurred by VT and/or the Verde Terra Group in complying with the 2014 consent orders.
I therefore find that the subpoenas and notice to produce have a legitimate forensic purpose.

Privilege

The Council sought to set aside the subpoenas and the notice to produce on the grounds of legal professional privilege (either at common law or under ss 118 and 119 of the Evidence Act 1995) and without prejudice privilege (either at common law or under s 131 of the Evidence Act).
These bases may be rejected for the following reasons. First, neither of the privileges asserted is, as it was argued before the Court, a proper basis to resist the production of documents under a subpoena or notice to produce. While a successful claim to either privilege may deny VT access to any documents produced, it is not necessarily a sufficient reason to set aside these compulsory processes.
Second, having said this, while the common law privilege in respect of the provision of legal advice and litigation has been described as a "substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyers made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings" (The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9]), this privilege is subject to exceptions, including communications made in furtherance of an illegal purpose, which are not protected. This is raised as an issue for determination on the pleadings in both sets of Class 4 proceedings (Attorney-General for the Northern Territory of Australia v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 515).
The without prejudice privilege is subject to a similar exception (for a description of the privilege at common law, see Field v Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285).
Section 131(1) of the Evidence Act provide as follows: 131 Exclusion of evidence of settlement negotiations (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
However, the exceptions provided for in s 131(2)(f), (i) and (j) are likely to apply here given the issues raised by the pleadings in the various Class 4 proceedings.
Third, in relation to the Golder subpoena, because all of the documents produced by Golder are likely to have been prepared in the course of the joint retainer between it and VT and Gosford CC, it is more than arguable that any claim of privilege seeking to prevent VT's access to the documents produced is not maintainable (Sharpe v Grobbel [2017] NSWSC 1065 at [14] and s 124 of the Evidence Act).
Fourth, in respect of both the Golder and the PJD subpoenas, it may also be argued that the Council has waived privilege in respect of the documents produced pursuant to those subpoenas.
Waiver occurs where a party claiming the privilege performs an act which is inconsistent with the maintenance of confidentiality. Objective assessment of the inconsistency, while not tested by some overriding principle of fairness, is nevertheless informed by this consideration (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29]). It may be contended that the Council's conduct is inconsistent with the maintenance of any privilege insofar as, on the one hand, it pleads that the 2014 consent orders that it entered into have no effect because they are illegal, while on the other, it resists the suggestion that in procuring the making of the 2014 consent orders, it was itself involved in any illegality.
Fifth, and in any event, no serious attempt was made by the Council to establish the privileges it purported to rely upon, either in its written or oral arguments, especially in respect of the subpoenas to PJD and Golder. Absent such argument, it has not discharged its burden of demonstrating their existence.

Conclusion and Orders

For the reasons above, I find that there is no basis to set aside the subpoenas and the notice to produce. The notice of motion must therefore be dismissed.
In relation to costs, although VT has successfully resisted the motion, its success in doing so was due in part to the concessions that it made during the course of argument as to the wording of the compulsory processes and the scope of the existing searches undertaken by the Council. In these circumstances, I am of the opinion that the costs of the motion ought to be costs in the cause.
The exhibits are to be returned.

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 November 2019

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