Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd & Ors

Land and Environment Court (NSW)|2011-03-01|Before: Pepper J, Mr P

Introduction 1This is an application (by notice of motion filed 25 February 2010 and by oral application) on behalf of Foxman Environment Services Pty Ltd, Phillip Foxman and Botany Building Recyclers Pty Ltd together ("the respondents") to set aside subpoenas and notices to produce issued by Wollondilly Shire Council ("the council") to Resource Laboratories Pty Ltd ("Resource Laboratories") on 22 February 2011; the Department of Environment, Climate Change and Water ("DECCW") issued on 25 February 2011; a notice to produce to the third respondent issued on 22 February 2011; and a notice to produce to all respondents issued on 18 February 2011. 2For the reasons that follow, those subpoenas that have not been stood over to 2 March 2011, have been set aside both wholly and in part.

Background 3The subpoenas and notices to produce have been issued by the council in civil proceedings seeking declaratory and injunctive relief in relation to contraventions by the respondents of the Protection of the Environment Operations Act 1997 ("the POEOA"), the Environmental Planning and Assessment Act 1979 ("the EPAA") and the Water Management Act 2000 ("the WMA"), which occurred during the carrying out of works on land owned by the first respondent from September 2009 to May 2010. 4The second respondent, Phillip Foxman, is the sole director of both the first respondent, Foxman Environmental Development Services Pty Ltd ("Foxman Environmental") and the third respondent, Botany Building Recyclers Pty Ltd ("BBR"). The third respondent operates, pursuant to a licence issued by the Environment Protection Authority ("the EPA"), a waste storage and processing facility in Bankstown. The Bankstown waste facility has been operating since about 1990. 5The land upon which the waste was deposited is known as 35 Evelyns Range Road, The Oakes ("the land"). It is owned by the first respondent. 6The council contends that the work carried out on the land during this period involved the importation and deposit onto the land of between 25,000-35,000 processed waste, which was transported to the land from the Bankstown waste facility by BBR. Some of the waste material deposited onto the land is, the council alleges, contaminated with asbestos. The council also contends that the placement of the waste material on the land has caused, and is causing, land pollution and water pollution within the meaning of the POEOA. 7The council also claims that the filling of the land was carried out without development consent under the EPAA. Not only was development consent required for the filling of the land, but development consent was also required to use the land for the purpose of a waste management facility. Neither were obtained. 8While a development consent was enforced in relation to the land during the relevant period, the council asserts that this consent did not permit any significant filling of the land or permit the use of the land for the purpose of managing, or disposing of, or storing or reusing, waste. 9Furthermore, while the existing consent includes consent for the construction of a fire trail, the council states that the works involved in the construction and upgrading of fire trails were carried out in contravention of the development consent, requiring for a mediation to address vegetation clearing and damage to sections of water course. 10Two breaches of the WMA are pleaded. The first involved the construction of a road in a section of a water course thereby obliterating the bed and banks of that section of the water course. The second, involved the construction of a dam on the northern boundary of the land which completely blocked the flow of the water course in that location and which continues to cause harm to ecology to that area.

Applicable Legal Principles to Setting Aside Subpoenas 11Rule 33.4 of the Uniform Civil Procedure Rules 2005 provides that the Court may, on the application of a party, set aside a subpoena in whole or in part, or grant other relief in respect of it. 12The subpoena must be framed in terms that enables it to be positively established that a legitimate forensics purpose is served by the issuing of the subpoena ( Commissioner for Railways v Small ( 1938) 38 SR (NSW) 564, NSW Commissioner of Police v Tuxford [2002] NSWCA 139 and Azar Building Construction Services Pty Ltd v Transport Infrastructure Corporation [2010] NSWLEC 110 at [20]). Whether such a purpose is met in any particular case turns upon the connection the issues raised in the proceedings have with the documents the subject of the subpoena ( Azar at [20]). 13In A zar , Craig J helpfully described some of the circumstances in which a subpoena will be liable to be set aside because no legitimate purpose can be established (at [20]-[21]): 20 ...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.

Resource Laboratories Subpoena 14The subpoena issued to Resource Laboratories seeks the production of the following: (1) All documents recording or relating the test results carried out for, or on behalf of Botany Building Recyclers Pty Ltd, Phillip Foxman, Joe Scimone and/or Foxman Environmental Development Services Pty Ltd between the period January 2008 to May 2010 including without limitation all briefing letters and emails. 15The respondents submitted that in these terms the subpoena disclosed no forensic purpose, amounted to a fishing expedition and given that the offending conduct as pleaded did not commence until September 2009, was too wide in its scope. Moreover, given that there was no dispute that the respondents had knowledge that the EPA considered the material deposited on the property to be waste and that it contained asbestos, the material was not relevant. 16The council submitted that the forensic purpose in obtaining the documents was to capture any testing that the respondents may have undertaken in respect of the waste on the land, which would be indicative of the composition of the waste and the respondents' knowledge that the material was waste, and in particular, that the waste contained asbestos. 17Given the respondents' admission concerning their state of mind about the nature of the material deposited on the land the subject of the proceedings, given the absence of any real justification for seeking documents 18 months prior to the activity pleaded to be the subject of the proceedings, and given that the experts for both the council and the respondents have tested the material on the land to determine its constituency for the purpose of determining whether it constitutes statutory "waste", I accept that some, if not all of the subpoena should be set aside. 18Having said this, when the respondents had knowledge that what was being deposited was waste, and moreover, whether the waste contained asbestos, is relevant to the issue of what discretion the Court has to grant the equitable relief sought. In this regard it is likely that the documents, provided that their temporal scope is not overly broad, will assist the Court on an identified issue in the proceedings. 19Accordingly, I shall not wholly set aside the subpoena as requested by the respondents, but instead limit the documents required to be produced to those between the period September 2009 to May 2010 inclusive.

DECCW Subpoena 20This subpoena seeks production of: All documents recording or relating to volumetric surveys of stockpiles and materials stored in respect of the [Bankstown waste facility]...and concerning EPA licence No. 12857 for the period December 2007 to date. 21The forensic purpose, the council submitted, of these documents was to ascertain, albeit by inference, that the waste deposited on the land was as a consequence of the Bankstown waste facility either having, or about to, exceeded its storage capacity under the licence governing its operation. If so, then the material deposited was unwanted and therefore "waste" as defined in the POEOA. 22No explanation was given to the Court why, assuming that such a forensic purpose was legitimate, records reaching back to December 2007 were required. On any view, this lengthy time period appears problematic. 23However, given the foreshadowed admission by the respondents as to the "waste" nature of the material deposited, it was agreed by the parties to stand this subpoena over until such time as the scope of the admission could be properly evaluated by the council.

BBR Notice to Produce 24This notice to produce to the third respondent sought production of:

All documents recording or relating to invoices and/or receipts for payment of tipping fees concerning the disposal of material from the Banksmeadow Waste Facility located at the land comprising Lot 8 in DP 11235, Lot 9 in DP 651995 and Lots 110 & 111 in DP 131166, known as 38 McPherson Street, Banksmeadow between the period July 2008 to date. 25The respondents submitted that in these terms, even leaving aside the question of the legitimacy of the forensic purpose in seeking this material, the notice to produce was so broad as to be oppressive. 26The council stated that the forensic purpose in seeking these documents was to demonstrate that the respondents had, by their conduct, received a financial benefit insofar as the payment of tip fees had been avoided by not transporting and depositing the waste material at a designated waste facility. However, the council conceded that, as drawn, the notice to produce was too broad. 27I agree. On this basis alone, the notice to produce should be set aside.

Notice to Produce to All the Respondents 28This notice compelled the respondents to produce:

All documents recording or relating to the clean up notice issued by the EPA in respect of the subject premises, including without limitation (a) any variation to that clean up notice; (b) responses or replies made by, for or on behalf of the 1 st - 3 rd respondents in respect of that clean up notice (including amendment to it). 29The parties did not seriously contend that the notice lacked forensic legitimacy. Rather, the respondents submitted that in light of the foreshadowed admissions concerning the "waste" nature of the material and their knowledge that the EPA considered that waste was being deposited on the land, that this notice ought to be stood over until after full consideration of the admissions made by the respondents could be undertaken by the council. 30The council agreed, and accordingly, this notice to produce was stood over.

Orders 31The orders of the Court are therefore: (1) the subpoena to Resource Laboratories Pty Ltd issued on 22 February 2011 is amended to cover only the period from September 2009 to May 2010 inclusive; (2) the notice to produce to the Botany Building Recyclers Pty Ltd issued 22 February 2011 is set aside; (3) the subpoena to the Department of Environment, Climate Change and Water issued on 25 February 2011 and the notice to produce to all respondents issued on 18 February 2011, are stood over to 3 March 2003.

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: 25 March 2011

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