Wyong Shire Council v Australia Skydive Pty Ltd; Australia Skydive Pty Ltd v Wyong Shire Council; Australia Skydive Pty Ltd v Central Coast Aero Club Ltd

ex tempore Judgment 1Adjacent to the shore of Tuggerah Lake on the Central Coast of New South Wales is a large area of land formerly known as the Pioneer Dairy and now a reserve under the Crown Lands Act 1989 (NSW) (the Reserve). That Reserve is under the management and control of the Tuggerah Lake Reserve Trust, constituted under the provisions of the Crown Lands Act. 2The use of the Reserve has, in recent times, become controversial. Since about November of last year, Australia Skydive Pty Limited (Skydive) has utilised part of the Reserve as a landing area for parachutists. Apparently, it conducts its activity by using aircraft that take off from the nearby Warnervale Airport and fly parachutists to the vicinity of the Reserve where, under instruction, parachutists leave the aircraft and descend by parachute onto the Reserve. 3A shed or building located on the Reserve has been utilised by Skydive as a reception area for participants and spectators. The shed also serves as a facility for re-packing parachutes from parachutists who have landed on the Reserve. 4The commencement of these activities has excited local interest and concern. That concern culminated in the commencement of proceedings (13/40934) by Wyong Shire Council (the Council) against Skydive seeking a declaration and injunctive relief directed to Skydive's use of the Reserve. Skydive's use was claimed by the Council to have contravened either s 76A or s 76B of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). The foundation for that claim was both the local environmental planning instrument that applied to the land at the date of commencement of the proceedings in November 1993 and the provisions of the planning instrument that commenced in December 2013. Skydive's use of the Reserve was either as a recreation area requiring development consent, which consent had not been obtained, or it was an innominate use, which was prohibited. 5Skydive had contended that its activity did not require the grant of development consent. In that regard it was supported by the Reserve Trust. Nonetheless, and "without prejudice", it had lodged a development application with the Council seeking consent to the use of the Reserve in the manner described. On 22 January 2014 the Council granted conditional consent to Skydive's application. 6However, a number of conditions imposed by the Council, particularly those that sought to govern what I might loosely call flight operations associated with the delivery of parachutists to the Reserve area, were not acceptable to Skydive. In proceedings 14/10059, it appealed to this Court pursuant to s 97 of the EPA Act (the Class 1 appeal). Lodgement of its appeal had the consequence that the development consent granted by the Council was no longer operative: s 83(2) of the EPA Act. Nonetheless, Skydive has continued its activities. 7Consistent with its position that development consent was not required, Skydive commenced proceedings in the Supreme Court in which it sought both interlocutory and final orders. It sought to restrain both the Council and Central Coast Aero Club Limited (the Aero Club), the head lessee from the Council of Warnervale Airport, from taking steps to restrict Skydive's aircraft movements at the Airport or otherwise from conducting its business at that Airport. 8By consent, Skydive obtained from the Supreme Court an interlocutory injunction to the effect sought by it in its proceedings. The foundation for its claim in those proceedings was that the actions of the Council involved an interference with the contractual relations between Skydive and the Aero Club. Skydive also alleged that the Council was misusing its statutory power to prevent use of the Reserve as a landing area and further it charged that the Council had committed the tort of negligent misstatement by dint of representations made by the Council to the Aero Club which, in turn, were conveyed to Skydive by the Aero Club. 9The proceedings commenced by Skydive in the Supreme Court have since been transferred to this Court pursuant to s 149B of the Civil Procedure Act 2005 (NSW). The Skydive proceedings in this Court have been assigned the number 14/40065. 10Beyond the overview of the different proceedings that I have given, it is unnecessary for present purposes to provide any more detail of those proceedings. Before me at present are notices of motion that need to be resolved so that all three proceedings may move forward to a final hearing. 11It is contended by Skydive in its Class 1 appeal that several of the conditions that the Council sought to impose upon the development consent were either unreasonable in the circumstances or, more relevantly for present purposes, beyond power. Without traversing the detail of those conditions, as I understand the submissions made on behalf of Skydive, it is contended that to the extent to which those conditions seek to control airborne operations or movements by aircraft flying parachutists to the vicinity of the Reserve, the Council lacked power so to do. 12In aid of its contention that there is no power to impose conditions directed to airborne operations, Skydive relies upon the provisions of the Air Navigation Act 1938 (NSW), an Act that is to be noted for its brevity. The plenary provisions of that Act refer to and adopt for its purposes a number of provisions of Commonwealth legislation directed to air navigation and air transport. As I understand the submission ultimately to be advanced on behalf of Skydive, it is that the imposition of the conditions would involve the exercise of power that falls within the ambit of Commonwealth legislation. Any purported entitlement to impose the conditions either under the EPA Act or the State Air Navigation Act would involve an inconsistency with the Commonwealth legislation such as to engage the provisions of s 109 of the Constitution. 13That argument is not for determination today. However, it is relevant to the notice of motion filed by Skydive on 2 April 2014 in which it seeks to have set aside a notice to produce documents served upon it by the Council on or about 10 March last. 14Also before me today is a notice of motion filed by Skydive on 3 April, seeking an order that its Class 1 appeal be heard together with the two Class 4 proceedings to which I have referred. However, counsel for Skydive today announced that his client did not wish to proceed with that notice of motion. The consequence of Skydive's abandonment of that notice of motion will be addressed in due course. 15I record that all three proceedings came before me today as a result of directions that I had given while acting as List Judge. At that time, the outstanding interlocutory matters among the parties were briefly outlined to me, with the consequence that it seemed appropriate to set aside a day to determine those outstanding interlocutory matters so that all proceedings may proceed to a final hearing. While the determination of matters within the purview of today's hearing will go some way to achieving the objective just identified, there remains one potential obstacle to that achievement. The parties have identified the prospect of an application pursuant to Pt 28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for a separate determination of a question or questions yet to be identified. I infer that such question may be directed to the Council's power to impose conditions directed to matters of air navigation. Whether an application under Pt 28 is made is yet to be determined, depending upon the fulfilment of directions that have usefully been discussed with the parties in the course of today's hearing. I will address those matters further at the end of this judgment. 16The critical matter argued today is the notice of motion by Skydive to set aside the notice to produce that I have earlier identified. In eight separate paragraphs of that notice, a number of documents are sought and directed to what are said to be issues arising in all three proceedings. Having regard to the manner in which the matter was argued, I think it fair to say that the documents sought relate primarily, but not exclusively, to Skydive's claim in proceedings 14/40065, particularly directed to the tortious claims against the Council in those proceedings. 17The notice to produce contains a definitional section in which the term "document" is defined not only to embrace the meaning of that term in the Evidence Act 1995 (NSW) but also to limit the date of any such "document" to one brought into existence on or after 1 July 2012. By embracing the definition of "document" in the Evidence Act, together with the express statement in the notice, a document is to include an email or other electronic medium. 18The documents required to be produced are identified as follows: "1. Any Document which records, comprises or refers to any agreement between AS and CCAC concerning use by AS of the Airport. 2. Any Document which records, comprises or refers to any communication between AS and CCAC concerning use by AS of: a. the Reserve; b. other drop zones to be used by flights undertaken by AS from the Airport. 3. Any minutes of any meeting of the board of AS held since 1 July 2012 concerning use by AS of: a. the Airport; b. the Reserve; c. other drop zones to be used by flights undertaken by AS from the Airport. 4. Any Document which records, comprises or refers to any agreement between the Reserve Trust and AS concerning use by AS of the Reserve. 5. Any Document which records, comprises or refers to communications between the Reserve Trust and AS concerning use by AS of the Reserve. 6. Any Document which records, comprises or refers to any complaint received by the AS relating to skydiving operations at or relating to the Reserve. 7. Any Document which records, comprises or refers to any complaint received by CACC relating to any flight leaving the Airport to conduct skydiving operations. 8. Any Document which records, comprises or refers to communications between AS and Gosford City Council relating to any drop zone(s) used by AS in the local government area of Gosford City Council." At the outset of consideration, I record that, in the course of argument, documents required in paragraph 7 were not pressed by the Council. 19In broad terms, the essence of the argument addressed by Skydive was to the effect that the description of documents sought was too broad. In particular, use of the phrase "records, comprises or refers to" to describe a document sought offended a requirement for some specificity in identifying a document that Skydive was required to produce. It submitted that the effect of the notice was tantamount to discovery of documents and that such a process to obtain discovery was impermissible given that the notice was issued under the provisions of Pt 34, r 34.1 of the UCPR. 20A notice to produce in accordance with that rule, is to be contrasted with the requirement for production of documents in accordance with Pt 21, r 21.10 of the UCPR. While both rules identify the need for a notice to produce to specify documents or things that are the subject of the notice, it seems to be accepted that if the notice is issued in accordance with r 21.10, the requirement for specificity of the document or documents or things will be applied more rigidly than is the case for documents required in a notice issued under r 34.1 (Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 and cases therein referred to, particularly the decision of Brereton J in Norris v Kandiah [2007] NSWSC 1296 and Penrith Rugby League Club Pty Ltd v Brown [2004] NSWSC 1182). 21As can be seen in paragraph 1 of the notice to produce, reference is made to a document "which records, comprises or refers to any agreement" between Skydive and the Aero Club concerning Skydive's use of the Warnervale Airport. The challenge to this paragraph is, as I understand it, (leaving aside the general complaint that it is tantamount to discovery), that the requirement is not directed to a document of the kind referred to by Clarke J (as his Honour then was) in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710. There, his Honour gives an example of the requirement to produce a document, in that case under subpoena, where no judgment is called for by the party required to produce the document. That is contrasted with the position that might pertain if a party was required to give discovery. In the present case, Skydive contends that it is required to make a judgment as to the documents to be produced. 22For my part, I do not see that the manner in which the documents sought in paragraph 1 of the notice to produce and the example given in Southern Pacific Hotel Services is so different so as to reject the former. What paragraph 1 calls for is a document or documents that record or comprise the agreement or make reference to the agreement between nominated parties and directed to a nominated topic, namely use of the Warnervale Airport. Moreover, the period over which any such document or documents need to be identified is limited to the period commencing on 1 July 2012 to the present time. In my view, the description of the document or documents required neither lacks sufficient specificity nor is it shown to be oppressive. 23Paragraphs 2 and 3 would appear to me to fall into a similar category. They call for documents that are sufficiently limited in time and sufficiently specific to enable Skydive to focus upon subject matter, the entity to whom the communications relate and the subject matter of those communications so as to justify the requirement to seek their production. Clearly, they have a potential to relate to an issue between Skydive and the Council. If it turns out that the documents are not documents able to be tendered in the proceedings, that is not a matter that weighs against the requirement for production. It is sufficient that documents identified in the notice to produce are seen to be relevant to or have a bearing upon an issue or issues to be decided in the course of the litigation. If among the documents required to be produced that fall within the described category are documents that would not be admissible in evidence, that is not a basis upon which to set aside the requirement to produce them. 24The documents sought in paragraphs 4 and 5 of the notice to produce fall within a different category from those identified in the preceding paragraphs. The production of those documents, so it seems to me, would be premature. 25It is to be regretted that pleadings in all matters, either in the form of points of claim or, in the case of the Class 1 appeal, in the form of a statement of facts and contentions, have not been completed. As ultimately stated from the Bar table, I think that Skydive's position is likely to be confined to a contention that the aircraft movement conditions are beyond power but otherwise the need for a consent will not be challenged. Amended points of claim have been foreshadowed by the Council and points of defence to be filed to those amended points of claim will reveal the ambit of the issue between the parties. That should occur before documents described in paragraphs 4 and 5 are required to be produced. At present, as I have said, their production would seem to be premature. It is not possible to determine the issue, if any , to which they relate. 26Paragraph 6 of the notice to produce seeks records referring to complaints received by Skydive relating to its skydiving operations at the Reserve. I accept the submission made by Skydive that, as the various claims are presently to be understood, those documents cannot have any bearing upon the determination of issues raised in the proceedings. The receipt of complaints by Skydive cannot, so it seems to me, bear upon the issue as to whether the conditions being challenged in the Class 1 appeal can or should be imposed. Further, they can have no bearing upon either the claims by the Council that Skydive has breached s 76A or s 76B of the EPA Act nor can they bear upon the tortious claims made by Skydive against the Council. 27Similarly, it seems to me that the documents sought in paragraph 8 of the notice to produce are not documents relevant for the purpose of, or having the potential to shed light upon, an issue arising in any one of the three proceedings that are presently being considered. What communications, if any, passed between Skydive and Gosford City Council as to drop zones for parachutists within the Gosford City Council area seems to me to be irrelevant to any issue to be determined in the proceedings before this Court. Whether or not Gosford Council contended that development consent was required so to do under planning instruments that pertained to its area, have no potential to shed light upon the need to obtain consent under the planning instrument that applies to the Reserve or upon the power to impose conditions of the kind to which Skydive objects in the Class 1 appeal. In those circumstances, I am not disposed to make an order requiring production of documents identified in paragraph 8 of the notice to produce. 28In summary, Skydive will be required to produce the documents identified in paragraphs 1, 2 and 3 of the Council's notice to produce. For reasons stated, I do not propose to make an order for production of documents identified in paragraphs 4, 5, 6 and 8, noting that the requirement to produce documents identified in paragraph 7 has been abandoned. 29That leaves the question of costs, not only directed to the motion concerning the notice to produce but also Skydive's abandoned motion that all proceedings be heard together. In a sense, the matters agitated before me today have been addressed in a manner that could appropriately be described as a directions or case management hearing. Given that Skydive has abandoned its motion for joint hearing, but has been partially successful in its claim to set aside the notice to produce served upon it by the Council, it seems to me that it would be inappropriate to make an order for costs at the present time. 30However, I am prepared to make an order that the costs of the parties in relation to today's proceedings and the notices of motion that underlie them, will be costs in the proceedings. That is, those costs will be determined by the outcome of the proceedings. 31Finally, I record that the parties have handed to me short minutes of orders directed to the amendment of pleadings and to the giving of any notice proposed by Skydive under s 78B of the Judiciary Act 1903 (Cth). In light of the matters discussed during the course of this hearing, the making of orders in accordance with these short minutes seems to be appropriate and, subject to what transpires from the completion of pleadings and the s 78B notice, will determine whether any application is to be made under Pt 28, r 1 of the UCPR. For those reasons the matter will need to be relisted before me for further directions. 32Accordingly, I make the following orders: (1)Order that Australia Skydive Pty Ltd produce the documents identified in paragraphs 1, 2 and 3 of the Council's Notice to Produce filed on 13 March 2014. (2)Dismiss the Notice of Motion filed by Australia Skydive Pty Ltd on 3 April 2014 seeking to have its Class 1 proceedings 14/10059 heard together with the Class 4 proceedings 13/40934 and 14/40065. (3)Costs of the respective Notices of Motion to be costs in the proceedings. (4)Orders in accordance with the Short Minutes of Order initialled by his Honour and placed with the papers. (5)Note the proceedings are next listed for directions before Craig J at 9.30 am on Wednesday 25 June 2014.

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: 05 June 2014