Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd
[2013] NSWLEC 122
•30 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 Hearing dates: 17 June 2013 Decision date: 30 July 2013 Jurisdiction: Class 4 Before: Pepper J Decision: Subpoenas and notice to produce set aside. First respondent to pay the applicant's costs of the notice of motion.
Catchwords: PROCEDURE: application to set aside subpoenas and notice to produce - applications arose in context of foreshadowed application to amend a summons seeking judicial review of a decision to grant modification approval to a consent in 2009 - amendment opposed on the ground that it was time barred under r 59.10(1) of the Uniform Civil Procedure Rules 2005 - subpoenas and notice to produce issued to obtain documents relevant to delay and to discretion to extend time under r 59.10(2) of the Uniform Civil Procedure Rules 2005 and/or s 64 of the Civil Procedure Act 2005 - subpoenas and notice to produce set aside.
JUDICIAL REVIEW: whether Pt 59 of the Uniform Civil Procedure Rules 2005 applied retrospectively to a decision made in 2009 - if so, whether discretion should be exercised to extend time in which to seek judicial review under r 59.10(2) of the Uniform Civil Procedure Rules 2005 - whether exercise of discretion under s 64 of the Civil Procedure Act 2005 prevents extension of time.Legislation Cited: Civil Procedure Act 2005, ss 56-61, 64, 65
Uniform Civil Procedure Rules 2005, r 33.4, Pt 59Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Azar Building Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110
Azzi v Volvo [2006] NSWSC 283
Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Fivex Pty Ltd v Valuer-General [2013] NSWLEC 114
Hall v City of Burnside (No 9) [2008] SASC 361
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2012] NSWLEC 66
Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113
Young v King (No 3) [2012] NSWLEC 42Category: Procedural and other rulings Parties: Agricultural Equity Investments Pty Ltd (Applicant)
Westlime Pty Ltd (First Respondent)
Parkes Shire Council (Second Respondent)Representation: Mr I J Hemmings with Ms A C Hemmings (Applicant)
Mr C R Ireland (First Respondent)
N/A (Second Respondent)
Hones La Hood (Applicant)
Ashurst (First Respondent)
N/A (Second Respondent)
File Number(s): 41125 of 2012
Judgment
AEI Seeks to Set Aside Subpoenas and a Notice to Produce Relating to a Modified Development Consent Granted in Respect of a Mine
By notice of motion filed on 14 May 2013, the applicant to Class 4 proceedings, Agricultural Equity Investments Pty Ltd ("AEI"), seeks to set aside the following notice to produce and subpoenas issued by the first respondent, Westlime Pty Ltd ("Westlime"):
(a) a notice to produce to AEI dated 6 May 2013;
(b) a subpoena to produce dated 6 May 2013 issued to AEI Mining and Mineral Exploration Consultant, Mr Russell Hetherington; and
(c) a subpoena to produce dated 6 May 2013 to AEI Mining and Mineral Exploration Consultancy, Hetherington Exploration & Mining Title Services Pty Ltd.
All of the subpoenas and the notice to produce are in relevantly identical terms (compendiously referred to as "the 6 May subpoenas"). They seek the production of documents relating to various planning consents and approvals with respect to the operation of the London Victoria Mine at London Road, Parkes, New South Wales ("the mine"), and an exploration licence 7242 ("the exploration licence") issued to AEI to carry out exploration at the mine and are in the following terms:
1 The following documents relating to the London Victoria Mine at London Road, Parkes NSW (being the land known as the London Victoria Mine which is located approximately 5km south west of Parkes, and which generally comprises Lot 368 DP 750179, Lot 719 DP 727007, Lot 4 DP 830998 and Lot 1 DP 1069893):
a. All documents referring to Development Consent DA08167 issued by Parkes Shire Council to Westlime Pty Limited on 21 April 2009 by way of a modification of Development Consent DA 379/88; and
b. All documents referring to the application to modify Development Consent DA 379/88, also known as Development Application DA08167, which was lodged by Westlime Pty Limited with Parkes Shire Council on 16 December 2008 (being the modification application approved by Parkes Shire Council as Development Consent DA08167 on 21 April 2090); and
c. All documents referring to any proposal to modify Development Consent No: DA379/88 (including the proposal which became the modification application referred to in b. above which was approved by Parkes Shire council as Development Consent DA08167 on 21 April 2009).
2 All documents being, or recording, communications between any or all of Agricultural Equity Investments Pty Ltd, Hetherington Exploration & Mining Title Services Pty Ltd, Brian Locke and Russell Hetherington from 1 November 2011 to 5 November 2012 in respect of:
a. the conversion or proposed conversion of Exploration Licence 7242 to a mining lease by means of, or facilitated by, the carrying out of exploration activity by Agricultural Equity Investments Pty Ltd, or other persons on behalf of Agricultural Equity Investments Pty Ltd, at the London Victoria Mine; and
b. these proceedings, or any proposal to take these proceedings.
AEI also sought to set aside, by separate notice of motion filed 15 May 2013, a second notice to produce issued to it by Westlime on 14 May 2013. But at the hearing, this notice to produce was not pressed by Westlime and the notice of motion was withdrawn.
The 6 May subpoenas must be set aside because, for the reasons discussed below, they serve no legitimate forensic purpose.
AEI Seeks Leave to Amend the Summons
In order to understand the basis of the challenge to the 6 May subpoenas, it is necessary to set out some of the detail to the substantive proceedings.
The matter of this litigation concerns Class 4 judicial review proceedings commenced by summons by AEI on 5 November 2012 relating to a modified consent to operate the mine.
The mine formerly operated as an open cut gold mine pursuant to development consent DA 379/88 granted to BHP Gold Mine Ltd by the second respondent, Parkes Shire Council ("the council"), on 21 June 1988 ("the 1988 consent"). Mining lease 1215 was granted on 22 December 1988 and cancelled in 2005.
On 21 April 2009 the council granted approval for the modification of the consent ("the 2009 modification approval") permitting Westlime to extract non-mineral rock from the mine and areas adjacent to the mine.
On 7 August 2012 the council granted approval to further modify the 1988 consent ("the 2012 modification approval").
The 2012 modification approval does not relate to operations carried out by Westlime at the mine. Westlime obtained the approval in order that its prospective tenant, Big Island Mining Pty Ltd, a subsidiary of Cortona Resouces Limited ("Cortona"), would be authorised to process mineral ore at a processing plant on the site of the mine.
The summons filed by AEI seeks a declaration that the 2012 modification approval is invalid and an order that it be set aside. The summons seeks to neither impugn the 2009 modification approval nor the 1988 consent. However, the basis of the challenge to the 2012 modification approval is to the effect that because the 1988 consent was spent prior to the 2009 modification approval having been granted, there was nothing to modify in 2009 or 2012.
Points of claim were filed by AEI on 11 February 2013. The points of claim challenged the validity of the 2009 modification approval.
As a consequence, an application for leave to amend the summons to seek relief in respect of the 2009 modification application was filed on 20 March 2013.
Critically, the filing date for the notice of motion seeking leave to amend was five days after the coming into operation of Pt 59 of the Uniform Civil Procedure Rules 2005 ("the UCPR"), set out below. The significance of this is that r 59.10(1) purported to bar the proposed amendment on the ground that it was out of time.
The reason why leave to amend the summons was not sought earlier by AEI was contained in an affidavit of Mr Jason Hones, the solicitor for AEI, sworn 8 April 2013. In short:
(a) when he initially received instructions to file the summons, he did not have a copy of the 2009 modification approval. It was not until he received a USB memory stick containing the council's files on 13 December 2012, pursuant to an order made by Pain J on 11 December 2012, that he was in a position to obtain a copy of that modification approval;
(b) the printing of the USB memory stick resulted in four lever arch folders of documents;
(c) from 17 to 22 December 2012, he was in a hearing before Moore SC in this Court and did not have an opportunity to review the folders;
(d) on 22 December 2012 he went on leave returning to the office on 14 January 2013. Upon his return, he read a letter from Mr James Fan, of Pikes & Verekers Lawyers ("Pikes"), the solicitors for the council, dated 9 January 2013, indicating that the USB flash drive was not a complete copy of the council's files and that "much of the documentation was either incomplete or missing". The letter went on to state, however, that the council's files were now available for inspection;
(e) he responded by sending a letter on 18 January 2013 to Mr Fan requesting a copy of the missing documents;
(f) the documents were copies as requested and an invoice was rendered to Mr Hones in the sum of approximately $888. Payment of the invoice was necessary in order to obtain copies of the documents;
(g) on 24 January 2013 he forwarded an email to both Westlime and the council stating that because the task of copying the missing files had only concluded on 23 January 2013, and he did not yet have them in his possession, it would be unlikely that AEI would be able to comply with the Court's direction that AEI file and serve its points of claim by 25 January 2013. Accordingly, he proposed an eCourt communication requesting a variation of the timetable seeking an additional week to file the points of claim;
(h) Mr Palmer, of Pikes, responded stating that the council had no objection to this course, which was duly executed;
(i) Mr Hones received the complete set of the council's files on 29 January 2013;
(j) on 1 February 2013 the proceedings were before Sheahan J and his Honour directed that AEI file and serve its points of claim by 8 February 2013;
(k) on 11 February 2013 the points of claim were filed. Significantly, paragraphs 32 to 34 of the points of claim pleaded that the 2009 modification approval was granted in error because there was no effective and operative development consent (namely, the 1988 consent) in force to modify, and therefore, the 2009 modification approval was invalid. When serving a sealed copy of the points of claim he notified both Westlime and the council that "we intend to amend the Summons to include a challenge to the 2009 Modification";
(l) on 27 February 2013 Ms Madeleine McDonald of Ashurst, the solicitors for Westlime, noted that as at that date AEI had not provided Westlime with a copy of the draft amended summons or any notice of motion seeking leave to amend the summons. Accordingly, the letter went on to seek clarification "by midday tomorrow" when AEI would be filing its notice of motion seeking leave to amend the summons;
(m) this provoked an immediate response by Mr Hones stating that "I am not sure if, in fact, an amended summons will be filed", but in the meantime that he looked forward to receiving Westlime's points of defence;
(n) on 28 February 2013 Mr Hones received a request for further and better particulars from the solicitors for the council. Also that day, he received a set of draft short minutes of order from Westlime's solicitors, which included, at order 2, a direction that AEI was to file and serve any notice of motion seeking leave to amend its summons by 5 March 2013;
(o) and on 28 February 2013 Westlime filed its points of defence, specifically pleading to paragraphs 32 to 34 of the points of claim;
(p) on 1 March 2013 Sheahan J directed that any motion for leave to amend the summons be filed and served by 18 March 2013;
(q) later that day on 1 March 2013 Mr Hones was married. He consequently left for his honeymoon on 4 March 2013 and did not return to his office until 18 March 2013;
(r) on 15 March 2013 Pt 59 of the UCPR came into effect;
(s) on 20 March 2013 the motion for leave to amend the summons was filed and served; and
(t) on 22 March 2013 the council filed its defence to the points of claim. Likewise it specifically pleaded to paragraphs 32 to 34 of the points of claim, albeit with a rider stating that the claim made therein was irrelevant to the relief claimed in AEI's summons unless leave was granted to AEI to amend the summons.
On 17 April 2013 the solicitors for Westlime wrote to Mr Hones notifying him that it intended to rely upon Pt 59 of the UCPR in opposing amendment of the summons, in particular, the three month time limitation from the date of a decision within which to bring proceedings for judicial review of that decision contained in r 59.10(1).
The motion for leave to amend is opposed by Westlime principally on two grounds:
(a) first, because leave to extend time for the amendment of the summons would not be granted pursuant to the Court's discretion conferred by r 59.10(2) of the UCPR; and
(b) second, because leave to amend the summons would not be granted pursuant to an exercise of the Court's general discretion under s 64 of the Civil Procedure Act 2005 ("CPA").
According to Westlime, either ground will require the Court to consider the circumstances of the case and the factors relevant to the grant of leave to extend time set out in r 59.10(3) of the UCPR. The documents sought in the 6 May subpoenas are relevant to the two grounds of opposition and the factors set out in r 59.10(3) of the UCPR and relevant to the exercise of the discretion under s 64 of the CPA, particularly, Westlime submits, to the question of when AEI should have become aware of the 2009 modification application upon the exercise of reasonable diligence.
Westlime submitted that if the application to amend the summons is acceded to by the Court it would suffer prejudice, which would be relevant to the exercise of the discretion to extend time either under r 59.10(2) of the UCPR or s 64 of the CPA. The affidavit of Mr Andrew Commins, the General Manager of Westlime, sworn 7 May 2013, therefore deposed to the following matters:
The Effect of an Invalidation of the 2009 Mine Modification
25 If the 2009 Mine Modification is invalidated:
a. Westlime would be unable to extract and process hard rock from the Pits;
b. Westlime would be unable to produce road base products generally, and high quality DGB(20)HD road base specifically, to its customers;
c. Westlime would suffer a significant impact on sales revenues due to the loss of revenue from road base sales;
d. Westlime's trucking contractors would be significantly financially impacted by the termination of Westlime's road base deliveries;
e. Westlime would have to rely solely on its revenues from agricultural lime production for its financial viability;
f. Westlime would have to retrench between 10 and 12 employees, as only 2 employees are required to assist in the seasonal production of lime products;
g. Westlime would be left vulnerable to climate conditions and seasonal demand for agricultural lime; and
h. Westlime's ongoing operations would no longer be financially viable.
26 Invalidating the 2009 Mine Modification would prevent Westlime from conducting road base production, being the main component of its business. This would cause significant and financially dire consequences for Westlime, a significant proportion of its workforce, and its trucking contractors.
The council has indicated that it will not oppose the application for leave to amend the summons.
Part 59 of the UCPR
Rules 59.1 and 59.10 of the UCPR relevantly state as follows:
59.1 Application
(1) This Part applies to the following proceedings for judicial review:
(a) proceedings under section 65 and 69 of the Supreme Court Act 1970 and other proceedings in the supervisory jurisdiction of the Supreme Court, and
(b) proceedings for or in the nature of judicial review in the Class 4 or Class 8 jurisdiction of the Land and Environment Court.
(2) This Part does not apply to proceedings commenced before the commencement of this Part.
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
Issues for Determination
The present application to set aside the 6 May subpoenas gives rise to the following four issues for determination:
(a) whether r 59.10(1) applies retrospectively to a decision made by the council in 2009;
(b) if so, whether time would nevertheless be extended to permit the summons to be amended under r 59.10(2);
(c) whether s 64 of the CPA precludes the Court exercising its discretion to extend time because of the delay in challenging the 2009 modification approval; and therefore
(d) whether the 6 May subpoenas serve any legitimate forensic purpose having regard to the discretion to be exercised either pursuant to r 59.10(2) of the UCPR or s 64 of the CPA.
Part 59 Does Not Apply Retrospectively
In Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113, Biscoe J considered the historical context and rationale behind the newly promulgated Pt 59. Given that this is only the second case in this Court to consider the reach of Pt 59, his Honour's sage observations are repeated in full (at [7]-[10]):
7 A judicial review court is concerned with maintenance of the rule of law in the conduct of public authorities, but the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced. In considering whether to extend time, the factors listed in r 59.10(3) are not exhaustive. The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the court to carry out a balancing exercise. As regards the factor referred to in r 59.10(3)(c), a claimant cannot fairly be criticised for failing to take action before he knew or, by exercising reasonable diligence, should have known that there was anything to take action about.
8 This new extendable time limit for judicial review proceedings follows a trend in other Australian jurisdictions and in England. The position in other Australian jurisdictions is summarised as follows by Aronsen and Groves, Judicial Review of Administrative Action, 5th ed (2013) at [12.290] (omitting footnotes):
"Prohibition has a built-in time limit, because there must be something left to prohibit. Most places therefore have no statutory limitation period for that remedy. An extendable three-month limit applies in Queensland to applications for the prerogative orders (mandamus, prohibition and certiorari) and a prerogative injunction. The extendable period for those remedies is six months in South Australia, and 60 days in Victoria, the Northern Territory and the Australian Capital Territory. In the High Court and Western Australia, certiorari has an extendable limit of six months. AD(JR) has a 28-day extendable deadline, which generally starts running from the day that a statement of reasons has either been volunteered with the decision or supplied in response to a timely request.
Delay is a relevant criterion for discretionary refusal of certiorari and prohibition, whether or not the court Rules stipulate a prima facie time limit and, if they do, even if that limit has not been breached. The court considers the interests of third parties when asked to extend the prima facie time limit. It refused in one case to accept an undertaking in damages to compensate for the loss caused by the applicant's undue delay in seeking review. Despite the case law that urges would-be challengers to exhaust their appeal options before resorting to judicial review, there are conflicting approaches to the question of whether a delay occasioned by pursuing an alternative remedy should count against the applicant."
9 In England permission is required to proceed in a judicial review claim and the claim must be filed promptly and in any event not later than three months after the grounds to make the claim first arose, but the court may grant an extension of time: rr 54.4, 54.5 and 3.1(2)(a) Civil Procedure Rules 1998 (UK). The White Book 2013 (UK) contains the following annotations to r 54.5 (citations omitted):
"A court may grant an extension of time under CPR Pt 3.1(2)(a) (previously, RSC Ord.53 itself provided that the court could extend the time if there was good reason to do so). The likelihood is that the courts will continue to apply the previous case law on RSC Ord.53 on whether there was a good reason for extending the time in deciding whether or not to grant an extension of time under CPR r.3.1 in a judicial review claim. The courts have always recognised that public law claims are unlike ordinary civil litigation and require strict adherence to the time limits contained in the rules governing judicial review. The courts are likely to require that there is a good reason or adequate explanation for the delay and that extending the time limit will not cause substantial hardship or substantial prejudice or be detrimental to good administration. Under the former provisions of RSC Ord.53 r.4 the courts refused to accept that there was good reason for extending the time for making a judicial review application where the delay was the fault of the applicant's lawyers. The courts have accepted that there was good reason for the delay if the applicant was unaware of the decision provided that they applied expeditiously once they became aware of it. The fact that the claim raises issues of general public importance may be a reason for extending the time-limit. Delay caused by factors outside the applicant's control, such as delay in obtaining legal aid, may be excusable."
10 Supperstone, Goudie & Walker, Judicial Review, 4th ed (2005) at [18.13.7] cite English authorities for the proposition that: "The claimant must show good reason for extending time. Even if the claimant does so, the court may refuse permission on the grounds of hardship, prejudice and detriment to good administration". According to Southey, Weston & Bunting, Judicial Review, 2nd ed (2013) at [3.1.3], the English authorities identify the following as matters that can amount to a good reason for extending time (although none results in time being automatically extended): (a) an explanation for the delay in applying for judicial review, such as problems obtaining public funding, mistakes made by legal advisers, an attempt by the claimant to seek other legitimate remedies and reasonable attempts to resolve the issue without litigation; and (b) the importance of the substantive issues raised. Other factors that may be taken into account are the strength of the claim for judicial review and the nature of the decision challenged because challenges to certain decisions such as planning decisions can potentially have significant financial consequences for third parties.
One of the issues that arose in that case was whether the time limit in r 59.10(1) applied retrospectively to a decision that was made on 22 October 2012. The summons had been filed on 23 May 2013. His Honour held, correctly in my respectful opinion, that it did not (at [12]-[14]):
12 The threshold question is whether the time limit in r 59.10(1) applies retrospectively to the first decision. In Patsalis v Attorney General of NSW [2013] NSWCA 98 at [6] Basten JA said:
... Because the decision in question was handed down before the new Pt 59 of the UCPR commenced, it is by no means beyond doubt that the time limit in r 59.10 operates. Even if it does, although the decision was dated 20 November 2012, it was apparently not provided to the applicant until 8 December 2012. On that basis, the three month period would have expired about 11 days before the applicant provided to the Court and to the Crown Advocate his proposed application seeking to rely upon s 69 of the Supreme Court Act. In those circumstances, were an extension of time necessary, it should be granted.
13 There is a presumption against retrospectivity of statutes, to which statutes merely affecting procedure are an exception. Where a period for taking legal action is limited by statute, it is a rule of construction that the statute should not, unless it is clearly intended, be given a retrospective operation to deprive a person of the opportunity of instituting an action which is otherwise within time. If it were given a retrospective operation, it would operate so as to impair an existing substantive right - the right to bring a claim - and such an operation could not be said to be merely procedural. However, if there is still a proper opportunity to commence the action despite the coming into effect of the new limitation period, the operation of the statute will be regarded as procedural. This rule of construction is founded on the principle that no suitor has any right to complain of procedural changes, provided no injustice is done. See Maxwell v Murphy [1957] HCA 7, (1957) 96 CLR 261 at 267, 270 per Dixon CJ, 277-278 per Williams J; Yrttiaho v Public Curator of Queensland [1971] HCA 29, (1971) 125 CLR 228 at 239-242 per Gibbs J (the rest of the Court agreeing, on this aspect); Egan v Cudgegong (Abattoir) County Council (1973) 1 NSWLR 222 (CA) at 226-227 per Jacobs P (Moffitt and Hope JJA agreeing); Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 (PC); Rodway v The Queen [1990] HCA 19, (1990) 169 CLR 515, at 518-520 (joint judgment); Habib v Nationwide News Pty Ltd [2006] NSWCA 14, (2006) 65 NSWLR 264 at [7] per Spigelman CJ (Santow JA and Nicholas J agreeing).
14 In my opinion, in accordance with these principles, r 59.10 does not apply retrospectively to the first decision, therefore an extension of time is not required. Otherwise its effect would be to deny completely the right of REX to proceed without an extension of time because the first decision was made more than three months before Part 59 commenced on 15 March 2013. Although r 59.1(2) provides that Part 59 does not apply to proceedings commenced before the commencement of Part 59, it does not follow that the r 59.10(1) time limit always applies to proceedings commenced afterwards: the above principles apply to such proceedings.
It follows that if r 59.10(1) of the UCPR cannot be applied retrospectively to the 2009 modification approval, leave to amend the summons to challenge this decision cannot be denied on the basis that AEI is out of time to do so pursuant to that rule.
It also follows that, subject to the exercise of the discretion under s 64 of the CPA, the 6 May subpoenas have no relevance to the extent that they were issued on the assumption that Pt 59 applied, and therefore, they must be set aside.
There is, moreover, another reason why r 59.10(1) of the UCPR does not apply to preclude, of itself, the proposed amendment to the summons. This is the application of r 59.1(2) of the UCPR, which provides that Pt 59 does not apply to proceedings commenced before "the commencement of this Part".
The summons commencing the Class 4 proceedings was filed on 5 November 2012, well before the date that Pt 59 of the UCPR came into operation.
Although Westlime submitted that the amendment sought to, in effect, commence fresh judicial review proceedings with respect to the 2009 modification approval, and that therefore, it would not be appropriate to grant leave to amend if the circumstances would not justify an extension of time within which to institute fresh proceedings (citing Hall v City of Burnside (No 9) [2008] SASC 361 at [88]), for the reasons elaborated upon below, the circumstances here would, in any event, plainly warrant an extension of time.
Time Should be Extended to Permit the Amendment to the Summons Under Pt 59 of the UCPR
If, however the above analysis is incorrect, the next issue is whether the Court should exercise its discretion under r 59.10(2) of the UCPR to extend time within which to challenge the 2009 modification approval. It is at this juncture that the 6 May subpoenas become potentially relevant.
Westlime argues that the documents sought are relevant to the r 59.10(3) factors and thus to the discretion to grant an extension of time within which to challenge the 2009 decision. It submits that it is "on the cards that the documents sought will throw light on 'the circumstances of the particular case'", namely, the leave application and for this reason the documents sought in the 6 May subpoenas have been sought for a legitimate forensic purpose.
Applicable Legal Principles in Setting Aside the 6 May Subpoenas
This and other courts are well versed with the legal principles governing applications to set aside subpoenas and notices to produce.
Rule 33.4 of the UCPR 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.
A subpoena must be framed in terms that enable it to be positively established that a legitimate forensic 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 Development Corporation [2010] NSWLEC 110 at [20]). Whether such a purpose is met in any particular case turns upon the connection that the issues raised in the proceedings have with the documents the subject of the subpoena or notice to produce (Azar at [20]).
In Azar, Craig J helpfully described some of the circumstances in which a subpoena or a notice to produce, which is relevantly subject to the same principles (Azzi v Volvo [2006] NSWSC 283 at [4]), will be liable to be set aside on the basis that no legitimate forensic 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.
More recently, in Young v King (No 3) [2012] NSWLEC 42, Sheahan J comprehensively analysed the authorities in relation to the setting aside of notices to produce and subpoenas on the grounds of relevance (at [55]-[97]). In particular, his Honour cited the following authorities whose principles I respectfully endorse (at [56]-[63]):
56 The classic statement of the test is generally said to be found in the judgment of Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors ("Arnotts") (1989) 88 ALR 90; (1989) 21 FCR 306, at 103 of the ALR report. According to Arnotts , the correct questions for the court are (emphasis added):
"Does the material sought have an apparent relevance to the issues in the principal proceedings, ie is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? ... Is the subpoena seriously and unfairly burdensome or prejudicial ? ... The test of adjectival relevance is satisfied if the material has apparent relevance."
57 His Honour concluded (also at 103, with emphasis again added) that the test was satisfied in that case because the documents sought "could possibly throw light on the issues in the main case".
58 The use of the word "possibly" in His Honour's finding has been said, by Spender J in Cosco Holdings Pty Ltd v Commissioner of Taxation ("Cosco") (1997) 37 ATR 43 at 439, to mean that:
"The material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made. (emphasis mine)."
59 Brereton J noted in Portal Software International Pty Ltd v Bodsworth ("Portal") [2005] NSWSC 1115, at [22], that it had become clear by that time that absence of apparent relevance is a sufficient ground to set aside a subpoena or a NTP. Where it is asserted that there is an abuse of process, "some onus would lie on the person contending that ... to make that allegation good" (at [28]), but where the question of relevance is raised it must be shown by the party issuing the notice rather than refuted by the producer (at [29]).
60 In ICAP Pty Ltd & Ors v Moebes & Anor ("ICAP") [2009] NSWSC 306, Nicholas J agreed with the construction adopted in Cosco, and in an unreported judgment in McLaughlin v Dungowan Manly Pty Ltd ("McLaughlin" - NSWSC 4924/06) on 14 July 2009, Ward J agreed with Nicholas J.
61 Ward J also noted (at [28] of McLaughlin) that Nicholas J had expressed caution in ICAP about application of a test of "legitimate forensic purpose" which incorporates phrases like "on the cards" or "could possibly throw light on", but that Beazley JA (in Attorney-General (NSW) v Chidgey ("Chidgey") [2008] NSWCCA 65; (2008) 182 A Crim R 536) had found no reason to depart from the test or from the language adopted by Gibbs CJ in Alister v R ("Alister") (1984) 154 CLR 404. I will return to Alister and Chidgey. (See below, at [71] and [85] respectively).
62 Ward J noted (at [32]) that Nicholas J had stated the test (in [30]), in civil proceedings, in terms that (emphasis added):
"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."
63 Her Honour then observed (at [33]):
"That requires a consideration of the issues in the proceedings to which the subpoenaed documents are or may be of relevance in order to assess whether there is a legitimate forensic purpose served by the subpoena."
More recently still, the Court in Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2012] NSWLEC 66 summarised these principles in the following way (at [53]):
In summary, it must be demonstrated that it is likely that the legal advices sought by the subpoenas will materially assist on an identified issue in the proceedings, or that there is a reasonable basis beyond speculation that the documents will assist.
Most recently, Craig J repeated this summary in Fivex Pty Ltd v Valuer-General [2013] NSWLEC 114 (at [10]):
The parties are not in dispute as to the relevant principle to be applied. They both accept that a document will have a legitimate forensic purpose if it is likely that the document or documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will materially assist on such an issue (ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307; Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 at [20]).
Therefore, the question for determination is whether the documents sought in the 6 May subpoenas materially assist on an identified issue in the application for leave to amend the summons, or whether there is a reasonable basis beyond speculation that the documents will assist? In my opinion, the question is to be answered in the negative.
AEI submitted that the documents could not so assist and that the subpoena and notices to produce were either an exercise in fishing or a substitute for discovery.
Westlime submitted that the documents sought in paragraph 1(a) to (c) of the 6 May subpoenas were relevant to the criteria in r 59.10(3)(c), which concerns the time at which AEI became aware, or by exercising reasonable diligence should have become aware, of the 2009 modification approval. Thus the documents sought went to the unexplained delay from 2009 to 2013 in moving to bring proceedings to challenge the 2009 decision.
In respect of the documents sought in paragraph 2 of the 6 May subpoenas, Westlime argued that these were relevant to, and concerned with, AEI's particular interest in the proceedings, thus engaging r 59.10(3)(a), "as it seeks the production of documents that go to the Applicant's commercial interest in the London Victoria Mine, being the property the subject of the development approvals in these proceedings".
According to the affidavit of Mr Commins, AEI is challenging the 2009 decision in order to apply "further commercial pressure" on Westlime and its prospective tenant, Cortona, so that AEI can undertake exploratory drilling in order to convert the exploration licence into a mining lease.
Finally, Westlime contends that the documents sought pursuant to paragraphs 1 and 2 of the 6 May subpoenas were relevant to the criterion in r 59.10(3)(d), namely, the public interest. That is to say, to demonstrate that AEI is challenging the 2009 modification application not in the public interest, but in its commercial interest.
Each contention must be rejected. First, in the particular circumstances of this case, namely, where a challenge to the 2009 modification approval was foreshadowed in AEI's points of claim and in correspondence between the parties, the relevant delay is not, in my view, the delay between 2009 and 2013, it is, at its least, the delay between the coming into effect of Pt 59 on 15 March 2013 and the filing of the application for leave to amend the summons on 20 March 2013, or at its greatest, the delay between the filing of the summons on 5 November 2012 and the filing of the notice of motion on 20 March 2013.
It cannot, as Westlime submitted, be the delay between the making of the 2009 decision and the commencement of the proceedings because during this period there was no relevant delay for the purpose of Pt 59 of the UCPR. The alleged delay only crystallised once a time limit within which to commence proceedings was established by the UCPR. Prior to this moment, there was no delay because there was no period within which a challenge to the 2009 modification approval had to be made. Put another way, there could never be delay per se in commencing judicial review proceedings in Class 4 of the Court's jurisdiction in circumstances where the time for doing so was not stipulated.
In either case, the reason for the delay was explained by Mr Hones in his affidavit. Mr Hones was not cross-examined. There was no suggestion by Westlime that he omitted a material event in the chronology that he gave or that he failed to include correspondence that would shed a different light on his explanation for the delay. The delay as explained by Mr Hones, is, in my opinion, while unfortunate, entirely reasonable.
Given the broad scope of the documents sought in paragraph 1 of the 6 May subpoenas, I am of the opinion that Westlime is on a fishing expedition, or alternatively, that the seeking of the documents in this way amounts to discovery. Furthermore, given the breadth of paragraph 1, the request is oppressive.
For example, Westlime seeks at paragraph 1 "all documents" held by AEI in relation to the modification of the 1988 consent by both the 2009 and 2012 modification approval (that is, "any proposal to modify" the 1988 consent). This captures a large number of documents concerning the 2012 modification approval which cannot, beyond mere speculation materially assist in a challenge to the 2009 modification approval, a decision made by the council. I also do not accept that the documents produced in relation to the 1988 consent will, or are likely to, materially assist in determining when AEI knew of the 2009 modification approval. And because paragraphs 1(a) to (c) are cumulative, the 6 May subpoenas attempt to capture all documents referring to any proposal to modify the 1988 consent over a 25 year period. On any view this is excessive.
Second, in respect of the documents sought pursuant to paragraph 2 of the 6 May subpoenas, paragraph 2(a) seeks "all documents" recording communications between AEI and its advisors from 1 November 2011 to 5 November 2012 in respect of the conversion or proposed conversion of AEI's exploration licence, and paragraph 2(b) seeks "all documents" recording communications between AEI and its advisors during the same time period in respect of the proceedings or any proposal to commence these proceedings. Again, it is hard to understand the relevance of these documents to a challenge to a decision by the council made in 2009, created, as they were, after the event.
According to the evidence of Mr Commins, Westlime is aware of the purpose of AEI in challenging the 2009 modification approval, namely, to exert commercial pressure on Westlime and its prospective tenant, ultimately in order to obtain a mining lease. Thus either Westlime is aware of the motive of AEI in commencing the litigation and no documents are required to affirm this purpose, or the evidence of Mr Commins amounts to no more than speculation on Westlime's behalf and the request for documents is, on any view, a fishing exercise or an attempt to obtain discovery by other means.
Even assuming the motive proffered by Mr Commins' unchallenged evidence is correct, I do not understand how this assists Westlime. Proceedings are regularly commenced to exert commercial pressure on competitors. Were it otherwise, a large proportion of the legal profession would cease to exist. Provided the litigation does not amount to an abuse of process, there is nothing illegitimate about such processes. While litigation commenced solely in the public interest may conceivably, all other factors in r 59.10(3) being equal, result in a more favourable exercise of the Court's discretion to extend time than litigation commenced to protect a private interest, merely because the litigation may be characterised as the latter will not preclude an extension of time being granted.
The reasoning above is also sufficient to dispose of any argument that the documents are materially relevant to the criterion in r 59.10(3)(d).
When assessed against the issues raised in the points of claim, the materiality of the documents to be produced becomes even more remote. The impugned decisions are those of the council, not any other party. It is, therefore, the council's documents that are germane to these judicial review proceedings, not those of AEI and its advisors. The council's files have been made available for inspection for this purpose.
Again, I therefore accept the submission of AEI that to seek production of the documents in paragraph 2 of the 6 May subpoenas amounts to a fishing exercise or an attempt to obtain discovery, neither of which amounts to a legitimate forensic purpose.
Finally, and for the sake of completeness, it should be noted that to the extent that AEI complained that the documents sought in paragraph 2 would capture commercially sensitive information or legally privileged communications, this is, of itself, no answer to the 6 May subpoenas. This information and these communications can be protected from disclosure by, if indeed necessary, appropriate curial orders.
Although not strictly raised by this application to set aside the 6 May subpoenas, were I required to determine whether time ought to be extended to amend the summons pursuant to r 59.10(3), I would readily do so, even having regard to the principles established in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (upon which considerable reliance was placed by Westlime, but which was factually distinguishable from the circumstances underlying this application). This is because:
(a) I do not consider the fact that AEI is a commercial competitor of Westlime and has commenced the proceedings to benefit its private interests, rather than to protect a public interest, is sufficient to preclude time being extended (r 59.10(3)(a) and (d));
(b) the amendment was foreshadowed by AEI in its points of claim and in correspondence at a time when, had the amendment been sought at that juncture, this debate would not have arisen. The circumstances surrounding the delay in seeking the amendment have been explained satisfactorily and the delay can hardly be seen as egregious (r 59.10(3)(c)); and
(c) the prejudice complained of by Westlime in Mr Commins' affidavit if the 2009 modification approval is set aside, is prejudice that will result in any event if the 1988 consent is found to have been spent prior to the granting of the 2009 modification approval as alleged in the points of claim (r 59.10(3)(b)).
Are the Documents Relevant to Any Exercise of the Court's Discretion Under s 64 of the CPA?
Alternatively, even if Pt 59 of the UCPR has no application, Westlime argued, effectively relying upon the same submissions, that the documents sought in the 6 May subpoenas will materially assist, or are likely to materially assist, the exercise of the Court's discretion to allow the amendment pursuant to s 64 of the CPA.
Again, emphasis was placed on the delay in the litigation, delay which AEI described in its oral and written submissions as "delay post the commencement of the proceedings on 5 November 2012". Again, emphasis was placed on the decision in Aon. Westlime also submitted that the documents were relevant to whether there was an arguable case being raised in the motion for leave to amend.
Section 64 of the CPA relevantly provides:
64 Amendment of documents generally
(1) At any stage of proceedings, the court may order:
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
The reasons given above in respect of Pt 59 of the UCPR are enough to dispose of any reliance by Westlime on s 64 of the CPA as a vehicle to obtain the documents sought at paragraphs 1 and 2 of the 6 May subpoenas.
In addition, three further comments must be made. First, it is difficult to conceive how the documents sought in paragraphs 1 and 2 of the 6 May subpoenas could assist in determining the reasons for the delay in commencing the proceedings post 5 November 2012. This is especially in light of the unchallenged evidence given by Mr Hones explaining the delay.
Second, s 64 is but one of a suite of case management powers that the Court has available to it under the CPA. It must, therefore, be relevantly read in the context of, in particular, the overriding purpose of the CPA contained in s 56, informed by ss 57 to 60 and ss 61 and 65 of that Act. For the Court to refuse AEI leave to amend the summons as an exercise of its discretion under s 64 of the CPA in light of the factual circumstances described above would, in my view, having regard to the principles enshrined in those provisions and decisions such as Aon, be so unreasonable that it would be apt to lead to jurisdictional error (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618).
This is so notwithstanding Westlime's contention that any challenge to the 2009 decision would not be deemed to have commenced on 5 November 2012 pursuant to the operation of s 64(3) of the CPA, because the requirements of s 65(2)(c) were not satisfied insofar as the 2009 modification approval did not arise from the same or substantially the same facts underpinning the summons. A reading of the points of claim demonstrates that this is clearly not the case and it follows that s 65(2)(c) of the CPA would apply to deem the summons to have been amended with effect from 5 November 2012. That is to say, prior to the operation of Pt 59 of the UCPR.
Third, having regard to the objective legislative underpinnings of ss 56 to 60 of the CPA, generally only in exceptional circumstances is it likely to be "just, quick and cheap" (s 56 of the CPA) to permit the parties in a contested amendment application this early on in proceedings, to engage in a multiplicity of satellite litigation compelling the production of documents purportedly relevant to the exercise of the Court's discretion to permit the amendment. While it is possible to imagine a universe where this course is necessary, or even desirable, these proceedings are not it.
Conclusion and Orders
There being, for the reasons given above, no legitimate forensic purpose demonstrated by Westlime in issuing the 6 May subpoenas, they must be set aside.
The orders of the Court are therefore that:
(1) the notice to produce filed on 6 May 2013 issued to Agricultural Equity Investments Pty Ltd by Westlime Pty Ltd is set aside;
(2) the subpoena to produce filed on 6 May 2013 issued to The Proper Officer, Hetherington Exploration & Mining Title Services Pty Ltd by Westlime Pty Ltd is set aside;
(3) the subpoena to produce filed on 6 May 2013 issued to Russell Hetherington by Westlime Pty Ltd is set aside;
(4) Westlime Pty Ltd is to pay Agricultural Equity Investments Pty Ltd's costs of the notice of motion filed on 14 May 2013 to set aside Westlime Pty Ltd's notice to produce and subpoenas filed on 6 May 2013;
(5) the costs of the notice of motion filed on 15 May 2013 are reserved; and
(6) the exhibits are to be returned.
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Decision last updated: 30 July 2013
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