Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 2)

[2014] NSWLEC 53

Land and Environment Court

New South Wales

Medium Neutral Citation:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 2) [2014] NSWLEC 53

Hearing dates:

6 May 2014

Decision date:

06 May 2014

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

Notice to produce set aside.

Catchwords:

PRACTICE AND PROCEDURE: application to set aside notice to produce - whether time given for compliance reasonable - whether a legitimate forensic purpose in seeking documents - time for production unreasonable - notice to produce set aside.

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 21.11

Cases Cited:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122

Azzi v Volvo [2006] NSWSC 283

Welker v Rinehart [2012] NSWSC 839

Category:

Interlocutory applications

Parties:

Agricultural Equity Investments Pty Ltd (Applicant)
Westlime Pty Ltd (First Respondent)
Parkes Shire Council (Second Respondent)

Representation:

Mr I J Hemmings SC with Ms A C Hemmings (Applicant)
Mr C R Ireland (First Respondent)
Ms H Irish (Second Respondent)
Hones La Hood Lawyers (Applicant)
Ashurst (First Respondent)
Pikes & Verekers Lawyers (Second Respondent)

File Number(s):

41125 of 2012

EX TEMPORE Judgment

The Applicant Seeks to Set Aside a Notice to Produce

1. This is an oral application by the applicant, Agricultural Equity Investments Pty Ltd ("AEI"), to set aside a notice to produce issued by the second respondent, Parkes Shire Council ("the council").

1. The notice to produce was filed in the Court on Tuesday, 6 May 2014 although a copy of the notice had been served on AEI on Friday, 2 May 2014. The hearing of this matter commenced on Monday, 5 May 2014.

1. The background to this application and to the litigation generally is described in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 (at [6]-[12]).

1. The notice sought the following documents:

1. Any document or thing that is referred to in paragraph [4] of the affidavit of Brain [sic] Locke sworn 28 April 2014 and served on 29 April 2014, including but not limited to any document or thing comprising or evidencing communication since 16 December 2008 between

(a) the applicant's lawyers and the second respondent's lawyers,

(b) the applicant's lawyers and Brian Locke,

(c) the applicant or its lawyers or Brian Locke or Russell Hetherington or

any of them and any other party or person concerning the 2009 Mine Modification Approval document;

2. Any document or thing that is referred to in paragraph [5] of Locke's affidavit sworn 28 April 2014 and served on 29 April 2014, including but not limited to:

(a) the public announcement by the mining company, Cortona;

(b) any document or thing comprising or evidencing communication since the date of that public announcement between the applicant or its lawyers or Brian Locke and Russell Hetherington concerning the modification application referred to in paragraph [5];

1. Paragraphas four and five of the affidavit of Mr Brian Locke sworn 28 April 2014 stated the following:

4. I was not aware of the terms of 2009 Mine Modification Approval until that document was provided to my lawyers by the Second Respondents lawyers. This occurred sometime in about December 2012 or early January 2013 the exact date I cannot recall.

5. Further, I did not become aware of the proposed reactivation of the London Victoria Mine (LVM) until I read a public announcement concerning it by the Mining Company, Cortona. It was following that publication that I instructed Russell Hetherington of Hetherington Exploration & Mining Title Services to prepare a submission in relation to that modification application which submission I understand he provided to the Second Respondent sometime in June 2012.

1. After some debate between the parties paragraph one of the notice to produce was narrowed by the council as follows:

1. Any document or thing that is referred to in paragraph [4] of the affidavit of Brain [sic] Locke sworn 28 April 2014 and served on 29 April 2014, including but not limited to any document or thing comprising or evidencing communication since 16 December 2008 between

(a) the applicant's lawyers and the second respondent's lawyers,

(b) the applicant's lawyers and Brian Locke,

(c) the applicant or its lawyers or Brian Locke or Russell Hetherington or

any of them and any other party or person concerning the 2009 Mine Modification Approval document;

1. Further, because AEI had already produced documents in relation to paragraph 2(a) of the notice to produce, the council did not press any further production of documents in respect of that paragraph.

Submissions of the Parties

1. AEI posits three bases for seeking to set aside the notice to produce:

(a)   first, that the time for compliance with the notice to produce is not reasonable. That is to say, two working days;

(b)   second, that paragraph one of the notice to produce, even as narrowed, is oppressive and effectively seeks discovery when regard is had to the broad scope of the documents sought to be produced. Since 16 December 2008, for example, AEI had engaged several firms of solicitors, including its present solicitors, to advise it on the 2009 mine modification approval, which makes location of the documents more burdensome at such short notice; and

(c)   third, the second paragraph of the notice to produce is not directed to the 2009 modification approval but the 2012 modification approval and given that the documents sought could only have a legitimate forensic purpose in respect of the issue of discretion pleaded in response to the potential setting aside of the 2009 modification approval, the council was, in effect, engaging in a fishing expedition.

1. In response the council stated the following:

(a)   first, the late issuing of the notice to produce was caused by failure of AEI to comply with orders of the Court with respect to the filing of its affidavit evidence in reply. AEI was ordered to have filed its affidavit evidence by 17 February 2014, however, it was not until 29 and 30 February 2014, that the council was served with the affidavits of Mr Brian Locke and Mr Russell Hetherington respectively, including the exhibits to those affidavits; and

(b)   second, the paragraphs of the notice to produce did no more than seek documents indirectly referred to by Mr Locke in his affidavit, and therefore, did not constitute fishing.

Applicable Legal Principles in Setting Aside the Notice to Produce

1. Rule 21.11 of the Uniform Civil Procedure Rules 2005 ("UCPR") provides as follows:

21.11 Production under notice to produce

(1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce:

(a) produce for party A's inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B's possession, and

(b) serve on party A, in respect of any document that is not produced, a notice stating:

(i) that the document is a privileged document, or

(ii) that the document is, to the best of party B's knowledge, information and belief, in the possession of a person identified in the notice, or

(iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document.

(2) For the purposes of subrule (1):

(a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and

(b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time.

1. The validity of the notice to produce therefore depends on whether reasonable time has been allowed for production. Although 14 days is taken to be a reasonable time pursuant to r 21.11(2) of the UCPR, a notice will not be invalid because it requires production earlier than 14 days, or because no abridgement of time has been obtained. For example, in Welker v Rinehart [2012] NSWSC 839 the Court considered that two days was a reasonable time within which to produce a single document (at [9]).

1. In addition to whether or not reasonable time has been permitted for production, the more orthodox principles with respect to setting aside subpoenas also apply to notices to produce (Azzi v Volvo [2006] NSWSC 283 at [4]). These were recently restated by the Court in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 (at [34]-[39]).

The Notice Must be Set Aside

1. In my opinion, it is not necessary for the Court to determine whether or not the notice to produce was oppressive, amounted to a fishing expedition, or whether the documents sought had any legitimate forensic purpose having regard to the issues raised in the proceedings. This is because I have concluded that two business days to comply with the notice to produce was manifestly unreasonable in all the circumstances.

1. Although AEI did not serve sworn copies of the affidavits, together with the exhibits, until 29 and 30 April 2014 (clearly in breach of the Court ordered timetable), the fact remains that identical unsworn copies of the affidavits were served on the council on 17 April 2014. While the exhibits to the unsworn affidavits did not accompany the affidavits, the exhibits were not required to be served and at no time prior to their receipt on 29 and 30 April 2014, did the council seek a copy of the exhibits. Furthermore, at the time the unsworn affidavits were served on the council by AEI, AEI indicated that there would be no changes between the sworn and the unsworn versions of the documents.

1. It therefore follows that the council could, and should, have sought the documents purportedly referred to in the affidavit of Mr Locke much earlier than 2 May 2014. To allow two working days to produce documents, in some instances going as far back in time as 2008, was, on any view, unreasonable.

1. For these reasons the notice to produce is set aside.

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Decision last updated: 12 May 2014