ANGAS SECURITIES LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2021] WASAT 134
•27 AUGUST 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ANGAS SECURITIES LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2021] WASAT 134
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 24 AUGUST 2021
DELIVERED : 27 AUGUST 2021
PUBLISHED : 29 SEPTEMBER 2021
FILE NO/S: DR 125 of 2019
BETWEEN: ANGAS SECURITIES LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Practice and procedure - Application to be relieved of implied undertaking not to disclose information obtained for use in other proceedings - Documents produced under compulsion - Witness statements - Contested expert evidence - Correspondence - Application to use information in proposed judicial review proceedings - Question of public interest in information being released - Consideration of whether special circumstances exist
Legislation:
Environmental Protection Act 1986 (WA), s 57(3)
Metropolitan Region Scheme, cl 27, cl 35
Planning and Development Act 2005 (WA), s 236
State Administrative Tribunal Act 2004 (WA), s 9, s 24, s 35, s 35(1)
Result:
Orders made
Category: B
Representation:
Counsel:
| Applicant | : | Mr G Mcleod and Mr C Fisher |
| Respondent | : | Mr I Repper and Ms J Langworthy |
Solicitors:
| Applicant | : | Glen Mcleod Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571
Cazaly Iron Pty Ltd v Minister for Resources & Ors [No 2] [2007] WASCA 60
Harman v Secretary of State for the Home Department [1983] 1AC 280
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315
Platinum Systems Resourcing Pty Ltd v NRW Holdings Limited [No 3] [2013] WASC 402
Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878
Riddick v Thames Board Mills Ltd [1977] QB 881
Sandy v Yindjibarndi Aboriginal Corporation [No 5] [2020] WASC 470
Skewes and City of Rockingham [2014] WASAT 14
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 24 August 2021. Oral reasons were delivered on 27 August 2021. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to correct matters of grammar and infelicity of expression).
Background
This is an application by Angas Securities Ltd (Applicant) to be relieved of its implied undertaking not to use documents arising from a Tribunal review in another proceeding.
The background to this matter is that the Applicant's land, (being part Lot 1219 Woolcoot Road, Wellard), is zoned 'Urban Deferred' in the Metropolitan Regional Scheme (MRS).
By reason of cl 27 of the MRS, the WAPC may resolve to transfer land from the Urban Deferred zone to the 'Urban' zone. Such resolution must be published in the Government Gazette: cl 27.
A 'person aggrieved' by a decision of the Western Australian Planning Commission (WAPC or Respondent) not to transfer land from the Urban Deferred zone to the Urban zone may 'appeal' to the Minister for Planning: cl 35 MRS. By reason of s 236 of the Planning and Development Act 2005 (WA), that appeal right is now a right to seek a review in the Tribunal.
In this instance, the WAPC refused the Applicant's request on 8 May 2019 for the following reasons:
1)the land is entirely located within the 1,000-metre odour buffer for Wellard Rural Exports' livestock holding facility (livestock facility) on Telephone Lane in Baldivis, making it unsuitable for odour sensitive land uses; and
2)item 5 of the criteria for the lifting of urban deferment in the draft Lifting of Urban Deferment Guidelines (draft Guidelines) has not been satisfactorily addressed.
By letter dated 4 June 2019, the WAPC explained that item 5 of the criteria for the lifting of urban deferment within the draft Guidelines requires that 'any constraints to urban development, including in relation to environmental, hazard or risk issues, can be satisfactorily addressed'.
The WAPC did not consider item 5 to have been addressed as relevant State and local government authorities did not consider the findings of the Field Odour Assessment Report, dated March 2018, submitted in support of the lifting of the urban deferment request, to constitute sufficient justification for the odour buffer to be reduced as odour impacts are still expected within the lifting area.
Procedural history
The proceeding has been in the Tribunal for some time. The matter was commenced in June 2019 and was listed for a three-day hearing in April 2020.
Two weeks before the final hearing, the Applicant sought, and was granted, an adjournment to the final hearing in order to allow it to provide further information relating to management practices at the nearby livestock facility, and to conduct additional field odour surveys. The matter was then listed for a final hearing on 24 to 26 August 2021.
On 23 December 2020, the Applicant sought, and was granted, an order under s 35(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), requiring Ausvision Rural Services Pty Ltd (Ausvision) to produce documents to the Applicant relating to the management of its livestock facility. Ausvision's livestock facility is near the Applicant's land. Ausvision complied with the Tribunal's order and provided three responses.
In July 2021, the Applicant again sought to adjourn the final hearing set down in August 2021 for two reasons. The first was that its senior counsel was unavailable on the scheduled hearing dates. The second was that it had instructions to apply for judicial review in the form of a writ of mandamus against the Chief Executive Officer (CEO) of the Department of Water and Environmental Regulation (DWER).
The application for judicial review is put on the basis that the conditions on Ausvision's livestock licence under s 57(3) of the Environmental Protection Act1986 (WA) (EP Act) (described in the licence as Labergia, Telephone Lane Baldivis, Western Australia, being Lot 732 on Plan 3893), are not being enforced by the CEO. As I understand it, the judicial review application proceeds on the basis that Ausvision's licence conditions are not being adequately monitored or policed by the CEO and that, as a consequence, the Applicant's land is being adversely impacted by odour.
The Applicant sought orders adjourning the Tribunal proceeding until the outcome of the then contemplated judicial review application was known. The Applicant also sought orders to relieve it from the implied undertaking not to use documents that arise in the context of, and for the purposes of, the Tribunal proceeding in that judicial review proceeding.
The WAPC opposed the Applicant being relieved from the undertaking. It is also understood, and it is not disputed, that Ausvision does not consent to the documents it provided to the Tribunal (under compulsion to orders made under s 35 of the SAT Act) being used or relied on by the Applicant in the judicial review proceeding.
At a directions hearing on 2 August 2021, I made orders refusing to adjourn the matter pending the outcome of the judicial review proceeding, which was then known as CIV 1763 of 2021. I did adjourn the matter on the basis that the final hearing of the Tribunal review would take place in 2021.
As a result, the matter was listed to a final hearing to commence on 13 December 2021. I held over the question of the Applicant's request to be released from its undertaking, and to be able to refer to and rely on four categories of documents, to a special appointment on 24 August 2021.
My decision and reasons on the Applicant's request are as follows.
The documents sought to be relied upon
There are four categories of documents that the Applicant wishes to rely on in CIV 1763 of 2021.
The first category comprises three documents produced by Ausvision in response to an order made by the Tribunal under s 35 of the SAT Act. The first is a document produced to the Applicant by Ausvision dated 8 February 2021. The second document is a further response dated 12 March 2021. The third and final document is a further response dated 23 March 2021.
The second category is the witness statements prepared by the Respondent for the purposes of the Tribunal proceeding.
The first document is a witness statement of Mr Christopher Tanner from the City of Kwinana dated 16 December 2019. The second is a witness statement from Mr Edward Schuller, who is a director of industry regulation at DWER, dated 17 December 2019. The third is a supplementary statement from Mr Schuller dated 8 July 2021.
The third category includes the Applicant's witness statements filed in the Tribunal proceeding.
The first document is a witness statement of Mr John Hurley, dated 9 January 2020. The second is the supplementary witness statement of Mr Hurley, dated 3 February 2020. The third is a further witness statement of Mr Hurley, dated 4 June 2021. The fourth is a statement of Mr Noel Davies, dated 10 June 2021. The final document is a statement from Mr Paul Vogel, dated 11 June 2021.
The fourth and final category includes a DWER report as well as miscellaneous correspondence.
The first document is what is referred to as an environmental inspection report prepared by DWER, dated 14 February 2020. The second is a letter from DWER to Glen McLeod Legal, dated 8 February 2021, responding to a request for information. The third is a letter from DWER to Glen McLeod Legal, dated 8 February 2021, enclosing updated complaints records. The fourth document is a letter from the City of Kwinana to Glen McLeod Legal, dated 23 February 2021, enclosing updated complaints records.
The general principles
The applicable principles are not in dispute. The general rule is that there is an implied undertaking to a court that a party will not use documents, obtained in the obedience to court orders, for a collateral purpose.
That principle emerged from the House of Lords decision in Harman v Secretary of State for the Home Department [1983] 1AC 280 (Harman). In Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 (Hearne) the High Court (Hayne, Heydon and Crennan JJ), at [96], expressed the implied undertaking as in the following terms:
Where one party to litigation is compelled, either by reason or by rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence[.]
The implied undertaking applies in the Tribunal: Skewes and City of Rockingham [2014] WASAT 14 (Skewes) at [16] to [23], and the cases cited therein.
It is for the Tribunal, not the Respondent, to release the Applicant from its implied undertaking to use documents obtained in a proceeding only for the purposes of that proceeding.
The undertaking is owed to the Tribunal not the party: Hearne at [107], citing Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878 at 764 to 765, per Hobhouse J.
The implied undertaking extends not only to documents that have been compelled under subpoena or equivalent. but also to witness statements provided pursuant to an order: see Hearne at [96].
The purpose of the undertaking is to protect the privacy of the person disclosing the document and thereby to encourage full and frank disclosure during litigation: Cazaly Iron Pty Ltd v Minister for Resources& Ors[No 2] [2007] WASCA 60 at [8], Buss JA; and British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571 at [20] (Phillips JA, Batt JA, Buchanan JA).
As is set out in the Respondent's submissions, it is clearly in the Tribunal's interests that parties and non-parties alike, provide full and frank disclosure to the Tribunal. The Respondent notes that practically this might arise in at least three ways:
a)compliance with statutory obligations for parties, particularly respondents, such as the obligation to disclose all relevant documents pursuant to s 24 of the SAT Act;
b)compliance with the Tribunal's coercive powers, such as orders under s 35 of the SAT Act, including by nonparties, respecting the fact that non-parties would not ordinarily be required to disclose private information; Hearne at [107], citing Riddick v Thames Board MillsLtd [1977] QB 881 at 896, and Harman; and
c)the encouragement of other local government and nongovernment bodies, what might be described as 'referral agencies', to assist the Tribunal in the exercise of its statutory functions by providing information, often in the form of documents through the evidence of relevant officers.
I agree with the Respondent that while the first of these aspects should not require encouragement, at least insofar as government agencies are concerned, compliance by non-parties with the second aspect in the absence of cooperation can be difficult to enforce in a manner that is consistent with the Tribunal's objectives. These objectives include acting speedily and with as little formality and technicality as possible: s 9, SAT Act.
The third aspect does not concern compliance but rather relies on the cooperation and goodwill of non-parties to inform and assist the Tribunal to perform its functions, and to meet its objectives.
The test for whether a party should be released from its implied undertaking in relation to a document is whether 'special circumstances' exist: Hearne at [107]; see also Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315 at [4] to [6]; Skewes at [24] and [25].
The test of 'special circumstances' is met if there is some special feature of the case which affords a reason for modifying or releasing the obligation. In Sandy v Yindjibarndi Aboriginal Corporation [No 5] [2020] WASC 470 (Sandy) at [12], Le Miere J noted that this special feature is usually not present.
Factors that inform the question of special circumstances
In Platinum Systems Resourcing Pty Ltd v NRW Holdings Limited [No 3] [2013] WASC 402 (Platinum Systems) at [17] to [19], Le Miere J considered six factors which supported his conclusion that special circumstances existed. The list of factors was not taken to be exhaustive, and the range of considerations was not taken to be closed.
In Skewes, the Tribunal considered those factors, and ultimately determined that the requesting party should not be released from the implied undertaking.
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield), Wilcox J listed various factors that arise in consideration of the question, including the following (at 225):
… perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
In Sandy at [17] to [34], Le Miere J undertook an extensive review of the authorities, drew conclusions as to when what might be referred to, in short, as the Harman undertaking, ceases to apply.
Firstly, the undertaking ceases to apply to documents which have been read or referred to in open court in a way that discloses their contents.
Secondly, the undertaking ceases to apply to a document filed or referred to in court the result of which the public is entitled to access the document.
Thirdly, the undertaking ceases to apply to documents which have entered the public domain by being accessible to the public.
Fourthly, while it has not been determined authoritatively in this jurisdiction, the better view is that the undertaking ceases to apply to a document once it has been received into evidence and marked as an exhibit and read out in whole, or in part, in open court.
The 'six factors'
It is trite to observe that all the relevant circumstances must be examined to determine whether there are cogent and persuasive reasons for modifying, or releasing a party from, the Harman undertaking.
In Skewes, the Tribunal evaluated the six factors identified by Le Miere J in Platinum Systems at [17] to [19]. The Tribunal considered the following factors when considering the application for release from the implied undertaking:
1)the commonality of the parties in the second proceeding - if the same parties are involved, leave is more likely to be granted: Skewes at [35];
2)the degree of commonality of the subject matters: Skewes at [36];
3)the confidentiality of the information: Skewes at [37];
4)whether the information or documents were prepared with the current proceeding in mind, and whether it was reasonable for the parties, or third party, in question to expect that the information would become widely available beyond the Tribunal proceedings: Skewes at [37];
5)whether there is a public interest in the information being used for the other action outside of the current proceeding, and whether the public interest outweighs privacy interests: Skewes at [39]; and
6)whether it has been demonstrated that the use of the information would cause any harm or prejudice to another party in the current proceedings: Skewes at [40].
Consideration
My overarching findings
I now turn to the relevant criteria for the purposes of the documents the Applicant seeks to use and rely on in judicial review proceeding CIV 1763 of 2021. My general findings are as follows.
No commonality of parties
First, I find that there is no commonality of parties between the two matters. Mr McLeod, counsel for the Applicant, submits that the relevant connection is Mr Schuller, the witness from DWER, which would in effect, be the respondent in the Supreme Court proceeding.
However, the fact that the WAPC called a witness from DWER in the Tribunal proceeding is not tantamount to the parties being common. The WAPC and DWER are very different agencies which serve very different functions under their respective statutes.
Some commonality of subject matter
Second, I find that there is a commonality of subject matter between the two proceedings, although the proceedings are directed to very different purposes. There is, I find, considerable overlap between the two proceedings in that both proceedings will focus on odour. However, that is as far as it goes.
The Tribunal proceeding centres on the question of whether the Applicant's land is, or can be made, suitable for urban development at some future point. CIV 1763 of 2021, as I understand it, relates to other land (owned by Ausvision) and whether licence conditions applying to Ausvision's livestock facility are adequately being enforced or policed by the CEO of DWER.
The question of consent
Third, I will deal with the question of consent as I address each category of document. However, in broad terms, Ausvision do not consent to the release of the documents it provided pursuant to s 35 of the SAT Act.
The WAPC and DWER do not consent, but accept no specific prejudice arises, from the Applicant being released from its implied undertaking. Furthermore, as I understand it, the City of Kwinana also does not object to its document (prepared by Mr Tanner) being released.
The Applicant consents to its documents being used and relied upon in the Supreme Court proceeding.
The context in which the documents were produced
Fourth, in terms of a basis on which the documents were produced, it may fairly be said that almost all the documents were prepared in the context of the Tribunal proceeding.
It cannot be said, however, that the author of each of the documents would have reasonably assumed that the information provided would be used more widely than the question of whether the Applicant's land was suitable to be zoned 'Urban' by the lifting of the deferment.
However, I accept that as and when the documents are received into, and marked as, evidence in the Tribunal, the information can be used as people see fit.
The public interest in the information being made available
Fifth, I accept there is a public interest in relation to at least some of the information being made available, particularly to the extent that documents provide a factual basis to the issues arising from the operation of the livestock facility. This is especially so in the context of documents that are within the control of the City of Kwinana and DWER.
I broadly accept that judicial review application CIV 1763 of 2021 does raise, at least potentially, questions of public law in terms of the administration of the EP Act. That is, there is a public interest question as to whether a statutory regime is being adequately policed.
However, I am not persuaded that the public interest outweighs the objections of Ausvision, as to the documents it provided under compulsion for the purposes of an administrative review relating to adjoining land, to be used as a basis to seek to compel the environmental regulator to take steps to enforce Ausvision's licencing conditions.
That would include, as Mr McLeod outlined in his submissions, potential prosecution as being one enforcement power that would be available against Ausvision.
The question of prejudice
Sixth, in large part there is no harm or prejudice that attaches to the WAPC, DWER or any witness to the Tribunal proceeding.
However, there is potential for significant harm or prejudice to arise against Ausvision if the Applicant is successful in CIV 1763 of 2021. This includes, as I have mentioned, the Applicant's submissions that prosecution may be one of the powers that can be relied upon by the CEO in the context of the EP Act.
Finally, the Respondent's submissions emphasise, having regard to the observations of Wilcox J in Springfield (at 225), that perhaps the most important criteria for consideration is the likely contribution of the documents to achieving justice in that second proceeding (CIV 1763 of 2021).
In an overall sense, I am satisfied that there is, at least in broad terms, a public interest in at least the factual basis that informs the Tribunal review proceeding and that those documents will contribute meaningfully to CIV 1763 of 2021.
I am far less convinced that contested expert evidence as to odour issues that arise in the context of the Applicant's land will meaningfully contribute to the debate that is to be had in the Supreme Court in CIV 1763 of 2021.
As I understand it, the question in CIV 1763 of 2021 is well removed from the reviewable decision that is before the Tribunal.
Having set out those general findings, I now turn to each category of documents identified by the parties.
Category 1- documents from Ausvision
Applicant's submissions
I have considered the Applicant's written submissions dated 5 August 2021, and its oral arguments from 24 August 2021.
The documents within this category were provided by Ausvision pursuant to the Tribunal orders made on 23 December 2020 compelling Ausvision to produce such documents.
The documents sought, and obtained, by the Applicant in this category relate to aspects of Ausvision's licence and manure management practices at its livestock facility.
The information supplied by Ausvision pursuant to s 35 of the SAT Act is known to the environmental regulator, and there is no privacy or public interest which militates against release.
The Applicant submits this is not a case where the person in question objected to the release of his or her personal details, as was the case in Skewes, for example, where the information contained in the document, that is, his or her name and address, was personal to that person, and her or she sought to maintain his or her right to privacy.
Information about the stockpiling of manure or methods used by the external contractor could be observed by any member of the public viewing the livestock facility from the boundary of Ausvision's premises.
Furthermore, documents such as the annual audit compliance report, which records breaches of the licence conditions, are publicly available. Any remaining privacy concerns can be alleviated by redaction.
If necessary, the attachments to Ausvision's responses, which contain the majority of the information, may be considered to be commercially confidential information, or to contain personal information, do not need to be produced for the purposes of CIV 1763 of 2021.
Given the significant number of complaints received from over 100 residents in the vicinity of the livestock facility, it is in the public interest to release the Ausvision documents, being documents which detail how it seeks to mitigate its odour emissions.
Any privacy interest which Ausvision has in these documents is outweighed by the public interest. The use of the information produced by Ausvision in the Tribunal proceeding would not harm or prejudice it to any other party in the proceeding.
If there is harm or prejudice to be suffered, then Ausvision has not explained or described it. Rather, it has only stated that it objects to the use of its documents. If Ausvision had any valid concern about the production of documents, it should have objected at the time the Tribunal made the s 35 order. However, Ausvision failed to do so.
Therefore, it is reasonable to conclude that from this that Ausvision did not perceive any potential prejudice to which a valid objection could be made, given that it knew the documents are likely to become public in the proceeding.
The Applicant also submits that Ausvision's objection is a 'bare' one, because it did not oppose the s 35 order. It is also the case that Ausvision has not it participated in the proceeding before the Tribunal on the question of the Applicant request to be released from its implied undertaking.
Respondent's submissions
The Respondent submits that these documents, which include explanations as well as pre-existing documents, were compelled from a stranger to this proceeding, being Ausvision, the operator of the livestock facility, using the Tribunal's coercive powers under s 35 of the SAT Act. That apparent purpose of that order was for the purposes of the Tribunal's review proceeding. Ausvision had the opportunity to apply to discharge or vary the s 35 orders before complying but elected not to do so.
However, Ausvision may have objected if it had known the documents and information would be used in CIV 1763 of 2021, the aim of which is to directly affect its licence (and therefore its operations).
Consideration and decision in relation to category 1
In relation to this category of documents, I am not inclined to grant leave.
In my view, it is relevant that the documents in question were compelled by the Tribunal pursuant an order made under s 35 of the SAT Act. Section 35 of the SAT Act enables the Tribunal to order a person, not being a party to the proceeding, to produce a document or material to the Tribunal or the party within the time specified in the order.
As I have explained, I do not accept the Applicant's global submission that there is any commonality of parties between CIV 1763 of 2021 and the Tribunal proceeding. The environmental regulator is not a party to the Tribunal proceeding, nor is Ausvision. As I understand it, the WAPC is unlikely to be a party to CIV 1763 of 2021. Nor is there absolute commonality between the subject matters of each proceeding, although I accept that odour will be a central issue in both.
It seems to me, at least provisionally, that the question for the Tribunal under the MRS is broader than merely odour considerations, although odour considerations are a primary consideration.
In relation to disclosure of confidential or personal information, while it may not be personal information per se, it is information relating to the business management practices of Ausvision. Such information was provided by Ausvision under compulsion but without objection. That is an important factor to me, which I will come to.
On the question as to whether the documents were prepared with the Tribunal proceeding in mind, I disagree that Ausvision prepared these documents with the Tribunal proceeding in mind. While it was plainly aware of the application for review before the Tribunal and the issues that may arise, Ausvision prepared the documents under compulsion.
In my view, Ausvision could not reasonably have known, at least with any certainty, what relevance or use they would have, or what purpose they would be put to, in the Tribunal proceeding which relates to land which Ausvision does not own.
It is also the case that, while it may be that the contents of such documents would have, or will, be made public at some future point, that is not yet certain. However, I accept that the current programming of the Tribunal proceeding indicates that the Tribunal matter will be heard in December 2021.
Notwithstanding that observation, it is not yet known whether any objection will be taken to the evidence as it stands in the Tribunal's review proceeding, including on the question of relevance.
Ultimately, I am not persuaded to grant leave to the Applicant to rely on these documents.
May I also say, in relation to these documents, my overarching concern is the administration of justice, and, ensuring the integrity of the s 35 process in Tribunal proceedings.
In this instance, Ausvision complied with the orders from the Tribunal compelling it to hand over detailed business practices in relation to its livestock facility. It did not object.
Compliance with s 35 orders serves an important function for the Tribunal. This is because it allows parties to access information that will assist the Tribunal it in meeting its objectives of the SAT Act. These objectives include making the correct and preferable decision and importantly, allowing parties to do so in a cost-effective manner.
For a party to use that process to obtain documents from a stranger, to then form the basis of related litigation in the Supreme Court, the purpose of which is to secure environmental enforcement against that stranger is, I consider, contrary to the public interest in maintaining the integrity of the Tribunal's processes.
It is also the case that Ausvision objects to the use of its documents by the Applicant. To my mind, it is difficult to read too much more into that. The fact that Ausvision has not appeared before the Tribunal to actively defend its position does not mean it is not opposed to the Applicant relying on its documents in CIV 1763 of 2021.
I am not satisfied the Applicant has established special circumstances in relation to this category of documents.
Category 2 documents - the Respondent's witness statements
Applicant's submissions
The documents in this category are the witness statements of Mr Tanner and Mr Schuller.
Mr Tanner
In relation to the witness statement of Mr Tanner, the Respondent does not oppose the Applicant being relieved of the implied undertaking. This is on the basis that the Respondent has conferred with the City of Kwinana which does not oppose the Applicant relying on its document. In any event, the document in question is a statement by a local government officer which attaches records of odour complaints received in relation to the livestock facility.
The subject matter of the witness statement has considerable commonality with CIV 1763 of 2021, as it directly relates to the extent of odour impacts from the livestock facility. The bulk of the statement relates to records of complaints made by members of the public. The information is not confidential.
Although Mr Tanner's witness statement was prepared for the Tribunal proceeding, it was reasonable for the City of Kwinana to expect that information about odour complaints would be made public.
There was no apparent harm or prejudice that would be suffered.
Mr Schuller
In relation to Mr Schuller, the first statement attaches records of odour complaints received in relation to the livestock facility. In the statement, Mr Schuller also describes the CEO of DWER's role in regulating prescribed premises, and how that role interacts with its role in land use planning. Mr Schuller also comments on the regulation of the livestock facility. The second statement of Mr Schuller responds to the Applicant's witness statements to the extent that those statements address practices, processes or policies of DWER.
In that second statement, Mr Schuller describes the regulatory action taken by the CEO or other officers of DWER in respect of the livestock facility. He also ascribes a risk rating to the livestock facility in respect of its odour emissions, and comments on the measures that could be taken to manage or reduce odour emissions at the facility. Although the witness statement was prepared for the Tribunal proceeding, it is reasonable for the CEO of DWER to expect that information about odour complaints would be made public.
There is no privacy or public interest issue which militates against release of these documents. CIV 1763 of 2021 ultimately concerns the question of whether a public officer has discharged a statutory duty. The contents of Mr Schuller's witness statement are directly relevant to that issue.
While the factual evidence contained in Mr Schuller's statement could be obtained by way of subpoena in CIV 1763 of 2021, it is a waste of public and private resources to require the Applicant to obtain the documents via an alternative process.
With respect to any evidence of opinion in Mr Schuller's statements, in particular his second statement, that evidence may be of assistance to the Supreme Court in CIV 1763 of 2021. It is in the public interest for the opinion of public officers to be revealed, to understand why, on the Applicant's case, condition 2.71 (of Ausvision's licence as it then was), has not been enforced.
Respondent's submissions
Having conferred with the City of Kwinana and Mr Tanner, and while acknowledging that it remains a decision for the Tribunal, the Respondent would consent to the Applicant being relieved of the implied undertaking in relation to Mr Tanner's statement.
The other documents sought under this heading are two witness statements from Mr Schuller. To the extent the witness statements annexe or explain evidence or fact from DWER's files, it could equally be obtained in CIV 1763 of 2021 through the Supreme Court's processes.
To the extent the statements express an expert opinion, it is not clear that the evidence is relevant to CIV 1763 of 2021. In any event, the Tribunal should be cautious as to the prospect of its processes being used to draw out evidence of fact or opinion from officers of non-party agencies that is then deployed against that agency. This would be contrary to the broader public purpose of the Tribunal being assisted in its statutory functions by the candid views of officers of government and non-government, otherwise known as referral agencies.
This is why 'special circumstances' are required to be demonstrated in order for a party to be released from the Harmon undertaking. It is for the Applicant to demonstrate a real public interest in it being permitted to rely on that opinion in another forum. The Respondent submits this has not been demonstrated in this case.
Notwithstanding the above, the Respondent accepts that no specific prejudice would arise in relation to the witness statements of Mr Schuller in this case.
Consideration and decision in relation to category 2 documents
I am persuaded that it is in the public interest for the Applicant to be relieved of its implied undertaking to rely on the witness statement of Mr Tanner and Mr Schuller's first witness statement.
I do not consider the Applicant has demonstrated that special circumstances exist in relation to Mr Schuller's second statement. Therefore, I refuse to relieve the Applicant of the undertaking in relation to Mr Schuller's witness statement dated 8 July 2021.
This (second) statement contains much expert opinion that is directed to the characterisation of current odour impacts arising from the Ausvision livestock facility. That statement, and others that I will come to, is premised, in part, on information that Ausvision provided under compulsion.
It is also the case, when read with the evidence of Mr Hurley, Mr Vogel and Mr Davies - that the opinions expressed by Mr Schuller are contested. It is also relevant that this evidence was produced in relation to the question that is before, and only before, the Tribunal. That question is, ultimately, whether the urban deferred status of the land under the MRS should be lifted. The second statement from Mr Schuller is not directed to whether Ausvision's licence conditions were being adequately enforced or policed.
While it might be so that the information from DWER may be able to be obtained in CIV 1763 of 2021, the expert opinions offered by Mr Schuller in his statement of 8 July 2021 is a different question altogether. Again, I am mindful that the expert opinion expressed was directed to the questions that were before the Tribunal, not whether the licence conditions on adjoining land were being adequately enforced.
I agree with the Respondent that the Tribunal should be cautious as to the prospect of its processes being used to draw out evidence of fact or opinion from officers of non-party agencies, that is then deployed against those agencies. This would be contrary to the broader public purpose of the Tribunal being assisted in its statutory functions by the candid views of officers from government and non-government referral agencies.
Regardless of what might be said about the lack of objection from the Respondent, I am not satisfied that the Applicant has established that there are special circumstances which justify it being relieved of that undertaking in relation to Mr Schuller's second statement of 8 July 2021.
In relation to Mr Schuller's earlier statement of 17 December 2019, having regard to the content of that statement, I am far less concerned.
To the extent that some opinions are expressed in that statement, those opinions do not appear to be controversial, at least in a provisional sense, based on what I can ascertain at this time. Document ES3 includes details of complaints in relation to the Ausvision livestock facility but is appropriately redacted. On balance, I am satisfied that special circumstances have been shown, and I will relieve the Applicant in relation to its undertaking in relation to this statement.
As I have indicated, I have reached the same conclusion in relation to the statement from Mr Tanner, which is largely factual in nature.
Category 3 - the Applicant's witness statements
Applicant's submissions
The documents in this category are the witness statements filed by the Applicant's expert witnesses in relation to odour and environmental regulation, being Mr Hurley, Mr Davies and Mr Vogel. The Applicant's experts have all provided written consent for the use of their witness statements in CIV 1763 of 2021.
To the extent that those statements refer to documents produced by Ausvision, the Applicant relies on its submissions in relation to the Ausvision documents. There is significant commonality in the subject matter. Among other things, the evidence of Mr Hurley reports on the results of field odour assessments carried out in 2017 and 2018, 2020 and 2021. Those assessments measure the extent of odour impacts from the livestock facility on the Applicant's land.
The witness statement of Mr Vogel comments on the adequacy or otherwise of the CEO's approach to the enforcement of the licence for the livestock facility. The witness statements of Mr Davies and Mr Hurley identify various actions that could be taken by Ausvision to improve its operations and to reduce its odour emissions.
Respondent's submissions
Mr Hurley's January and February witness statements from 2020 rely on, and refer to, Mr Schuller's first statement, as well as Mr Tanner's statement.
Mr Hurley's June 2021 statement, and the statements of Mr Davies and Mr Vogel, in addition, rely on and refer to, the Ausvision information and the environmental inspection report. Further these witness statements may not reflect the present views of the witnesses given that expert conferrals have subsequently taken place, and this is particularly applicable to Mr Hurley's statements of January and February 2020. This is because they have, to some degree, been superseded by Mr Hurley’s subsequent work on odour where he uses a different methodology.
In addition, this evidence has not yet been tested or accepted in a public forum, to which the recipient of the statements might refer, such as in a published final judgment from the Tribunal. The evidence is also contradicted in some key respects by some other witnesses, and the Tribunal, in the context of a final hearing, may need to make findings as to which expert evidence is to be preferred.
The Respondent further submits there is no barrier to Mr Hurley, Mr Vogel or Mr Davies preparing new statements in CIV 1763 of 2021 based on the fieldwork done by Mr Hurley, but not relying on documents or information obtained from any other party or nonparty in the Tribunal proceeding.
Furthermore, the Respondent notes that filing fresh evidence in the Supreme Court would also ensure that the witness statements were properly directed to the issues that arise in CIV 1763 of 2021.
Consideration and decision in relation to category 3 documents
For the following reasons, I am not satisfied that there are special circumstances to warrant me releasing the Applicant from its implied undertaking to rely on this category of documents.
All three of Mr Hurley's statements contain much opinion evidence, in part based on his own field research, the factual evidence of Mr Schuller, Mr Tanner, and in respect of his last statement, information provided under compulsion by Ausvision.
I refuse to release the Applicant in relation to this category of documents because, in large part, I am not satisfied of the likely contribution of the documents to achieving justice in CIV 1763 of 2021. This is because the opinion evidence of Mr Hurley in these statements is directed to the question that is only before the Tribunal.
As I have stated, that question is whether the Applicant's land is, or can be, suitable for urban development. As I understand it, CIV 1763 of 2021 does not relate to the same issues, nor does it even relate, in a direct sense, to the Applicant's land.
Rather, CIV 1763 of 2021 relates to Ausvision's livestock facility, and moreover whether the CEO of DWER is effectively policing Ausvision's environmental licence arrangements. It is also the case that the statements from Mr Hurley dated 4 June 2021 and the statements of Mr Davies dated 10 June 2021 and Mr Vogel, dated 11 June 2021, all engage with the documents provided by Ausvision at some level.
I also accept the Respondent's submission that this evidence engages with the opinions expressed by Mr Schuller in his second statement, and therefore represents contested evidence on a material consideration which the Tribunal is yet to engage with.
In part, because these documents are 'infected' by the documents provided by Ausvision, and in part, because the documents form part of a suite of materials which inform a contested question before the Tribunal, being the suitability of the Applicant's land for future urban development, I decline to relieve the Applicant from its undertaking in relation to these statements.
Therefore, I am not persuaded that special circumstances exist to justify relief being granted to the Applicant in relation to these statements.
In effect, as is now plain, I have released to the Applicant those witness statements which are factual in nature and which focus on the Ausvision livestock facility. I have not granted leave for documents which contain opinion evidence as to the impacts or otherwise of the Ausvision livestock facility on other land.
Category 4 - documents from DWER and the City of Kwinana relating to odour
Applicant's submissions
The DWER environmental report was a report produced by officers in relation to an inspection of the livestock facility in November 2019.
That inspection stemmed from odour complaints made by the public. The information is not publicly available but is not confidential. Any concern about privacy or personal information can be alleviated by redaction. Further, the document could be obtained under subpoena or by way of freedom of information.
Therefore, whilst the DWER environmental report is not publicly available it is also not confidential. In relation to the other documents, the Respondent does not oppose the Applicant being relieved of the implied undertaking in respect of these documents on the basis that this correspondence was provided by the sender to the Applicant's lawyers on an open basis.
Respondent's submissions
The environmental inspection report was foreshadowed and referred to in the witness statement of Mr Schuller dated 19 December 2019 and produced to the Applicant pursuant to a request arising out of that witness statement.
The Tribunal should take the same approach to the DWER environmental inspection report as it takes to Mr Schuller's first witness statement. With respect to the other three documents, the Respondent understands that these are simply open correspondence from the respective senders to the Applicant's solicitors to which the implied undertaking would not apply.
Nevertheless, for the avoidance of doubt, the Respondent would consent to the Applicant being relieved of any implied undertaking.
Consideration and decision in relation to category 4 documents
The DWER environmental inspection report was referred to in the witness statement of Mr Schuller dated 19 December 2019 but was not then available. Having already relieved the Applicant of its undertaking in relation to the first statement from Mr Schuller, it is appropriate to relieve it from its undertaking in relation to this document as it sits together with that statement.
The remaining three documents in this category were sent to the Applicant's solicitors on an open basis. I am far from certain that any implied undertaking in the nature of the Harman undertaking would attach to such documents.
However, to avoid any confusion or doubt, I will relieve the Applicant of its implied undertaking in relation to these documents.
Conclusion
For those reasons, I will make orders that relieve the Applicant from its implied undertaking in relation to Mr Tanner's statement as well as the first statement of Mr Schuller, as well as the category 4 documents. I am satisfied that there are special circumstances that justify leave being granted for the Applicant to use and rely on these documents, but not otherwise.
Before I conclude, I have considered the Applicant's submission that I should be mindful of the costs of refusing relief given that the Applicant is a party to CIV 1763 of 2021.
Whilst I am mindful of costs, having regard to the history of this matter, and the fact that it is the Applicant which has commenced further litigation, I do not consider the question of costs can, or should, displace the other considerations to which I have referred in these reasons, including the interests of Ausvision as well as broader considerations relating to the Tribunal's processes.
Orders
1.The Tribunal grants leave to the applicant to refer and rely upon the following documents and evidence filed in these proceedings DR 125 of 2019 in Supreme Court proceedings CIV 1763 of 2021 against Chief Executive Officer of the Department of Water and Environmental Regulation:
(a)the following witness statements filed on behalf of the respondent:
(i)Witness statement of Christopher Tanner (Coordinator of Health and Waste Services - City of Kwinana) dated 16 December 2019, filed by the respondent on 17 December 2019;
(ii)Witness statement of Edward Schuller (Director - Industry Regulation - DWER) dated 17 December 2019, filed by the respondent on 17 December 2019;
(b)the following documents relating to odour from the Livestock Facility:
(i)DWER Environmental Inspection Report of Livestock Facility dated 14 February 2020;
(ii)Letter from the DWER to Glen McLeod Legal responding to request for information dated 8 February 2021;
(iii)Letter from the DWER to Glen McLeod Legal enclosing updated complaints records dated 8 February 2021; and
(iv)Letter from the City of Kwinana to Glen McLeod Legal enclosing updated complaints records dated 23 February 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
29 SEPTEMBER 2021
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