Aust Waste & Anor v Compaction App Tips & Ors No. Scgrg-00-555

AUSTRALIAN WASTE PTY LTD & ANOR v COMPACTION APPLICATION TIPS PTY LTD & ORS
[2000] SASC 230

Miscellaneous Appeals

1............ OLSSON J....... This is an appeal by two companies (“the appellants”) which are respondents to four separate (but related) appeals being prosecuted in the Environment Resources and Development Court ("the ERD Court") against a decision of the Development Assessment Commission to refuse provisional development plan consent to an application for the development of a waste landfill depot which would receive less than 20,000 tonnes of waste per annum. The applications are in respect of separate parcels of land which are contiguous.

Two preliminary aspects arise for consideration.
The first is as to whether the applicants require leave to mount the present appeal.
Section 30 of the Environment, Resources and Development Act¸ 1993 (“the statute”) stipulates that an appeal to this Court lies as of right on a question of law and by leave on a question of fact. An issue arises as to whether leave is required in the instant case.
Undoubtedly a significant question of law does arise in this matter, although, potentially, questions of fact and merit also arise. As counsel were content to argue the relevant issues in full I am disposed to grant leave to appeal to the extent that leave may be necessary. An important question of procedure, likely to be of recurrent importance, is plainly involved. To the extent that leave may be required, I grant it.
Secondly, it is to be observed that, by virtue of SCR 97.17, this appeal is to be by way of rehearing. Whilst that does not imply that I am to approach this matter as a hearing de novo, it does require me to make my own independent review of the material in question. I must make up my own mind, giving due consideration to the decision appealed against, not shrinking from overruling it if I come to the conclusion that it was wrong. (See T v The Medical Board of South Australia (1992) 58 SASR 382).
I proceed on the lastmentioned basis.
It appears that it will be asserted before the ERD Court that the four proposals, which are the subject of the appeal proceedings before that Court, are, in fact, four components of what is argued to be, in essence, a single composite or integrated proposal to undertake a development in the nature of a landfill waste depot which would actually receive greater than 20,000 tonnes of waste per annum and thus constitute a non-complying type of development. If that assertion can be made good, it would be submitted that the determinations made by the Commission were made on an incorrect basis. The ERD Court has been advised that the appellants intend to seek to have determined, as a preliminary point in each of the appeals to which they are parties, the issue as to whether or not the relevant proposal (s) are for non-complying development (s), as a first step in those proceedings.
The present appeal is against an interlocutory order made by Judge of the ERD Court rejecting applications by the appellants for the discovery of documents by the other parties to the various planning appeals. In brief terms, the applications by the appellants sought discovery and inspection of limited, specified classes of documents. Distilled to the essence, the appellants’ request was for discovery of all classes of documents which related to any proposed joint or co-ordinated management or operation of the overall landfill areas between the various applicant companies or other entities; and the common or shared use by those parties of employees, contractors or management services. Disclosure of various other ancillary documentation, directly or indirectly bearing on those aspects, was also sought.
As I understand the reasoning of the learned judge of the ERD Court it was to the effect that:-

. Appeals of the nature of that before the Court are not a lis between parties, because they do not involve the determination of a dispute. Rather, they are of the nature of administrative proceedings;
. There is no legal obligation upon a party to proceedings of the nature of this type of appeal to make discovery under the ERD Court Rules; and
.Those rules empower the Court to require a party only to produce a list of documents and the documents themselves, which are relevant to the proceedings. The subject applications are only fishing expeditions and should, accordingly, be rejected.

In the course of brief reasons published by her the learned judge of the ERD Court had this to say:-
“It is for the Court to determine any argument of the kind foreshadowed [i.e. that the four proposals were in fact components of what was, in de facto terms, a single proposal], on the basis of the evidence concerning the proposed development. As to whether any document of the kind described in the applications, exists, is no more than speculation. Documents of the nature described in the applications, if they exist, might or might not be relevant to the foreshadowed potential argument. In addition, the application amounts to a fishing expedition. The general principles relating to discovery in other Courts, the principles of fairness and the discouragement by the Supreme Court of the permitting of fishing expeditions in planning appeals, all combine against the granting of the application. I refer to the judgment of the Supreme Court in Willunga v Riches (above)["Willunga"] which particularly stated that 'the Planning Tribunal should discourage the kind of fishing expedition which unearthed the alleged flaw in the planning process in the present case'. The Court, which is the successor to the Planning Appeal Tribunal, is dealing with four appeals from four administrative decisions, and it is not appropriate in this context, to grant application for discovery which is couched in very broad terms, in any matter.”
I digress to comment that, with all due respect to the learned judge, I do not consider that Willunga (1987) 135 LSJS 463, in any sense, stands as authority for a general proposition that the grant of proper processes of discovery in planning matters ought to be discouraged. The comment to which reference was made was the product of conduct of a party in a particular context, which was plainly of the nature of an unwarranted fishing expedition of a type always to be discouraged in any type of legal proceeding.
Rule 4.4.1 of the Environment, Resources and Development Court Rules 1995 (“Rule 4.4.1”), inter alia, expressly provides that the ERD Court may, at any time prior to, or in the course of, the hearing of proceedings, require any party to produce a list of such documents in possession of that party and are relevant to the proceedings, and/or produce a specified document or documents as are in the possession of that party and relevant to the proceedings in such manner as the Court determines. The planning appeals before the ERD Court are plainly “proceedings” for the purposes of the Rule.
A primary issue which arises between the present parties is as to the precise nature of the power which is conferred by this rule.
Mr Besanko, of senior counsel for the appellants, argues that it is intended to confer a general power which enables the ERD Court to direct discovery and inspection of documents, on an inter partes basis, in the traditional, common law sense.
Mr Hayes, of senior counsel for the respondents, contends that such a proposition cannot withstand careful scrutiny.
He directs attention to the fact that the statute contains no reference to the topic of discovery or inspection of documents on an inter partes basis. He says that the only provision in the statute which is relevant for present purposes is s 21. This is expressed in the following terms:-
“21   (1)     On the hearing of proceedings (other than criminal or contempt proceedings) under any relevant Act (but subject to the provisions of any such Act) -
(a).... the procedure of the Court will, subject to this act, be conducted with the minimum of formality; and
(b)the Court is not bound by the rules of evidence and may inform itself as it thinks fit; and
(c).... the Court must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.
(2)     On an appeal from a decision or order of person or body acting under a relevant Act, the person or body must, on a request made in accordance with the rules of the Court (but subject to any qualifications specified in the rules), send to the Court any application, documents, written submissions, reports, plans, specifications or other documents lodged with, or received by, the person or body in relation to the matter, and any other relevant material, requested by the Court.
(3)     The Court may -
(a).... examine anything submitted under subsection (2) and draw any conclusions of fact it considers proper;
(b)direct the person or body to furnish a report on any aspect of the subject matter of the appeal.
(4)     The Court must, to the extent or in the manner provided by the rules, ensure that the parties obtain access to any material submitted under subsection (2).”
He further points to the precise mode of expression of Rule 4.4.1. This reads as under:-
“4.4 Particulars and production of documents
4.4.1 The Court may, at any time prior to or in the course of the hearing of proceedings, require any party to:
(a).... provide further particulars of his, her or its case, in such manner as the Court may determine;
(b)produce a list of such documents as are in the possession of that party and are relevant to the proceedings;
(c).... produce a specified document or documents as are in the possession of that party and are relevant to the proceedings in such manner as the Court determines; and
(d)deliver to the Court and to any other party or parties copies of any statements or other documents which the party intends to either produce or rely upon at the hearing.”
As I understand his argument, it is to the effect that Rule 4.4.1 was never intended to constitute other than a means of giving effect to the provisions of s 21 of the statute. In other words its purpose was to facilitate the operation of that section, by providing a mechanism to enable the ERD Court itself, to enforce the rights to seek or have relevant documentation given it by the statute. It is simply not pitched at the rights of parties to proceedings generally, save that sub rule 4.4.1(d) was intended to complement s 21(4) to give practical effect to it.
In my view such a contention cannot be sustained. The force of it is undermined by the presence of Part 11 of the Rules, which spells out, in considerable detail, the obligations of parties to provide the documents envisaged by s 21 not only to the Court, but also to all other parties to proceedings.
Of course, the express focus of s 21 is upon those documents which, in effect, comprise the file or record of the person or body appealed against. It does not direct its attention to the situation of other parties to the proceedings. Rules 11.1 and 11.2 also reflect such a situation. However, Rule 11.3 goes somewhat further and imposes an additional obligation on any party who wishes to use any document on a hearing by the ERD Court to supply copies of it both to the Court and each other party, at least two clear business days prior to the hearing.
It follows that s 21 does not rely on Rule 4.4.1 for its practical efficacy.
But for that situation there might be much greater force in the submission advanced.
It is to be noted that Rule 4.4.1 is to be found in that Part of the Rules entitled “General Powers of the Court”. It cross relates with Part 13 of the Rules, which invests the Master of the ERD Court with jurisdiction, inter alia, to make “an order requiring a party to produce particulars, a list of relevant documents or specified documents pursuant to Part 4 of these Rules”.
In my opinion the provisions of Rule 4.4.1 are intended to range far beyond the mere restricted compass contended for by Mr Hayes QC. They enable an order to be made against “any party” and are expressed in the most general terms. They are certainly not pitched at the bare subject matter of s 21, which merely focuses on the file of the person or body whose decision or order is being appealed against.
Indeed, it would be somewhat macabre to conclude that a Court which is enjoined by statute to act according to equity, good conscience and the substantial merits of the case had deliberately rendered itself bereft of general powers to require parties to proceedings before it to discover and produce relevant documents which might have very real, or even vital, importance in relation to the matters to be decided.
I have no hesitation in concluding that Rule 4.4.1 constitutes, and was intended to constitute, a general power to require any party to a proceeding to make discovery of or produce documents relevant to issues to be decided.
I therefore reject the threshold argument advanced by Mr Hayes QC.
Whilst it is quite clear that, unlike the situation in typical common law courts, there is no automatic obligation of a party to proceedings before the ERD Court to give discovery of documents, nevertheless, Rule 4.4.1 specifically contemplates that, in appropriate circumstances, discovery and inspection ought to be directed. Even given that there is a clear statutory intendment that proceedings in the ERD Court shall be as informal and uncomplicated as possible, there is simply no reason to conclude that a party reasonably seeking discovery should be denied that facility on what are no more than asserted general policy grounds.
In any case in which an application is made pursuant to rule 4.4.1, the ERD Court is required to exercise a judicial discretion as to whether the relief sought is appropriate to the particular circumstances.
It is trite to say that the principles related to discovery of documents have been evolved over many years, as a means of ensuring that proceedings before the courts can properly be decided upon the merits. Discovery has never been at large, so as to be permitted to become an instrument of oppression or obstruction in the timely and efficient disposal of the business of a Court. So it is that, in the instant case, the only discovery which may properly be permitted is in relation to documents which can fairly be said to be relevant to the proceedings presently before the Court. Moreover, any request for discovery must, on the face of it, be reasonable in the circumstances, having regard to the nature of the issues to be addressed and the manner in which the Court ought to go about its functions under its statute. A mere speculative, so-called “fishing expedition” ought not to be permitted. Such a situation exists where the process of discovery is sought to be employed to ascertain whether a particular case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists (Trade Practices Commission v CC (NSW) Pty Ltd (1995) 58 FCR 426).
It is impossible to develop precise rules as to when discovery should, or should not, be permitted in proceedings in the ERD Court, because of the widely varying circumstances which can arise. However, it can at least be said that the touchstone must always be a consideration of what is fair and reasonable in the particular case.
In the instant case it seems to me that important considerations are:-

.The present appellants are at a considerable disadvantage vis-a-vis the other parties, because the precise nature and extent of the dealings between the latter are matters peculiarly in the knowledge of those parties;
.An identification of those dealings and the practical effect of them may be potentially fundamental to the proper determination of both a primary issue likely to arise in the proceedings and also the general planning merits of the development proposal;
.The facts and circumstances presently before the Court, on the face of them, beg serious questions as to what is the true nature of the undertaking or undertakings proposed to be carried out; and as to whether they are, or are not, a non‑complying type of development; and
.It will not be possible, absent a consideration of the types of documents of which discovery is sought, to determine those questions or decide the appeals generally on their true merits.

That being so, I entertain no doubt that a proper exercise of judicial discretion in the instant case demanded that, subject to a careful scrutiny and definition of the extent of the discovery sought, the applications made ought to have been granted.
I would reject the suggestion that what was proposed was no more than an impermissible or undesirable fishing expedition. The appellants have been able to demonstrate common links between the relevant entities at the executive level. The affidavit sworn by Grant Feary on 8 May 2000 (which was before the learned Judge) and the exhibits to it provide a substantial basis for an inference that the several entities have been acting in co-operation with one another and may have some common degree of ownership. Prima facie the situation begs questions as to whether what is proposed is a device to avoid the specification in the relevant Development Plan as a “Landfill proposing to receive 20,000 tonnes or greater volume of waste per annum” when, in fact, the true “landfill” may be the totality of the four parcels of land in question.
In so saying I by no means ignore the point developed by Mr Hayes QC, based on the reasoning in Santin & Ors v The Corporation of the City of Woodville [1971] 1 SASR 336 (“Santin”). No doubt each separate planning application must, separately, be reviewed on its own merits; and the fact that a series of applications may deliberately be structured so as to avoid what might otherwise be the consequences of the application of a Development Plan does not necessarily negate their asserted planning categorisation.
Whilst Santin stands as strong authority against the type of “mala fides” argument which Mr Besanko QC, in effect, obviously seeks to re-ventilate in this case, the fact is that it is a decision of a single judge only. Mr Besanko QC is entitled, if he so desires, to seek to lay a foundation for a challenge to or distinguishing of it by a higher Court. Dependent on the outcome, that alone, could have a decisive impact on the proceedings before the ERD Court.
Moreover, Mr Besanko QC further seeks to distinguish the present case, on the facts, from the Santin principle. He will argue that the facts in this case beg the question as to what is the relevant “landfill” within the meaning of the Development Plan. That line of endeavour may be fraught with some difficulty, but it is not fanciful.
At any event, there is no doubt that, even if the ERD Court either does not hear a preliminary issue or decides it adversely to the appellants, the matters sought to be explored by them are, patently, very relevant to the planning merits of the proposals under appeal. True it is that this was not the primary basis of the debate before the learned judge of the ERD Court, but it was certainly relied upon before me and cannot, realistically, be ignored.
In my respectful opinion, the learned judge of the ERD Court erred in her conceptual approach to the applications. This was, in no sense, an inappropriate “fishing expedition”. There was a substantial basis, in the affidavit material before her, to indicate that there were likely to be significant relevant documents in the possession of the applicant parties, which bore on major issues arising in the proceedings. Moreover, the information sought was peculiarly in the knowledge of those parties. Justice could not possibly have been done, at least on the planning merits, if the appellants did not have proper access to the material sought.

In those circumstances the appeal must be allowed. The orders of the learned judge of the ERD Court will be set aside. In lieu, there will be orders in the terms set out in paragraph 1 of the notice of appeal in this matter. Consideration of so much of the application as relates to the actual production and inspection of documents discovered will be remitted for further consideration by the ERD Court, following the making of discovery. What is appropriate in that regard will depend upon what documents are elicited by the primary discovery process and what measures may be required to protect commercial “in confidence” type materials.

[2000] SASC 230

7 July 2000