Bardley-Smith v Penrith City Council - [2009] NSWLEC 1338

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Bardley-Smith & Ors v Penrith City Council & Anor [2009] NSWLEC 1338

PARTIES:
FIRST APPLICANT
Janis Margaret Bardley-Smith
SECOND APPLICANT
Anthony Munro Ferguson
THIRD APPLICANT
Ian Patrick Stubbs
FIRST RESPONDENT
Penrith City Council
SECOND RESPONDENT
Administration and Marketing Solutions Pty Ltd

FILE NUMBER(S): 40565 of 2009

CORAM: Acting Registrar Gray

KEY ISSUES: PRACTICE AND PROCEDURE :- Privilege claimed over subpoenaed material; Amendments to pleadings - whether leave should be granted to amend the pleadings where the relevant party is not joined; Order for discovery - whether order should be made.

LEGISLATION CITED: Evidence Act 1995 s 117, s 118, s 119, s 122
Land and Environment Court Act 1979
Uniform Civil Procedure Rules 2005

CASES CITED: Meteyard & Ors v Love & Ors as receivers and managers of Southland Coal Pty Ltd (2005) 65 NSWLR 36, [2005] NSWCA 444
Westfield Management Pty Limited & Anor v Gazcorp Pty Limited & (2) Ors [2004] NSWLEC 7
Westpac Banking Corporation v 789TEN Pty Ltd (2005) 55 ACSR 519, [2005] NSWCA 321

DATES OF HEARING: 8 October 2009

DATE OF JUDGMENT:
12 October 2009

LEGAL REPRESENTATIVES:
APPLICANTS
Mr C R Ireland
SOLICITORS
McPhee Kelshaw
FIRST RESPONDENT
Mr G Hartley, Solicitor
Gadens Lawyers
SECOND RESPONDENT
Mr J Kildea
SOLICITORS
Rotstein Lockwood Reddy Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

ACTING REGISTRAR GRAY

12 OCTOBER 2009

09/40565 Bardsley-Smith & Anor v Penrith City Council & Anor

JUDGMENT

1 ACTING REGISTRAR GRAY: There are before me two separate applications made by the applicants in these proceedings. The first application is for access to be granted to material produced in response to subpoenas issued to the second respondent (AMS) and to City Plan Services (CPS), over which there is a claim for privilege. The second application is made by way of notice of motion filed on 1 October 2009. The notice of motion seeks orders that firstly leave be granted to the applicant to file an Amended Summons and Amended Points of Claim and that secondly orders be made for discovery by the second respondent. The notice of motion also seeks an extension of the timetable in relation to the conduct of the proceedings.

2 The substantive proceedings concern a development application granted by the first respondent to the second respondent in relation to the tenancy fit out and use of premises at Supa Centa Penrith, at Pattys Place in Jamisontown for the purposes of a chemist warehouse and distribution centre. Development consent was granted by Penrith City Council (“the Council”) on 20 February 2009. On 31 March 2009, a submission was provided to the Council by Pikes Lawyers on behalf of My Chemist Pty Ltd in relation to condition 4 of the consent. On 7 April 2009, a modification application was made to the Council with respect to the same condition. The first respondent, the Council, modified condition 4 and provided notice of its determination in that respect on 28 April 2009. Subsequently, the applicants commenced the present proceedings by the filing of a Summons on 18 August 2009 seeking, inter alia, declarations that the consent is void, invalid and of no force or effect. The Summons also seeks consequential injunctive relief restraining the second respondent from acting on the consent. The points of claim, filed by the applicants in the proceedings, allege that the use for which consent was granted is for a shop, which is prohibited under the relevant planning instrument.

Privilege

3 The issue for my determination in relation to the first application is whether there is a proper basis upon which the second respondent, AMS, claims client legal privilege over the material. Specifically, there are a total of ten documents over which privilege is claimed. Of those ten documents, seven were documents produced by CPS and the other three produced by AMS. The latter documents were also amongst the seven documents produced by CPS. In other words, there are seven distinct documents over which privilege is claimed. Access is not opposed to any other material that was produced pursuant to the subpoenas.

4 Pursuant to Part 1 Rule 9 of the Uniform Civil Procedure Rules 2005, a person may object to the production of a document on the ground that the document is privileged. The inherent jurisdiction with respect to subpoenas means that this same principle extends to an objection to the inspection of documents produced. The definition of “privileged documents”, contained in Schedule 99 of the Uniform Civil Procedure Rules 2005, refers to documents containing privileged information “of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person.” The sections of the Evidence Act relevant to this application are sections 117, 118, 119 and 122. Section 118 provides:

5 The word ‘client’ is defined in s 117, and includes, relevantly

6 Section 122 provides for an exception to the circumstances in which sections 117 and 118 apply. This is generally referred to as a waiver of privilege. Relevantly, s 122 provides:

…”

7 All of the documents over which privilege is claimed are e-mail communications made between the date on which the development application was granted and the date on which the s 96 modification application was made to the Council. Pursuant to s 133 of the Evidence Act, where a question arises in relation to privilege the Court is entitled to inspect the documents the subject of the claim for privilege in order to determine that question. I have therefore inspected the documents, which can be described easily in chronological order. They were precipitated by an email from the second respondent to CPS dated 2 March 2009. That email was produced by CPS in the bundle of material to which there was no objection for access. That e-mail expressed the second respondent’s desire to have condition 4 of the development consent removed, and sought advice in relation to their options for doing so. The e-mail also asked whether the involvement of a planning lawyer would be appropriate and whether there was any likelihood of success in pursuing the removal of the condition through the Council or through the Court.

8 The first document over which privilege is claimed, document 1 of Schedule 2, is the e-mail from CPS to the second respondent dated 3 March 2009 in response to the e-mail referred to above. This e-mail contains various discussion in relation to what steps can be taken in order to delete or modify the condition. Document 2 of Schedule 2, dated 5 March 2009, is a response from the second respondent indicating how they wished to proceed. Document 3 is an e-mail from CPS to the second respondent dated 24 March 2009 attaching some documents and containing discussion in relation to making an application to the Council. Document 4 is an e-mail in reply dated 26 March 2009, similarly containing discussion in relation to the proposed application to the Council. Document 5, which is also Document 1 of Schedule 1, is an e-mail dated 30 March 2009 from Pikes Lawyers, the solicitors for My Chemist Group, to CPS. This document was inadvertently provided to the Court in a packet to which access was not opposed. That document was tendered in the interlocutory proceedings as Exhibit B. The e-mail contains an attachment and comments on changes that have been made to the attached document.

9 Document 6, which is also Document 2 of Schedule 1, is an e-mail from CPS forwarding the e-mail from Pikes Lawyers to Tass Hatzis of the second respondent and providing some comments on the same. Document 7, which is Document 3 of Schedule 1, is a reply to that e-mail and provides comments on their position in relation to the e-mail from Pikes Lawyers.

Submissions - Privilege

10 The second respondent submits that the e-mails of 3 and 5 March 2009, Documents 1 and 2 of Schedule 2, are privileged pursuant to s 119 of the Evidence Act. Specifically, it is asserted that those documents are confidential communications between AMS and its agents for the dominant purpose of AMS being provided with legal services relating to anticipated proceedings.

11 In relation to Documents 3 and 4 of Schedule 2, e-mails between AMS and CPS, it is submitted on behalf of the second respondent that these documents are privileged on the basis that they are communications that disclose legal advice provided to AMS.

12 The second respondent submits that the e-mail from Pikes Lawyers to CPS (Schedule 2 Document 5), together with the attachment to the email, is a confidential communication between the agent of the second respondent and a lawyer for the dominant purpose of the lawyer providing legal advice to the second respondent. The second respondent submits that the subsequent two e-mails disclose the content of that communication and are therefore similarly privileged pursuant to s 118.

13 It is also submitted on behalf of the second respondent that in determining whether CPS could be described as an agent of the second respondent, the Court ought to have regard to the nature of the planning and development process. Specifically, the second respondent submits that usually in planning matters a project manager would be employed and would then work together with other consultants in order to make decisions in relation to the development, including obtaining development consent from the relevant authority. The affidavit of Mr Rotstein deposes that the second respondent was retained by My Chemist Pty Ltd in order to provide administrative services, including dealing with statutory applications. That affidavit also sets out that the second respondent retained CPS and Restifa & Partners Pty Ltd to assist with obtaining development consent. It is submitted that the process involves the work of a number of consultants in a team in order to move a development forward, including obtaining development consent. The second respondent therefore submits that CPS is an agent of the second respondent, and that any communication within the team cannot be considered a third party communication that would otherwise effect a waiver of privilege.

14 In relation to Documents 1 and 2 of Schedule 2, the applicants submit that based on the date of the documents there is no evidence that any proceedings were ‘actually contemplated’. As a result, the applicants say that there is no basis upon which the second respondent is entitled to claim privilege.

15 It is submitted, on behalf of the applicants, that Documents 3 and 4 cannot be privileged for two reasons. Firstly, the documents can only come within s 118 if they disclose other legal advice. Secondly, even if legal advice is disclosed by the communications, the applicants submit that it is apparent that they effect a s 122(2) waiver as they are third party communications to and from CPS.

16 The applicants submit that Document 5 of Schedule 2, the e-mail from Pikes Lawyers to CPS, cannot properly be described as privileged on three broad grounds. Firstly, the applicants submit that the email communication is a third party communication between Pikes Lawyers and CPS and therefore does not fall within s 118. The evidence demonstrates that CPS and Pikes Lawyers were each retained by My Chemist Pty Ltd, and the applicants submit therefore that CPS cannot be characterised as an agent of the client pursuant to s 118.

17 The applicants submit that in order for a person to be properly characterised as an agent pursuant to s 117, that person must be appointed to act on behalf of the second respondent in respect of obtaining legal advice or carrying out investigations required to allow the second respondent to obtain legal advice. In support of this submission, the applicants have referred me to the judgments of the Court of Appeal in Westpac Banking Corporation v 789TEN Pty Ltd [2005] NSWCA 321 and Meteyard & Ors v Love & Ors as receivers and managers of Southland Coal Pty Ltd [2005] NSWCA 444. In Westpac Banking Corporation v 789TEN Pty Ltd, the Court of Appeal overruled an objection to privilege over a letter from the plaintiff’s solicitors to the plaintiff’s auditors. This ruling was made on the basis that the letter was not prepared for the dominant purpose of providing legal advice to the plaintiff. The Court ruled that the letter was prepared for the purpose of providing advice to the auditors, who could not be described as agents for the plaintiff in the circumstances of the nature of their appointment as auditors. In Meteyard v Love, Basten JA discusses the principles relevant to the definition of the word ‘agent’ in relation to client legal privilege. Relevantly, Basten JA states at 65:

“It is clear that agency was recognised as falling within the protection of the privilege only where the communications were through an agent employed for that purpose.”

18 The second ground on which the applicants rely in relation to their submission that the email from Pikes Lawyers is not protected by privilege is that the preparation of the e-mail and its attachment was not for the dominant purpose of providing legal advice. The applicants submit that the document was prepared solely for the settling of the submission ultimately provided by Pikes Lawyers to the Council. In this respect, the applicants refer to Exhibit B, which contains the e-mail itself, and demonstrates that there were some changes made to the submission. The applicants therefore submit that the sole purpose of the e-mail is for planning submissions to be made to the Council.

19 Thirdly, the applicants submit that even if the advice contained in the e-mail and its attachment was privileged material, waiver of the privilege has been given firstly by the provision of the e-mail to CPS and secondly by the provision of the final submission to the Council on 31 March 2009. In this regard, the applicants say that the submission of the final version of the attachment to the email to the Council is inconsistent with the maintenance of a claim for privilege over the attachment.

20 Documents 6 and 7 of Schedule 2 are the e-mail from CPS to the second respondent at 10:26am on 31 March 2009 and the e-mail from the second respondent to CPS at 11:56am on the same day respectively. The applicants firstly submit that these emails are not protected by client legal privilege on the basis that they are not communications between a lawyer and a client. Secondly, it is submitted that the emails are communications for the purpose of finalising the submission to the Council and can therefore not be properly characterised as having a dominant purpose for the provision of legal advice. Further, the applicants submit that these e-mails do not disclose privileged communications. This submission is made firstly on the basis that, as submitted, the e-mail from Pikes Lawyers to CPS is not privileged. Secondly, the applicant says that the e-mails are voluntary third party communications and therefore any disclosure of legal advice therein constitutes an act inconsistent with the maintenance of a claim for privilege pursuant to s 122(2).

Findings - Privilege

21 It is important to understand that s 118 does not apply exclusively to documents that are confidential communications made for the dominant purpose of the provision of legal advice. Similarly, s 119 does not apply exclusively to documents that are confidential communications made for the dominant purpose of the client being provided with professional legal services relating to an Australian proceeding. Rather, each of sections 118-119 apply to documents that, if admitted, would “result in disclosure of” confidential communications made for that dominant purpose. Therefore, it is my view that if there is a communication that can be properly described as “a confidential communication made between the client and the lawyer… for the dominant purpose of… legal advice” pursuant to s 118, then any document containing the contents of that communication would be subject to privilege. Similar reasoning applies to s 119.

22 Of course, the communication that would be disclosed pursuant to s 118 must be one that is “between the client and the lawyer”. As outlined earlier, a communication with a client includes a communication with an employee or agent of a client. Section 119 is broader, but nonetheless requires that the communication that would be disclosed is one between “the client” and another person.

23 Dealing first with s 118, I am satisfied that Document 5 of Schedule 2, the e-mail from Pikes Lawyers to David Ryan of CPS on 30 March 2009, is a confidential communication for the purpose of providing legal advice. That legal advice is clearly articulated by reading the attachment together with the e-mail of Joshua Palmer itself. I cannot accept the applicants’ submission that, by virtue of the communication being given for the purpose of finalising a submission to the Council, the dominant purpose is not for the provision of legal advice. Such an approach is misleading. Pikes Lawyers are planning lawyers who were retained and provided advice in relation to what should be contained within a submission to the Council. Whilst the purpose of the correspondence was to finalise the submission, the dominant purpose of conversing with Pikes Lawyers in relation to the submission was to receive their legal advice in relation to what should be contained therein.

24 However, whether the dominant purpose of the e-mail is to provide “legal advice to the client” is a separate and more difficult question. In order to be so satisfied, I must be able to firstly identify the person “who engages a lawyer to provide legal services” pursuant to the definition of client in s 117(1)(a). I must then be satisfied that:

25 Strictly speaking, Pikes Lawyers were retained by My Chemist Pty Ltd. This is evident from the submission provided to the Council by Pikes Lawyers on behalf of My Chemist Pty Ltd. Similarly, the evidence is that My Chemist Pty Ltd has an agreement with AMS for the provision of administrative services. AMS then retained CPS and Restifa & Partners Pty Ltd to assist it in obtaining development consent. However, the evidence also shows that the consultancy services provided by CPS were by agreement directly with My Chemist Pty Ltd. There is no such evidence in relation to Restifa & Partners. It therefore follows that each of Pikes Lawyers, AMS and CPS are agents of My Chemist Pty Ltd. In practice, however, the agency of CPS was exercised by receiving instructions from AMS.

26 Further, I cannot accept that the case law limits the scope of the agency in the manner submitted by the applicants. Whilst the fee proposal did not contain a specific agreement for CPS to obtain legal advice on behalf of AMS, such an agreement came about through the role of CPS. CPS was engaged for the assistance in relation to obtaining development consent. The application for development consent may, at some point, necessitate the engaging of a lawyer for legal advice. Further, the discussion between CPS and AMS subsequent to the granting of the development approval, articulated in Documents 1 and 2 of Schedule 2, clearly establish that AMS specifically requested CPS to obtain advice from a planning lawyer with respect to modifying or deleting condition 4. I am therefore satisfied that CPS is an agent of the person who engaged the solicitor, and that by the nature of the arrangement the second respondent is entitled to claim privilege over communications between CPS and the lawyer.

27 As a result, I cannot accept that a disclosure to CPS is a third party communication inconsistent with maintaining a claim for privilege pursuant to s 122(2). In my view, the nature of the arrangements between My Chemist Pty Ltd and their various agents, precludes CPS from being described as “another person” within the meaning of s 122(3)(a). Further, the final submission to the Council does not disclose the legal advice contained within Document 5 and therefore cannot be said to be a waiver of the confidential communication from Pikes Lawyers to CPS. Therefore, I find that the privilege claim over Document 5 is well founded.

28 Document 7 of Schedule 2, the e-mail from AMS to CPS dated 31 March 2009, discloses the content of the legal advice contained in the e-mail from Pikes Lawyers. Accordingly, pursuant to s 118, I find that in relation to that document the privilege claim is made out.

29 However, there is no such disclosure of legal advice contained in the e-mail from CPS to AMS dated 31 March 2009, other than by way of the forwarding of the e-mail from Pikes Lawyers. I am not satisfied that the e-mail itself, Document 6 of Schedule 2, is subject to privilege.

30 Document 3 of Schedule 2, the e-mail from CPS to AMS dated 24 March 2009, discloses the legal advice referred to above, notwithstanding that it precedes the e-mail of Pikes Lawyers dated 30 March 2009. One can then assume that there has been a prior confidential communication for the dominant purpose of the provision of legal advice to AMS, about which there is some discussion and following which there is the e-mail communication of 5 March 2009. Given that there has been no disclosure of the nature of this advice to the Council or to another party, I similarly find that there has been no waiver and the claim for privilege is well founded.

31 Document 4 of Schedule 2, the e-mail from AMS to CPS, contains instructions given by the second respondent in relation to the submission to be given to the Council following the legal advice. However, the e-mail does not disclose the advice given by Pikes Lawyers. It therefore does not disclose any communication given for dominant purpose of legal advice. As a result, I cannot accept that this document is privileged.

32 Dealing then with Document 1 of Schedule 2, I am satisfied that pursuant to s 119 this is a confidential communication between AMS and CPS prepared for the dominant purpose of the client, AMS, being provided with legal services in relation to anticipated proceedings. The discussion within that e-mail communication includes a number of comments in relation to proceedings being commenced in this Court, and in relation to obtaining legal advice in that respect. I am therefore satisfied that this e-mail is subject to privilege.

33 The response by AMS to this e-mail is contained in the e-mail dated 5 March 2009 and is Document 2 of Schedule 2. I am also satisfied that this e-mail is a confidential communication between the second respondent and CPS in relation to AMS being provided with legal services. However, the substance of the communication is for the dominant purpose of legal services provided for a submission to be made to the Council, rather than for anticipated court proceedings. Accordingly, Document 2 does not fall within s 119 and therefore I cannot accept that the claim for privilege is well founded.

34 In my view, access should be granted to the documents for which I have not upheld the claim for privilege. However, access to the documents in their current form would then allow the applicants to view the material in relation to which I have upheld the claim for privilege. Accordingly, the following orders are appropriate:

Proposed amendment and discovery

35 The applicants also seek leave to file and serve an Amended Summons and Amended Points of Claim. The amendments to the Summons propose additional declaratory and injunctive relief. That relief concerns the alleged use of the premises by the second respondent as a “shop”. The proposed amendments to the Points of Claim set out the facts relied upon to establish that the premises has been used as a shop by the second respondent.

36 By the same notice of motion, the applicants seek discovery of a number of categories of documents. Specifically, the category (a) concerns internal feasibility studies in relation to the business “which estimate the predicted sales volumes by source”. Category (b) seeks documents estimating the project sales and income. Categories (c) and (d) seek records of sales made in similar businesses in NSW. Category (e) seeks correspondence between the second respondent and the managing agent or manager of the SupaCenta concerning the business.

37 The affidavit of Mr Rotstein affirmed 7 October 2009, read by the second respondent at the hearing of the notice of motion, sets out that AMS does not own or operate the businesses that trade as the “Chemist Warehouse”, including the business the subject of these proceedings. Further, that affidavit indicates that AMS does not have any documents falling within categories (a) and (b) of the proposed orders for discovery. The affidavit was served on the applicants at 3pm on the day prior to the hearing of the notice of motion.

38 The Council does not oppose leave being granted for the filing of the Amended Summons and Points of Claim, and neither opposes nor consents to the orders being made for discovery.

Submissions

39 The applicants submit that leave ought to be granted for the amendments to be made in order to ensure that the issue in relation to the use of the premises is before the Court. The applicants also submit that discovery is necessary in order to ensure that all the material relevant to the issue of use is available to the Court for its determination of the proper characterisation of the use of the premises. The applicants rely on the affidavit of Ms Woodward-Brown sworn 1 October 2009, which sets out that the applicants’ expert requires the projected sales figures in order to prepare his evidence in chief.

40 The applicants submit that the order for discovery is an appropriate means by which the second respondent can identify relevant documents that are within their possession and control, and can disclose the location of relevant documents that were in their possession. The applicants submit that the documents sought are relevant to the issue of the characterisation of the use of the premises, and that the documents would assist the applicants in preparing their evidence in chief. It is submitted that the characterisation of the actual use of the premises is relevant to the issue of the validity of the consent granted. The applicants also submit that the reference to other outlets in the Statement of Environmental Effects is relevant to an analysis of whether the use of the subject premises as a retail facility can be properly characterised as an ancillary use. Further, the applicants seek an additional order requiring the second respondent to obtain the documents from third parties in order to comply with the order for discovery. It is submitted that in the circumstances such an order is appropriate. The Court has power to make the order pursuant to s 23 of the Land and Environment Court Act 1979.

41 In relation to the proposed amendments to the pleadings, the second respondent submits firstly that the assertion that the premises are presently used as a “shop” is not relevant to the validity of the consent. In that respect the second respondent refers me to the decision of Lloyd J in Westfield Management Pty Limited & Anor v Gazcorp Pty Limited & (2) Ors [2004] NSWLEC 7, where at paragraph 4 his honour states that:

“The parties have tendered four lever arch files of documentary material. The lawfulness of the consent and of the present use may be resolved, however, by reference to only two documents, the relevant environmental planning instrument and the development consent.”

42 Secondly, the second respondent submits that it is inappropriate and futile for injunctive relief to be sought against a party who does not operate or control the premises. The second respondent says that it is the applicants’ role to find out who is operating the premises and join that person as a party to the proceedings.

43 In relation to the order sought for discovery, the second respondent submits firstly that the documents sought cannot be relevant to the validity of the development consent. Again, the second respondent says that the validity of the consent can be determined only by reference to what was before the Council at the time of the granting of the consent. Secondly, the second respondent has drawn my attention to paragraph 15 of the Practice Note – Class 4 Proceedings. That paragraph states that for judicial review proceedings, orders “for formal discovery and interrogatories will only be made in exceptional cases”. The second respondent submits that there are no exceptional circumstances in these proceedings. Thirdly, the second respondent submits that the application for an order for discovery is premature. It is submitted that discovery should be ordered only where the issues are defined on the pleadings, and to do so prior to that time is to allow a fishing expedition. In relation to the additional order sought by the applicants, the second respondent submits that there is no evidence that AMS can obtain the documents from the third parties specified therein. Finally, the second respondent submits that it is not appropriate for the Court to make an order for discovery where there is evidence that AMS is not the appropriate party to provide such documents and where none of the material is relevant to the applicants’ claim against the second respondent.

44 In their submissions in response, the applicants say that notwithstanding that the proper party is not joined to the proceedings, the Court ought to grant leave to amend the pleadings in order to facilitate the just, quick and cheap conduct of the proceedings. The applicants also submit that paragraph 15 of the Practice Note relates only to judicial review proceedings and not to proceedings in which actual use is being challenged. The applicants also submitted that it is not efficient to await the closing of the pleadings to make an order for discovery.

Findings - Proposed amendments

45 The court has a general discretion to grant leave to a party to make amendments to documents. Leave may be granted for an amendment to be made to pleadings in circumstances where such an amendment will allow all the issues in dispute to be brought before the court and in order to avoid multiplicity of proceedings. However, proposed amendments should not be granted at the expense of the efficient conduct of the proceedings. Further, leave ought not to be granted for amendments to pleadings where the proposed amendments are futile or inadequately particularised.

46 The proposed amendments to the pleadings create a fresh claim in the nature of civil enforcement proceedings preventing the operation of the premises. The amendments are sought early in the proceedings and will achieve the aim of avoiding a multiplicity of proceedings. However, the evidence demonstrates that the second respondent does not own or operate the premises the subject of the proceedings. An amendment to the pleadings that will seek injunctive and declaratory relief against the second defendant in relation to that use would therefore be futile. I cannot accept the submission of the applicants that I ought to grant leave for the filing of the amended pleadings absent from the relevant party being joined to the proceedings. Leave ought only be granted to amended pleadings in circumstances where the proposed amendment clearly particularises the relief sought, and where the proper party against whom the relief is sought is a party to the proceedings.

Findings – Proposed order for discovery

47 Given that I am not prepared to grant leave to amend the Summons and the Points of Claim, I cannot accept that it is appropriate for me to order discovery in accordance with prayer 2 of the notice of motion. Part 21 Rule 2 of the Uniform Civil Procedure Rules 2005 provides that the court may only make an order for discovery where the documents would be “relevant to a fact in issue”. The facts in issue in a particular proceeding are determined by the facts in dispute in the pleadings.

48 The second respondent submits that to obtain discovery early in the proceedings is an exercise in ‘fishing’. Generally such a submission is true. Where the pleadings are not closed, there is no way of identifying the facts in issue. However, in many proceedings it will not be necessary for the pleadings to be closed in order to ascertain the facts in issue.

49 The present proceedings challenge the consent granted by the Council. The facts in issue concern the validity or otherwise of the consent, based on the characterisation of the use of the premises. In proceedings challenging the validity of the consent, I accept the submission of the second respondent that the characterisation must be based on what was before the Council at the time of the granting of the consent. In that respect, I cannot accept the submission of the applicants that these proceedings fall outside the usual judicial review proceedings because they involve a challenge to the development consent based on the actual use of the premises. Evidence of the actual use of the premises subsequent to the granting of consent cannot be relevant to a judicial review of the consent itself.

50 The categories for discovery are therefore not relevant to the facts in issue as they currently stand. Categories (a) and (b) relate to feasibility studies, business projections and estimates of projected sales and income. Such documents cannot be relevant to the validity of the consent unless the documents were considered by the Council in order to characterise the use for which development consent was sought. There is no such evidence of the same. I therefore cannot accept that it is appropriate for these documents to be obtained in order to characterise the use of the premises for which consent was granted.

51 Categories (c) and (d) relates to sales made by similar businesses. Again, these categories are not relevant to the question of the validity of the consent granted by the Council to the subject premises. In relation to category (e), the applicants have not established the relevance of correspondence between the second respondent and the manager of the SupaCenta to the facts in issue in the proceedings. At present the proceedings concern judicial review only, and the correspondence sought has no relevance to such a review.

52 Based on the nature of the proceedings at present, I also accept the second respondent’s submission that I ought to have regard to paragraph 15 of the Practice Note. I am not satisfied that exceptional circumstances exist such that an order for discovery ought to be made in these proceedings.

53 I also note that even if leave had been granted for the amendments to be made to the pleadings, many of the specified categories are not relevant to any facts in issue identified by the amendments. For example, the proposed amendments to the pleadings do not set out any fact in issue concerning the operation of other similar businesses. Whilst the Statement of Environment Effects points to those businesses, there is no such issue raised in the pleadings. Therefore, even if leave were granted, categories (c) and (d) cannot be said to be relevant to a fact in issue in the proceedings. Further, category (e) is excessively broad and its relevance to a fact in issue is not established by any of the proposed amendments.

54 Therefore, in my view the notice of motion filed 1 October 2009 ought to be dismissed. Of course, this does not preclude the applicants from filing a similar notice of motion once the applicants ascertain the identity of the person who operates the premises. Such a notice of motion should be filed and served promptly, and I will therefore make a direction that any such notice of motion be filed within 10 days.

55 I accept, however, that amendments ought to be made to the timetable in the proceedings as a result of the delay experienced following the production of the subpoenaed material.

56 I make the following orders:

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Citations

Bardley-Smith v Penrith City Council [2009] NSWLEC 1338

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

3

Westpac Banking Corporation v 789Ten Pty Ltd [2005] NSWCA 321

Meteyard v Love [2005] NSWCA 444

Westfield Management Pty Limited v Gazcorp Pty Limited and (2) Ors [2004] NSWLEC 7

CITATION:	Bardley-Smith & Ors v Penrith City Council & Anor [2009] NSWLEC 1338
PARTIES:	FIRST APPLICANT Janis Margaret Bardley-Smith SECOND APPLICANT Anthony Munro Ferguson THIRD APPLICANT Ian Patrick Stubbs FIRST RESPONDENT Penrith City Council SECOND RESPONDENT Administration and Marketing Solutions Pty Ltd
FILE NUMBER(S):	40565 of 2009
CORAM:	Acting Registrar Gray
KEY ISSUES:	PRACTICE AND PROCEDURE :- Privilege claimed over subpoenaed material; Amendments to pleadings - whether leave should be granted to amend the pleadings where the relevant party is not joined; Order for discovery - whether order should be made.
LEGISLATION CITED:	Evidence Act 1995 s 117, s 118, s 119, s 122 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005
CASES CITED:	Meteyard & Ors v Love & Ors as receivers and managers of Southland Coal Pty Ltd (2005) 65 NSWLR 36, [2005] NSWCA 444 Westfield Management Pty Limited & Anor v Gazcorp Pty Limited & (2) Ors [2004] NSWLEC 7 Westpac Banking Corporation v 789TEN Pty Ltd (2005) 55 ACSR 519, [2005] NSWCA 321
DATES OF HEARING:	8 October 2009
DATE OF JUDGMENT:	12 October 2009
LEGAL REPRESENTATIVES:	APPLICANTS Mr C R Ireland SOLICITORS McPhee Kelshaw FIRST RESPONDENT Mr G Hartley, Solicitor Gadens Lawyers SECOND RESPONDENT Mr J Kildea SOLICITORS Rotstein Lockwood Reddy Lawyers