Bathurst Local Aboriginal Land Council v Minister Administering The Crown Lands Act

[2007] NSWLEC 495

Land and Environment Court

of New South Wales

CITATION:

Bathurst Local Aboriginal Land Council v Minister Administering The Crown Lands Act [2007] NSWLEC 495

PARTIES:

APPLICANT:
Bathurst Local Aboriginal Land Council

RESPONDENT:
Minister Administering The Crown Lands Act

THIRD PARTY APPLICANT:
Bathurst Regional Council

FILE NUMBER(S):

30281 of 2006

CORAM:

Lloyd J

KEY ISSUES:

Subpoena :- production of documents - publicly adopted copying fee - disinterested third party - statutory procedure to waive or reduce fee

LEGISLATION CITED:

Aboriginal Land Rights Act 1983
Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 1996 Pt 6 r 1
Local Government Act 1993 Pt 10 of Ch 15, s 608, s 610D, s 610E
Supreme Court Rules 1970 Pt 37 r 11

CASES CITED:

Milne v Minister for Planning & Anor [No. 3] [2007] NSWLEC 81;
Telstra Corporation Ltd v Australian Communication Authority (1995) 133 ALR 417

DATES OF HEARING:

29/06/2007

 
DATE OF JUDGMENT: 

15 August 2007

LEGAL REPRESENTATIVES:

THIRD PARTY APPLICANT, BATHURST REGIONAL COUNCIL
B J Dwyer (employee)

APPLICANT, BATHURST LOCAL ABORIGINAL LAND COUNCIL
Nicole Courtman (solicitor)
Chalk & Fitzgerald

RESPONDENT:
No appearance

JUDGMENT:

- 6 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Wednesday, 15 August 2007

LEC No. 30281 of 2006

BATHURST LOCAL ABORIGINAL LAND COUNCIL v MINISTER ADMINISTERING THE CROWN LANDS ACT [NSWLEC] 495

JUDGMENT

1 HIS HONOUR: The applicant, Bathurst Local Aboriginal Land Council (“the Land Council”), has appealed to the Court against the respondent Minister’s refusal of a land claim which it has made under the Aboriginal Land Rights Act 1983. On 1 February 2001, in pursuit of its appeal the Land Council issued a subpoena for production on Bathurst Regional Council, which is not a party to the present litigation. The subpoena was served with a cheque for $50 for conduct money. On 31 May 2007, the Land Council issued a further subpoena for production on Bathurst Regional Council for additional documents going back to 1968. Again the subpoena was served with a cheque of $50 for conduct money.

2 Bathurst Regional Council now apples by notice of motion for an order that the Land Council pay its publicly adopted copying fee of $1.70 per A4 page for the provision of copied material in response to the subpoenas.

3 The course of events which has occurred to date may be briefly described. In response to the first subpoena. Bathurst Regional Council wrote to the Land Council’s solicitors on 2 February 2007 seeking confirmation that the estimated costs of answering the subpoena would be met, estimated at 1,200 copies at $1.70 per page, a total of $2,040.

4 The solicitors for the Land Council replied by letter dated 5 February 2007 requesting that Bathurst Regional Council consider producing the original documents to the Court which could then be uplifted for external copying. The letter also asked that the fee be reduced in view of the benevolent objectives of the Land Council.

5 Bathurst Regional Council responded by letter dated 6 February stating that it does not provide original documents as it would be unable to ensure the integrity of its records, that it adopts its fees and charges annually and these can only be varied after public re-advertisement for a period of 28 days (in accordance with the Local Government Act 1993 (“the LG Act”)).

6 On 19 February 2007, the solicitors for the Land Council wrote to Bathurst Regional Council stating that the Court may ask the party issuing the subpoena to pay the amount of any reasonable expenses in complying with the subpoena, that the question of expenses will be determined after compliance with the subpoena, and that the Land Council would be willing to pay 50 cents per page for the reasonable expenses in complying with the subpoena.

7 On 21 February 2007, Bathurst Regional Council wrote to the solicitors for the Land Council requesting payment in advance in the amount of $2,040.

8 On 23 February 2007, the solicitors for the Land Council formally requested that Bathurst Regional Council reconsider its position and on the same day Bathurst Regional Council wrote to the solicitors for the Land Council stating that its offer of compensation for compliance with the subpoena is not considered reasonable and again stating that the costs to provide the documents is $1.70 per page.

9 On 25 May 2007, the solicitors for the Land Council sent a cheque for $600 to Bathurst Regional Council calculated on the basis of 50 cents per page for 1,200 pages. On 31 May 2007 the solicitors for the Land Council served the second subpoena for production on Bathurst Regional Council, accompanied by a cheque for $50 for conduct money.

Considerations

10 Part 37 r 11 of the Supreme Court Rules 1970 (now repealed) continue to apply to proceedings in this Court – see Pt 6 r 1 of the Land and Environment Court Rules 1996. Part 37 r 11 states:

11 Costs and expenses of compliance

(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs.

(3) An amount fixed under this rule is separate from and in addition to:

(a) any conduct money paid to the addressee, and

(b) any witness expenses payable to the addressee.

11 Bathurst Regional Council says that under the LG Act it must annually set its fees and charges for every year following a period of public consultation. The fee adopted for the 2006/2007 financial year for the production of documents in compliance with a subpoena is $1.70 per A4 page. This is based on the time taken to pull apart each individual document, copy it and place it back together and re-file in order. It says that this process is necessary to ensure the integrity of its records system. In relation to the first subpoena it estimates that there is approximately 1,200 pages to be photocopied, which would mean a total cost of $2,040 for complying with the first subpoena. The second subpoena requires the production of documents going back to 1968. As I understand it, no estimate is available as to the number of documents which answer the second subpoena.

12 The Land Council relies upon the judgment of Jagot J in Milne v Minister for Planning & Anor [No. 3] [2007] NSWLEC 81. In that case a subpoena for production had been served on Tweed Shire Council. Her Honour declined to order the party issuing the subpoena to indemnify the council for all its expenses in complying with the subpoena and instead fixed an amount which would pay the reasonable losses and expenses incurred by the council in complying with the subpoena. The Land Council submits that a reasonable amount in the present case is 50 cents per page.

13 Milne was a planning appeal in which the council was not a party. However, Jagot J found that although the council was not a party to the appeal, it could not be characterised as a stranger to the litigation. The appeal was about an extension to an existing marina. The council was the consent authority for the existing marina. The council’s planning policy objectives were fundamental to the assessment of the development application. The council did not see itself as a disinterested stranger. The council was also a consent authority with respect to the development application under the integrated development provisions of the Environmental Planning and Assessment Act 1979. It was in these circumstances that her Honour thought it would be unjust to require the party issuing the subpoena to be liable for the thousands of dollars in expenses claimed by the council.

14 In the present case, however, although Bathurst Regional Council is, as in Milne, not a party, it is – unlike the council in Milne - truly disinterested in the outcome of the proceeding. The proceeding is simply a land claim between the claimant Land Council and the Minister. Bathurst Regional Council is being put to a substantial amount of time, trouble and cost in locating material, dismantling its files, photocopying and then placing the files back together in order. The number of documents involved in answering both subpoenas is considerable. The charges sought by the Bathurst Regional Council have been fixed following the statutory procedures required by Pt 10 of Ch 15 of the LG Act. The reasons which led Jagot J to make the order that she did in Milne do not apply here.

15 Under the LG Act a council may charge and recover an approved fee for any service it provides: s 608(1). A council determines the amount of a fee for a service in accordance with s 610D of that Act. A fee may be waived or reduced by a council in accordance with s 610E. Section 610E(1) provides that: “A council may waive payment of, or reduce, a fee… in a particular case if the council is satisfied that the case falls within a category of hardship or any other category in respect of which the council has determined payment should be so waived or reduced.”

16 As Bathurst Regional Council stated in its letter to the Land Council dated 6 February 2007, the fee for the production of documents under the subpoena could be varied by resolution of council. As it is open to the Land Council to apply to have the fee for the production of documents waived or varied in accordance with the statutory procedure under Ch 15, Pt 10 of the LG Act, the Court should, in the exercise of its discretion, leave it to the Land Council to follow that statutory procedure.

17 In my opinion an order should be made in Bathurst Regional Council’s favour under Pt 37 r 11(1). If an order is made under sub-r (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs. There is nothing before me in relation to costs. There is nothing to suggest that the amount sought by Bathurst Regional Council, which was fixed in accordance with the statutory procedure, was not properly set as required by the LG Act and is otherwise improper or inappropriate. Apart from the time involved and physically dismantling each individual document, copying it and then putting it back together in order, the task involved will divert Bathurst Regional Council’s staff from attending to other duties.

18 Although an order is now make in favour of Bathurst Regional Council under Pt 37 r 11(1), it remains open to the Land Council to apply to Bathurst Regional Council to have the fee varied, as noted in par [16] above.

19 Accordingly, I make the following orders:

1. The applicant, Bathurst Local Aboriginal Land Council, is to pay the reasonable losses and expenses incurred by Bathurst Regional Council in complying with the subpoena served on 1 February 2007, limited to:

(a) a cost of $1.70 per page (including photocopying costs), and
(b) such amount not to exceed a sum of $2,040.

2. The applicant, Bathurst Local Aboriginal Land Council, is to pay the reasonable losses and expenses incurred by Bathurst Regional Council in complying with the subpoena served on 31 May 2007, limited to a cost of $1.70 per page (including photocopying costs).

I hereby certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 15 August 2007
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