Diamond v Birdon Contracting Pty Ltd and Anor

[2008] NSWLEC 252

Land and Environment Court

of New South Wales

CITATION:

Diamond v Birdon Contracting Pty Ltd and Anor [2008] NSWLEC 252

PARTIES:

APPLICANT
Neville Diamond
FIRST RESPONDENT
Birdon Contracting Pty Ltd
SECOND RESPONDENT
Hawkesbury City Council
NON-PARTY APPLICANTS ON MOTION
Department of Water and Energy
Internal Audit Bureau of NSW

FILE NUMBER(S):

40733 of 2008

CORAM:

Pain J

KEY ISSUES:

Practice and Procedure :- whether subpoenas should be set aside

LEGISLATION CITED:

Uniform Civil Procedure Rules 2005 Pt 33 r33.4

DATES OF HEARING:

5 September 2008

 
DATE OF JUDGMENT: 

8 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr T McLoughlin (as agent)

FIRST RESPONDENT
Mr R Byrnes (solicitor)
SOLICITOR
Russel C Byrnes Solicitors
SECOND RESPONDENT
Mr S Griffiths (solicitor)
SOLICITOR
Pikes Lawyers
NON-PARTY APPLICANTS ON MOTION
Mr G Moore (solicitor)
SOLICITOR
Crown Solicitor's Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

8 September 2008

40733 of 2008 Diamond v Birdon Contracting Pty Ltd and Anor

JUDGMENT

1 Her Honour: I have before me as duty judge two Notices of Motion to set aside two subpoenas pursuant to Pt 33 r 33.4 of the Uniform Civil Procedure Rules 2005 (the UCPR). The subpoenas issued by the Applicant are to the Department of Water and Energy (the Department) and to the Internal Audit Bureau of New South Wales (the Bureau), both dated 21 August 2008. The Applicant is represented by his agent Mr McLoughlin. The Department filed an affidavit in support of its motion to set aside the subpoena to the Department, that of Mr Luke Phelps dated 3 September 2008. The Bureau filed an affidavit of Ms Lynette Farquhar dated 3 September 2008 in support of its motion. Essentially the Department and Bureau both argued that the subpoenas were a fishing expedition which did not seek documents having any legitimate forensic purpose.

2 The Applicant, Mr Diamond, swore an affidavit on 4 September 2008 in which he stated why he considered the documents sought in the subpoenas were relevant. The Class 4 proceedings concern alleged breaches of a 1996 development consent for sand mining at Tinda Creek by the First Respondent.

Subpoena to Department of Energy

3 The documents sought by the subpoena are in the following categories:

(i) category 1 - relates to water licence file of the Department

(ii) category 2 - Part 3A permit file

(iii) category 3 - clearing of trees file

(iv) categories 4, 5, 6 - relate to internal inquiries about officers in the Department of Energy

(v) category 7 - concerns the grant of a water licence for another property at Peats Ridge

(vi) category 8 - annual reports the Department has agreed to provide in any event

(vii) category 9 - policies of the Department concerning the issuing of water licences

(viii) category 10 - code of conduct for employees/officers of the Department

(ix) category 11 - letter relates to requirements for the making of the EIS and documents for the original DA

(x) category 12 - pumping figures for water licences

(xi) category 13 - appraisal for water licences

(xii) category 14 - test bore results

(xiii) category 15 - names and reports of departmental officers who attended for departmental authorisation to approve erosion and control works

4 The Applicant’s agent submitted that there were two purposes for the issuing of this subpoena. The first purpose is to obtain information which is relevant to the issues in these Class 4 proceedings which concern the non-compliance with condition 4 of a development consent DA 134/95 issued by the Council in 1996. Condition 4 states that:

Erosion and sedimentation control devices shall be installed and maintained during construction and ongoing operations. Details shall be submitted and approved by the Department of Land and Water Conservation prior to any works commencing.

5 The other reason given for issuing the subpoena was because of a Notice of Motion filed on 28 August 2008 (after the subpoenas were issued) by the First Respondent seeking orders that these Class 4 proceedings be struck out. I note that motion is also returnable before me and will be argued at a later date. One of the matters to be relied on in support of the First Respondent’s motion is that, in consent orders dated 9 September 2005 in separate proceedings No 40430 of 2005, the Applicant undertook not to commence further court proceedings in relation to DA 134/95. The Applicant wants to contest that application on the basis that in another part of the same consent orders the First Respondent gave undertakings that it would comply with the conditions of development approval and take reasonable steps to obtain a water licence for the site and comply with the conditions of that licence.

Finding

6 In relation to the first basis on which the Applicant argued the subpoena sought relevant documents, the documents sought do not appear to relate to issues concerning the breach of condition 4 in the Applicant’s Class 4 application. The schedule to the subpoena to the Department identifies 15 categories of documents. Most of these are not relevant to the Applicant’s case as presently pleaded in the Class 4 application and as presented in oral argument. Documents sought in relation to another property not the subject of the challenge in the Class 4 proceedings (category 7), the conduct of internal inquiries in the Department (categories 4, 5, 6 and 10) and numerous documents sought in relation to water licences (categories 1, 9, 12, 13 and 14), the issue of a Pt 3A permit and clearing of trees and EIS requirements when DA 134/95 was being considered (categories 2, 3 and 11) are not relevant. I therefore agree with the Department’s legal representatives’ submissions that these categories lack legitimate forensic purpose. The only category that could be potentially relevant is category 15. Mr Phelps stated in his affidavit that the Department does not hold records to which category 15 relates.

7 The Department will provide the annual reports identified in category 8 and no subpoena is required for these.

8 The Applicant has also issued the subpoena to find documents he says will help him prove that the First Respondent breached its undertaking to the Court in the consent orders in proceedings No 40430 of 2005. At the hearing of the strike out motion the Applicant intends to argue that the consent orders made by the Court in proceedings 40430 of 2005 should be construed so that the undertaking given in order 3(a) by the Applicant (that he could not commence any further proceedings in respect of DA 134/95) is conditional on the First Respondent abiding by its undertakings in order 4. In order 4(c) the First Respondent undertook to take all reasonable steps to obtain a water licence for the site and comply with the conditions of such licence and every other licence relating to the site. Whether such an argument is open in light of the terms of the consent orders will have to be determined in the context of the First Respondent’s strike out motion.

9 At this stage of the proceedings the subpoena is premature having been filed before the relevant motion had been filed by the First Respondent. The Applicant is yet to articulate his case adequately apart from what he says in his affidavit which is insufficient to enable me to analyse sufficiently whether documents sought are relevant or not. To the extent I can determine the relevance of the categories, documents in categories 1, 9, 12, 13 and 14 concern water licensing in some way but that alone does not render them relevant. The documents sought in category 1 in relation to the water licence for Tinda Creek are described broadly as the whole working file. The documents sought in category 9 are not relevant to the Applicant’s case. Documents in categories 12, 13 and 14 could relate to compliance with a water licence. The Applicant states in his affidavit that he is unaware if any documents in category 12 exist. Mr Phelps states in his affidavit that the Department does not possess records sought by category 12. In relation to category 13, Mr Phelps states that those records have not been located by the Department and further enquiries are needed. In relation to category 14, Mr Phelps states the Department has identified three documents.

10 Assuming that the Applicant is successful in arguing that his undertaking in the consent orders was conditional on the First Respondent complying with its undertakings in the same consent orders, consideration of whether the First Respondent was in breach of its undertakings involves the determination of a number of factual issues. Such proceedings are likely to take a considerable amount of hearing time. It is preferable that this issue and the other grounds for the strike out motion (the Applicant’s bankruptcy and an outstanding security for costs order in other proceedings) are considered before the more complex factual matters raised by the question of compliance with the consent orders are litigated. A timetable to achieve such an outcome is necessary.

11 Documents in categories 2, 3, 4, 5, 6, 7, 9, 10 and 11 of the subpoena should be struck out. Category 15 can stand and has been answered by the affidavit of Mr Phelps. In relation to the water licence documents, category 1 requires redrafting, it being too broad. Categories 12 and 15 have been answered by Mr Phelps in his affidavit. Categories 1, 13 and 14 should be stood over until there is, if there ultimately is one, a timetable for hearing of the alleged failure of the First Respondent to comply with the undertaking in order 4. At that time the Applicant will hopefully have articulated his case to a greater degree so that there can be an assessment of whether these categories of documents are relevant and do serve a legitimate forensic purpose.

Subpoena to Internal Audit Bureau

12 In relation to the subpoena to the Bureau, the documents sought relate entirely to investigations conducted by that Bureau into officers of the Department, its dealing with complaints concerning investigations into complaints from the Applicant and reports of the Bureau into other developments, inter alia. None of these documents have any relevance to the current Class 4 application or the intended defence in relation to the strike out motion filed by the First Respondent. The documents sought appear to be directed to ascertaining whether there was any failure in monitoring by the Department. That simply does not arise given the issues presented to me in support of issuing the subpoena. Accordingly in relation to the Bureau’s Notice of Motion, the order seeking that the subpoena be set aside should be made.

13 The Department and Bureau have sought costs of their respective motions, in which they have been largely successful. The usual costs order in Class 4 proceedings is that costs follow the event. This suggests that I should order to that effect in both motions. I have asked the Applicant if he wishes to make a submission on this issue before finally ruling. His agent has relied on the submission that this application is made in the public interest as identified in paragraph 2 of his affidavit. There is an obligation on those seeking to issue a subpoena that these have legitimate forensic purpose and are relevant to the proceedings given the onerous nature such a document imposes on the recipient. I have set aside the subpoena addressed to the Bureau. It is appropriate that the Bureau have its costs paid.

Orders

14 The Court makes the following orders:

1. The subpoena addressed to the Internal Audit Bureau dated 21 August 2008 is set aside.

2. The subpoena addressed to the Department of Energy and Water dated 21 August 2008 is set aside in relation to the schedule of documents in categories 2, 3, 4, 5, 6, 7, 9, 10 and 11.

3. The subpoena addressed to the Department of Energy and Water is stood over in relation to categories 1, 13 and 14 to the determination of the limited hearing of the First Respondent’s Notice of Motion to strike out the Applicant’s Class 4 proceedings for mention only.

4. The Applicant to pay the costs of the Internal Audit Bureau in relation to the subpoena set aside.

5. The First Respondent is to advise its grounds and the evidence it relies on in relation to orders 1, 3, 4, 5, 6 and 7 of the Notice Of Motion dated 28 August 2008 by 4 pm 9 September 2008.

6. The Applicant is to file its evidence in reply by 30 September 2008.

7. The parties are listed before the Registrar on 10 September 2008 to obtain a one day hearing date after 30 September 2008 unless an approach is made via e-court beforehand.