Dibb v Transport for New South Wales
[2023] NSWLEC 59
•14 April 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Dibb v Transport for New South Wales [2023] NSWLEC 59 Hearing dates: 14 April 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Class 3 Before: Duggan J Decision: See paragraphs 11 and 12
Catchwords: PRACTICE AND PROCEDURE – Notice of Motion to set aside part of Notice to Produce – documents lack forensic purpose – relevance of documents sought – paragraph 1 of Notice to Produce set aside
Category: Procedural rulings Parties: Raymond Joseph Dibb, First Applicant (First Respondent on the Notice of Motion)
Wendy Lynn Dibb, Second Applicant (Second Respondent on the Notice of Motion)
Transport for New South Wales, Respondent (Applicant on the Notice of Motion)Representation: Counsel:
Solicitors:
L Nurpuri, Applicants (Respondents on the Notice of Motion)
R Coffey, Respondent (Applicant on the Notice of Motion)
Pikes & Verekers Lawyers, Applicants (Respondents on the Notice of Motion
Maddocks, Respondent (Applicant on the Notice of Motion)
File Number(s): 2022/137180 Publication restriction: No
ex tempore Judgment
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HER HONOUR: In this matter the Respondent has filed a Notice of Motion seeking to set aside par 1 of the Applicants’ Notice to Produce dated 16 March 2023.
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Paragraph 1 of the Applicants’ Notice to Produce requires production of “Any town planning reports and valuation reports undertaken by or on behalf of or received by Transport for New South Wales or its predecessors in relation to the acquisition of the properties in the table below.”
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The table below lists ten properties. I understand from the evidence that has been filed in this matter that the ten properties listed were properties that were acquired by the Respondent in these proceedings by agreement in pursuit of the underlying public purpose for which the Applicants’ land has also been acquired.
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The Respondent objects to the production of the documents on a number of grounds, including the grounds of relevance and a lack of forensic purpose.
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The Applicants in this case seeks production of the documents on the basis that they say that it will assist them in understanding strategic decisions made by the Council in relation to the zoning of the properties in the table. Alternatively, the decision-making in relation to the sale and purchase of the properties by agreement, including the determination of any issues of disturbance, and because Mr Rumble, the Applicants’ valuer thinks it will assist him in determining the comparability of those sales to the land, the subject of the acquisition.
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A sale is an agreement or bargain struck between two people. The motivations of the individuals are not reflected in the sale price. The sale price is the compromise that each party was prepared to make for whatever reason to sell and purchase the land. The provision of any town planning reports or valuation reports to a single party in that transaction does not illuminate the circumstances in which the bargain was struck.
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Accordingly, I consider that any town planning reports or valuation reports held by a single party, in this case Transport for New South Wales, does little if anything to assist in determining why the bargain was struck, or the basis on which the bargain was struck.
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Further, town planning reports and valuation reports are expressions of opinions of certain experts. I do not see how the expression of those opinions could assist in determining the strategic decision made by the Council. If the Council has made strategic decisions then those decisions can be obtained by asking the author of the decision, namely the Council, rather than the opinion of the experts that advise Transport for New South Wales in connection with the sale.
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Thirdly, to the extent that Mr Rumble says that this would assist him because it would provide a valuation methodology and valuer considerations and assumptions used to derive a valuation figure; I do not accept that proposition. That would only be the case if the purchaser was able to dictate the price, and the vendor in the case of the contract had no input into the determination price. That is not the case.
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I consider that the appropriate course is to set aside par 1 of the Notice to Produce. The Applicants in the proceedings can always obtain a copy of the transfer and a copy of the contract if they wish to understand the terms upon which the sale was undertaken.
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For those reasons, I grant the Notice of Motion.
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I order that the costs of the Notice of Motion be costs in the cause.
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Decision last updated: 01 June 2023
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