Eclipse Resources Pty Ltd v The State of Western Australia [No 3]
[2015] WASC 365
•2 OCTOBER 2015
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| CITATION | : | ECLIPSE RESOURCES PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2015] WASC 365 |
| CORAM | : BEECH J | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
THE CHIEF EXECUTIVE OFFICER OF THE
DEPARTMENT OF ENVIRONMENT
REGULATIONSecond Defendant
THE MINISTER FOR ENVIRONMENT
Third Defendant
| FILE NO/S | : | CIV 2385 of 2013 |
| BETWEEN | : | THE MINISTER FOR ENVIRONMENT Plaintiff |
| AND | ||
| ECLIPSE RESOURCES PTY LTD Defendant |
[2015] WASC 365
| FILE NO/S | : | CIV 2416 of 2014 |
| BETWEEN | : | ECLIPSE RESOURCES PTY LTD Plaintiff |
| AND | ||
| THE STATE OF WESTERN AUSTRALIA First Defendant | ||
| THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF ENVIRONMENT REGULATION Second Defendant | ||
| THE MINISTER FOR ENVIRONMENT Third Defendant | ||
| Catchwords: |
Practice and procedure - Discovery - Application for further and better discovery - Turns on own facts
Legislation:
Rules of the Supreme Court (WA), O 26 r 6, O 26 r 7
Result:
Application dismissed
[2015] WASC 365
Category: B
Representation:
CIV 1364 of 2009
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Fletcher Law |
| First Defendant | : | State Solicitor for Western Australia |
| Second Defendant | : | State Solicitor for Western Australia |
| Third Defendant | : | State Solicitor for Western Australia |
CIV 2385 of 2013
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | State Solicitor for Western Australia |
| Defendant | : | Fletcher Law |
CIV 2416 of 2014
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
[2015] WASC 365
Solicitors:
| Plaintiff | : | Fletcher Law |
| First Defendant | : | State Solicitor for Western Australia |
| Second Defendant | : | State Solicitor for Western Australia |
| Third Defendant | : | State Solicitor for Western Australia |
Case(s) referred to in judgment(s):
Roe v The State of Western Australia [2013] WASC 130
Westraint Resources Pty Ltd v BHP Iron Ore Ltd [No 4] [2009] WASC 17
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60
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BEECH J: In these actions, by agreement between the parties, discovery has been given by agreed categories. There has been no general discovery. Eclipse applies for an order for further and better discovery of a number of categories of documents.
2 For the reasons that follow, I am not satisfied that discovery of the
categories of documents sought by Eclipse is in the interests of the just, timely and effective disposal of these actions. I begin by outlining the issues in the actions.
The issues in the actions
3 In determining whether a category of documents may be relevant to a
matter in issue, the court should take into account the pleadings, the conduct of the case generally, the admissions of the parties and the nature of the action.[1] In this case, in addition to the pleadings, I have taken into account the statement of agreed facts, a statement of agreed issues and the Government Parties' statement of issues and contentions.
[1] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60[4] - [5] (Master Newnes).4 Much of the outline that follows is drawn from the Government
Parties' submissions. In its reply submissions, Eclipse did not challenge the outline of the issues in the Government Parties' submissions.
The Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (2008 Levy Regulations), made under the Waste Avoidance and Resource Recovery Levy Act 2007 (WA) (2007 Levy Act) and the Waste Avoidance and Resource Recovery Levy Act 2007 (2007 Recovery Act), prescribe an amount by way of levy that is payable in respect of waste disposed of to landfill at category 63 landfill premises in the metropolitan region on or after 1 July 2008.
Eclipse is a company which carried out operations at three sites in the metropolitan region between 1 July 2008 and 30 September 2014. The sites are known as the Abercrombie Road site, the Wanneroo Road site and the Flynn Drive site. As part of its operations at these sites, Eclipse received materials from third parties and progressively deposited and compacted those materials in a void in the ground at each site. Eclipse completed filling the void at the Flynn Drive site in June 2009. At all relevant times Eclipse's sites were licensed as category 63 landfill premises.
7 The present proceedings concern Eclipse's liability to pay levy in
respect of its operations at its sites between 1 July 2008 and 30 September
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2014. There are two principal issues. The first is whether Eclipse is liable to pay the levy imposed by the 2007 Levy Act and the 2008 Levy Regulations in respect of return periods between 1 July 2008 and 30 September 2014. The second is whether Eclipse is liable to pay the specific amounts of levy claimed by the CEO in respect of return periods between 1 July 2008 and 31 December 2011.
For any levy to be payable by Eclipse, the State must establish that:
(1) Eclipse's premises were premises specified in category 63 of schedule 1 to the Environmental Protection Regulations 1987 (WA) (EP Regulations); that is, premises on which waste was accepted for burial which had a production or design capacity of 500 tonnes or more per year. As to production capacity, it is an agreed fact that at each of its three sites, Eclipse deposited and compacted more than 500 tonnes of material during each year of its operation.[2] (2) Eclipse was at all relevant times the holder of licences in respect of its premises by virtue of s 56(1) of the Environmental Protection Act 1986 (WA) (EP Act). (3) Eclipse 'disposed of waste to landfill' on its premises within the
meaning of regulations 10 and 11 of the 2008 Levy Regulations.[2] Statement of agreed facts [124].
Among other things, and relevantly for present purposes, Eclipse
alleges that:
(1) the 2008 Levy Regulations do not apply to Eclipse's operations
because:
(a)
all of the material accepted at its sites, alternatively some of this material, was not 'waste' within the meaning of category 63 in schedule 1 to the EP Regulations and the 2008 Levy Regulations;
(b)
the material accepted at its sites, alternatively some of this material, was not 'accepted for burial' within the meaning of category 63 in schedule 1 to the EP Regulations; and
(c)
its sites were not premises specified in category 63 of schedule 1 to the EP Regulations, and were not licensed landfills within the meaning of the 2008 Levy Regulations.
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The Government Parties allege that:
(a) the materials received by Eclipse at its sites which were deposited and compacted in the voids in the sites between 1 July 2008 and 30 September 2014 were waste; (b) the materials received by Eclipse at its sites to be deposited and compacted in the voids in the sites between 1 July 2008 and 30 September 2014 were 'accepted for burial' within the meaning of category 63 in schedule 1 to the EP Regulations; and (c) at all relevant times Eclipse's sites were premises specified in category 63 of schedule 1 to the EP Regulations, and were 'licensed landfills' within the meaning of the 2008 Levy Regulations.
11 In this framework, I accept the Government Parties' submission that
these proceedings do not raise abstract issues as to 'what is waste' and 'when does material which is waste in the hands of one person cease to be waste in the hands of another', as may be suggested by Eclipse's outline of submissions.[3] The issues in these actions are specific to Eclipse's three sites, and to the materials received and deposited at those sites at the relevant times. It is clear from the Government Parties' statement of issues and contentions dated 27 July 2015 that the Government Parties contend that the issues are somewhat narrower. However, for the purposes of this application, it is not necessary to go into detail about differences in the parties' characterisations of the issues.
12 Relevantly, in these proceedings the court is required to construe the
terms 'waste', 'accepted for burial' and 'disposed of to landfill' in their legislative context and then apply those terms, so construed, to the specific materials in question at each site. In doing so, the court will take account of the evidence of all the factual circumstances relating to those specific materials.
[3] See Eclipse's submissions dated 9 September 2015 [8].
Eclipse's discovery application
13 Eclipse applies for an order that the Government Parties give
discovery of seven categories of documents. Categories 5 and 7 are no longer in issue, although there is a question of costs in relation to them. The issues relating to category 6 have also been reduced through conferral.
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I will set out the categories in detail in the course of dealing with the merits of the application in respect of each them.
Application for further and better discovery - general principles
15 Principles relevant to an application for further and better discovery
were summarised by Master Newnes in Youlden Enterprises Pty Ltd v
Health Solutions (WA) Pty Ltd as follows:[4][4] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [3] - [6].In determining whether to make an order for further discovery, the Court must have reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered: Beecham Group Pty Ltd v Bristol Myers Co [1979] VR 273. The Court must be able to infer from the nature of the document in question that it is relevant; it will not speculate as to its relevance. Relevance may either appear from the nature of the document or its contents, and if the latter then there must be a prima facie case as to the contents before an order for further discovery will be made: Astra-National Productions Ltd v Neo-Art Productions Ltd [1928] WN 218 at 219. Where an application is made in respect of a document referred to in a document already discovered (the relevance of the latter being conceded by its discovery) it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is relevant: see Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co [1882] 11 QBD 55; Kent Coal Concessions Ltd v Duguid [1910] 1 KB 904 at 915 and the discussion in PDM Australia Pty Ltd v Kellogg Overseas Corporation & Ors, unreported; SCt of WA; Library No 6646; 26 March 1987 at [5 - 14].
In determining whether a document relates to a matter in question, and, therefore, whether it ought to have been discovered, the test is that set out in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (supra) as follows:
'It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in words "either directly or indirectly" because it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance its own case or to damage the case of its adversary, if it is a document which may fairly lead to a chain of inquiry, which may have either of those two consequences.'
[2015] WASC 365
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The matters in issue are to be determined by reference to the pleadings: Mulley v Manifold (1959) 103 CLR 341 per Menzies J at 345. But regard must also be had to the conduct and admissions of the parties and the nature of the action: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178 at 186.
It is also important to bear in mind that there is not a strict entitlement to an order for discovery, including an order for further discovery: Kent Coal Concessions Ltd v Duguid (supra) at 910. Moreover, amendments to the Rules in more recent times, including the introduction of O 1 r 4B and O 26 r 7, emphasise the need to have regard to the timely and cost effective disposal of the action in the exercise of the discretion to order discovery.
16 In the exercise of the discretion to grant further discovery, the court
should have regard, among other things, to the likely relevance and importance of the documents sought in relation to the issues in the proceeding, and the likely time, cost and inconvenience of searching for and disclosing those documents.[5]
[5] Westraint Resources Pty Ltd v BHP Iron Ore Ltd [No 4] [2009] WASC 17 [13] (Le Miere J).17 As Martin CJ observed in Roe v The State of Western Australia,[6] the nature and extent of the apparent relevance of the documents that are sought will be a significant consideration in the exercise of the discretion as to whether to order further and better discovery. Satisfaction of the low threshold of relevance in the Peruvian Guano sense will not necessarily justify an exercise of this discretion. A claim to a broader ambit of discovery must be justified by an assessment of whether the cost and delay involved in the broader ambit is proportionate to the forensic benefit likely to be derived from it. This assessment must be made in the context of the value, importance and complexity of the subject matter of the litigation.
[6] Roe v The State of Western Australia [2013] WASC 130 [10] - [13].
I will deal with the merits of the application for each disputed category of documents in turn.
Category 1 - documents relating to the creation of certain DER policy documents
Category 1 is in the following terms:
1. All documents directly relevant to the creation of:
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1.1 the DER [Department of Environment Regulation] 'Guidance statement: Regulating the use of waste-derived materials' dated November 2014; 1.2 the DER 'Material guideline: Clean fill' dated December
2014;1.3 the DER 'Material guideline: Construction products' dated
December 2014,(including, but not limited to, the consideration given to the desirability and purpose of such a document and the preparation (including drafts) of the document).
20 Thus, category 1 seeks discovery of all documents directly relevant
to the creation of three DER policy documents. Those policy documents
are attachments to the statement of agreed facts.21 Eclipse submits that category 1 relates to the creation of relatively
contemporaneous guidelines prepared by one of the Government Parties dealing with the issue of when, in its view, waste-derived materials cease to be waste and so are not subject to levy.[7] Eclipse emphasises, as is common ground, that:
[7] Eclipse's submissions [11].
(1) the purpose of the Guidance statement and Material guidelines is, among other things, to guide DER employees when making discretionary regulatory decisions concerning waste or waste-derived materials under the legislation the subject of these proceedings, and to notify the industry of the DER's approach; (2) the purpose of the 'Material guideline: Clean fill' is to 'set out DER's views as to when certain materials should not be considered to be 'waste' for the purpose of guiding its own regulatory decision-making'.[8] [8] Eclipse's reply submissions dated 24 September 2015 [11].22 These policy documents are not incorporated by reference into the
legislative regime. They do not alter or affect the statutory definition of waste. The policies stated in them do not have any legal effect. The documents may fairly be said to set out the views of the DER for the purposes of guiding its regulatory decision-making.
23 These proceedings do not involve judicial review of the validity of a
decision made by the DER. I am unable to see how anything said in the policy documents could assist the court in its task of construing the
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relevant statutory language, and applying that language, properly construed, to the factual circumstances as found relating to what has occurred at each of Eclipse's sites. Moreover, it must be recalled that category 1 relates to documents directly relevant to the creation of the policy documents. The policy documents themselves are already attached to the statement of agreed facts.
24 In its reply submissions, Eclipse emphasises that the test for
discoverability of documents is not their admissibility at trial.[9] Of course, that is correct. I am content to accept that the documents in category 1 would satisfy the low threshold of relevance under the Peruvian Guano test. However, that is not the end of the inquiry with an application for further and better discovery. Further attention needs to be given to the likely forensic benefit to be derived from the document or class of documents in question.[10]
[9] Eclipse's reply submissions [12].
[10] See [17] above.25 In its reply submissions, Eclipse does not assert that any document in
this category is likely to be admissible at trial. Eclipse's submissions assert that the Government Parties have filed witness statements going to the issue of whether, applying the relevant definition, the material in Eclipse hands is 'waste'.[11] I do not accept that this is so.
[11] Eclipse's submissions [10]; Eclipse's reply submissions [19].26 The DER inspectors' witness statements go to the primary facts
relating to Eclipse's operations. They describe what the inspectors saw at Eclipse's sites and what can be seen in attached photographs and video that the inspectors took there. They do not speak to the issue of whether what the inspectors observed is within the statutory definition of 'waste'. The inspectors use the word 'waste' to describe what they observed. I do not take that word to be intended to be used in the statutory sense. In any event, the inspectors' choice of language is not probative of whether the material in question was of the statutory character of 'waste'. The Government Parties accept that this is so.[12] The same is true of the correspondence between Eclipse and the DER, and the DER Compliance Inspection Reports, that are attached to some of the inspectors' witness statements.
[12] See Government Parties' submissions dated 17 September 2015 [60].27 Insofar as Eclipse's submissions allude to the prospect of
cross-examining the Government Parties' witnesses,[13] I am unable to discern how any, and if so what, forensic benefit might be obtained by
[13] Eclipse's reply submissions [15].
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cross-examining the DER inspectors, or any of the Government Parties' witnesses, as to the contents of the policy documents, predecessor versions of them, or other documents relating to their creation, including as to their application to Eclipse's sites.
Eclipse has not otherwise explained in its submissions the likely or potential forensic utility of the documents sought in this category.
29 Given the nature of the court's task in these proceedings and the
material apparently relevant to it, I am unable to identify how the documents in category 1 might enable Eclipse to advance its own case or to damage the Government Parties' case.
30 Documents can also be discoverable because they may lead the party
seeking discovery to a chain of inquiry that might advance its case or damage the other party's case. However, given the nature of this category of documents, the task of the court and the material apparently relevant to it, I am unable to identify any respect in which the documents in category 1 are likely to be of any significant benefit to Eclipse in these proceedings through leading to any chain of enquiry.
31 In its reply submissions, Eclipse submits that where an application
for discovery is made in respect of a document referred to in a document already discovered, the relevance of the latter being conceded by its discovery, it is generally reasonable to assume, in the absence of a contrary indication in the document discovered, that the document referred to is relevant.[14] In my opinion, that principle has no application to the present case. It concerns the application of the Peruvian Guano test. Even in a case where general discovery is given, it does not inform the exercise of the discretion as to whether further discovery should be ordered. In a case where discovery proceeds by agreed categories, the fact that a document within an agreed category refers to one or more other documents does not of itself assist in assessing whether discovery of other documents or other categories should be ordered.
[14] Eclipse's reply submissions [16] (referring to Youlden Enterprises [3] and other authority).32 Substantial, time-consuming searches would be involved in the
discovery of the documents in category 1 by the Government Parties. Numerous officers were involved in the creation of the policy documents. An external consultant was engaged and an extensive public consultation process occurred. Searches would need to extend to numerous documents on hard-copy files, various parts of the DER's database, individual
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officers' email accounts, and material relating to the consultation
process.[15][15] Affidavit of Yen Mong Chang affirmed 17 September 2015 [10] - [14].33 These proceedings are listed for trial commencing in mid-November
2015. Thus, searches would need to occur at a time when the Government Parties and their solicitors will be busily engaged with the various tasks necessary to prepare the actions for trial. These considerations arise in relation to the cumulative effect of the various categories of documents in Eclipse's application.
34 Taking these matters into account, and in particular taking into
account that I am not satisfied that there is any reasonable likelihood that documents in this category will directly or indirectly give rise to any forensic benefit of any significance to Eclipse, I am not persuaded that an order for further and better discovery of the documents in category 1 should be made.
Categories 2 and 3
Categories 2 and 3 are as follows:
2.
All documents directly relevant to the issuing of Gateway Project / Leighton Licence No. L8790/2013/1, specifically with respect to the following statement: 'Reuse of treated Acid Sulfate Soil is DER's preferred position. Treated ASS is usually considered a resource, not a waste' made by the DER in the decision document relating to the licence;
3.
With respect to the material described in paragraphs 8.5(g)(i), 8.5(g)(ii), 8.5(g)(iii) and/or 8.5(g)(v) of the Government Parties' Amended Defence dated 10 March 2015 in CIV 2416 of 2014; paragraphs 8.6(g)(i), 8.6(g)(ii), 8.6(g)(iii) and / or 8.6(g)(v) of the Government Parties' Substituted Reply and Defence to Counterclaim dated 16 March 2015 in CIV 2385/13; and paragraphs 8.7(g)(i), 8.7(g)(ii), 8.7(g)(iii) and / or 8.7(g)(iv) of the Government Parties' Amended Third Substituted Defence and Counterclaim dated 10 March 2015 in CIV 1364 of 2009 (the Material), and with respect to the period from 1 July 2008 to date, all documents directly relevant to:
3.1
when DEC/DER considers any of the Material as something other than waste (other than the documents relating to category (2) above), or alternatively waste other than that which is 'accepted for burial', and
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3.2 any exemption from levy granted by DEC/DER to any person, or any policy or decision not to impose levy in certain circumstances, in respect of any of the Material.
36 Category 2 seeks discovery of all documents directly relevant to a
particular statement in respect of premises unconnected to these actions, contained in a licence issued under the EP Act by a delegate of the DER's CEO to entities other than Eclipse.
37 Category 3 refers to a number of paragraphs of the Government
Parties pleadings. In those paragraphs, the Government Parties' plead some of the types of materials deposited and compacted in the void at Eclipse's Abercrombie Road site. Category 3 seeks discovery of all documents directly relevant to any situation when the DER has considered those types of materials to be something other than 'waste', alternatively something other than 'waste accepted for burial', and when the DER has granted an exemption from levy in respect of such material. Again, this is directed to sites other than Eclipse's sites.
38 In its submissions in support of its application, Eclipse asserts that
these categories relate to specific material which, in Eclipse's hands, is said by the Government Parties to be 'waste', notwithstanding that the same material in the hands of other parties is not considered by the Government Parties to be 'waste'. Further, Eclipse says that the documents in these categories go to the granting of exemptions from levy which, again, reflects the Government Parties' view as to what is 'waste'.[16]
[16] Eclipse's submissions [12].39 Eclipse's submissions do not articulate the use to which documents in
these categories might be put, or the likely forensic benefit to be obtained from them. Eclipse's submissions simply assert that, while not determinative, documents in these categories would be relevant to whether, applying the relevant definitions, the material in Eclipse's hands is 'waste accepted for burial' at a 'landfill'.[17]
[17] Eclipse's submissions [12]; Eclipse's reply submissions [19].40 I am not persuaded that the approach taken by the DER in respect of
other sites is capable of being probative of, or otherwise productive of, any significant forensic benefit in relation to the question of whether the particular materials received and dealt with by Eclipse at its sites during the relevant period were 'waste' and were 'accepted for burial'. I refer to what I have already said as to the approach to be taken in determining the issues in these actions.[18] Given the nature of the court's task in this
[18] See [12] above.
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respect and the material apparently relevant to it, I am unable to identify how or in what respect the documents in categories 2 and 3 would enable Eclipse to advance its own case or damage the Government Parties' case, or lead to a chain of inquiry which would have either of those consequences.
41 For those reasons, while I am content to accept that these documents
would meet the Peruvian Guano test, I am unable to identify any reasonable likelihood of any significant forensic benefit being derived from them.
42 I am not satisfied that Eclipse has demonstrated that the documents
in categories 2 and 3 are sufficiently likely to be of enough forensic
benefit to sustain an order for further and better discovery.43 Further, in my view, any forensic benefit to be gained from the
documents in categories 2 and 3 would be, at best, marginal when weighed in the context of the time, expense and inconvenience to the Government Parties in providing discovery of these documents in the period six weeks before the trial of these actions. Category 3 is broad and wide-ranging. Its subject matter does not reflect any discrete set of files kept by the DER.[19] Wide-ranging searches would be necessary across numerous hard-copy files, the DER's database and shared computer networks, and individual officer's email accounts.[20]
[19] Affidavit of Yen Mong Chang [18].[20] Affidavit of Yen Mong Chang [19] - [21].
For these reasons, I am not persuaded that an order for further and better discovery of the documents in categories 2 and 3 should be made.
Category 4
Category 4 is in the following terms:
4. All documents directly relevant to the Government Parties['] consideration of the letter dated 14 December 2012 from Mr Christian Porter MLA, Member for Bateman, to the Honourable Bill Marmion MLA, Minister for the Environment, and the drafting of the letter in reply dated 5 February 2013 from the Honourable Bill Marmion MLA to Mr Christian Porter MLA.
46 By letter of 14 December 2012, Mr Porter wrote to Mr Marmion (the
Minister) about the operation of the EP Act as it applied to Eclipse. Mr Porter's letter said that for several reasons the way in which this legislation applied to Eclipse warranted policy attention from the
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Government. First, the letter stated that the present operation of the landfill levy appeared to give rise to practical outcomes contrary to the intended effect of the legislative and regulatory amendments which brought the levy into existence. Secondly, it said that Eclipse argued that the present operation of the levy imposed costs on Eclipse's business which would render it unprofitable. Thirdly, it said that there were some relatively straightforward amendments to the legislation that would rectify the perceived difficulties.
By letter of 5 February 2013, the Minister responded to Mr Porter's
letter.
48 Category 4 seeks discovery of all documents directly relevant to the
Government Parties' consideration of Mr Porter's letter, and to the drafting of the Minister's letter in reply.
49 I have had some difficulty in understanding with precision the basis
upon which Eclipse seeks discovery of the documents in this category. It appears that Eclipse puts its contention that an order for discovery of these documents should be made on two bases.
50 First, Eclipse submits that documents in this category relate to
material, namely recycled fill product, which in the hands of Eclipse is said by the Government Parties to be 'waste' notwithstanding that the same material in the hands of other resource recovery operators does not attract levy and is said, in the Minister's letter, to be converted into 'useful materials or products'.[21] That quote by Eclipse is evidently a reference to the passage on page three of the Minister's letter that quotes a definition from the Western Australian Waste Strategy.
[21] Eclipse's submissions [13(a)].51 In its reply submissions, Eclipse submits that the Minister's letter
draws a distinction between waste and recycled material that is without substance.[22] For reasons already given, the view of the Minister, whether as expressed in his letter or through some other means, seems to me to be of no moment in the determination of the issues in these actions. I am not persuaded that in this respect the documents in category 4 are sufficiently likely to produce a forensic benefit of enough significance to sustain an order for further and better discovery.
[22] Eclipse's reply submissions [21].52 Secondly, Eclipse points to the inclusion in the Minister's letter of a
specific matter in respect of which it says that evidence will be led by the
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Government Parties in the witness statement of Ms Kerry Laszig.[23] In par 16 of her statement, Ms Laszig states that the purpose of certain contamination assessment guidelines used by Eclipse is not to prescribe clean-up standards or desirable soil quality criteria. Eclipse submits that Ms Laszig does not then go on to identify any relevant standards for soil quality criteria. By contrast, Eclipse submits, the Minister's letter refers to the testing of recycled fill products against relevant industry standards to ensure they are fit for use. Eclipse says that this reference suggests that relevant industry standards for fill material exists.
[23] Eclipse's submissions [13(b)].
53 I accept the Government Parties' submission that Ms Laszig's written
statement in this respect does not put in issue the general question of what relevant industry standards for recycled fill products exist. Rather, her evidence provides a specific response to Eclipse's proposed evidence, in Mr Robert Sippe's witness statement, about its stated reliance on particular DER guidelines in relation to the materials received and deposited as fill at its sites.
54 Eclipse has not articulated how, and I am not satisfied that,
information about the standards used by the recycling businesses referred to in Mr Marmion's letter could assist Eclipse to advance its case or to damage the Government Parties' case. Further, to the extent that there is an issue as to the existence and content of any industry standards for recycled fill products used by other persons or businesses, that would not sustain an order for discovery of all the documents in category 4. The reference to industry standards for recycled fill products is only one aspect of the Minister's lengthy and detailed letter. Category 4 seeks discovery of all documents directly relevant to the drafting of that letter.
55 In its reply submissions, Eclipse submits that discovery of this
category is sought by Eclipse, not to identify the relevant industry standards referred to in the Minister's letter, but to expose the information upon which the Minister relied when forming his view.[24] In my view, that does not provide a persuasive basis to order discovery of the documents in category 4. For the reasons I have already given,[25] identifying the information that the Minister relied on in forming the views expressed in his letter is not sufficiently likely to produce a forensic benefit of enough significance to sustain an order for further discovery.
[24] Eclipse's reply submissions [22].[25] See [51] above.
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For these reasons, I would not order further and better discovery in relation to category 4.
Category 6
57 Category 6 in its original form related to all documents directly
relevant to the statements made in five specific paragraphs of the witness statement of Ms Ruth Dowd dated 10 August 2015. The Government Parties have agreed to give discovery of documents relating to four of those paragraphs. What is in dispute is whether discovery should be ordered of all documents directly relevant to the statements made in par 28 of Ms Dowd's witness statement.
In par 28, Ms Dowd states that:
(a) inert waste itself does not pose a significant risk of pollution; (b) she is aware from her experience that loads of inert waste delivered to landfills often contain non-inert materials in the mix; (c) in her opinion, while small quantities of such materials may be buried alongside inert waste without causing harm to the environment, there is a risk of environmental harm if too much non-inert material is accepted for burial; and (d) by way of example, landfill gases were detected at a specific site in Darch in 2008. 59 It is not in doubt that what is said in par 28 of Ms Dowd's statement
is relevant. However, it does not appear to me to be at the centre of the issues in these actions. Apart from anything else, Ms Dowd's opinion is expressed in very general terms. It refers to a 'risk' of environmental harm if 'too much' non-inert material is accepted. There is no quantification of the risk, or of how much is 'too much'.
60 An earlier version of Ms Dowd's witness statement contained a
paragraph in very similar terms to the current par 28, but without the reference to the site at Darch.[26] No request for discovery of documents in respect of that paragraph was ever made by Eclipse.
[26] Witness statement of Ruth Margaret Dowd dated 29 January 2013 [28].61 Following service of Ms Dowd's witness statement of 10 August
2015, the only request for documents made by Eclipse to the Government Parties was made by letter of 1 September 2015. That letter asserted that
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insofar as par 28 dealt with a specific site it was objectionable. It stated that if the part of par 28 dealing with the specific site was pressed, discovery of documents relevant to that site was requested. The Government Parties agreed to give discovery in that respect.[27]
[27] Affidavit of Brendyn Dean Nelson affirmed 17 September 2015, attachment BDN 28.62 By letter of 15 September 2015, after this application was
commenced, Eclipse asserted that the category agreed by the Government Parties to be discovered failed to provide discovery of documents relating to environmental harm, or lack thereof, associated with or caused by non-inert material buried alongside inert material in inert landfills.[28] That is the further discovery now pressed for by Eclipse.[29]
[28] Affidavit of Brendyn Dean Nelson, attachment BDN 31.[29] Eclipse's reply submissions [7].63 Category 6 has an extremely broad scope. It relates to generic topics
that include the environmental risks if too much non-inert waste is accepted for burial alongside inert waste in inert landfills. That is not a matter in respect of which the DER maintains a discrete set of files.[30] Detailed consideration would be needed of the locations in which potentially relevant documents might be found and how they could be identified. Appropriate electronic search terms would need to be formulated. That would be a challenging task.[31] It is likely that the search terms would produce a large number of documents which would then need to be reviewed.[32] Further, a large number of DER officers would need to search their email accounts, offices and computers for potentially relevant documents.[33]
[30] Affidavit of Yen Mong Chang [29].[31] Affidavit of Yen Mong Chang [29] - [30].[32] Affidavit of Yen Mong Chang [30].[33] Affidavit of Yen Mong Chang [32].
Category 6 is not limited as to time.
65 In all the circumstances, particularly taking into account the breadth
of the scope of this category, the likely difficulties and inconvenience that would be involved in searching for and discovering documents in it, and the timing of Eclipse's request for these documents, I am not satisfied that it is appropriate to make an order for discovery of the disputed part of category 6.
Costs in relation to categories 5, 6 and 7
66 The Government Parties seek their costs of Eclipse's application in
respect of the categories that were agreed by the Government Parties. In
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essence, the Government Parties point to insufficient conferral by Eclipse and the fact that they had agreed to some of the categories of discovery sought by Eclipse before Eclipse filed its application.
67 While I accept the Government Parties' account of the circumstances
in which Eclipse's application was filed, I do not think it sustains the order for costs that they seek. As Eclipse's submissions point out, the Government Parties would not have incurred any costs in relation to the application in respect of the categories which they have agreed.
Conclusion
68 For these reasons, I would dismiss the application. Costs should
follow the event, and should be fixed. The parties should confer as to the amount and within 10 days file an agreed minute or competing minutes with any necessary accompanying material.
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5
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