Eodo Pty Ltd v Blue Mountains City Council

[2001] NSWLEC 106

Land and Environment Court

of New South Wales

CITATION:	Eodo Pty Ltd v Blue Mountains City Council & Ors [2001] NSWLEC 106
PARTIES:	APPLICANT Eodo Pty Ltd FIRST RESPONDENT Blue Mountains City Council SECOND RESPONDENT The Minister for Urban Affairs and Planning THIRD RESPONDENT The Director-General of Urban Affairs and Planning
FILE NUMBER(S):	40076 of 2001
CORAM:	Sheahan J
KEY ISSUES:	Practice & Procedure :- subpoenas
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Cecil D Barker & Co v Blue Mountains City Council (10915 of 2000) part-heard; Commissioner for Railways v Small (1938) 38 S.R. 564; Commonwealth of Australia v Randwick Council [2000] NSWLEC 171; Waind v Hill & Anor [1978] 1 NSWLR 377
DATES OF HEARING:	29/05/2001
DATE OF JUDGMENT:	06/01/2001
LEGAL REPRESENTATIVES:	APPLICANT Solicitor Mr A Simpson Pike Pike & Fenwick FIRST RESPONDENT Barrister Mr J McKenzie Solicitors McPhee Kelshaw SECOND AND THIRD RESPONDENTS Solicitor Ms R Fitzhardinge Legal Services Branch Department of Urban Affairs & Planning

JUDGMENT:

EODO PTY LTD

Applicant

v

BLUE MOUNTAINS CITY COUNCIL

First Respondent

MINISTER OF URBAN AFFAIRS AND PLANNING

Second Respondent

DIRECTOR-GENERAL OF URBAN AFFAIRS AND PLANNING

Third Respondent

JUDGMENT

Introduction

1. This judgment concerns motions by all three respondents to set aside subpoenas issued by the applicant, requiring all of them to produce:

All files, books, papers, applications, reports (including all reports to the Minister and/or DUAP prepared pursuant to s68 and s69 of the Environmental Planning and Assessment Act 1979 and the terms of any relevant delegations), memoranda, correspondence, plans, maps and all other records of whatever kind and in whatever form relating to the making of Blue Mountains Local Environmental Plan 25, notified in the NSW Government Gazette on 23 March 2001.

2. Eodo Pty Ltd owns land, in Council’s area, which was the subject of an appeal heard by me in class 1 of the court’s jurisdiction - Cecil D Barker & Co v Blue Mountains City Council (10915 of 2000), in which I reserved my decision on 23 February 2001.

3. These are class 4 proceedings, commenced on 8 May 2001, in which Eodo seeks a declaration that the new LEP (“LEP 25”), referred to in the subpoenas, is invalid.

4. The possibly “imminent and certain” making of LEP 25 was an issue in the class 1 proceedings, and, when LEP 25 was made, I granted leave to the class 1 applicant (“Barker”, acting for Eodo, and represented by the same law firm) to reopen its case.

5. Those reopened class 1 proceedings have been stood over for further mention before me on Friday 15 June, and the applicant therein has been directed to file and serve, by 8 June 2001, any amended plans upon which it proposes to rely. The class 1 applicant recently sought to have the three class 4 respondents produce, in the class 1 proceedings, the very same documents which are now subpoenaed in these proceedings.

6. The respondents in these proceedings submit that:

1. the subpoenas issued in these proceedings were served immediately following service of the class 4 application.
2. the class 4 application provides no particulars of the grounds upon which the applicant challenges the making of LEP 25.
3. the court’s pre-hearing Practice Direction of 12 August 1999 requires the applicant to file and serve Points of Claim and affidavits in chief within fourteen days of the respondents’ appearances in the proceedings, namely by 1 June 2001.
4. the respondents require of the applicant both particulars and Points of Claim so that they will know the case they have to meet.
5. the Practice Direction envisages formal or informal discovery, and provides, in terms, that “ subpoenas or notices to produce to parties should not be used as a substitute for discovery ” (par 19).
6. these subpoenas are served to enable the applicant to search materials “ to ascertain whether there is any basis ” for a challenge to the validity of LEP 25, and, in the circumstances as they currently obtain, “ constitutes an abuse of process of the court ”.

7. The class 4 applicant “wishes to first proceed with the class 1 proceedings”, and also to await the decision of Lloyd J in another class 4 matter involving a challenge to a plan, apparently on the basis of “non-inclusion of a savings provision” (see letter from its solicitor to Council’s solicitor dated 28 May 2001 - Annexure “H” to Mr Cork’s affidavit of 28 May), and has foreshadowed to the three respondents the adjournment of these class 4 proceedings.

8. The applicant having called upon its subpoenas in the class 4 proceedings on Tuesday last, the Registrar referred the three respondents’ Notices of Motion to me, as Duty Judge, for immediate hearing.

9. The First Respondent suggests that appropriate directions should be given for particulars, Points of Claim, affidavits, Points of Defence and discovery, and that the subpoenas should be set aside.

10. The Second and Third Respondents agree that the subpoenas should be set aside, but suggest, as an alternative, that the class 4 proceedings, subpoenas and Notices of Motion should all be now stood over until the class 1 proceedings have been finalised.

11. For reasons beyond the control of the parties, the court will not be able to conclude the part-heard class 1 proceedings until after I return to duty in the court on or after 17 August 2001. The applicant has every right to challenge, in class 4 of the court’s jurisdiction, the making of LEP 25, and it is not necessary that those proceedings be heard by the same Judge as the class 1 proceedings. In all the circumstances, it would not be appropriate to make the alternative order suggested by the Second and Third Respondents.

12. I turn, therefore, to the question of whether or not the subpoenas should be set aside, as all three respondents submit.

13. Mr Simpson, for the applicant, points out that probably all documents relevant to the question in the class 4 proceedings are in the hands of the respondents, that probably none of those documents are in the hands of his clients, and that, apart from the comment in par 19 thereof, the Practice Direction is silent on when subpoenas may properly be issued.

14. Ms Fitzhardinge, for the Second and Third Respondents, argues that public sector parties, like the Minister and the Director General, should, in such matters, be treated no differently from private parties, and that the applicant can obtain its evidence by other means in the ordinary course.

15. Mr McKenzie, for the First Respondent, argues that the subpoenas are “premature”, and are designed to go “fishing” for evidence to found a case against the validity of the LEP. Subpoenas should not be issued until after discovery, when the trial of the issues, suitably “narrowed” by the court’s usual pre-trial procedures, is “in prospect”, and the “relevant evidence” can be identified defined and properly sought. Issuing these subpoenas, in their current form, at this very early stage, is an abuse of the court’s “salutary procedure” - it is done for an “ulterior” purpose (i.e. “fishing”), and they are “both too wide and too early”, and should be set aside.

16. The leading NSW authority, to which reference is frequently made in cases like this, is Commissioner for Railways v Small (1938) 38 S.R.564, in which Jordan CJ traced the relevant history of writs of subpoena, and restated the need for “particularity” as to the documents required to be produced. He noted the obligations of parties (c.f. strangers) to give discovery, and criticised “fishing” which he defined (at 575) as “endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all”.

17. Jordan CJ’s comments were adopted and applied in this court, for example, in Talbot J’s judgment of 7 August 2000 in Commonwealth of Australia v Randwick Council [2000] NSWLEC 171 (at pars 23 and 26).

18. Mr Simpson referred the court to the judgment of Moffitt P in Waind v Hill & Anor [1978] 1 NSWLR 377. Moffitt P discussed Small and other authorities at length, but I can find, in his judgment, nothing to support the applicant’s position; indeed (at 382) there are comments which refute it.

19. In this case it is clearly arguable that all the documents listed in the schedule to the subpoenas could well prove to be relevant to the question of the plan’s validity, so I will not prejudge the subpoenas on the basis of their “width”. However, a conclusion that they are part of “a fishing exercise” is virtually inevitable, as they have been issued when the only substantive document in the court file is the class 4 application. In the discovery process the parties must decide what documents they possess are relevantly related to an issue taken in the proceedings (Talbot J par 35), but the issues in this matter are yet to be defined, and it is not appropriate to subpoena any documents until they are.

20. I have concluded that this litigation should be allowed to follow the usual course envisaged by the Practice Direction. With that in view, the court orders:

(i) the subpoenas for production issued by the applicant to the First, Second and Third Respondents, on 16-17 May 2001, in the terms referred to in par 1 of this judgment, are set aside.
(ii) the class 4 proceedings will be listed for callover by the Registrar next Wednesday 6 June 2001, with a view to her giving the parties appropriate directions to progress them.
(iii) The applicant will pay the costs of all three Respondents in respect of their Notices of Motion dated 25 May 2001.