Expandamesh Pty Ltd v Sydney Metro

[2022] NSWLEC 43

Land and Environment Court

New South Wales

Medium Neutral Citation:

Expandamesh Pty Ltd v Sydney Metro [2022] NSWLEC 43

Hearing dates:

17 March 2022

Date of orders:

27 April 2022

Decision date:

27 April 2022

Jurisdiction:

Class 3

Before:

Moore J

Decision:

See orders at [87] to [89]

Catchwords:

SUBPOENAS - application to set aside as no apparent relevance beyond speculation said to be demonstrated - two subpoenas proposed to be set aside - Applicant files Amended Points of Claim - documents sought in subpoenas generally apparently relevant beyond mere speculation to matter pleaded in the Amended Points of Claim - one subpoena contains a provision not apparently relevant to pleaded matter - provision to be deleted from that subpoena - no temporal limitation in the subpoenas - open-ended subpoenas not appropriate - limited period to be covered by subpoenas established by the evidence - limitation period imposed on the subpoenas - subpoena modified to delete irrelevant matter and subpoenas limited in time

NOTICE TO PRODUCE - application to set aside Notice to Produce - procedural basis for issuing Notice to Produce changed without objection by substituting Notice to Produce during the course of the hearing - Applicant files Amended Points of Claim - documents sought in Notice to Produce generally apparently relevant beyond mere speculation to matter pleaded in the Amended Points of Claim - Notice to Produce contains a provision not apparently relevant to pleaded matter - provision to be deleted from Notice to Produce - no temporal limitation in Notice to Produce - open-ended Notice to Produce not appropriate - limited period to be covered by Notice to Produce established by the evidence - limitation period imposed on Notice to Produce - Notice to Produce modified to delete irrelevant matter and limited in time

COSTS - partial success in set-aside applications by deletion of some classes of documents and imposition of temporal limitation - applications to set aside otherwise unsuccessful - partial success of opposing parties warrants no order for costs being made.

Legislation Cited:

Evidence Act 1995 (NSW), s 75

Land Acquisition (Just Terms Compensation) Act 1991

Uniform Civil Procedure Rules 2005, rr 21.10 and 34.1

Cases Cited:

Norris v Kandiah [2007] NSWSC 1296

Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Category:

Procedural rulings

Parties:

Expandamesh Pty Ltd (Applicant)
Sydney Metro (Respondent)

Representation:

Counsel:
Mr T Hale SC (Applicant)
Mr L Waterson, barrister (Respondent)

Solicitors:
ClarkeKann Lawyers (Applicant)
Crown Solicitors Office (Respondent)

File Number(s):

179897 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The Notices of Motion

The hearing

Representation

The evidence

The scheduled substantive hearing

Creation of the Waterloo Precinct

The triggering meeting

The terms of the Notice to Produce to Sydney Metro

The Amended Notice to Produce to Sydney Metro

The subpoena to the Department

The subpoena to Infrastructure NSW

The Company’s Amended Points of Claim

The submissions for Sydney Metro and Infrastructure NSW

The submissions for the Company

The submissions in reply for Sydney Metro and Infrastructure NSW

Consideration

Introduction

General

The temporal scope of the Notice to Produce and the subpoenas

The subpoena to Infrastructure NSW

The subpoena to the Department

The Notice to Produce to Sydney Metro

Public interest immunity

Times for compliance

Costs

Orders

Judgment

Introduction

1. Expandamesh Pty Ltd (the Company) owns a property at 175‑177 Botany Road, Waterloo (the site). On 11 October 2019, a substratum of the site was compulsorily acquired by Sydney Metro for the purpose of constructing tunnels to serve the Sydney Metro City and Southwest Project. The Valuer General has determined that the amount of compensation to be paid to the Company by Sydney Metro for the compulsory acquisition of the substratum through which the tunnel will run is nil.

2. The Company has commenced proceedings pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act) disputing the Valuer General's determination.

3. In order to seek documents regarded by the Company’s lawyers as necessary for the purpose of establishing their case, a Notice to Produce (the Notice to Produce) was served on the Company's behalf in December 2021 on Sydney Metro. Subpoenas were also issued on the Company's behalf to the Secretary of the Department of Planning, Industry and Environment (the Department) and to Infrastructure NSW (the subpoenas).

The Notices of Motion

4. On 25 January 2022, Sydney Metro filed a Notice of Motion seeking to set aside the Notice to Produce addressed to it and the subpoenas issued to the Secretary and to Infrastructure NSW. The orders which Sydney Metro seeks through its Notice of Motion are:

Subpoena to produce issued to the Department of Planning, Industry and Environment

1 The Subpoena for production issued to the Department of Planning, Industry and Environment on 9 December 2021 on behalf of the applicant, returnable on 22 December 2021 (“DPIE Subpoena”), be set aside generally pursuant to Part 33 Rule 33.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”) on the ground that the Subpoena lacks a legitimate forensic purpose to require production of the documents described therein.

Subpoena to produce issued to Infrastructure NSW

2 The Subpoena for production issued to Infrastructure NSW on 9 December 2021 on behalf of the applicant, returnable 22 December 2021 (“Infrastructure NSW Subpoena”), be set aside generally pursuant to rule 33.4(1) of the UCPR on the ground that the Subpoena lacks a legitimate forensic purpose to require production of the documents described therein.

Notice to produce for inspection served on Sydney Metro

3 The Notice to produce for inspection served on Sydney Metro by the applicant on 8 December 2021 (“Notice to Produce”) be set aside generally pursuant to rule 21.11(1) of the UCPR on the ground that the Notice to Produce lacks a legitimate forensic purpose to require production of the documents described therein.

4 In the alternative, the Notice to Produce be set aside generally pursuant to rule 21.11(1) of the UCPR on the ground that the Notice to Produce does not seek the production of a “specific document or thing that is clearly identified in the notice and is relevant to a fact in issue”, as required by rule 21.10(1)(b) of the UCPR.

5   In the alternative, Sydney Metro be excused from producing any material that is properly the subject of a claim for public interest immunity.

Further orders

6   The applicant pay the costs of this Motion.

5. On 25 January 2022, Infrastructure NSW also filed a Notice of Motion seeking to set aside the subpoena issued to that body. The orders which Infrastructure NSW seeks through its Notice of Motion are:

1   The Subpoena for production issued to the applicant on 9 December 2021 on behalf of Expandamesh Pty Ltd, returnable 8 February 2022, be set aside on the basis that it is oppressive.

2   In the alternative, the applicant be excused from producing any material that is properly the subject of a claim for public interest immunity.

3   The respondent to this Motion, Expandamesh Pty Ltd, pay the costs of this Motion.

The hearing

6. The two Notices of Motion were set down for hearing before me on 17 March 2022. The hearing was held by telephone. The hearing was conducted efficiently, concluding in less than two hours.

Representation

7. Mr L Waterson, barrister, represented Sydney Metro and Infrastructure NSW. Mr T Hale SC represented the Company. Each of the advocates provide helpful written submissions.

The evidence

8. Evidence on its motion was given on behalf of Sydney Metro by:

• An affidavit dated 22 December 2021 of Ms S Lowes, a solicitor at the Crown Solicitor’s Office. This affidavit had, relevantly, two letters annexed to it. The first was a letter from the deponent to the Company’s legal representative seeking to have the Notice to Produce and the subpoenas withdrawn. The letter indicated that, unless some legitimate forensic purpose was established to the satisfaction of Sydney Metro’s legal representatives (potentially on the basis of the Company filing Amended Points of Claim) an application might be made to strike out the Notice to Produce. The affidavit then annexed the letter in response from the Company's legal representative. That letter, dated 15 December 2021, set out reasons on behalf of the Company as to the basis for seeking the documents and contesting that the scope of the Notice to Produce and the subpoenas was too wide or was imprecise.

• An affidavit dated 10 March 2022 of Mr B Grierson, a solicitor at the Crown Solicitor’s Office. His affidavit had annexed to it a letter from the Company's legal representatives serving a number of reports, one of which was a report from a consultant town planner, Mr David Haskew, concerning development potential for the site (including any associated basement parking requirements) and the extent to which Sydney Metro’s tunnel project would impact on the provision of such basement parking provision. The affidavit also appended a letter from Mr Grierson in response. This letter sought further and better particulars concerning elements of the Company's Amended Points of Claim. It is unnecessary to set out these matters in any further detail. It is sufficient to note that, as at the deadline set by the letter (9 March 2022) for a response to this request, no such response had been received as at the date of the preparation of the affidavit.

9. Evidence on its motion was given on behalf of Infrastructure NSW by:

• An affidavit dated 25 January 2022 of Ms H Vickers, legal consultant to Infrastructure NSW. The affidavit recorded that the documents sought by the subpoena to Infrastructure NSW, relating to the Waterloo Precinct, meant that it was likely that most or all of the documents were from an organisation, now disbanded, known as UrbanGrowth NSW Development Corporation (UrbanGrowth NSW). This body was dissolved and its assets, rights and liabilities (together with its staff) were transferred to the body now known as Infrastructure NSW. The records of UrbanGrowth NSW were thus transferred to Infrastructure NSW.

The affidavit then set out the processes by which Infrastructure NSW would need to search for documents which might satisfy the terms of the subpoena. The affidavit set out information concerning preliminary searches of the documentary records held by Infrastructure NSW and two e‑mail mailboxes which had been retrieved and which might potentially hold material responsive to the subpoena. The document archiving system operated for Infrastructure NSW is known as “Objective”.

The affidavit next set out what the deponent considered would be a reasonable estimate of the costs of compliance based on two earlier document production exercises undertaken by Infrastructure NSW, one in 2020 and one in 2021. It is not necessary to set out the detail of the preliminary searches to identify potential document numbers or to set out the costs of the earlier document production exercises.

It is, however, appropriate to reproduce paragraphs 41 to 43 of Ms Vickers affidavit. These are in the following terms:

Estimated cost of compliance with Subpoena

41   The likely cost of compliance with the Subpoena cannot be ascertained with any certainty at this point.

42   However, based on the number of hits on documents in Objective and the number of email records that would need to be searched, I estimate based on the two examples given that the cost of compliance may be at least in the range of $80,000 - $200,000. In this case, because the documents sought are not limited by date range, I estimate the cost of compliance is likely to be at the upper end of that range, or possibly higher.

Possible claims of privilege or public interest immunity

43   Beyond the preliminary searches described above, Infrastructure NSW has not at this stage sought to identify or review documents, which may be responsive to the subpoena. If it is required to conduct such a review, any client legal privilege and/or public interest immunity claims in relation to particular documents will be raised at that time.

However, it is also to be noted that, amongst the searches that were conducted at Ms Vickers’ direction, one search was confined to a search described in paragraph 23 of her affidavit, a paragraph in the following terms:

23   I subsequently caused further keyword searches on the full text of documents held in Objective to be carried out by Ms James using the search terms “175A Botany Road Waterloo” and “171B Botany Road Waterloo”. Annexed to this affidavit and marked HJV-4 is a table setting out the result of those further preliminary searches. These further keyword searches produced a total of 13 hits on individual documents in Objective.

10. Evidence on the motion was given on behalf of the Company by:

• An affidavit dated 4 March 2022 of Mr D Brown, a director of the Company. This affidavit set out a history of activities on behalf of the Company and Defence Housing Australia (Defence Housing), the owner of land adjacent to the site, concerning planning work being undertaken on behalf of the Company and Defence Housing for the preparation of a joint planning proposal for rezoning the combined properties. Although the affidavit sets out a degree of detail concerning activities in early 2016, it is not necessary to set out all of this history. It is, however, appropriate to set out paragraphs 15 to 21 of Mr Brown's affidavit. These paragraphs are in the following terms:

15   On or about 17 August 2016, representatives from Mecone [a planning consultancy] and Crosby Textor met with Sarah Koshy, the Director or [sic] Urban Renewal at DPIE, Sarah's team leader, Emma, and an administrative assistance [sic].

16   On or about 18 August 2016, I received an email from Ms Bartlett at Mecone providing a summary of the 17 August 2016 meeting with DPIE. Annexed to this affidavit and marked “B” is a copy of this email.

17   In around December 2016, it was announced that Waterloo would receive a new metro station. Following this announcement, Expandamesh continued its work with Mecone and Crosby Textor to investigate the rezoning of the Property. At that stage, we did not know that the proposed metro and/or station would be on or under our Property.

18   On or about 27 June 2017, Expandamesh was served with a proposed acquisition notice by Sydney Metro.

19   In or around October or November 2017, Mecone was advised by DPIE and UrbanGrowth NSW that the future planning for all sites outside the Waterloo State Significant Precinct would be managed by the City of Sydney Council and the plans for the rezoning of the property would be managed by the Council. I took that to mean that the Property was not going to be included in the boundary of the Waterloo Precinct.

20   On or about 23 June 2021, DPIE published a planning proposal for the gateway determination for the Waterloo Estate South rezoning, which confirmed that the Property has been excluded from the proposed rezoning.

21   Currently, the zoning of the property remains unchanged. We are unsure when or if any rezoning of the Property will occur.

It will be necessary, later, to set out and consider elements of the e‑mail from Ms Bartlett of Mecone that was sent to Mr Brown on Thursday 18 August 2016.

Although Ms Bartlett's e‑mail is hearsay evidence, there are two reasons why that does not matter in the present circumstances. First, the Company's proceedings have been brought in Class 3, a class of the Court's jurisdiction to which the strict rules of evidence do not apply. Second, even if they did, these are interlocutory proceedings and s 75 of the Evidence Act 1995 (NSW) provides that hearsay evidence is permissible to be relied upon in interlocutory proceedings.

• Three affidavits (the first dated 8 March 2022 and the second and third both dated 10 March 2022) of Ms C Howard, a solicitor employed by the Company’s legal representatives. Ms Howard's first affidavit sets out details of contact with the Department concerning the subpoena and procedural steps taken with respect to its return date being stood over until February 2022. She then records that the Department would withhold production of documents within the scope of the subpoena until after determination of Sydney Metro’s Notice of Motion seeking to have it set aside.

At paragraph 10 of this affidavit, Ms Howard deposes that:

10   At no stage has Mr Gorgis or another representative of DPIE advised me that DPIE was not in a position to comply with the subpoena nor that the documents sought were onerous.

Ms Howard's second affidavit annexed a marked-up air photo showing the boundaries of the site, the location of Sydney Metro’s proposed tunnels and Waterloo Station and the boundaries of the Waterloo Precinct. Also annexed to this affidavit was a letter from the Company's legal representatives to the legal representatives of Sydney Metro. It is appropriate to reproduce portion of that letter as being relevant to matters requiring consideration on these Notices of Motion. The relevant portions of the letter were in the following terms:

As you also know, our client’s land immediately adjoins the Waterloo Precinct. As our letter of 15 December 2021 emphasised (of which you are previously aware), our client's case is that but for the public purpose for which our client’s land was acquired, our client’s land at 175‑177 Botany Road Waterloo would have been included in the surrounding ‘Priority Precinct’ and/or government led rezoning. In short, it would have been part of the Waterloo Precinct.

The matter upon which we seek clarification is whether in these proceedings your client Sydney Metro accepts that:

(a)   our client’s property’s exclusion from the Waterloo's Precinct was caused by the proposal to carry out the public purpose (being the construction of the Sydney Metro on the acquired land);

(b)   on behalf of Sydney Metro, submissions were made to Infrastructure NSW that our client’s property be excluded from the Waterloo Precinct.

If Sydney Metro puts these matters in issue, then documents the subject of the Notice to Produce and the subpoena are relevant to a fact in issue in the proceedings. If, however, Sydney Metro accepts these matters, or does not put them in issue, our client will consider withdrawing the Notice to Produce and Subpoenas.

If these matters are put in issue, the fact that production is onerous cannot be a basis for setting aside the notice and/or the subpoena. Our client will, of course, consider suggestions that your clients might make to reduce the scope of the notice and the subpoena but which, at the same time achieve their purpose.

We look forward to any compromise your clients, as model litigants, might suggest.

Ms Howard's final affidavit annexed title search documents concerning the Company's property. It is not necessary to make further reference to the annexed documents for the purposes of this interlocutory proceeding.

11. None of those persons who had deposed affidavits for the purposes of this interlocutory hearing was required for cross-examination.

The scheduled substantive hearing

12. The substantive dispute between the Company and Sydney Metro has been set down for a nine‑day hearing commencing on 15 September 2022. On 3 December 2021, I made orders setting out the pre‑trial timetable necessary for preparation for that hearing. This decision has been delivered within a time period which the parties indicated would not delay preparation for the trial and would certainly not create any necessity to contemplate vacating the scheduled hearing dates.

Creation of the Waterloo Precinct

13. A critical element, in the Company's case, arises from the fact that, as I understood the submissions on its behalf, the site had been excluded from the Waterloo Precinct, an identified locality to which an advantageous planning regime was to be established (or may well already have been established, a matter not material for present purposes). The site borders the south‑western boundary of the Waterloo Precinct but has been excluded from it.

13. As I understand the present case theory for the Company, it is that Ms Bartlett, a consultant to the Company had, on reasonable grounds, formed the opinion that the site was to be included in the Waterloo Precinct but, as it transpired, was not so included.

14. As a consequence, the Company, again as part of its case theory as I understand it, proposes that it should have been included and that, by its exclusion, has suffered compensable loss.

15. The purpose of the Notice to Produce and the subpoenas are to seek documents that will explain the site’s exclusion from the Waterloo Precinct and, particularly, whether the reason lying behind its exclusion from that precinct can be seen to be the presence of Sydney Metro’s tunnel project passing under the site and/or representations by Sydney Metro that the site should be excluded..

The triggering meeting

17. On 17 August 2016, some fourteen months before the date of acquisition, consultants acting for the Company had a meeting with relevant staff from the Department concerning future planning matters for the locale within which the site is located. The following day, Ms Bartlett, a consultant from Mecone Consultancy who had attended the meeting on behalf of the Company, e‑mailed Mr Brown, the Company's Managing Director, concerning what had taken place at the meeting and her expectation of what would follow with respect to the site and the evolution of the Waterloo Precinct.

18. The e‑mail of 18 August 2016 from Ms Bartlett to Mr Brown was earlier noted in paragraph 16 of Mr Brown’s affidavit. The e‑mail set out some notes prepared by Ms Bartlett concerning her meeting of 17 August 2016 with the representatives of the Department of Planning and Environment. She noted what she described as five “key points” that had been made by departmental staff during this meeting. The five key points are appropriate to be reproduced for present purposes. These were in the following terms:

•   The government-owned land (Land and Housing Land) will be managed through an amendment to the SEPP (State Significant Precincts) 2005. The Dept. is currently working with the City of Sydney to finalise a Memorandum of Understanding with respect to the planning process for these sites. These sites will be rezoned and the planning process managed through the above SEPP;

•   Surrounding privately-owned land will be developed through a ‘Priority Precinct’ or government-led rezoning. The Dept. has a draft boundary for the sites to be included within the future ‘Priority Precinct’ but this has not been publicly released. It is likely a similar MOU will be developed with the City of Sydney with respect to these sits;

•   The rezoning of the Land and Housing sites will likely occur faster through the existing SEPP than the surrounding Priority Precinct. However, in preparing Urban Design, Planning and Built Form strategies for the initial sites, the Government and Dept. will need to consider the broader Priority Precinct at the same time as part of a holistic development;

•   Although the Dept. cannot advise on which sites will be in the Priority Precinct, the subject sites (171B‑175A Botany Road) are within the appropriate walking catchment from the future station and “meet all the strategic aims and objectives” to be included in the future Priority Precinct.

•   It is unlikely any announcement on the Priority Precinct boundaries will be made prior to finalisation of the MOUs with both the City of Sydney and affected Government agencies including TfNSW, Urban Growth and Land and Housing (note - this is unlikely to be before October this year).

19. Ms Bartlett then commented following setting out these five key points:

Based on this feedback, it appears highly likely that the sites will be included as part of the Priority Precinct being developed by the Government.

20. Ms Bartlett then outlined what she considered the desirable future steps were appropriate to be undertaken.

21. As it subsequently transpired, her conclusion that the site would be incorporated in the Waterloo Precinct turned out to be misplaced. It is the expectation she described in the above dot‑point extracted from her e‑mail, and the fact that what she expected to have occurred did not, in fact, occur, that lies behind the Company's legal representatives issuing the Notice to Produce and the subpoenas which are the subjects of these two Notices of Motion seeking to have them set aside.

The terms of the Notice to Produce to Sydney Metro

22. As later explained, a second Notice to Produce was substituted for that which had originally been served on Sydney Metro. The substituted Notice to Produce was in identical operative terms (but having a different procedural foundation) to the Notice to Produce dated 8 December 2021 served on Sydney Metro (and in evidence at Annexure SJL‑1 to Ms Lowes’ affidavit). This Notice to Produce was in the following terms:

1.   A copy of the following documents relating to the “Waterloo Metro Quarter”, “Waterloo Precinct” and any “Priority Precinct” or “government-led rezoning” in Waterloo, NSW (“the Waterloo Precinct”):

(a)   any documents by or on behalf of Sydney Metro to Infrastructure NSW (previously UrbanGrowth NSW) and the Department of Planning, Industry and Environment (“the Department”) with respect to the boundary of any part of the Waterloo Precinct, including but not limited to:

(i)   any documents relating to parcels of land that should be included or excluded in the Waterloo Precinct; and

(ii)   any submissions by Sydney Metro to the Department, or another statutory body, seeking the exclusion of certain parcels of land from inclusion in the Waterloo Precinct.

(b)   Any documents relating that the suitability or unsuitability of 171B‑175A‑Botany‑Road, Waterloo (“the Property”), being included within the Waterloo Precinct, including but not limited to:

(i)   Records of any and all discussions (including correspondence and submissions) between Sydney Metro and the Department, Transport for NSW, and Infrastructure NSW (including UrbanGrowth NSW);

(ii)   any internal documents (including but not limited to file notes, internal memorandums, reports) the discusses the Property in this context.

The Amended Notice to Produce to Sydney Metro

23. It is appropriate to note that, at the commencement of the hearing, it was revealed that the Company's legal representatives had served a further Notice to Produce, in identical terms but with a different procedural foundation, on Sydney Metro. In order to ensure, as a matter of practicality, that all issues concerning Notices to Produce and subpoenas would be addressed by this hearing, Mr Hale indicated that the Company would not rely on its first Notice to Produce but would rely on the recently issued one. Mr Hale also indicated that the appropriate course was for Sydney Metro's motion to be amended to respond to the second Notice to Produce. Mr Waterson accepted this course as being appropriate. I have therefore dealt with these matters on this revised basis.

24. This replacement of the original Notice to Produce addressed to Sydney Metro was designed, as I understood it, to address the complaints raised by Sydney Metro that the initial Notice to Produce, one based on r 21.10 of the Uniform Civil Procedure Rules 2005 (the UCPR) did not satisfy the requirements of that rule to be valid.

25. In this regard, Mr Waterson set out, at paragraphs 30 to 33 of his primary written submissions on behalf of Sydney Metro (dated 1 February 2022), extracts from to judgments of Brereton J - these being Norris v Kandiah [2007] NSWSC 1296 and Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869. Relevantly, his Honour had addressed the important differences between a Notice to Produce under r 21.10 of the UCPR and a Notice to Produce pursuant to r 34.1 of the UCPR.

26. The substitution during the course the hearing by the Company of a Notice to Produce pursuant to r 34.1 of the UCPR cures the complaints pressed on behalf of Sydney Metro with respect to the original Notice to Produce served on it. There is, therefore, no necessity to explore that matter further.

The subpoena to the Department

27. The subpoena to the Department sought the following documents:

2.   A copy of the following documents relating to the “Waterloo Metro Quarter”, “Waterloo Precinct” and any “Priority Precinct” or “government-led rezoning” in Waterloo, NSW (“the Waterloo Precinct”):

(a)   Any communications, file notes, and any other documents recording discussions, submissions and negotiations with Sydney Metro and Transport for NSW regarding the proposed boundary for the Waterloo Precinct.

(b)   Any documents regarding the suitability or unsuitability of 171B‑175A Botany Road, Waterloo (“the Property”), being included within the Waterloo Precinct, including but not limited to:

(i)   Records of any and all discussions (including correspondence) between the Department, the City of Sydney Council, Sydney Metro and/or Transport for NSW; and

(ii)   all documents relating to the reasoning behind the Department's decision to exclude the Property from inclusion within the Waterloo Precinct, including submissions by Sydney Metro, Transport for NSW and the City of Sydney Council.

(c)   A copy of the ‘Memorandum of Understanding’ prepared by the Department and the City of Sydney Council, including but not limited to:

(i)   all documents relating to the preparation of the ‘Memorandum of Understanding’;

(ii)   any submissions by Sydney Metro and/or Transport for NSW.

(d)   Any other documents relating to the Property with respect to the Waterloo Precinct.

The subpoena to Infrastructure NSW

28. The subpoena addressed to Infrastructure NSW was to identical effect to that served on the Department, except that paragraph 2(c)(i) and (ii) of the subpoena to the Department were omitted from the subpoena served on Infrastructure NSW. Its terms are:

2.   A copy of the following documents relating to the “Waterloo Metro Quarter”, “Waterloo Precinct” and any “Priority Precinct” or “government-led rezoning” in Waterloo, NSW (“the Waterloo Precinct”):

(a)   Any communications, file notes, and any other documents recording discussions, submissions and negotiations with Sydney Metro and Transport for NSW regarding the proposed boundary for the Waterloo Precinct.

(b)   Any documents regarding the suitability or unsuitability of 171B 175A Botany Road, Waterloo (“the Property”), being included within the Waterloo Precinct, including but not limited to:

(i)   Records of any and all discussions (including correspondence) between the Department, the City of Sydney Council, Sydney Metro and/or Transport for NSW; and

(ii)   all documents relating to the reasoning behind the Department's decision to exclude the Property from inclusion within the Waterloo Precinct, including submissions by Sydney Metro, Transport for NSW and the City of Sydney Council.

(c)   Any other documents relating to the Property with respect to the Waterloo Precinct.

The Company’s Amended Points of Claim

29. Paragraph 11(c) of the Company's Amended Points of Claim filed on 4 March 2022 sets out, as here relevant, the nature of the Company's claim as now pleaded. It is in the following terms:

(i)   Immediately before 11 October 2017, but for the carrying out or proposal to carry out public purpose for which the land was acquired and but for the acquisition, the Applicant's Land (the Remaining Land and the Acquired Land) would have been included in a priority precinct, the subject of government led planning and rezoning proposals, which ultimately led to the establishment of the Waterloo Precinct.

(ii)   As a consequence of the proposal to carry out the public purpose for which the land was acquired, the Applicant's Land (the Remaining Land) ceased to be included and/or was not included in such a priority precinct as at 11 October 2017.

(iii)   The Applicant is entitled to compensation pursuant to section 55(a) and (f), being the difference in value between the Remaining Land and Acquired Land on the assumption in (i) and the value of the Remaining Land on the assumption in (ii).

The submissions for Sydney Metro and Infrastructure NSW

30. The Company's Amended Points of Claim of 4 March 2022 replaced paragraph 11 in the original Points of Claim with, relevantly, the revised paragraph 11(c) set out above. As Mr Waterson submitted, the original form of paragraph 11 did not disclose the details of any claim on behalf the Company, it merely set out six enumerated forms of information that would be provided at a range of (indeterminate) future dates as providing the basis of the Company's claim for compensation. The two Notices of Motion with which I am dealing were filed on 25 January 2022 when the Company's Points of Claim were in the form just described.

31. In his oral submissions, Mr Waterson referred to the decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown). He referred to paragraph 10 to of his written submissions, the relevant portion of which was in the following terms:

… the Court endorsed the relevant test for legitimate forensic purpose as being that “… it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist ….” (Blacktown at [65]) - emphasis added by Mr Waterson.

32. It is to be noted that Mr Waterson had addressed what were then submitted to be the deficiencies in the Company's pleadings, advancing the proposition that correspondence from the Company's legal representatives to Sydney Metro seeking to explain the basis of the Company’s claim did not provide an appropriate basis for the issuing of the Notice to Produce or the subpoenas and that the basis of the claim required to be identified in the pleaded Points of Claim as a potential foundation for such documents to be served.

33. Mr Waterson then summarised the broad bases upon which he submitted that the Company’s Notice to Produce or subpoenas did not even satisfy the low test of “apparent relevance”, saying (Transcript, page 7, lines 16 to 33):

Paragraph 12 of our submissions, we accept that the threshold to establish apparent relevance is relatively low, as the Court of Appeal has said. However, there is still a threshold. That threshold is that the identification of a reasonable basis beyond speculation that the documents sought will assist on the identified issue.

The identified issue is that contention in para 11(c) that I took your Honour to. The effect of that contention, as I said earlier, is that the public purpose has caused the applicant’s land to be excluded from some kind of planning precinct, and but for that purpose it would’ve been included in that precinct. The essence of that contention is a causative link of some kind between the public purpose and the exclusion of the applicant’s land from the planning precinct. Your Honour will be familiar with that kind of case, which is commonly called an underlying zoning case, or similar labels have been used.

In our submission, the applicant has not identified any basis beyond speculation that the documents sought under the subpoenas or notice to produce will assist on that issue.

34. Mr Waterson then noted that he had set out, in paragraphs 16 to 19 of his written submissions, four reasons why the Company had not established any reasonable basis beyond speculation as to why the documents sought would assist on issues identified by the Company.

35. Before returning to Mr Waterson's oral submissions, it is appropriate to set out the terms of the first of those reasons, being the reason advanced in paragraph 16 of his written submissions. The paragraph was in the following terms:

16   First, despite being requested to do so, the Applicant has not provided any particulars of the contention. It is unable to identify any basis for its assertion that the public purpose caused its property to be excluded from the planning precinct. Unlike the position in Blacktown, the present proceedings are not a case where a causative link between the purpose for which land was acquired and the zoning of the acquired land on the acquisition date can be readily established from the nature of that zoning (citations omitted).

36. An exchange then took place between me and the advocates concerning Mr Grierson's letter of 8 March 2022 (as earlier noted) seeking further and better particulars (being a letter with a reply requested by the following day) and what was the position with respect to that request for particulars as at the date of my hearing of these motions. At the conclusion of this discussion, the position was that no formal particularisation had been provided by the Company, but Mr Hale's submissions of 10 March 2022, sent to Mr Waterson's instructing solicitors on that date, constituted the Company's response to Mr Grierson's letter.

37. Mr Waterson then returned to the underlying zoning proposition. He had advanced, in paragraph 16 of his written submissions, that there was no obvious causative link between the public purpose and the zoning of the Company’s site. The transcript then records the following exchange I had with Mr Waterson (Transcript, page 9, lines 37 to 50):

HIS HONOUR: The causative matter relating to the zoning of the property is not, at least as I understand Mr Hale’s client’s case, it is not the zoning of the property; it is the failure to attach a different zoning to the property.

WATERSON: Yes, your Honour. That's correct.

HIS HONOUR: Isn't that a distinction.

WATERSON: That's correct, your Honour, but the case, the point I'm making is that in a lot of cases dealing with what I can call underlying zoning there is no need to really establish any basis for the causative link because it is obvious on the face of the zoning. The point is that that is not this case, so something more is required than simply an assertion that there is a causative link, in my submission.

38. It is next appropriate to set out the second of the bases advanced by Mr Waterson in his written submissions (at paragraph 17). This paragraph referred to the letter from Mr Haskew, earlier referred to as having been annexed to Mr Brown's affidavit. Paragraph 17 of Mr Waterson's written submissions was in the following terms:

17   Secondly, the Haskew Letter provides no basis for this causative link. This is significant given the contention of the kind made by the Applicant, sometimes referred to as an “underlying zoning” contention, is usually supported by expert planning evidence. Presumably, the Applicant intends to seek leave to serve supplementary planning evidence in support of its contention if it can be made good after reviewing the documents produced under the Subpoenas.

39. Mr Waterson submitted that the Haskew letter did not address the matters which were the subject of the contentions set out in paragraph 11 of the Company's Amended Points of Claim (as earlier reproduced). In this context, he submitted (Transcript, page 10, lines 8 to 15):

… usually in these kinds of cases the case for the causative link between the public purpose and zoning is supported by town planning evidence and the applicant has served this document, which contains no such link. The inference your Honour can draw, in my submission, together with the other points that I'm making, is that the applicant’s intention is to serve or seek your Honour’s leave to serve a supplementary planning report in support of its contention in para 11 if that can be made good after reviewing these documents that it seeks under the subpoena.

40. At this point, I had an exchange with Mr Waterson concerning the detail of Mr Haskew's letter and the nature of the case advanced on behalf the Company. It is not necessary to reproduce that exchange here, but it will be reproduced in the context of my consideration of these motions.

40. Although Mr Waterson did not return to address them in his primary submissions, it is also appropriate to reproduce the third and fourth bases advanced in support of the proposition that there was no legitimate forensic purpose for the Notice to Produce or the subpoenas. These paragraphs were in the following terms:

18 Thirdly, the Applicant asserts that the contention “has as its factual foundation” meetings between representatives of the Applicant and the Department of Planning, in particular a meeting of 17 August 2016, evidence of which is provided in the affidavit of Mr Brown: Applicant's Submissions at [25]. However, this evidence provides no basis for a causative link between the public purpose and the exclusion of the Applicant's land from any planning precinct is contended for by the Applicant in the amended points of claim. To the contrary, the email describing the outcome of the meeting on 17 August 2016 refers to the Applicant's property being “within the appropriate walking catchment from the future station” as a basis for the property being included in the proposed precinct: Brown, annexure B, p 11.

19   Fourthly, the subpoenas seek “any” documents falling within extremely wide classes of documents including a catch-all class comprising “any other documents related to the [Applicant’s] property with respect to the Waterloo Precinct”. This not only raises issues of oppression (as set out in the submissions of Infrastructure NSW filed on 1 February 2022) and, compliance with rule 21.10(b) (as set out in the Original Metro Submissions at [29]-[35]), but also supports the characterisation of the Subpoenas as “fishing”.

42. Mr Waterson then turned to address further bases upon which the Notice to Produce and the subpoenas were resisted. First, he submitted that the subpoena to Infrastructure NSW remained oppressive for the reasons set out in Ms Vickers’ affidavit as analysed in his separate written submissions of 1 February 2022 in support of the Notice of Motion filed by infrastructure NSW seeking to have the subpoena to that body set aside.

43. With respect to the (now substituted) Notice to Produce and the remaining subpoena, Mr Waterson submitted that they were too widely expressed, particularly given the time period sought to be traversed by the requirements in those documents. With respect to that basis of objection, Mr Waterson submitted that the subpoenas and Notices to Produce should be narrowed in terms of time to confine it to the period from 17 August 2016 to the date of acquisition (Transcript, page 12, lines 41 and 42).

44. Mr Waterson next took me to the e‑mail from Ms Bartlett to Mr Brown. I have earlier set out, at [21] and [22], the relevant material from Ms Bartlett's e‑mail of 18 August 2016.

45. With respect to these elements of Ms Bartlett's e‑mail, Mr Waterson and I had the following exchange, which, although it is somewhat lengthy, is appropriate to be reproduced (Transcript, page 13, line 12 to page 14, line 37):

WATERSON: Your Honour, this email is evidencing key points discussed at this meeting and Mr Hale highlights the fact that if you look at the second or the dot point at the end of p 1 of the email, “Surrounding privately owned…been publicly released.” If your Honour then turns to the second dot point on the next page, the recording of the key point made by the Departmental staff is, “The Department cannot…aims and objectives.” Then below the dot point we have, “Based on this…will be included.” Again, what the applicant’s contention is, your Honour, is that there's a link between the public purpose and its exclusion from this precinct. All this email establishes is that at its highest in 2016 there was some expectation that the sites would be included in a Waterloo planning precinct.

HIS HONOUR: You say it’s a mere expectation? Is it not the position advanced for Mr Hale that it’s a reasonable expectation?

WATERSON: Let’s put it for present purposes that's it’s a reasonable expectation, but the issue, in my submission, in terms of supporting the subpoenas is that something more is required in order to establish a proper basis for issuing subpoenas which are designed to establish a causative link between the public purpose and the subsequent exclusion of the land from this precinct. There's just - to be frank, Mr Hale’s client doesn't know the reason why its property was excluded from this precinct. It would help its case in these proceedings if it could establish that the reason for that was the public purpose, but there's just no basis beyond speculation of the evidence as it currently sits that that was or even might've been the case, and in those circumstances, in my submission, it is fishing to--

HIS HONOUR: I'm going to say, I'm going to put this proposition to you again and undoubtedly Mr Hale will object if he wishes to do so. The proposition advanced by Mr Hale’s client is that there is no rational alternative explanation other than the public purpose why it’s been excluded from the precinct, given the reasonable expectation that it would be included in the precinct. That's correct, isn't it, Mr Hale?

HALE: It certainly is.

WATERSON: Your Honour, with the greatest respect, that is speculation par excellence by Mr Hale’s client. Indeed, if one looks at the dot point that appears second on p 2 of this email it stars, “Although the Department cannot advise.”

HIS HONOUR: Yes.

WATERSON: It refers to the subject sites, Mr Hale’s client’s sites, “are within the appropriate walking catchment from the future station.” If anything can be drawn from the email, it’s that the future station which is part of the public purpose is the reason why sites were going to be included in the precinct, not Mr Hale’s contention that they were going to be excluded. This email does--

HIS HONOUR: I don't think Mr Hale’s client’s position is that they were going to be excluded. It was that they were excluded and that they had a reasonable basis for expecting that they would be included. I just had to deliver in January, Mr Waterson, a lengthy compensation judgment in an entirely unrelated set of proceedings, none of the parties are in common, which I listened to multiple elements both documentary and oral about hypothetical up-zonings or rezonings of the acquired land. I'm entirely familiar with the sort of matters that might well be engaged in such an argument. Why aren’t they potentially engaged in these proceedings?

WATERSON: The applicant says they are, your Honour, but the point is it’s--

HIS HONOUR: Why doesn't, on the concession that there might have been a reason expectation that the site, Mr Hale’s client’s site, might be included in the Waterloo Precinct and it was not, give rise to a possible basis, a reasonable basis beyond speculation that the documents subpoenaed would assist on the issue of why Mr Hale’s client’s site was excluded from that precinct?

WATERSON: My submission would be, your Honour, that the issue of why Mr Hale’s client’s property was excluded from this precinct is not the identified issue in his pleading. That's not a relevant matter in these type of proceedings. But the contention that he is making is that the public purpose caused--

HIS HONOUR: Caused that exclusion.

WATERSON: Exactly, and my point is that one must have some basis for saying that that may be so before one can issue subpoenas, particularly of the length that or the width that Mr Hale’s client is seeking.

46. After a further short submission not requiring reproduction, Mr Waterson concluded his submissions on the question of whether there was any proper basis for the Company to seek the documents the subject of the subpoenas and the Notice to Produce. He said, in summary (Transcript, page 14, line 50 to page 15, line 3):

In my submission, that's exactly what Mr Hale’s client is seeking under these subpoenas. It doesn't know whether or not its land is being excluded from this precinct because of the public purpose, it’s speculation to say that it is, and it wants to seek documents under these subpoenas to try and make good that allegation. In my submission, that is an impermissible use of subpoenas.

47. Mr Waterson then moved to commence his submissions concerning the subpoena which had been issued to Infrastructure NSW and to which objection is taken on the grounds that it is oppressive. After a brief exchange with me, Mr Waterson agreed that he would address, in his reply, any substantive arguments advanced on behalf of the Company in response to Infrastructure NSW's Notice of Motion seeking to have the subpoena to it set aside.

48. Mr Waterson then continued, prior to concluding his submissions, to address the potential scope which I might have to amend the subpoena in some fashion. It was his submission that, if I was minded to do so, it would only be appropriate for me to impose a temporal limit to restrict the period for which documents would be required to be produced to being between 17 August 2016 and 11 October 2017 (the latter date being the date of the compulsory acquisition of the substratum of the Company’s site by Sydney Metro).

49. It is to be noted that Mr Waterson had provided written submissions dated 1 February 2022 addressing the principles concerning whether or not a subpoena should be set aside on the basis of it imposing an unacceptable burden on the party to whom it had been addressed - thus rendering it oppressive and appropriate to be set aside. Mr Waterson there set out, on the basis of Ms Vickers’ evidence (earlier summarised by me at [9]), why the subpoena to Infrastructure NSW, in its current terms, satisfied the relevant principles warranting me concluding that this subpoena was oppressive in its scope.

50. Mr Waterson's conclusion with respect to whether or not there was a legitimate forensic purpose for the subpoenas and the Notice to Produce was expressed, in his written submissions, in the following terms:

…, it is plain that the Applicant is attempting to use the Subpoenas, not to obtain further evidence to support its contention that there is a causative link between the public purpose in the zoning of its land, but to discover whether there is any such link at all. It is not sufficient for the Applicant to simply assert, without any basis, that there is such a link, and then seek to obtain access to documents under subpoena (let alone classes of documents of the width sought under the Subpoenas) to see if it can make good the assertion.

The submissions for the Company

51. In paragraphs 19 to 21 of his written submissions, Mr Hale summarised, first, what he proposed was capable of being drawn from the meeting of 17 August 2016 discussed in Ms Bartlett's e‑mail of the following day and, then, what the Company, for the purposes of the present proceedings, drew from the non‑inclusion of the Company’s site in the Waterloo Precinct. These paragraphs were in the following terms:

19   Based upon the report of the meeting of 17 August 2016 with DPIE about the subject site and the neighbouring DHA site the following conclusions are available:

a.   The DHA site and the subject site were amongst the sites in respect of which DPIE was working with the City of Sydney to finalise a Memorandum of Understanding for the planning process for the sites, which would be rezoned.

b.   DPIE had a draft boundary for the sites to be included within the future ‘Priority Precinct’ but this had not been publicly released.

c.   Although DPIE could not advise which sites would be in the Priority Precinct, the subject sites were within the appropriate walking catchment from the future station and “meet all the strategic aims and objectives” to be included in the future Priority Precinct.

d.   Based on this feedback it appeared highly likely that the sites will be included as part of the Priority Precinct being developed by the government.

20   However, despite the encouraging indications from the meeting with DPIE, neither site was in fact included in the Waterloo Precinct, even though both properties were on a main road, Botany Road. The boundary of the Waterloo Precinct stopped just short of those properties. Both the subject site and the DHA site had the rail line passing underneath them.

21   The Applicant’s case is that the location of the railway under those properties was a reason or the reason for the change of mind or and as to why properties ceased to be included in the Priority Precinct, which became the Waterloo Precinct.

52. Mr Hale's written submissions also set out the terms of an offer made by the Company’s legal representative indicating a preparedness to narrow the scope of the Notice to Produce and the subpoena to Infrastructure NSW. The terms of paragraphs 34 to 36 of his written submissions are reproduced below:

Width of the Subpoena

34   Following receipt of Infrastructure NSW's motion, the Applicant's solicitor wrote to the Crown Solicitor's Office (who also represents Infrastructure NSW) on 31 January 2022 (Annexure B to the affidavit of Chloe Howard sworn 10 March 2022) seeking clarification on the Respondent's position in respect of the boundary as well as the following:

Our client will, of course, consider suggestions that your clients might make to reduce the scope of the notice and the subpoena but which at the same time achieve their purpose.

We look forward to any compromise your clients, as model litigants, might suggest.

35   The Respondent and Infrastructure NSW have failed to suggest any compromise and have continued to push for the Subpoenas and Notice to be set aside in their entirety. As the Applicant has made clear in the letter, it is happy to consider any compromise arrangement.

36   This is despite Infrastructure NSW, pursuant to the affidavit of Helen Jane Vickers affirmed on 25 January 2022 at paragraph 23, locating 13 'hits' for documents referencing the Applicant's property and the neighbouring property previously owned by DHA. There are no reasons why those documents cannot be produced.

53. Mr Hale commenced his oral submissions by taking me to Ms Bartlett's e‑mail annexed to Mr Brown's affidavit. He referred to the Company's Amended Points of Claim to explain why Ms Bartlett's recounting of what took place at the meeting on 17 August 2016 was expressly relevant to what had been pleaded in paragraph 11(c)(i) of the Company’s Amended Points of Claim, taking me through the various dot‑points set out by Ms Bartlett as providing the foundation.

54. He submitted that the apparent relevance of the documents arose in the context of Ms Bartlett's communication to Mr Brown and its foundational relevance, as I understood him, to that which was now pleaded in the relevant paragraph of the Company's Amended Points of Claim.

55. During the course of Mr Hale's oral submissions, I asked him, if I was to accept that the documentary scope (at least to some extent) of the subpoenas and the Notice to Produce was appropriate, but that I might consider a temporal limitation, what should that limitation be. His initial response was (Transcript, page 19, lines 34 to 38):

HALE: We would say it should be slightly after the date of acquisition because it could refer back to circumstances on or prior to the acquisition. We would say the temporal element should be extended but we would agree with a - and it should predate 16 August but we agree that an appropriate temporal constraint would be appropriate, it's just we would say broader than that.

56. I requested Mr Hale to obtain specific instructions concerning what might be an appropriate temporal limitation. His response is later set out.

57. Mr Hale next took me through the scope of the documents sought in the subpoenas and the Notice to Produce, explaining why they related to the Company’s site and the expectation of inclusion in the Waterloo Precinct. With respect to the Memorandum of Understanding with the Council of the City of Sydney, Mr Hale said only (Transcript, page 20, lines 34 to 37) – reproduced as shown:

(c), "A copy of the Memorandum of Understanding," which is a Memorandum of Understanding which is referred to in the email, and it's a Memorandum of Understanding which by reason of the introduction in para 2 of the subpoena is in relation to the Waterloo area.

58. It is to be observed that Mr Hale's written submissions made no mention of the Memorandum of Understanding with the Council of the City of Sydney.

59. Mr Hale then addressed the decision of the Court of Appeal in Blacktown, taking me through the reasoning of Bell P (as his Honour then was). Given the conclusion I have reached as to how the concluding sentence of [65] of his Honour's reasons is to be applied (as explained below), it is unnecessary for me to go through the detail of his submissions on this point.

The submissions in reply for Sydney Metro and Infrastructure NSW

60. Mr Waterson's submissions in reply were succinct. It is, therefore, convenient to reproduce them in full (Transcript, page 23, line 32 to page 24, line 5):

WATERSON: I’ll be brief. Mr Hale’s key point is that an inference can be drawn from all the materials he’s cobbled together that the reason for his client’s exclusion from this precinct was the public purpose. My submission is that no such inference can be drawn. The documents that he draws attention to, the meeting of 17 August, as I said before, goes the other way. The inference is that the reason it’s included is because of the public purpose, not that it’s excluded.

We said that for all we know there could be a smoking gun there in those documents. In my submission, if anything was representative of a fishing subpoena, it is that. Something more is required to persuade your Honour that these subpoenas have a legitimate purpose. His planner doesn’t know. These subpoenas have been issued to work out whether or not he has a case at all on this point. That is simply not permissible. There is nothing in the extracts from Blacktown that detracts from that principle. In essence, it is just pure speculation as to whether or not the public purpose caused the exclusion of his property from the precinct. I can understand it helps his case if it was so, but that’s not the test for seeking to issue subpoenas.

In terms of the date, I understand what my friend has said, but given that in his submissions he’s been quite adamant to say that he’s seeking documents in relation to an apparent change of position sometime after the meeting of 17 August. I don’t understand why there needs to be any documents sought before that date, on his own submission.

61. It is, however, also appropriate to note that Mr Waterson submitted that, in addition to imposing a temporal limitation, if I was against him on his substantive argument, it would also be appropriate to delete paragraph (d) of the subpoenaed to Infrastructure NSW, as that paragraph was in the nature of discovery and did not add anything of substance to the prior paragraphs in the subpoena.

Consideration

Introduction

62. The first matter requiring to be considered is the general one, that is, whether the subpoenas and/or the Notice to Produce seek, for the Company, documents of apparent relevance to the Company's case beyond mere speculation. As I have concluded, for the reasons set out below, that there is a proper basis (although limited in scope) for the Company to seek documents from all three entities here involved, it is then necessary to consider whether (and, if so, what) temporal limitation should be placed on the scope of those requirements to produce documents.

63. In addition, it is also appropriate to consider the specific terms of the subpoenas and the notice to produce in order to ensure that they are confined to the scope of documents of apparent relevance to the issue which the Company seeks to put in dispute pursuant to paragraph 11(c)(i) of its Amended Points of Claim.

General

64. I have earlier set out the extract from [65] of the decision in Blacktown upon which Mr Waterson relied. Mr Waterson, however, did not set out the final sentence of [65] in Blacktown. This sentence is in the following terms:

Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually nonexistence.

65. In the circumstances here applying, the e‑mail from Ms Bartlett of 18 August 2016, and the inference which she drew from it, provides a reasonable basis for an expectation on behalf of the Company (and certainly one held on behalf of its expert adviser) that the Company's site was reasonably to be expected to be incorporated within the boundaries of the Waterloo Precinct and therefore subject to a priority rezoning process.

66. This is clearly identified in paragraph 11(c)(i) of the Company’s Amended Points of Claim set out earlier at [32].

67. The identified issue is the exclusion of the Company's site from the proposed priority precinct. It is plainly and clearly pleaded as an identified issue in the proceedings.

68. The final sentence of [65] of Blacktown, it seems to me, can be seen to apply, given that the material assistance on the identified issue in paragraph 11(c)(i) will be to the Company (that is, the party who has issued the subpoena and the Notice to Produce) and, therefore, the legitimate forensic purpose of the Company in issuing the subpoenas and the Notice to Produce is, I am satisfied, clearly established.

69. However, that still leaves questions requiring to be determined as to the width of the temporal period across which the material is sought and the scope of the Notice to Produce and the subpoenas as to the material sought. I now turn to address those questions.

The temporal scope of the Notice to Produce and the subpoenas

70. During the course of the hearing, Mr Waterson submitted that I should not “take out a blue pencil and rewrite” either the Notice to Produce or the subpoena if I considered that the nature of the material source was appropriate to be provided, but that the temporal scope was too open‑ended. I asked if he wished to propose an alternative temporal scope. His response was that, if I was minded to do so, the temporal scope of the Notice to Produce and the subpoena should be confined to the period between 17 August 2016 (the date of the meeting attended by Ms Bartlett) and 11 October 2017 (being the date of the compulsory acquisition).

71. In response to a similar enquiry to Mr Hale, he proposed that the appropriate temporal limitation, if I was to apply one, would be the relevant years (that is, from 1 January 2016 to 31 December 2017).

72. With respect to the scope of a temporal limitation, if I was to impose one, Mr Hale explained why the time period of 1 January 2016 to 31 December 2017 was proposed by the Company (Transcript, page 22, lines 25 to 38):

HALE: So far as 2016 is concerned, it is conceded from Mr Brown’s affidavit that August 2016 was a meeting that was part of a series of negotiations which have been taking place. If, as seemed to be, there was a draft boundary, we don’t know when that draft boundary was initially identified, but all of this would have taken place sometime prior to 17 August 2016, the date of the meeting. 1 January is eight months earlier. It is likely to pick up relevant negotiations and considerations leading up to 17 August 2016.

Next, so far as the end stage is concerned, while it is true that the most relevant date is the date of acquisition, that does not mean that there will not be documents which postdate the acquisition which will refer to what happened prior to or leading up to the acquisition. Seeking a reasonable date, which is 31 December 2017, this has the efficiency. It deals with two years; 2016 and 2017.

73. I am satisfied that the period proposed by Mr Waterson is too limited, whilst that proposed by Mr Hale is excessively wide. Given the date of Ms Bartlett's meeting, it seems to me that a short period prior to that is appropriate to ensure that contextually relevant documents are likely to be obtained. I am therefore satisfied that the time period should commence on 1 July 2016.

74. With respect to the end date, I am satisfied that it is possible that there may be potentially retrospectant evidentiary material arising in the period after the date of acquisition. I am therefore satisfied that it is appropriate to allow a modest time after that date to be within the scope of the requirement to produce documents. I am therefore satisfied that the end date should be 31 December 2017, thus making an 18‑month period to be covered by the requirements to produce the defined documents.

The subpoena to Infrastructure NSW

75. I have earlier set out, at [32], the terms of the subpoena to Infrastructure NSW. As can be seen from the terms of the subpoena, its scope, as to the documents sought to be encompassed by it, is confined to matters relevant to the Company's site. To that extent, the scope of the subpoena appears to be unexceptional.

76. However, for the reasons earlier explained, the temporal period appropriate to be covered by the subpoena should be a limited one rather than one to open‑ended effect as proposed by the terms of the subpoena itself.

77. It is to be acknowledged that, given that Ms Vickers did not give evidence of having commissioned any time-limited searches of Infrastructure NSW's records (her searches merely being search term definition constrained), there is no evidence as to the extent of what would be imposed on Infrastructure NSW by the temporally limited subpoena which I propose to permit. Should that temporally limited subpoena still impose what Infrastructure NSW considers to be an oppressive burden, it will be open to them to make some further application if this arises.

The subpoena to the Department

78. The conclusions I have reached with respect to the scope of the documents sought by the subpoena to the Department of Planning, Industry and Environment are similar to those which I have reached with respect to the subpoena to Infrastructure NSW, with the exception that no basis of apparent relevance beyond speculation has been demonstrated on behalf of the Company with respect to paragraph 2(c) of the subpoena. Paragraph 2(c) is the element which seeks the production of documents relating to a Memorandum of Understanding said to have been entered into by the Department with the Council of the City of Sydney. This paragraph of the subpoena is to be deleted.

79. Further, the same temporal limitation is to be imposed on this subpoena, restricting the requirement of the Department to producing relevant documents within the period from 1 July 2016 until 31 December 2017.

The Notice to Produce to Sydney Metro

80. I have earlier explained why I am satisfied that there is an appropriate basis beyond speculation why the Company should be able to seek access to documents concerning the boundary of the Waterloo Precinct and why the Company’s site was excluded from being within that precinct. I have also explained why production of any such documents should be temporally limited to the period of 1 July 2016 to the end of 2017. The scope of the requirement for each of those bodies to produce documents was constrained to apply to documents directly relating to the relationship between the Company’s site and the boundaries of the Waterloo Precinct. Similar restrictions as to time are appropriate to be imposed on the Notice to Produce served on Sydney Metro. As to the time limitation, that limitation is also to be from 1 July 2016 to 31 December 2017.

81. As to the scope of the documents to be required to be produced, the Notice to Produce to Sydney Metro is to be constrained to those documents directly relating to the Company’s site and the boundaries of the Waterloo Precinct. As a consequence, paragraph 2(a) of the Notice to Produce is rejected (as it clearly extends significantly beyond matters potentially engaged - even on the broadest possible interpretation of apparent relevance by paragraph 11(c)(i) of the Company’s Amend Points of Claim filed on 4 March 2022).

82. Paragraph 2(a) of the Notice to Produce is, therefore, deleted.

Public interest immunity

83. It is also to be observed that, although Sydney Metro foreshadowed the potential of claims for public interest immunity in its motion (as did Infrastructure NSW in its motion), nothing specific was pressed on this topic by Mr Waterson on behalf of either body. If there are issues of public interest immunity arising in the view of either or both of these bodies, an opportunity to press that issue will arise when the subpoenas and the revised Notice to Produce are returnable before the Registrar on the date set below.

Times for compliance

84. The time for compliance with each of the subpoenas and the Notice to Produce needs to be sufficient to provide a reasonable opportunity to each of the producing authorities to undertake the necessary searches for, and examination of, documents falling within the scope of the relevant subpoena or Notice to Produce. As a consequence, given that the hearing of the Company's claim does not commence until 15 September 2022, I am satisfied that the date for compliance in all three instances should be four weeks after the date of this decision. The matter is, therefore, set down before the Registrar on 24 May 2022 for the return of the subpoenas and of the Notice to Produce.

Costs

85. Given the determinations which I have made with respect to the three elements of the Notice of Motion on behalf of Sydney Metro, I am satisfied that the appropriate costs order on that motion, in order to reflect the mixed outcome achieved by Sydney Metro, should be that each party should bear its own costs of that motion.

86. A similar outcome has also been achieved by Infrastructure NSW in that there has been no alteration to the scope of the documents for which it is required to search and produce, but there has been a significant temporal limitation now imposed on the scope of that search. As a consequence, I am also satisfied that there should be no order for costs concerning Infrastructure NSW's Notice of Motion.

Orders

87. For the subpoena to Infrastructure NSW, the orders of the Court are:

1. The subpoena is limited to production of documents in the period between 1 July 2016 and 31 December 2017;

2. The revised subpoena is returnable before the Registrar on 24 May 2022;

3. The Notice of Motion is otherwise dismissed; and

4. No order for costs.

88. For the subpoena to the Department of Planning, Industry and Environment, the orders of the Court are:

1. Paragraph 2(c) of the subpoena is deleted;

2. The subpoena is limited to production of documents in the period between 1 July 2016 and 31 December 2017;

3. The revised subpoena is returnable before the Registrar on 24 May 2022;

4. The Notice of Motion is otherwise dismissed; and

5. No order for costs.

89. For the Notice to Produce to Sydney Metro, the orders of the Court are:

1. Paragraph 2(a) of the Notice to Produce is deleted;

2. The Notice to Produce is limited to production of documents in the period between 1 July 2016 and 31 December 2017;

3. The revised Notice to Produce is returnable before the Registrar on 24 May 2022;

4. The Notice of Motion is otherwise dismissed; and

5. No order for costs.

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Decision last updated: 27 April 2022