Fitzpatrick Investments Pty Limited v The Director-General of the Department of Environment and Conservation

[2005] NSWLEC 271

Land and Environment Court

of New South Wales

CITATION:	Fitzpatrick Investments Pty Limited v The Director-General of the Department of Environment and Conservation [2005] NSWLEC 271
PARTIES:	APPLICANT: Fitzpatrick Investments Pty Limited RESPONDENT: The Director-General of the Department of Environment and Conservation
FILE NUMBER(S):	11358 of 2004
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- notice to produce - whether relevant to a fact in issue
LEGISLATION CITED:	Land and Environment Court Rules 1996 Pt 6 r 1 Supreme Court Rules 1970 Pt 23 r 2 Threatened Species Conservation Act 1995 s 91
CASES CITED:	Mulley v Manifold (1959) 103 CLR 341
DATES OF HEARING:	09/03/2005
EX TEMPORE JUDGMENT DATE:	03/09/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr R Beasley (barrister) SOLICITORS: Minter Ellison RESPONDENT: Ms M England (solicitor) SOLICITORS: State Crown Solicitor's Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

9 March 2005

11358 of 2004 Fitzpatrick Investments Pty Limited v The Director-General of the Department of Environment and Conservation

EX TEMPORE JUDGMENT

1 Her Honour: This matter concerns a Class 1 application relating to the refusal of an application for a license to harm or pick threatened species, populations or ecological communities made under s 91 of the Threatened Species Conservation Act 1995. That refusal was made by the Respondent, the Director-General of the Department of Environment and Conservation.

2 Before me today is a Notion of Motion concerning a Notice to Produce dated 16 December 2004 issued by the Applicant to the Respondent. The Respondent wishes to claim public interest immunity in relation to two categories of documents sought by the Notice to Produce.

3 I note that notices to produce are similar to subpoenas in that they must relate to matters relevant to a fact in issue in the proceedings. This is in accordance with Pt 23 r 2 of the Supreme Court Rules 1970 incorporated by Pt 6 r 1 of the Land and Environment Court Rules 1996. Production of a document is not required merely because a document might reasonably be regarded as leading to a train of inquiry that might advance a party’s case. In this regard I refer to Mulley v Manifold (1959) 103 CLR 341 at 345 cited in Ritchie’s Supreme Court Procedure NSW at [23.2.3]. In the current situation the Applicant must keep in mind that these are Class 1 proceedings in this Court.

4 As I understand the parties’ submissions today the proceedings relate to three issues which are essentially three scientific questions:

(i) Firstly, whether the proposed remediation results in significant clearance of Cumberland Plain Woodland on the subject site;

(ii) Secondly, whether the Cumberland Plain Woodland on the subject site has been correctly identified as Category A Cumberland Plain Woodland; and

(iii) Thirdly, whether there is likely to be any significant impact on the whole of the Cumberland Plain Woodland if this particular portion is cleared.

5 This case will presumably therefore involve the provision of expert opinion by suitably qualified persons about these matters to advise the Court in reaching its own conclusion. However, it is only relevant expert evidence that is required by the Court, not expert evidence that is not relevant to the issues.

6 In its written submissions the Applicant stated that the primary reason for seeking the documents described in the Notice to Produce was to obtain reasons why the Respondent had concluded that:

(a) the remediation proposed by the Applicant would result in a “significant area” of known habitat being removed;

(b) the land had been mapped as Category A, the highest condition category;

(c) the Stage 2 remediation was “likely to have a significant impact on Cumberland Plain Woodland”.

The issues do not appear to be relevant to obtaining access to these documents given the nature of these Class 1 proceedings.

7 The Applicant argued further that as the Respondent had already identified these documents in response to the Notice to Produce the documents should be produced subject to the claim for public interest immunity. It did, however, accept that the Court had to undertake a balancing act between the forensic purpose for which the documents would be produced and whether the public interest claim of immunity should be upheld.

8 In my view the documents sought in both categories subject to the public interest immunity claim appear irrelevant and lacking in forensic purpose. The issue as I understand it is whether the Court should issue a license made under s 91 of the Threatened Species Conservation Act 1995.

9 I will not, however, make a final determination on the matter now as I consider that the parties will need to consider the matter further to decide what matters are in issue and the nature of expert evidence to be called. It may be that after that discussion there is no need for this Notice to Produce to be pressed. I should note I have not read the documents that are the subject of this Notice to Produce.

10 I further note there is one category of documents that have been produced to the Applicant identified as Confidential Exhibit CJW2 to Mr Colin Woodward’s affidavit dated 8 March 2005. These documents should be returned to the Court pending the final determination of the Notice to Produce.