Gunlake Quarries Pty Ltd v The Minister for Planning

[2017] NSWLEC 114

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gunlake Quarries Pty Ltd v The Minister for Planning [2017] NSWLEC 114
Hearing dates:	7 June 2017
Date of orders:	07 June 2017
Decision date:	07 June 2017
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See direction at [7]
Catchwords:	SUBPOENA - Notice of Motion to set aside portion of subpoena by amending the schedule to the subpoena - subpoena addressed to the Planning Assessment Commission - documents sought included draft documents and internal correspondence between members of the Planning Assessment Commission and between staff of the Planning Assessment Commission - Planning Assessment Commission the determining authority for the proposed development - role of the Planning Assessment Commission analogous to that of a tribunal - contrary to proper public policy to require production of internal documents of the Planning Assessment Commission or its supporting staff - externally provided documents circulated appropriate to be produced without any covering correspondence - parties directed to prepare revised terms of subpoena to reflect outcome
Category:	Procedural and other rulings
Parties:	Gunlake Quarries Pty Ltd (Applicant) The Minister for Planning (Respondent)
Representation:	Counsel: Mr A Pickles SC (Applicant and Respondent on the motion) Ms H Irish, barrister (Respondent and Applicant on the motion)      Solicitors: Corrs Chambers Westgarth (Applicant and Respondent on the motion) Lindsay Taylor Lawyers (Respondent and Applicant on the motion)
File Number(s):	108663 of 2017
Publication restriction:	No

EXTEMPORE Judgment

1. HIS HONOUR: With respect to the first of the orders sought by the Minister for Planning (the Respondent) with respect to the production of documents from the Planning Assessment Commission (the PAC), where the Respondent seeks to have excluded from the operation of the subpoena the matters that are set out in (i) and (ii) of the order sought.

i.   correspondence, emails, notes, memoranda or other documents between:

1.   Commissioners of the Planning Assessment Commission and each other,

2.Commissioners of the Planning Assessment Commission and staff members of the Planning Assessment Commission, and

3.   staff members of the Planning Assessment Commission (‘internal correspondence’)

ii.   draft Documents including internal correspondence attaching or referring to draft Documents.

2. The Respondent sought the restriction on a variety of bases which, I have concluded, I do not need to address. I have reached that conclusion for a fundamental reason. The PAC, when it sits to hear, consider and determine applications, is acting, in effect, as a tribunal.

3. As a matter of public policy, I do not consider that there can be any ordinary circumstances (and there is certainly nothing put before me in these proceedings to suggest that the circumstances are extraordinary) that would permit the exposing of the internal workings of a body akin to a tribunal to public scrutiny.

4. The prohibitions that apply to the production of Bench Books, for example, in which notes are taken by Judges or Commissioners of this Court, or correspondence internally concerning matters of merit and the like are ones that are part of the internal and protected workings of this Court and I see no reason why it ought not be, as a matter of public policy, a position entirely analogous with respect to the internal workings of the PAC.

5. For that reason, subject to a limitation which I am about to discuss, I am satisfied that the amendment proposed by the Respondent to the terms of the subpoena to incorporate the exceptions outlined in order (1) of the motion ought be approved.

6. The exception is, however, one I consider to be of some importance. That is, to the extent that any of the internal exchanges within the PAC, either between its members or between members and staff or between members of the staff concerning this application, attached to those internal documents any document that was produced by some party external to the PAC, then it would seem to me that it would be appropriate to require the production of the externally prepared document but not any correspondence to which it might have been attached.

7. As a consequence, the parties are invited to settle a revised terms of the subpoena to reflect this decision.

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