Hammercall Pty Ltd v Chief Executive, Department of Transport
[2000] QLC 24
•11 April 2000
|
BRISBANE
11 APRIL 2000
Re: Claim for Compensation -
Acquisition of Land Act 1967 -
Resumption for transport purposes -
(A98-13).
Hammercall Pty Ltd
v.
Chief Executive, Department of Transport
DECISION ON APPLICATION
Background:
Pursuant to a claim for compensation in respect of the resumption of an area of 1.924ha of part of Lot 76 on RP 215311, Parish of Mudgeeraba, being land located at Pacific Highway Andrews, Gold Coast, two subpoenas were issued on 7 April 2000 in respect of Hammercall Pty Ltd and Weathered Howe Pty Ltd. Two further subpoenas were also issued on 5 April 2000 in respect of those parties, and those have subsequently been withdrawn. A fifth subpoena in respect of the Gold Coast City Council is being separately addressed by the parties, and forms no part of this decision.
On commencement of proceedings on 10 April 2000, Counsel for the claimant sought leave to have the two subpoenas of 7 April 2000 set aside as being not within the jurisdiction of this Court. It was argued that the wording of the subpoenas is too imprecise in respect of the actual documents sought, and, in the claimant's opinion, the subpoenas are no more than a disguised request for discovery, and an example of a "fishing" exercise by the respondent.
Counsel for the respondent resisted that application, claiming that the wording of the subpoenas was specific, and refers to documents relating to actions contained in the statements exchanged, and to actions which must have been known by the claimant when it formulated its claim for disturbance. He referred in particular to the background to advice supplied by Mr Dick, the claimant's engineering witness.
Mr B Cronin of Counsel, instructed by Gall Standfield and Smith, Solicitors, represented the claimant. Mr R Jones of Counsel, instructed by Crown Law, represented the respondent.
The Subpoenas -
Identical subpoenas were issued by this Court to Hammercall Pty Ltd and Weathered Howe Pty Ltd directing that both parties were to appear before the Court, and to produce all books, papers, deeds and documents, including but not limited to:
(1)All files, plans, applications, reports and correspondence relating to or in connection with the matters referred in the disturbance items stated in the amended Claim for Compensation and as identified in the statements of Laurie Hamilton and Gerard Francis Dick.
(2)All files, plans, reports and correspondence relating to or in connection with arrangements or dealings with the Department of Main Roads/Department of Transport and/or the Gold Coast City Council/Albert Shire Council in respect of access requirements from the Pacific Highway, the Andrews Interchange, Old Coach Road in relation to the subject land.
(3)All files, plans, correspondence and file notes relating to or in connection with the negotiations with the Department of Natural Resources or Department of Main Roads/Department of Transport or Gold Coast City Council/Albert Shire Council to gain approval for the opening of Oyster Creek Road, subsequent dedication of it and eventual extinguishment.
(4)Copies of any plans, development proposals including drafts prepared in respect of the subject land (Lot 76) up to present time
which may be in your possession or under your control having any reference to the above matter, and so attend from day to day until the said matter is disposed of.
The Legislation:
Powers of this Court in respect of the issuing of subpoenas are to be found in section 41(1) of the Land Act 1962, which directs:
"(1) For the purposes of any inquiry or appeal held by or made to the Court, or any other matter within its jurisdiction under this or any other Act, the Court shall have power to summon any person as a witness and to require and compel him to bring and produce in evidence all documents and writings in his possession or power, and to examine him, and to punish him for not attending in pursuance of the summons, or for refusing to give evidence, or for neglecting or refusing to bring and produce any such documents or writings, and for such purposes a member of the Court shall have the like powers as a Judge of the Supreme Court."
That power is also conditioned by section 41(5) which states:
"(5) Court to be guided by equity and good conscience. Notwithstanding anything in this Act or in any other Act, or in any rule, process or practice of law -
(a)the Court in the exercise of any jurisdiction, duty, power or function conferred or imposed upon it shall be governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of the other courts;
(b)the Court in the exercise of any such jurisdiction, duty, power or function shall not be bound by any rule or practice as to evidence, but may inform its mind on any matter in such manner as the Court deems just;
(c)the Court may accept, admit and call for such evidence as in equity and good conscience it thinks fit, whether strictly legal evidence or not. "
There is no doubt that this Court may issue a properly constituted subpoena for the purpose of informing itself on the merits of the matter. However what is clearly not conveyed to this Court at present, is the general power of "discovery". That was found by the Land Appeal Court in DRV Cox v. Commissioner of Water Resources [1992-93] 14 QLCR 304, at 326. It should also be noted that the Land Appeal Court was critical of the inadequacy of the Rules of the Land Court, which made no provision for matters such as discovery of documents. While that matter is being addressed in the new Land Court Bill of 2000, that legislation has not yet been enacted, and must be ignored in this matter.
The question then to be addressed is whether the subpoenas in their detailing statements can be considered as definitive; or whether they are too broad, and merely seeking to draw forth some unspecified documents or plans which may assist the claimant's case.
What information is the respondent seeking? -
Before seeking to define what is being sought by the respondent, it is best to define what is not meant to be provided. Mr Jones argues that the documents or plans which are not required include:
any privileged documents or plans
any preliminary rough sketches showing working details prepared in the course of crystallizing any layouts or development proposals in the context of possible subdivision
any detailed sewerage, drainage or road profile designs
any documents or plans dealing with other lands owned by the claimant, exclusive of Lot 76 (the subject land)
any documents already provided in Mr Dick's additional statement (still to be submitted to the Court).
The direction of the respondent's request for information relates to associated overall development layouts, which may indicate the potential shape and form of the overall development of the subject land. Mr Cronin argues that, as the respondent did not provide details of where permitted access to the road network would be allowed until January 2000, then any concepts before that date are of no practical relevance. Mr Cronin argues that a reasonable request for clearly defined criteria of specific document and plans would be readily provided. However he argues that the subpoenas in their current form are too wide in their intent. Mr Cronin concedes that there had been an earlier "before" plan, but that had no status in the eyes of the claimant, and it was determined that the earlier plan would not have been approved in that format.
Mr Cronin argues that the "before" plan now supplied to the Court, was the only theoretical "before" design that was likely to have been approved. Mr Jones concedes that what the claimants are seeking is evidence supporting the arguments now provided by the claimant. The respondent needs to know what it must argue against, and the evolutionary design process that led to those claims. Mr Jones argues such plans and documents would be clearly understood by either the claimant, or their consulting engineers (Weathered Howe Pty Ltd), and would not require any specific judgment by the third party.
The Law -
In seeking guidance on the extent to which a subpoena must be specific, I note the directions of The Commissioner for Railways v. Small (1938) 38 NSW State Reports 564, where Jordan CJ said at page 574:
"Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: ---- It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery."
In deciding whether the subpoena in that matter was in fact a correct use of the process, Jordan CJ went on to say at page 575:
"In the absence of special circumstances, e.g. Griebart v. Morris (1920) 1 KB 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for an interrogatories, for the purpose of 'fishing' i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: ---- or to discover the nature of the other side's evidence ---- Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant:"
In that matter the Court set aside the decision in the lower court, and ordered a new trial, as it found that the use of the subpoena resulted in an improper reception of evidence. The Court found that the stranger had been inappropriately made to form a decision on the range of documents subpoenaed, many of which had no direct relationship to that matter.
A similar finding was also found in Waind v. Hill and National Employers' Mutual General Association Limited [1978] 1 NSWLR 372. The matter of the inappropriateness of using a subpoena for purposes of discovery was examined at pages 381 onward, where Glass JA noted that there are three steps in the procedure of having a third party bring documents to Court. The first of those steps involves a decision by the Court as to whether the subpoena has been exercised properly, or whether it is being used for the purpose of discovery.
The matter of a subpoena to a stranger was also addressed by the High Court in the matter of Lane v. The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] 148 CLR 245. In that matter the appellant had been convicted of two counts of contempt of court for obstructing the course of justice by suppression of evidence by procuring a bank not to produce two memoranda in answer to the subpoena. The High Court found that the memoranda was not required by the terms of the subpoena, and the contempt charge was overturned. The High Court noted per curiam that the general law rule that a subpoena addressed to a stranger to an action must not be in such wide and general terms that it requires the witness to make a burdensome search for evidence at his own expense. A subpoena to such a person to produce documents must specify the documents which are required to be produced with reasonable particularity.
The relevance of a document was also addressed in Spencer Motors Pty Ltd v. LNC Industries Limited (1982) 2 NSWLR 921, where Waddell J found that a document is "sufficiently relevant" if its production is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. The Spencer Motors matter dealt with three applications to set aside subpoenas requesting material and documents in respect of the transferring or surrendering of an import licence for motor vehicles. Waddell J found that certain documents had no relevance to the issue, while other documents had direct relevance to the matter.
In the Spencer Motors matter, Waddell J asked the question posed in Waind v. Hill (supra), where Moffitt P said at page 383:"The critical question for present purposes, however, arises in relation to this second step, as to the exercise of the power of the judge to permit inspection. Does he have a judicial discretion to permit the use of the documents in any such way as he considers will aid a proper decision of the issues between the parties, by facilitating the elucidation of the truth in respect of relevant facts, or is his power restricted, so the documents can only be used in a more limited way, so access is given to them only to enable their tender in evidence or in some of the other limited ways submitted?"
Waddell J went on to say in respect of Moffitt P at page 927:
"His Honour goes on to explore the question posed at pages 383, and 384. His views may, perhaps be summarised by saying that inspection should be granted so far as it is necessary in the proper conduct of the litigation and this means where it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. In my opinion this is the test which should be applied to the question whether the present subpoenas are oppressive or are an abuse of process in the sense submitted."
Those matters were also discussed by this Court in Mirage Resorts Holdings Pty Ltd v. Chief Executive, Department of Natural Resources (AV98-11), 19 May 1998, unreported. The matter of discovery by a third party was also addressed in that matter, which discussed the findings of Greyhound Australia Pty Ltd and Others v. Deluxe Coaches Pty Ltd and Others (1986) 11 FCR 592, where Pincus J found at page 597:
"The mere fact, however, that one of the limitations included in the description in the subpoena is that the documents must relate to a particular subject matter does not necessarily render it oppressive, as long as the subpoena specifies with reasonable particularity the documents which are required to be produced. "
On balance the critical issue that must be addressed in any subpoena is whether it specifies with reasonable particularity the documents which are required. In the current matter I believe the claimant has not sought to "fish" for material to support his case, but specifically only requires information which more clearly defines the claimant's intentions. To that end I will further refine the wording of the subpoena to more clearly reflect its intentions.
I am also aware that Mr Jones has already indicated to the Court that, should there be any relevant documents subsequently disclosed, which were otherwise not provided as a result of the subpoena, then the respondent would seek to ask for adverse inferences to be drawn against the claimant as a consequence of their failing to provide the information, when they were in the best position to assist the Court. That principle was outlined by the High Court in Jones v. Dunkel (1959) 101 CLR 298, at 312 and 319, and followed by this Court in Boral Bricks (Qld) Limited v. Director-General, Department of Main Roads (A97-23), 4 March 1999, to be reported.
I therefore determine that only the following documents and/or plans as specified in the subpoena, are required to be submitted for inspection, and only in respect of the subject land (Lot 76):
In the matter of the disturbance items, those that relate only to potential draft development layout designs, which have been considered subsequent to the respondent clarifying the allowable access provisions in January 2000; plus any previous layout designs in which access to the subject land was not in conflict with the final access location provided by the respondent.
In the matter of access requirements to the Pacific Highway, the Andrews Interchange, and Old Coach Road, only those items that specifically refer to overall design layout requirements in respect of the subject land.
In the matter of Oyster Creek Road, only those items that relate to the opening, dedication, and eventual extinguishment of Oyster Creek Road, in so far as it directly relates to the subject land, both adjacent to the Andrews Interchange, and across the remaining subject land.
Any development proposals only as specified in item (1) above.
In respect of whether such directions may be an oppressive imposition upon a third party to these proceedings, I believe the special nature of the relationship of Weathered Howe Pty Ltd, as consulting engineers to the claimant, would not, in my opinion, require any unreasonable level of judgment by Weathered Howe Pty Ltd in deciding the relevance of such documents. In those circumstances, in my opinion, Weathered Howe Pty Ltd could not be seen as a total stranger to these proceedings.
NG DIVETT
MEMBER OF THE LAND COURT
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