Inglis v Ku-ring-gai Municipal Council

[2009] NSWLEC 189

Land and Environment Court

of New South Wales

CITATION:	Inglis v Ku-ring-gai Municipal Council [2009] NSWLEC 189
PARTIES:	APPLICANT: Michael William Inglis RESPONDENT: Ku-ring-gai Municipal Council
FILE NUMBER(S):	40402 of 2009
CORAM:	Biscoe J
KEY ISSUES:	PRACTICE AND PROCEDURE :- pre-trial disclosure of information and production of documents in Class 4 proceedings
LEGISLATION CITED:	Civil Procedure Act 2005, s 61 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005, rr 2.1, 21.11
DATES OF HEARING:	14 October 2009
EX TEMPORE JUDGMENT DATE:	14 October 2009
LEGAL REPRESENTATIVES:	APPLICANT: Ms R. McCulloch (solicitor) SOLICITORS Pikes Lawyers RESPONDENT: Mr J. Ayling SC and Ms M. Allars (barrister) SOLICITORS HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

14 October 2009

40402 of 2009

MICHAEL WILLIAM INGLIS v KU-RING-GAI MUNICIPAL COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion by the applicant seeking directions that the respondent discloses certain information and documents.

2 The applicant claims in these Class 4 proceedings that the use of premises at 2 Marian Street, Killara as a theatre is contrary to the provisions of the Environmental Planning and Assessment Act 1979. The applicant claims a declaration to that effect and an order that the respondent, Ku-ring-gai Municipal Council, be restrained from using those premises as a theatre.

3 The applicant has clarified that it will assert that the use of the premises as a theatre is unlawful on three principal alternative bases: (a) the use is prohibited in the zone; (b) the use is permissible in the zone but was not lawfully commenced as there is no development consent for the use; (c) the use is permissible and was lawfully commenced, but the building in which the use was conducted was extended without development consent in about 1979 or 1980.

FIRST PRAYER

4 The first prayer in the applicant’s notice of motion is for an order that the council shall file and serve an affidavit by the general manager or other appropriate officer of the council, setting out in full the nature and extent of the council’s property or other files for 2 Marian Street, Killara that have been destroyed and the circumstances in which those files came to be destroyed.

5 The background can be shortly stated. The applicant issued a number of notices to produce to the council. Upon inspection of the documents produced in August 2009, the applicant’s solicitor noticed that property files the subject of one or more of those notices to produce for the period from July 1968 to December 1990 had not been produced.

6 On 25 August 2009 she wrote to the council’s solicitors enquiring whether the council in fact held any such files for that period and, if the response was in the negative, as to the reason. The response of the council’s solicitors in a letter that day was that all relevant files required in the notice to produce had been produced but that, “It is known however that many of the Council’s records were destroyed in years past and therefore there are gaps in available information”.

7 In a letter of 1 September 2009 to the council’s solicitors, the applicant’s solicitor asked these questions: when the council’s records were destroyed and when it was discovered that they had been destroyed; in what manner the records were destroyed; and whether the destruction affected a particular type of file or location within the local government area. In a letter of reply of 9 September 2009 the council’s solicitors said that they were endeavouring to obtain details of the manner in which files for the period referred to were destroyed and would advise when they had that information.

8 In the council’s solicitors’ further letter of 29 September 2009, they said that the fact that there was an apparent gap in the council’s files did not have to be explained, that the council was not obliged to give such an explanation, and that the council had produced all the files that could be located and had discharged its responsibilities in relation to the production of files diligently and in good faith.

9 On 1 October 2009, the council’s solicitors wrote to the applicant’s solicitors stating:

“The statement that it is known that files have been destroyed was a conclusion based upon the fact that no files could be located upon search and upon a general, albeit hearsay-based, understanding on the part of council officers that at some time in the fairly distant past there could have been a destruction of old files. The absence of records which might, if they had not been destroyed, could be expected to exist, supports this conclusion.

However no-one currently in the Council’s employ, including the General Manager, has any direct or personal knowledge of the circumstances in which this might have occurred.”

10 The following day, 2 October 2009, the applicant filed this notice of motion.

11 On 9 October 2009, the council served a notice on the applicant pursuant to r 21.11 of the Uniform Civil Procedure Rules 2005, which said:

“Pursuant to part 21 r 21.11(iii), the respondent says that there may be other documents not produced formerly within Council files from July 1968 to December 1990 for the premises 2 Marian Street, Killara but their existence is uncertain. Despite an extensive search of the Council’s records these documents cannot be found and the view of Council officers is that they probably did exist at some point in time but cannot now be located and therefore cannot be produced. There is no one currently employed at the Council who is able to give evidence as to the whereabouts of the said documents.

Therefore, in respect of Part 21 r 21.11(iii) the respondent has no knowledge or information as to the whereabouts of the documents.”

12 This notice was served late, as the council acknowledges, because r 21.11 requires the recipient of a notice of dispute “within a reasonable time after being served with a notice to produce” to serve the prescribed notice, and goes on to provide that, unless that party establishes to the contrary, fourteen days or longer after service of the notice is taken to be a reasonable time.

13 I indicated during argument that I thought that the notice was defective in form in that it failed to identify the notice or notices to produce to which it was referable. This point has been met by the council undertaking to the Court that it would file and serve an amended notice pursuant to r 21.11 today, the amendment to be made by inserting after the word “says” in the first line of the existing notice “in relation to the five notices to produce dated 6 July 2009 served by the applicant on the respondent, copies of which are annexed to this notice”.

14 In view of the contents of the existing notice and the council’s letter of 1 October 2009, it seems inappropriate to require the council to file and serve a document, whether in the form of an affidavit or otherwise, which sets out (in terms of prayer 1 of the notice of motion) “the nature and extent of the Respondent’s property or other files for 2 Marian Street, Killara that have been destroyed”. Although such an order may have been reasonably grounded upon the council’s first indication that the files had been destroyed, it became clear in subsequent correspondence and in the notice that the real position is that such files cannot be located and that any question of them having been destroyed is a matter of inference from, inter alia, that fact. It also follows that the balance of prayer 1 which seeks an order for the filing of an affidavit explaining the circumstances in which the files came to be destroyed would also be inappropriate.

15 However, during the course of argument, the question arose as to whether it would be appropriate for a more modest form of order to be made requiring the council to file and serve an affidavit setting out the steps that have been taken to locate the documents which it is said cannot be located and which will be identified more precisely in the amended notice to be filed and served today. In my view, there is power in the court to make such an order under s 61 of the Civil Procedure Act 2005 and in r 2.1 of the Uniform Civil Procedure Rules 2005. The question is whether it would be appropriate to exercise the power in the circumstances of this case.

16 The applicant’s argument that it would be appropriate boils down to the proposition that council records for a long period of years cannot be located. I think that that has some force given the nature of the proceedings and the statement in the notice that has been served by the council that they probably did exist at some point in time. Although such an order, as the council points out, is not to be found in the provisions of UCPR Part 21 dealing with notices to produce, the powers in the other provisions of the Civil Procedure Act and the Uniform Civil Procedure Rules to which I have referred are wide enough to permit such an order to be made. On balance, I am satisfied that given the circumstances to which I have referred that it would be appropriate to make such an order.

PRAYER 2

17 Prayer 2 in the applicant’s notice of motion is for an order that the council file and serve an affidavit by the general manager or other appropriate officer of the council, setting out in full the particulars of any documents produced pursuant to the notices to produce issued by the applicant over which the council makes a claim for legal professional privilege and the basis of that claim by 16 October 2009.

18 The background is that when the applicant’s solicitor went to inspect documents that had been produced in response to the notices to produce, certain of those documents were stapled so that they could not be inspected. It was indicated at that time by the council’s solicitors that the stapled documents were documents in respect of which a claim for legal professional privilege was maintained.

19 This prayer has been overtaken by a notice which the council served, it seems, on 9 October 2009 pursuant to r 21.11(b)(i) UCPR, identifying in a schedule a long list of documents claimed to be privileged. It has been confirmed during argument that all the documents that were stapled which the applicant’s solicitor saw but was unable to inspect are subject to the claim for privilege. In these circumstances, it is unnecessary to further consider prayer 2.

20 Two further matters may be noted. First, the applicant has contended before me that items 13, 14, 17 and 39 in the council’s notice to which I have just referred do not on their face appear to be privileged. That is a matter that the council has indicated that it will consider. Secondly, the applicant has indicated he does not concede that those, and perhaps other, documents for which privilege has been claimed have not been the subject of waiver of privilege. Those matters, if they are to be pressed, must await another occasion.

PRAYER 3

21 Prayer 3 of the notice of motion is for an order that the council file and serve an affidavit by the general manager of the council, or chairman of the Ku-ring-gai Planning Panel, or other appropriate officer, setting out in full the nature and extent of the arrangements made on 9 September 2009 to accurately record the determination of the Ku-Ring-Gai Planning Panel in respect of Development Application 0185/09.

22 The background is as follows. On 9 September 2009, the Ku-ring-gai Planning Panel granted conditional development consent to DA0185/09. That development application, according to the points of claim, was made on 14 April 2009 by the council. The development application form described the proposed development as “to upgrade fire safety and access for the theatre to be used as a place of public entertainment”. According to the points of claim, the statement of environmental effects lodged with the development application stated that the development application “seeks consent for parts of the Marian Street Theatre to be used as a Place of Public Entertainment”.

23 The applicant and his wife have made a number of submissions to the council and to the Ku-ring-gai Planning Panel in respect of that development application. The applicant was in attendance at the meeting of the Panel on 9 September 2009.

24 On 10 September 2009, the applicant’s solicitor wrote to the council’s solicitors stating that their client wished to give consideration to a possible amendment of the summons and points of claim in these proceedings as a result of the panel’s decision. The same letter enclosed suggested short minutes of order which proposed that the respondent provide a transcript of the recording of the meeting of the Ku-ring-gai Planning Panel of 9 September 2009 and the notice of determination of that development application as well as other documents relating thereto.

25 The council’s solicitor replied on the same day indicating that they did not consent to those orders, that they had already provided electronic copies of the documents contained in the development application file, and that the previous day’s meeting of the Planning Panel was not recorded.

26 On 18 September 2009, the applicant’s solicitors wrote to the council’s solicitors, stating in relation to the meeting of the Panel of 9 September 2009:

“The minutes of that meeting have now become available on Council’s website. We are informed by our clients who attended the meeting that it involved a complex process of amending many of the recommended conditions of consent in order to formulate the final resolution.

We understand that the normal practice at Council meetings is for a minute secretary to be present so that when such changes are proposed by Councillors they can be shown in a different colour type on an elevated screen to be checked prior to the resolution being passed. It was not apparent to our clients that a minute secretary was in attendance on 9 September 2009 and the procedure we have described was not employed. Would you please let us know how and by whom the minutes which appear on Council’s website were compiled.

We would also be grateful if you would let us know why the meeting was not recorded as we note that the facilities for electronic recording exist...”

27 On 29 September 2009, the council’s solicitors replied, relevantly stating:

“The Planning Panel does not have its meetings recorded and this was a decision of the Panel itself. The only exception to this was the meeting held on 27 May 2009 at the Lindfield UTS. The minutes of its meeting are on the website. They were prepared by Council staff on behalf of the panel and were adopted by the panel on 23 September 2009.”

28 The applicant submits that the power to make the order which it seeks is to be found in s 61 of the Civil Procedure Act 2005. I disagree. Section 61(1) provides that,

“ 61 Directions as to practice and procedure generally

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.”

29 The information sought in prayer 3 relates to a possible future proceeding, the nature of which is ill-defined but which presumably might relate to a challenge to the validity of the Panel’s decision. It is not concerned with any issue in the present proceedings. Consequently, in my opinion, there is no power under s 61 to make the order sought. The applicant did not rely upon any other source of power to make the order. In those circumstances, I do not accept that I have power to make the order sought in prayer 3.

PRAYER 4

30 In prayer 4 of the notice of motion the applicant seeks an order that the respondent provide to the applicant copies of all attachments, emails or other documents referred to in the letter from the applicant’s solicitors to the respondent’s solicitors dated 28 September 2009 (which is annexure L to the affidavit of Roslyn Mary McCullough sworn 29 September 2009). It has been clarified during argument that this prayer relates to the emails referred to in paras 5, 10 and 12 of the council’s solicitor’s letter of 13 October 2009. The particular complaint is that the attachments to those emails have not been produced. Now that that has been clarified, the council has indicated to me that it will inquire and endeavour to produce those attachments if they have not already been produced, or, if it is impossible to produce them, to explain to the applicant why that is so. In those circumstances, I think it is inappropriate to make any order in relation to prayer 4. If the matter is not resolved between the parties, then the matter can no doubt be revived in the Court on a later occasion.

31 The orders of the Court are as follows:

1. Order that the respondent by a proper officer file and serve an affidavit within five working days detailing the steps taken by the respondent to locate the documents referred to in its amended notice to be served later today, under r 21.11 of the Uniform Civil Procedure Rules 2005;
2. The applicant’s notice of motion filed on 2 October 2009 is otherwise dismissed;
3. Costs of the applicant’s notice of motion filed on 2 October 2009 are reserved;
4. The applicant’s notice of motion filed on 3 September 2009 is stood over to Friday 23 October 2009 before the list judge.