Jacfin Pty Ltd v Integral Energy Australia

[2005] NSWLEC 486

Land and Environment Court

of New South Wales

CITATION:

Jacfin Pty Ltd v Integral Energy Australia [2005] NSWLEC 486

PARTIES:

APPLICANT: Jacfin Pty Ltd

SUBPOENAED PARTY: ING Industrial Custodian Pty Ltd

RESPONDENT: Integral Energy Australia

FILE NUMBER(S):

31496 of 2004

CORAM:

Bignold J

KEY ISSUES:

Costs - Practice and Procedure :- Subpoena to produce documents - Objection to unqualified access to documents on basis of contents being commercially sensitive and confidential

DATES OF HEARING:

23 August 2005

 
DATE OF JUDGMENT: 

09/06/2005

LEGAL REPRESENTATIVES:

APPLICANT: Mr N. Hemmings QC

Solicitors: Allens Arthur Robinson

SUBPOENAED PARTY: Mr P. Rickard, Barrister

Solicitors: Arnold Bloch Leibler

RESPONDENT: Mr P. Colagiuri, Solicitor

Solicitors: Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

BIGNOLD J

6 SEPTEMBER 2005

JACFIN PTY LTD

V

INTEGRAL ENERGY AUSTRALIA

CORAM: HIS HONOUR

1.

The Applicant in pending class 3 proceedings comprising an objection pursuant to s66 of the Land Acquisition (Just Terms Compensation) Act 2001 against the amount of compensation offered it by the Respondent in respect of the compulsory acquisition of an easement interest over land owned by the Applicant at Erskine Park caused to be issued by the Court on 3 August 2005 a subpoena for the production of specified documents addressed to the Proper Officer of Arnold Bloch Leibler (ABL). The document were specified in the schedule to the subpoena as follows:

The original or counterpart contract for sale, dated 6 July 2005, of land described as Lot 3 in Deposited Plan 559086, Lot 4 in Deposited Plan 559086 and Lot 7 in Deposited Plan 238969 between BGV Developments Pty Limited (ACN 082 449 205) (as vendor) and ING Industrial Custodian Pty Ltd (ACN 081 823 743) (as purchaser), and all agreements collateral thereto.

2.

ABL who are the solicitors for ING Industrial Custodian Pty Ltd (ING) on instructions from Mr Lewis, Director of Industrial Property Services, wrote to the Applicant’s solicitors Allens Arthur Robinson (Allens) on 8 August 2005 enclosing a copy of the contract for sale specified in the schedule to the subpoena and an option agreement relating to that contract with a request “if the copied documents are sufficient” for the subpoena to be amended so as to delete from the schedule the reference to “and all agreements collateral thereto”.

3.

In subsequent email communications sent on 10 and 11 August 2005 ABL requested Allens to extend the return date for the subpoena so that their client ING might consider its position in relation to the subpoena.

4.

The return date for the subpoena was duly amended by substituting 16 August 2005 for the original return date of 12 August 2005 so as to enable ABL and Allens to have “without prejudice” discussions as to the production of the documents (other than the contract for sale and option agreement) in a manner that would protect the commercially sensitive information of ING contained in those documents. No agreement resulted from those discussions.

5.

When the subpoena came before the Court on the return date Allens intimated that ABL should prove its claim that the documents specified in the subpoena contained commercially sensitive information to ING, whereupon the Assistant Registrar directed ABL to file and serve a Notice of Motion supported by affidavit objecting to unqualified access to the subpoena documents by 19 August 2005 and stood the matter over to the Duty Judge on 23 August 2005.

6.

On that occasion ABL produced to the Court the documents called for in the Applicant’s subpoena and objected to access to the commercially sensitive documents (comprising a development agreement and a procurement agreement) unless the Applicant was prepared to give an undertaking in the form attached to ABL’s Notice of Motion. That Notice of Motion was supported by the affidavit of Timothy Roger Lewis sworn 22 August 2005 which asserts that these additional documents contain information that is highly commercially sensitive and confidential to ING and provides detailed reasons as to why unqualified and unprotected disclosure of the documents would cause “substantial and irreparable damage to ING”.

7.

In the result the dispute concerning limited access to the subpoena documents provided to the Court was resolved by the Court’s adjudication which included an order that access to the relevant documents be limited to the parties’ respective legal representatives and valuers.

8.

Thereupon ABL sought an order for costs which was disputed by Allens. Various communications passing between the solicitors were tendered and I have now had the opportunity to consider that correspondence. Most materially Allens in their facsimile of 11 August 2005 had advised ABL that their client would accept production upon the basis that “access to the documents … will be restricted to the Applicant’s legal representatives and valuation expert, and used solely for the purposes of the proceedings”.

9.

Having regard to the fact that the basis for ABL’s objection to unqualified access to the documents was not properly articulated until Mr Lewis swore his affidavit on 22 August 2004 the need for the parties to appear on 23 August was virtually unavoidable. More importantly the outcome of the proceedings conducted on that occasion has entirely vindicated Allens’ proposal as communicated to ABL to preserve and protect any confidentiality in the subpoena documents (which at that stage had not been produced to the Court and when the basis for their asserted confidentiality and commercially sensitive content had not been established).

10.

In these circumstances there is no justification for a costs order in favour of ABL.

11.

For all the foregoing reasons I order that there be no order for costs in respect of the subpoena issued by the Applicant on ABL.