Joan Street and 4 Ors v Luna Park Sydney Pty Ltd - [2005] NSWSC 1303

NEW SOUTH WALES SUPREME COURT

CITATION: Joan Street & 4 Ors v Luna Park Sydney Pty Ltd [2005] NSWSC 1303

CURRENT JURISDICTION:

FILE NUMBER(S): 2267/05

HEARING DATE{S): 14 December 2005

JUDGMENT DATE: 14/12/2005

PARTIES:
Joan Street (P1)
Ros Dwyer (P2)
Michael Hesse (P3)
Glen Eight Pty Ltd ACN 102 907 184 (P4)
Susan Hesse (P5)
Luna Park Sydney Pty Ltd (D1)

JUDGMENT OF: Brereton J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
T Alexis SC & P Sibtain (P)
G Parker SC & M Baird (D)

SOLICITORS:
Wise Legal (P)
Clayton Utz Lawyers (D)

CATCHWORDS:
PROCEDURE – interrogatories and discovery – subpoenas – where relevant only to costs

ACTS CITED:
Crown Lands Act 1989 (NSW)
Luna Park Site Amendment (Noise Control) Act 2005 (NSW)
Trade Practices Act 1974 (Cth)

DECISION:
See pars [11], [15]-[16], [23], [25]

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday 14 December 2005

2267/05 Joan Street & Ors v Luna Park Sydney Pty Limited

JUDGMENT (ex tempore – revised 28 December 2005)

HIS HONOUR: As originally framed these proceedings were a claim for injunctive relief and damages for nuisance, said to be constituted by the emission of noise from rides at the Luna Park site, brought by the plaintiffs, who generally may be described as residents of the premises adjacent to the Luna Park site, against the first defendant, who might broadly be described as the operator of that site. The proceedings were set down for hearing to commence on 31 October this year. Not long before the date, it became apparent that any such cause of action would be doomed to failure, not ab initio, but because of the enactment of the Luna Park Site Amendment (Noise Control) Act 2005 (NSW), which received Royal assent on 19 October 2005 and provides, inter alia, that emission of noise from the Luna Park site does not constitute a public or private nuisance.
As a result of that enactment, the hearing was vacated and the matter ultimately listed for today to consider several issues. Those issues were, in short, first whether the plaintiffs should have leave to file a further amended Statement of Claim reformulating the basis of their case; secondly, whether the plaintiffs should have leave to administer interrogatories; thirdly, whether certain subpoenas and notices to produce issued by the defendants should be set aside; and fourthly, whether certain subpoenas issued by the plaintiffs should be set aside.
The interrogatories referred to in the second issue, and the subpoenas referred to in the fourth issue, are all conceded by Mr Alexis SC, who, with Ms Sibtain, appears for the plaintiffs today, to relate only to the question of costs. The plaintiffs wish to advance an argument that, at the least, the defendants should pay their costs of the proceedings from the date on which the defendants became aware that legislative intervention was likely, up to the abandonment of the hearing of the claim on the basis on which it was originally articulated.
Today, without opposition, leave has been granted to the plaintiffs to add additional plaintiffs, to add a second defendant, and to file a further Amended Statement of Claim which reformulates the previous claim. The reformulated claim may, for present purposes, be sufficiently described as raising cases for injunctive relief based on alleged contravention of the Crown Lands Act 1989 (NSW), and, perhaps more importantly, for damages for misleading and deceptive conduct for alleged contravention of the Trade Practices Act 1974 (Cth), and for alleged negligent misrepresentation. At the heart of those cases are allegations that the value of the plaintiffs' properties have been diminished as a result of their exposure to noise from the Luna Park site, which noise is said to have reduced the amenity for residents of those properties.
The amendments having been permitted, Mr Parker SC, who appears for the defendants, submits that consideration and determination of the second and fourth issues identified above should be deferred until the final hearing of the proceedings, and it is in respect of that application for adjournment of the motion which raise those issues that I give this judgment.
The further Amended Statement of Claim, like its predecessors, includes a claim for costs of the proceedings. Costs are, therefore - and for that matter would have been even if there were not an express claim for them - an issue in the substantive proceedings. They will be an issue at the final hearing. While courts sometimes defer consideration and determination of questions of costs until after the substantive determination of proceedings, on other occasions courts will deal with the question of costs in the course of the substantive hearing, and may receive submissions as to costs from the parties in the course of the substantive hearing on alternative bases depending on the possible outcomes of the final hearing. In other words, it is not the invariable practice that questions of costs are considered and determined only on a subsequent application made after the final hearing. Costs are not necessarily a separate and discrete issue, but can be an issue at the final hearing. They are unquestionably an issue in this case.
While it is clear, for present purposes, that much of the evidence already prepared and filed in these proceedings will still be relevant to the issues raised in the claim as reformulated, it must also be clear that there are some costs which have been incurred by both parties in preparation of the case as it was originally formulated which will be thrown away as a result of the enactment of the Luna Park Amendment (Noise Control) Act 2005 (NSW). It is, I think, inevitable, or at least almost inevitable that, at the conclusion of the case, whatever the outcome, there will be a dispute as to how the costs which have been thrown away as a result of the Amendment Act should be borne. It is impossible at this stage, and it will be impossible until the final hearing, to assess the extent to which the costs incurred prior to its enactment and those which would be incurred on the reformulated claim in any event overlap, and the extent to which costs have been wasted or thrown away. Similarly, it will be impossible for an assessor to assess costs thrown away until those matters are known.
Those considerations have the consequence that, in my opinion, any application for a special costs order, such as has been specifically foreshadowed by Mr Alexis, but is sufficiently raised and covered by the general claim for costs in the initiating processes, must be heard and determined not before the final hearing of the reformulated proceedings. But the fact that that costs question should not be heard and determined until then is not conclusive of the question whether determination of the second and fourth issues to which I have referred would be premature. The circumstance that I would not embark on hearing a costs application of the type foreshadowed before the final hearing does not mean that the plaintiffs are not entitled to prepare their case for that costs application in conjunction with the preparation of the rest of the case and, for that matter, now.
The permissible scope of interrogatories, discovery and subpoenas is generally limited by the requirement that the documents or information sought relate to matters in issue between the parties in the proceedings. The question of costs, and in particular the question of how costs thrown away by reason of the Amendment Act should be born, is a matter in issue between the parties in these proceedings. Documents which relate to that question are, prima facie, documents which could fall within the legitimate scope of discovery and interrogatories, and of subpoenas. Whether, in fact, they do so, I do not embark upon at this stage, because that will fall for determination if and when we come to the second and fourth issues. But it seems to me, to the extent that it is permissible for them to do so, there is no reason why the plaintiffs ought not be permitted to seek to gather relevant evidence and information on the costs issue by interrogatory and subpoena at this stage.
I have given some consideration as to whether the fact that the documents sought relate to costs alone is a reason not to hear the applications at this stage but to defer them. Though many cases can be found to support the proposition that issues of credit are not, for the purposes of discovery and interrogatories, issues in the proceedings, in the time which I have had available to look at the issue, I can find nothing to suggest that matters relevant only to costs fall within a similar class. Accordingly, it seems to me that although information and documents might relate only to costs, they do not fail or cease to relate to an issue in the substantive proceedings for that reason.
Accordingly, I decline to adjourn the hearing of the application on the second and fourth issues.
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The plaintiffs contend that had they known earlier of the proposed enactment of the Amendment Act the preparation of the case would have taken a different course, and that they would not have incurred costs which would be wasted if the legislation were passed. They wish to argue that, acting reasonably, the defendants should have notified them of the proposed legislative intervention as soon as they became aware of it, rather than leaving the plaintiffs to incur costs of preparation which might well be wasted. The interrogatories which they seek leave to administer, and the subpoenas which they have issued, seek to elicit potential sources of evidence as to the state of knowledge of the defendants from time to time of the prospect of legislative intervention.
Despite the concessions made by Mr Wise in cross-examination that, in fact, on becoming aware of the proposed legislation, no different course was taken at all, I am unable to say that the argument which the plaintiffs wish to advance is hopeless or deemed to failure. It is at least arguable that earlier notice of the proposed legislation may have made a difference to the course which the plaintiffs would have adopted, in particular with increasing probability if such notice had been received before the second pre-trial directions on 13 September, and more so before the first pre-trial directions on 16 August, and still more so before 1 July when the matter was set down for hearing by the Expedition Judge.
In that way it can be seen that the particular date on which the plaintiffs were notified, and on which the defendants were in the position to notify them, of the proposed legislation might be highly relevant to the case which the plaintiffs wish to make on costs. In that sense, it plainly relates to an issue between the parties in the proceedings, and it is “on the cards” that the documents, production of which is sought by the subpoenas comprised in Exhibits AX01 and AX02, would add to the relevant evidence in the case on that issue.
On the plaintiffs' Notice of Motion filed on 9 December 2005 [for leave to administer interrogatories], and subject to hearing any submissions as to the time frame of seven days referred to in paragraph 1 of that motion, I make an order in accordance with paragraph 1 of that motion.
On the defendants' Notice of Motion filed on 7 December 2005 [to set aside subpoenas], I dismiss the Motion with costs, and I appoint 9am tomorrow before the Registrar for the further return of the subpoenas referred to in Exhibit AX02.
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On 15 November 2005, the first defendant had issued a subpoena to the plaintiffs' solicitors Zabow & Wise, which seeks production of documents in the following three categories:-
1.            All documents constituting or recording the steps taken to comply with the Court’s timetable or the preparation of the proceedings for the hearing on 31 October 2005 (excluding correspondence with Clayton Utz solicitors) and any advice to, or instructions from, the plaintiffs in relation to such steps, including, but not limited to, any advice as to the implications of the introduction or proposed introduction of the Luna Park Site Amendment (Noise Control) Bill (the “Bill”), from the date when the plaintiffs or their legal counsel became aware of the introduction, or the proposed introduction, of the Bill, until 19 October 2005.
2.            All documents constituting or recording communications from 1 January 2005 to 18 October 2005 with any media organisations, journalists, members of the New South Wales Parliament, members or employees of North Sydney Council, or representative(s) thereof, in relation to the proceedings and/or the noise complaints which are the subject of these proceedings.
3.            All documents constituting or recording the retainer of any person to provide public relations or media relations services to any of the plaintiffs in the proceedings, or constituting or recording any advice or consultation provided by such person, or any instruction given to such person pursuant to such a retainer, between 1 January 2005 to 18 October 2005.
On the same date, the first defendant served on each of the then five plaintiffs a notice to produce which required production of documents in two categories, which correspond with those in paragraphs 2 and 3 of the subpoena. The plaintiffs move to have the subpoena and the notice to produce set aside. For present purposes, I shall use the enumeration of the classes of documents in the subpoena alone.
So far as the documents, production of which is sought by paragraph 1 of the subpoena, is concerned, it is relevant for the defendants, in answer to the plaintiffs' foreshadowed argument on costs, to show that, in fact, the announcement of the proposed legislation made no difference to their preparation of the matter for hearing. That I have found that the contrary position is arguable has the corollary that what the defendants might already have established through cross-examination of Mr Wise is not conclusive, and that they might wish legitimately to underpin, support or reinforce the concessions which they have so far obtained.
In those circumstances, I do not accept that the documents, production which is sought by paragraph 1, would not potentially add to the relevant evidence on the costs issue. It is true that a substantial part of those documents might well be the subject of a legitimate claim for legal professional privilege, but that is not a sufficient reason to set aside the issue of the subpoena, although it might well result in inspection of some of the documents produced being refused. [The position might well be otherwise if it were established that all the documents sought were necessarily privileged].
So far as paragraphs 2 and 3 of the subpoena are concerned, Mr Parker contends, rightly in my view, that it does not follow that, were the Court to be satisfied that the defendants had early knowledge of the proposed legislation, and did not inform the plaintiffs of it, there would necessarily be any special costs order as a result. As Mr Parker submits, it may well be that the Court would be unpersuaded that an adjournment of the trial would have been granted had it been sought, or that any dispensation would have been granted from the timetable for preparation for the hearing. As Mr Parker also submits, it may be that the Court would be persuaded that, in the circumstances, the defendants were entitled to remain silent until the proposed legislation was a matter of public record; whether or not that is the case can await further argument.
But what I am unable to see is how the retainer by the plaintiffs of media agents or lobbyists from January 2005 onwards, and their political or media strategy, is relevant to that argument. While their legal strategy, which is covered, at least in part, by paragraph 1 of the subpoena, might well be relevant, it is not apparent to me how their media or political strategy would bear on whether or not it was appropriate for the defendants, if they had knowledge of the proposed legislation, to keep it to themselves or to notify the plaintiffs, given the pendency of the final hearing. In my opinion, it is not on the cards that the documents, production of which is sought by paragraphs 2 and 3, would add to the relevant evidence on the costs issue.
I order that paragraphs 2 and 3 of the subpoena filed on 15 November 2005 addressed to the partners of Zabow & Wise lawyers be set aside. I order that the plaintiffs need not produce the documents referred to in paragraphs 1 and 2 of the Notice to Produce addressed to them and dated 15 November 2005.
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In respect of the plaintiffs' motion filed on 9 December 2005, the plaintiffs have succeeded on paragraph 1, and achieved a substantial measure of, although not total, success on paragraph 2. Mr Parker has rightly recognised that the question of costs flowing from the amendment of the Statement of Claim in particular circumstances of this case ought not be the subject of an order in the ordinary course that they be borne by the amending party.
I order that the defendant pay the plaintiffs' costs of paragraphs 1 and 2 of the plaintiffs’ Notice of Motion filed on 9 December 2005. The proceedings are stood over to Thursday 9 February 2006 at 9.30am before me for further directions. The subpoenas comprised in Exhibit AX01 shall be returnable before the Registrar at 9am on 19 December 2005. The subpoena addressed to Zabow & Wise shall be further returnable on 19 December before the Registrar at 9am.
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LAST UPDATED: 28/06/2006