Lewiac Pty Ltd and ING Real Estate Joondalup BV v; Gold Coast City Council and Ors
[2002] QPEC 59
•7 June 2002
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Lewiac Pty Ltd and ING Real Estate Joondalup BV v
Gold Coast City Council & Ors [2002] QPEC 059PARTIES: LEWIAC PTY LTD and
ING REAL ESTATE JOONDALUP BVAppellants
GOLD COAST CITY COUNCIL
Respondent
QIC ROBINA PTY LTD
First Co-Respondent
MACQUARIE ASSET SERVICES LIMITED
Second Co-Respondent
GIBBS HOLDINGS PTY LTD
Third Co-Respondent
CFS MANAGED PROPERTY LIMITED AND COLONIAL FIRST STATE INVESTMENTS LIMITED
Fourth Co-Respondent
STATE OF QUEENSLAND
Fifth Co-Respondent
YU FENG PTY LTD
Sixth Co-Respondent
WESTFIELD LIMITED
Seventh Co-Respondent
FILE NO/S: 1169 of 2001 DIVISION: Planning and Environment Court PROCEEDING: Applications for further disclosure and to set aside subpoenas ORIGINATING COURT: Planning and Environment Court, Southport
DELIVERED ON: 7 June 2002 DELIVERED AT: Southport HEARING DATE: 3rd and 4th June 2002 JUDGE: Newton DCJ ORDER: § applications for further disclosure allowed in part
§ subpoenas issued by the fourth co-respondents set aside
CATCHWORDS: Applications for further disclosure – Rule 16 of the Planning and Environment Court Rules 1999 – Rules 211 and 212 of the Uniform Civil Procedure Rules 1999 – whether documents sought by way of further disclosure directly relate to a relevant issue – application to set aside subpoenas – whether issuing of subpoenas amounts to an abuse of Court – whether provisions in part 2 of chapter 7 of the Uniform Civil Procedure Rules should have been used
Re Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 Qd R 261 referred toCOUNSEL: Mr J C Gallagher QC, with him Mr T Trotter – applicants (fourth co-respondents)
Mr M D Hinson SC – respondents (appellants)
Mr C L Hughes SC – (respondent Council)
Mr E J Morzone – (second co-respondent)
Mr R S Jones – (fifth co-respondent)
Mr D Gore QC – (seventh co-respondent)SOLICITORS: Minter Ellison – applicant (fourth co-respondent)
Freehills – respondents (appellants)
McDonald Balanda – (respondent Council)
McDonald Balanda – (second co-respondent)
Crown Solicitor for the State of Queensland – (fifth co-respondent)
Clayton Utz – (seventh co-respondent)
REASONS FOR JUDGMENT
This matter primarily involves the determination of three applications for further and better disclosure. The first is brought by the fourth co-respondents (CFS Managed Property Limited and Colonial First State Investments Limited). The second is brought by the seventh co-respondent (Westfield Limited). The third application is brought by the respondent Council. To some extent each application shares common features although they are not in identical terms.
The fourth co-respondents seek an order for further and better disclosure in respect of the following documents:
¨ Trading figures for Harbour Town since it opened;
¨ Actual return from each tenant per month;
¨ Sales by month per outlet for Harbour Town since it opened. In that regard, it is alleged that the appellants have only disclosed that part of their sales figures schedules comprising the square metre leased by each tenant; and
¨ Any discussions, negotiations or inquiries with all potential new tenants of Harbour Town or with existing tenancies.
Other documents sought relate to floor space surveys, data sheets and other documents used by Mr Norling in the preparation of his Economic Impact Statement and Needs Analysis as well as documents relied upon by Mr Humphreys in making the following assertion in his report of 23 May 2002:
“At the time of the application, Harbour Town had been trading for approximately 12 months. Over that time, it had been noted that the outlet and brand direct tenancies were trading very strongly.”
The respondent seeks an order that the appellants discharge their obligations on disclosure and provide further and better disclosure by way of List of Documents including, but not limited to, any documents in the possession or control of the appellants of the nature detailed in correspondence from the respondent’s solicitors to the appellants’ solicitors dated 10 April 2002. That correspondence identifies the following:
¨ The gross floor area of all buildings and structures erected on the Harbour Town land;
¨ The gross leasable floor area of all buildings on the Harbour Town land;
¨ The tenants and each applicable gross leasable floor area by tenant;
¨ Details of the rent payable by each tenant;
¨ Details of the moving annual turnover by tenant (latest available); and
¨ The tenants categorised as “factory outlet premises”.
The application by Westfield is in respect of:
(a)lists of tenancies for the particular shopping centre which include the following details:
(i)the square metres leased;
(ii)the date each tenancy started;
(iii)full lease details; and
(iv)the actual return from each tenant per month.
(b)lists of vacancies in the shopping centre; and
(c)trading figures including details of the sales by month per retail outlet in the shopping centre.
Rule 16 of the Planning and Environment Court Rules 1999 provides:
“(5) Within 10 days after the list of issues is served on an active party, the party (the ‘disclosing party’) must…
(a)give each other active party the disclosing party’s document list; or
(b)otherwise comply with the disclosing party’s duty of disclosure under the rules applying in the District Court as if the proceeding were a proceeding in the District Court.”
Rule 211 of the Uniform Civil Procedure Rules 1999 states:
“(1) A party to a proceeding has a duty to disclose to each other party each document…
(a)in the possession or under the control of the first party; and
(b)directly relevant to an allegation in issue in the pleadings; and
(c)…”
Rule 212 of the Uniform Civil Procedure Rules 1999 provides:
“(1) The duty of disclosure does not apply to the following documents…
(a)a document in relation to which there is a valid claim to privilege from disclosure;
(b)…
(c)…
(2)A document consisting of a statement or report of an expert is not privileged from disclosure.”
The applicants submit in respect of each application that although the disputed documents are held by expert witnesses, they remain within the appellants’ control and are directly relevant to the issues to be decided in the appeal. Although the appellants resist the applications, it should be noted that there is no claim that the documents are protected by legal professional privilege. Rather, the appellants submit that the documents are not directly relevant to the issues to be decided in the appeal and that in some cases the documents are not within the appellants’ control.
The question of relevance is primarily but not exclusively to be determined by reference to the identified issues. The fourth co-respondent’s list of merits issues in the appeal (which has been adopted by the other co-respondents) includes the following:
“1. The application the subject of this appeal (‘the Proposal’) is contrary to:
(a) the Commercial Strategy (Parts 1-11 and 1-12) of the Transitional Planning Scheme for Gold Coast City;
(b) Provision 1.4.12.2(i) of the Transitional Planning Scheme for Albert Shire;
(c) Sections 3.2.3 and 4.5 of the Activity Centre Strategy; and
(d) Page 16 – the existing System of Centres, Part 3, Chapter 2 of the Respondent’s Draft Planning Scheme.
2.The size and scale of the Proposal will result in Harbour Town significantly exceeding its designated role as a Regional Centre under:
(a) the Transitional Planning Scheme for Gold Coast City (Part 1-14 of the Commercial Strategy);
(b) Major Business Centre under the Transitional Planning Scheme for Albert Shire (provisions 1.4.12.1 and 1.4.12.2);
(c) Subregional Centre under the Activity Centre Strategy (Summary Findings and Recommendations (section vii), Figures A and B and Appendix B); and
(d) Subregional Centre under the Draft Planning Scheme (page 17, -art 3, chapter 2 and Section 11.5 (pages 12-13, part 3, chapter 3).
3.The Proposal will undermine the planned hierarchy of centres for Gold Coast City to the detriment of existing and proposed centres contrary to:
(a)the Commercial Strategy (Parts 1-11 to 1-15) and Commercial Strategy Diagram of the Transitional Planning Scheme for Gold Coast City;
(b)Strategic Plan Maps 4 and 5, Sections 1.3.5.1, 1.3.5.4 and 1.4.11.1-1.4.11.2 and 1.4.12.1-1.4.12.2 and the Albert Corridor DCP (Sections 2.6.3.2, 2.6.3.3, 2.6.4.1) of the Transitional Planning Scheme for Albert Shire; and
(c)Figures A and B, Summary Findings and Recommendations, Section 7.0 and Appendix B of the Activity Centre Strategy.
For this reason the Proposal is also contrary to DEO Econ-1, Econ-1.4, DEO Econ-4, Econ-4.1, Econ –4.2 and Econ 4-3, Pages 15-17 of Part 3, Chapter 2 (Regional Context to Catchment Based Centres), AC Policy I, AC-1.2 and AC-1.4 on pages18-19 of Part 3, Chapter 2, Section 11.0-11.6, Pages 8-13 of Part 3, Chapter 3; the Coomera Town Centre Local Area Plan (Sections 1.0, 3.0, 5.1 and 5.6), Helensvale Local Area Plan (Sections 1.0, 3.0, 5.1.1 and 5.3.1) and Southport Local Area Plan (Sections 1.0, 3.0 and 5.1-5.5.3) of the Draft Planning Scheme.
4.The Proposal will adversely impact upon the established and planned centre hierarchy, including centres of Helensvale, Southport, Runaway Bay, Robina, Surfers Paradise, Pacific Fair and Coomera. The Centre will undermine the primacy of the Southport and Robina centres and prejudice the future developments of the Helensvale and Coomera centres.
5.The Proposal will result in a heavily retail biased centre and its failure to provide suitable community business and administrative functions is contrary to:
(a) the intent and Objective (a) for Regional Centres (Part 1-14) of the Transitional Planning Scheme for Gold Coast City;
(b) the intent and Objective 1 for Major Business Centres (Sections 1.4.12.1 and 1.4.12.2) of the Transitional Planning Scheme for Albert Shire;
(c) Section (vii) of the Summary Findings and Recommendations, Sections 5.2.3 and 5.2.3.4 and Appendix B of the Activity Centre Strategy; and
(d) AC Policy and AC-1.1, AC-1.3, AC-1.6 and AC-1.10 on pages 18-19 and Section 11.5 on pages 12-13 of Part 3, Chapter 3 of the Draft Planning Scheme.
6.The Proposal conflicts with and will detrimentally impact upon existing, proposed and planned retail centres and consequently on the planned hierarchy of centres as set out in the Transitional Planning Scheme for Gold Coast City, the Transitional Planning Scheme for Albert Shire, the Activity Centre Strategy and the Draft Gold Coast Planning Scheme.
7.There is no need or demand for the Proposal.
8.The Proposal makes inadequate provision for on site carparking;
9.Approval of the Proposal will adversely impact on the intersection of Gold Coast Highway and Olsen Avenue.
10.Approval of the Proposal will adversely impact on the intersection of Gold Coast Highway, Ereton Drive and Motavu Drive […].
11.The Proposal makes inadequate provision on site traffic and pedestrian circulation and site access arrangements.”
[10] By letter dated 8 January 2002 the respondent Council provided written notice as prescribed by section 3.5.15(2)(c) to (f) of the Integrated Planning Act that the Council would have resolved absent the appeal herein to refuse the appellants’ application for material change of use for the following reasons:
“1. The Appellants have not demonstrated that a need for additional floor space of the scale proposed exists on the land the subject of the appeal;
2.The proposal will result in a centre that is heavily retailed biased. The proposal as lodged by the Appellants does not provide any community, business or administrative functions as is envisaged by the Respondent’s transitional planning scheme;
3.The proposed development exceeds the contemplated size of a Sub-Regional Centre as identified in the Respondent’s Activity Centre Strategy. The proposal undermines the Respondent’s planned hierarchy of centres to the detriment of other existing and planned centres;
4.The development is in conflict with the City of Gold Coast transitional town planning scheme gazetted 11 February 1994 and Albert Shire transitional planning scheme gazetted 23 February 1995 in that it will undermine the primacy of Southport, Robina and planned Helensvale Town Centres and the Appellants have failed to establish sufficient planning grounds to justify approval of the Application despite the conflict;
5.The submissions received by the Respondent have raised valid concerns which the Appellants fail to adequately address in their Application for Material Change of Use and supporting material.”
[11] The refusal of the appellants to provide further disclosure is substantially based upon the opinions of Mr Norling, an economic consultant retained by the appellants in the appeal. Mr Norling, in his affidavit filed by leave on 9 May 2002, states that whether there is need for the proposed extensions and whether they undermine the planned hierarchy or detrimentally affect other centres depends on their economic impact. This is determined by calculating the likely sales generated by the additions, the source of those sales and by forming a view as to the extent to which other centres in the same catchment competing for the same retail dollars are likely to be affected. Mr Norling considers that, as the existing Harbour Town centre is approved and that approval is not in issue, the sales or turnover of the existing centre is not relevant to determining economic impact except to the extent that the existing centre contains stores with similar trading characteristics to those proposed in the extension. The sales generated by these similar stores and the catchment of those sales is a guide to the likely sales and catchment of the proposed extension.
[12] Mr Norling goes on to state that the existing Harbour Town centre contains several types of tenancies including offices, a cinema complex and restaurants. He claims that the sales turnover of these is not relevant to the impact of the proposed extensions. Furthermore, Mr Norling considers that the sales turnover of traditional shops in the existing Harbour Town centre is similarly not relevant because these function differently in terms of retail offer, sales turnover and catchment to the outlet stores and showrooms proposed in the extension. The turnover and catchment of the existing outlet stores at Harbour Town are considered by Mr Norling to be relevant to the proposed outlets in the extension.
[13] The need and demand for and impact of the additional outlets proposed can, in Mr Norling’s view, be competently assessed by utilising the aggregated monthly turnover figures for Harbour Town’s existing outlet tenants. These have been disclosed. Mr Norling considers that there is no necessity to dissect these turnover figures by tenant or to identify the actual return from each tenant per month.
[14] Professor Kiel, an economic consultant retained by the fourth co-respondents, in his affidavit filed on 2 May 2002, considers that lists of tenancies including the square metres leased, the date each tenancy started, full lease details and the actual return from each tenant per month, together with lists of vacancies in the shopping centre and trading figures including details of the sales by month per retail outlet in the shopping centre are directly relevant to the issue of need and demand.
[15] In particular, Professor Kiel states that he requires such information in order to assist him to determine the current size and composition of the Harbour Town centre. Professor Kiel disputes that the centre is significantly different from traditional regional or sub-regional shopping centres. He also requires such details of the proposed expansion in order to resolve some ambiguity with regard to the actual size and planned composition of the extensions applied for by the appellants. The ambiguity, according to Professor Kiel, has arisen from differences in information provided within the application and supporting material relating to proposed space and intended usage.
[16] Professor Kiel further claims that the information sought would enable him to test the factual base of assertions made in the appellants’ documentation. For example, in the Economic Impact Statement submitted by the appellants, reference is made to floor-space surveys of factory outlets and retail showrooms on the Gold Coast upon which their claims to need, demand, and competitive impact are based. Professor Kiel requires full details, original data sheets and results of these surveys in order to form a judgment as to the adequacy and reliability of the surveys. He points out that while the data underlying the appellants’ estimates of market size are based on a range of primary and secondary data, details of the specific publications and primary data sources are not specified. Professor Kiel requires such information, he claims, in order to form an opinion on the adequacy and appropriateness of the source data, and thus the soundness of the assertions made in the application documentation.
[17] Professor Kiel further considers that he would be assisted in the determination of the current and future trade areas of the Harbour Town shopping centre and also assisted in analysing the trade areas of the centre by the provision of the material identified, such analysis being fundamental to the determination of economic demand and thus viability of the proposed extensions. He also wishes to analyse existing, proposed and planned retail floor-space in the area, current and future retail turnover of the centre, sources of turnover, trade area delineation and the centre’s investment performance. This is only possible in Professor Kiel’s opinion, with the provision of the information sought.
[18] While competitive impact estimates have been provided in the appellants’ Economic Impact Statement, Professor Kiel claims that the document fails to provide information as to the derivation of impact distributions and figures for existing turnover and their source. He considers that the appropriateness and correctness of the methodology and calculations used in the statement cannot be ascertained without this detailed data being made available. Professor Kiel requires the information sought to check the methodology and claims made by the appellants with regard to the competitive impact of the proposed extensions.
[19] Professor Kiel considers, contrary to Mr Norling’s view, that the need for the proposed extensions goes beyond examining the economic impact of the extensions themselves, and that the need for the centre must be considered in light of the viability of the “factory outlet” shopping centre type of use. The issue of need is seen by Professor Kiel as extending beyond the impact of the proposed extension on the planned hierarchy of other centres such as Runaway Bay. It is also concerned with issues which include:
(a)whether the centre and the proposed extensions are in fact different from traditional retailing. If they are not, need and impact must be considered as they would be for a traditional shopping centre;
(b)whether the economic return from such a centre is sufficient to ensure that the centre does not transform into a traditional shopping centre. Again, because this eventuality exists, need and impact should be considered as they would for a traditional centre; and
(c)the necessity to test the unique nature claimed for the centre and the additions against the reality of what actually exists at the shopping centre both with respect to the centre’s composition and the economics of the centre.
[20] Professor Kiel rejects Mr Norling’s view that the need and economic impact of both the expanded factory outlets and retail showrooms are independent of the rest of the centre. He does not accept Mr Norling’s view that the only relevant turnover figures are those for the existing outlet stores in the centre. Professor Kiel considers that if the expansion is approved, the turnover of the supermarket and restaurants will increase given the higher patronage which can be expected of a larger centre. The proposed expanded centre will compete with and impact upon other centres and it is for these reasons that the turnover figures, over time, for all the retail activities including cinemas and restaurants are required. Professor Kiel rejects Mr Norling’s view that only aggregated monthly turnover figures for outlet tenants are necessary to complete the economic analysis and that there is no need to dissect these figures by tenant.
[21] Central to the argument of need and impact for the proposal, in Professor Kiel’s opinion, is the viability of what is proposed in its entirety and not just the extensions. Accordingly, he requires actual return data by tenant to ascertain viability and functionality of the centre.
[22] Mr Norling deals with Professor Kiel’s claims that the Harbour Town shopping centre does not represent a different form of retailing, that outlet shopping cannot be sustained and that the proposed extensions must be considered as for a traditional shopping centre by stating that he has searched the issues notified by the parties to this appeal and cannot find these claims in any of the notified issues. Similarly, Mr Norling states that there is no issue in the appeal that the impact of increased turnover of the existing centre, by virtue of the proposed extensions, would impact upon the existing network of centres. Nor is there any issue in the appeal about turnover of the existing centre impacting upon such network.
[23] With respect to Professor Kiel’s claim that rents are critical to the sustainability of outlet shopping and that therefore an analysis of rents is required, Mr Norling again claims that this also is not an issue in the appeal. The same position is adopted with respect to any disagreement with Mr Norling’s definition of factory outlets, the viability of the proposed extensions and the methodology and approach adopted by Mr Norling in the preparation of the Economic Impact Statement which was lodged with Council.
[24] In relation to Professor Kiel’s claim that it is inconceivable that the appellant has no documentation of discussions with potential tenants, Mr Norling states that he has nothing in his possession relating to this matter and that he has not been provided with any such material.
[25] No doubt the approach adopted by Mr Norling in refusing to provide the information sought by Professor Kiel can be justified if one adopts what I consider to be an unduly narrow view of the merits issues in the appeal. Thus, if one has regard to the way in which “the Proposal” is identified as the application the subject of the appeal, Mr Norling may be vindicated in his view that the matters raised by Professor Kiel do not form part of the notified issues. However, there are, in my opinion, sound reasons for not adopting such a restricted view of the issues as Mr Norling favours.
[26] The fourth co-respondents’ list of merits issues in the appeal includes several references to the Harbour Town centre as an entity rather than simply referring to the proposal as including only the proposed extensions. Thus, in paragraph 2 of the list of merits issues it is alleged that “The size and scale of the Proposal will result in Harbour Town significantly exceeding its designated role as a regional centre...”. This, in my view, clearly extends any consideration of the centre beyond the proposed extensions to include the entirety of the Harbour Town shopping centre including the proposed extensions.
[27] Again, in paragraph 4 of the list of merits issues it is alleged that “The Centre will undermine the primacy of the Southport and Robina centres and prejudice the future developments of the Helensvale and Coomera centres.” This, surely, must be understood as an allegation that the Harbour Town shopping centre (including the proposed extensions) will have the effects claimed. The allegation cannot sensibly be read as referring only to the extensions themselves.
[28] Furthermore, in paragraph 5 of the list of merits issues it is alleged that “The Proposal will result in a heavily retail biased centre and its failure to provide suitable community business and administrative functions is contrary to [various provisions of the planning scheme]”. Once again, I cannot see how this allegation can be read as referring to only the proposed extensions. It must involve a consideration of the shopping centre as a whole when assessing the claimed failures to comply with the planning scheme.
[29] In my view Mr Norling has adopted an overly restrictive interpretation of the issues in the appeal by failing to acknowledge that in the instances referred to above the list of merits issues clearly includes considerations applicable to the way in which the Harbour Town shopping centre functions as a whole. This conclusion is supported by ground 2 of the respondent Council’s reasons for its deemed refusal of the appellant’s application for material change of use, namely that “The proposal will result in a centre that is heavily retail biased…”. This ground quite clearly raises as an issue the determination of the precise character of both the existing and proposed centre. There are opposing views expressed in the experts’ reports in this regard. Mr Norling, in his affidavit filed on 9 May 2002 at paragraph 8 states that:
“Outlet stores of the type which already exist at Harbour Town and which the proposal intends to expand, function differently to traditional shops. Outlet stores are premises from which brand name suppliers whose product is normally retailed through other stores, sell their merchandise direct to the public commonly at substantially discounted prices. Harbour Town is the largest outlet shopping centre in Queensland and, except for The Brickworks Centre, is the only such centre on the Gold Coast.”
[30] Professor Kiel, by contrast, in his affidavit sworn on 14 May 2002, states that;
“4. The current Harbour Town Shopping Centre is in my opinion a shopping centre with considerable similarities to other shopping centres of similar size within the Australian environment.
5. While the Harbour Town Shopping Centre certainly does contain some value outlet retailers, it also contains many other classes of retailing found in any other shopping centre. For example, there is a supermarket, a chemist, a newsagent, a hot bread shop, several food and takeaway outlets, a cinema and a large number of retailers who do not come under the heading of factory outlets/brand outlets or value outlets.”
[31] The respondent Council has, in my view, raised as an issue in the appeal the extent to which the existing and proposed centre is retail biased. It is not appropriate for Mr Norling, as the economic expert retained by the appellant, to assert how the centre is to be characterised and to refuse disclosure of the documents upon which his view is based when the view advanced by Mr Norling in this regard is challenged by the economic expert retained by a submitter. Whether, and to what extent, the proposal will result in a centre that is heavily retail biased is in issue and the parties opposing the appellants are entitled to have disclosed the requested documents which touch upon this issue.
[32] Although Mr Norling claims that the full details, original data sheets and results of floor space surveys in relation to factory outlets and retail showrooms on the Gold Coast are the proprietary work of his firm and that the raw data used in determining the current and future trade areas is also the proprietary work of his firm, such claims cannot result in the non-disclosure of the documents sought if they are directly relevant to an allegation in issue in the appeal and if they are in the possession or under the control of the first party (Rule 211 Uniform Civil Procedure Rules). To hold otherwise would not only run counter to the provisions of the rule but would also negate the effect of the Planning and Environment Court’s “Guidelines for Experts” which, as relevant, provide:
“8. An expert’s written report must give details of …all material or literature used in making the report.
…
18. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic material, these must be provided to the opposite party at the same time as the exchange of reports.”
[33] In the result, then, I am satisfied that the documents sought in these applications (with the exception of those relating to the gross floor area of all buildings and structures erected on the Harbour Town land) should be disclosed by the appellants. Those documents relating to the exception have, it seems, already been disclosed. In relation to any documentation of discussions between potential tenants and the Harbour Town shopping centre, I note Mr Norling’s statement that he has nothing in his possession relating to such discussions nor has he been provided with any such material. I further note the assertion by Senior Counsel for the appellants (Mr Hinson SC) that no documents currently exist in relation to any such discussions. I merely observe that the obligation to make disclosure is an ongoing one.
[34] The applications for further and better disclosure are for these reasons and to the extent indicated, allowed.
Application to Set Aside Subpoenas
[35] The fourth co-respondents issued subpoenas to several persons or entities who are not parties to this litigation. Those persons include Humphreys Reynolds Perkins, Planning Consultants; Chenoweth Environmental Planning and Landscape Architecture Pty Ltd; Burchill Partners Pty Limited; The Buchan Group, Architects, Planners and Interior Designers; Lazarides – Development Consultant; Roger Brameld Consulting Pty Ltd; and Urban Economics. The subpoenas required the various addressees to “Attend and produce the subpoena and the documents and things described in the schedule before this Court at 2.30 p.m. on the 17th of May.” The schedule contains the following description:
“All files, notes, draft reports, reports and all other documents relating to an application by Lewiac and ING Real Estate lodged with the Gold Coast City Council on or about 7 December 2000 in relation to extensions to the shopping centre…”
[36] Objection is taken by the appellants to the subpoenas on several grounds including that they do not specify with reasonable particularity the documents which are required to be produced. It is said that the subpoenas are in terms in the nature of a fishing expedition. It is further said that the documents are described only in generic terms and are not identified as being directly relevant to an allegation in issue in these proceedings but “in relation to an application”. This, Mr Hinson SC submits, requires someone to make a burdensome search for evidence at their own expense because the subpoena is in such wide and general terms. It is submitted that the fourth co-respondents should have followed the procedure set out in part 2 of chapter 7 of the Uniform Civil Procedure Rules 1999 in relation to non-party disclosure.
[37] Mackenzie J in Re Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 Qd R 261 at 264, 265 considered the respective purposes of discovery (or disclosure) and subpoena. His Honour stated:
“[17] The distinct purposes of discovery and subpoena are reflected in numerous decisions (e.g. Burchard v Macfarlane; Ex parte Tindall [1891] 2 QB 241; Commissioner for Railway (NSW) v Small (1938) 38 SR (NSW) 564; Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372). Statements are to be found in some cases suggesting that a subpoena returnable at a date well in advance of trial is permissible (e.g. Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; Greyhound Australia Pty Ltd v Deluxe Coachlines Pty Ltd (2986) 67 ALR 93). The courts in which these decisions were made had at that time no rules permitting discovery from non-parties (Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd [1999] VSC 242, Gillard J, 1 July 1999; Greyhound Australia at 97). The decisions are based on considerations of convenience, or perhaps inconvenience if it were otherwise, in the conduct of complex litigation in the absence of a procedure for obtaining documents of non-parties.
[18] On the other hand Kennedy Taylor and J Boag & Son Brewing Ltd v Cascade Brewery Co. Pty Ltd (1997) 7 Tas R 119 are examples of the reluctance of courts to recognise the use of a subpoena duces tecum in substitution for another available procedure when the purpose is to obtain production of documents in the pre-trial phase and unconnected with the hearing of an application. The mere fact that some of the documents, after inspection, will be used as evidence at trial does not quality the case as one where a subpoena may be used.
[19] Returning to the UCPR, the rules relating to subpoenas appear in ch 11 intituled ‘evidence’. The rules relating to non-party disclosure are in ch 7, intituled ‘disclosure’. This reflects the traditional difference between discovery and obtaining documents by subpoena.
[20] The rules relating to non-party disclosure are designed to provide safeguards to a non-party upon whom a notice is served and to more remote persons who may be affected. Where a deliberately prescriptive regime is provided for the obtaining of documents from a non-party the question presents itself whether the intention was that those safeguards might be avoided by using a different procedure with requirements which are different but which have some common features. Further, the fact that there is a verbal difference between the repealed rules and the UCPR does not necessarily require the conclusion that there is a difference in substance. The notion of appearing before a court or person required to take evidence, even in the absence of the words ‘at hearing or trial’, is not inconsistent with the UCPR being intended to relate to appearance at trial or hearing especially where there is a distinct and closely regulated procedure for obtaining disclosure in the pre-trial phase.
[21] In my opinion there is no indication in the rules that it is intended that what is really non-party disclosure in the pre-trial phase may be obtained by issuing a subpoena to produce. In my opinion the rules do not effect a change from the philosophy in that regard under the repealed rules.”
[38] The subpoenas issued in this case are in wide terms and little attempt has been made to seek the specific documents required by the fourth co-respondents. Furthermore, little discernment is evident in the list of persons to whom the subpoenas were directed. For example, Mr Chenoweth, a landscape architect, was issued with a subpoena but there is no disputed issue in the appeal with respect to landscaping. In my view the issue of subpoenas in these circumstances amounts to an abuse of process and they should be set aside. I note the intimation by Senior Counsel for the fourth co-respondents (Mr Gallagher QC) that in the event of such an order being made, non-party disclosure would be sought under the appropriate provisions in part 2 of chapter 7 of the Uniform Civil Procedure Rules.
Admissibility of Mr Jackson’s Report
[39] Senior Counsel for the respondent (Mr Hughes SC) has objected to my receiving in evidence a report prepared by Mr Jackson of Jackson Planning on behalf of the appellants. The report is said to provide a general background to the preparation of the Activity Centre Strategy, and responds to merits issues raised in the appeal that specifically relate to this strategy. Mr Jackson is one of the authors of the Activity Centre Strategy.
[40] The appellants have retained as their principal planning expert, Mr Humphreys, who has included in his report material relating to the Activity Centre Strategy. Mr Hughes SC complains that the appellants should be restricted to one planning expert in accordance with the usual practice of this Court which permits only one expert witness in a particular discipline to be called by a party.
[41] Mr Hinson SC submits that Mr Jackson brings to bear particular expertise that Mr Humphreys lacks, he not being the author of the report. He further submits that the report is relatively short, comprising some six pages, and that no other party appears to have any objection to it being received.
[42] In my opinion Mr Jackson’s report should not be admitted into evidence as no sufficient reasons have been established to warrant departing from the usual practice of restricting the parties to calling evidence from only one expert in a particular discipline.
Orders
[43] I make the following orders:
§ The applications for further disclosure are allowed in part;
§ The subpoenas issued by the fourth co-respondents are to be set aside; and
§ Mr Jackson’s report is not to be received into evidence.
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