P.T. Limited v Department of Natural Resources and Mines
[2004] QLC 110
•10 December 2004
LAND COURT OF QUEENSLAND
CITATION: P.T. Limited v Department of Natural Resources and Mines [2004] QLC 0110 PARTIES: P.T. Limited
(appellant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO: AV2003/0803 DIVISION: Land Court of Queensland PROCEEDING: Application by non-parties to set aside subpoenas DELIVERED ON: 10 December 2004 DELIVERED AT: Brisbane MEMBER: Mr RP Scott ORDER: The application that the subpoenas be set aside is dismissed CATCHWORDS: Practice and Procedure - Non-party subpoenas - Contrast non-party disclosure - Limitations - Other considerations in exercise of discretion - Subpoenas allowed APPEARANCES: Mr R Traves SC, with him Mr J Horton for the applicants
Mr D Frazer QC with him Mr T Quinn for the respondent
P.T. Limited ("the appellant"), the owner of Chermside Shopping Centre, has appealed against a determination of a valuation of the centre under the Valuation of Land Act 1944 with a relevant date of 1 October 2002. This is the first of a series of 12 major shopping centre appeals with this first hearing having commenced before the Court on 8 November 2004. The appeal concerning the Chermside Shopping Centre is being heard together with another appeal relating to the Pacific Fair Shopping Centre. A comprehensive series of interlocutory steps has been undertaken from 23 January 2004 as part of a detailed case management process to facilitate the ultimate hearings.
Subpoenas to produce documents have issued to QIC Helensvale Pty Ltd and Bowmint Pty Ltd ("the QIC companies"). These are companies apparently used by QIC for the purpose of a joint venture between Westfield Limited (Westfield) and QIC resulting in the purchase of land at Helensvale for the development of a shopping centre ("the Helensvale land"). Each subpoena seeks production to the Court of documents utilised as part of the process of considering or embarking on the purchase of the Helensvale land. I will refer to the "Helensvale sale", though the process involved a number of options and transactions with respect to four parcels of land which, together, would form one contiguous parcel. The subpoena has, in each case, issued at the request of the respondent.
Application has been made by the QIC companies to set aside these subpoenas.
The hearing of the P.T. Limited appeal has received evidence relating to the sale of the Helensvale land - from the respondent's side, there is evidence from Mr Mark Denman, valuer, indicating difficulty in analysing the Helensvale sale from the information presently available to him. Nevertheless, he seeks to rely on the sale for valuation purposes.
The appellant has made claims in relation to the Helensvale sale which raise as an issue the expectation of the purchaser when committing to the purchase. Mr Michael Slater, valuer for the appellant, said in his response report that the Helensvale sale is not suitable for the purposes of valuing the Chermside land as at October 2002 for similar reasons to those raised by Mr Brett.
Mr Rodney Brett, valuer for the appellant in the Pacific Fair appeal, in his response report addresses the Helensvale sale, suggesting the sale is of no use for the purpose of establishing the value of other shopping centre sites. He said that Westfield committed to the purchase of this land in 1996 on the basis of certain expectations. These expectations were not met. There were substantial unforseen delays. Escalation of costs then changed the intended development.
Thus it appears that there is an issue as to the basis upon which the sale was in fact approached by the purchasers and its suitability as a basis for valuation. It appears that disclosure by the appellant has been conducted on the basis that the appellant is not obliged to disclose documents relating to such sale, apart from a series of option agreements.
The subpoenas which the respondent now seeks response to are intended to put before the Court documentary evidence of the process adopted by the QIC companies in considering and embarking on the purchase of the Helensvale land.
Each subpoena reads as follows:
"In relation to the land now described as Lot 4 on SP 117549, Lot 42 on SP 151645 and Lot 12 on RP 880356:
Documents obtained by and/or prepared for and/or commissioned by, or on behalf of QIC Helensvale Pty Ltd and/or Bowmint Pty Ltd as part of the process of considering, and/or embarking on, the purchase of the land or any part thereof (whatever its then description) limited to decision papers, briefing notes, feasibility studies, reports including valuation and technical reports, costings for site development and proposals including Board proposals."
The events involved in the acquisition of the Helensvale site are detailed in the statement of Mr Shane Thompson, a development executive with Westfield. They were protracted and complicated. Westfield and QIC were involved. The principal documents involved in the transaction were tendered in a statement by Mr Stewart White, a witness for the appellant.
The applicants' case is that the disclosure process should be employed where a wide range of documents are sought as in the present case. The subpoena process, in contrast, should be reserved for cases where a very limited and specifically designated number of documents are sought for use at the trial for a demonstrable evidentiary purpose. While it is not essential that the documents in fact find their way into evidence, the requesting party should be able to identify with particularity the aspect of their case to which such documents relate and that the documents have not been disclosed by a party to the proceeding.
In short, the applicants argue that the subpoenas do not represent a focused request for the production of documents capable of having some demonstrable value at the hearing. The respondent has had the benefit of disclosure from the appellant and of cross-examining Mr Thompson, on behalf of one of the joint venture partners, on relevant matters.
The respondent argues that the question of whether there can be a genuine objection to the subpoena will depend upon an examination of the task posed by the particular subpoena and the circumstances of the evidence at the hearing in relation to the particular matter before the Court to which the subpoena is addressed.
The respondent goes on to argue that, in the present case, it is apparent from the evidence of both Mr Slater and Mr Thompson that there would have been documents created which will show the true perception of the purchasers of the Helensvale land. There is no basis shown to displace the ordinary inference that documents will have been generated to justify a decision to commit to a transaction involving a liability to purchase land for a price of $21.625 million. It is idle to suggest that without evidentiary foundation, it was submitted, a body of documents would not have been created in relation to such a significant transaction including documents of the kind sought by the subpoena. It is not apparent, it is said, why a subpoena should not run to bring such documents to the Court. A notice of non-party disclosure will not achieve that purpose. There is no evidence to suggest that the documents sought are irrelevant or that the response to the subpoena will be oppressive. Such matters are not to be assumed. On the contrary, the respondent argues, the evidence before the Court on the hearing to date shows the relevance of the documents sought and the inference that the documents sought by the subpoenas are likely to be in the possession of QIC companies.
In my view the validity of the Helensvale sale as a valid basis for comparison in the present case has now clearly become an issue. Instance Mr Denman's attempt to rely on it and evidence of Mr Brett and Mr Slater that it is tainted. The issue is whether the sale might be treated as being in accordance with the test supplied in Spencer v. The Commonwealth (1907) 5 CLR 418. This has become an issue only recently in the response reports of Messrs Brett and Slater and a need to have available specific background evidence is apparent. Prima facie there appears justification for the issue of the current subpoenas.
However it is necessary to consider a range of other matters raised in argument which may also bear on the outcome of this application.
1.Width of the Language of the Subpoena
The applicants argue that the terms of the subpoena would require judgments to be made as to what documents, from a wide range of possible documents, should be produced; and that what is really sought is disclosure. Disclosure requires a party to disclose documents that are "directly relevant to a matter in issue in the proceeding" (Uniform Civil Procedure Rules 1999 (UCPR) Rule 211(1)(c)). A similar requirement may be imposed on a non-party who is afforded certain protections under the UCPR (Rules 242-245). A subpoena addressed to a non-party which is insufficiently precise and which requires the non-party to make a judgment as to which documents relate to issues between the parties is liable to be set aside as oppressive (National Employers' Mutual General Assoc Ltd v Waind and Hill [1978] 1 NSWLR 377 and on appeal (1979) 141 CLR 648; Commissioner for Railways v Small (1938) 38 SR (NSW) 564.
In my view, the language of the subpoena is sufficiently specific given the material sought. It does not impose upon the QIC companies an obligation to search for documents relevant to the issue as I have described it at [15] but requires documents that can be identified having regard to two elements in the schedule to the subpoenas.
First, it relates to the purchase of the described block of land (including parts thereof) which took place in a series of protracted and complex transactions over some years. The term "embarking on" is sufficiently clear to include such agreements as options and other documents which may or may not have led to the eventual purchase. The details of the arrangements which led to the eventual purchase are set out in Mr Thompson's statement. Second, it seeks the documents obtained by and/or prepared for and/or commissioned by or on behalf of the applicants which informed its decision-making process, that is, "as part of the process of considering and/or embarking" on the process that led to the eventual purchase. It seems quite clear to me that there was a start point to the applicants embarking upon the purchase and an end point. It is the relevant documents within that timeframe that must be produced.
The mere fact that the subpoena is drawn fairly widely does not mean that it is improperly used for the purpose of disclosure. A subpoena may relate to all documents in a particular category if the description is clear enough - Greyhound Australia Pty Ltd v Deluxe Coaches Pty Ltd [1986] FCR 592 at 596.
The parties served here should be able to ascertain through appropriate inquiries, if necessary, what the subpoena in fact means. To this end, I ask that they be provided a copy of these reasons.
2.Should Subpoena be confined to Board Papers and Proposals?
Counsel for the applicants suggested that the subpoenas may have been acceptable had they been limited to material actually before the applicants' Boards when relevant decisions were made.
In my view, it is permissible to seek production of material of wider scope. In certain matters it may be a question of not only the attitude of the relevant Board on the day of a decision, but a question of how the decision to purchase was approached.
The Board may have proceeded on the basis of a broad representation by, say, the development manager. It may be necessary to know the basis of his advice in order that what he represented to the Board may be understood.
Mr Slater included in his valuation report material that did not go to the Board in question as part of a submission concerning the purchase of what became known as the "Telstra land" but which supported a Board proposal. The respondent Chief Executive, in the interests of fairness, should also have access to such background material as may be relevant to a transaction upon which he seeks to rely.
In the evidence of Mr Thompson, he suggests that there may have been other ways significant decisions were made other than through Board consideration.
Evidence of such decisions (and the process involved) may not become available for consideration if only proposals and the decisions of a Board are produced.
Evidence relating to the purchase may otherwise be limited to Mr Thompson's hearsay evidence or his interpretation of documents not yet produced. There is a wider public interest in having such evidence before the Court (see Greyhound Australia (supra) at 598).
3.Heavy Imposition on Applicants
The applicants argue that the subpoena would place a heavy imposition on them. However no affidavit or other evidence was produced to support this claim or to indicate that the subpoena was oppressive or unduly burdensome.
Also relevant in a consideration of this contention are:
· Companies of the standing of the applicants would, I would think, have sufficiently developed systems to enable retrieval of records going back only some eight years.
· If they cannot obtain certain material sought after appropriate search, they can merely say so.
· I infer from Mr Thompson's evidence that he may have had access to a good deal of the relevant information.
· The respondent has agreed to pay (as provided under the UCPR, Rule 418) for reasonable costs associated with any search or retrieval.
4.Case Management v Interests of Justice
As mentioned above, a comprehensive case management process has been followed in the P.T. Limited appeal (and related cases) with a view to the orderly and timely disposition of proceedings. However, adherence to a case management program should not prevail if the wider interests of justice warrant otherwise (see State of Queensland v JL Holdings Pty Ltd, 71 ALJR 294).
There is a wider public interest in having all appropriate evidence before the Court (see Greyhound Australia (supra) at 598). In the instant case, given the prima facie justification for the issue of the subpoenas, it is not necessary to undertake the balancing act between the maintaining of a case management program and the wider interests of justice.
5.Public Duty of the Court
The current proceedings are not merely ordinary proceedings inter partes. The Court's function in these instances is more of a nature of a public statutory function. Section 66 of the Valuation of Land Act 1944 identifies the function of the Court as being to determine the value of the land in the subject appeal "correctly under and subject to in accordance with this Act".
While the Court has a power to seek evidence of its own motion, it is not inquisitorial in its role. The Chief Executive and individual parties have the primary role to play in seeking to assist the Court by attempting to put before the Court what appears to be relevant evidence.
6.No Certificate of Readiness
Counsel for the respondent adverted to the volume of exchanged documents and disclosed material needed to be examined within a time limit dictated by there being a court notice of the date of commencement of hearing issued before all interlocutory steps were completed. The implication was that that might explain why some relevant material was not sought at an earlier stage.
It is true that no Certificate of Readiness issued in the current case in contrast to what may have been the position with such a major case in the mainstream courts. This is really a result of longstanding Land Court practice. It may be a practice that needs review for certain matters in the future. However, it must be observed that, while a commencement date for hearing was set by the Court, this was extended on two occasions at the instigation of the parties. The absence of a Certificate of Readiness procedure in the current circumstances was not a factor which supports the respondent's case for the issue of subpoenas.
7.Prejudice
Counsel for the applicants properly concedes that non-party disclosure is not a precondition for the issue of a non-party subpoena. However it is suggested that the present applicants may be prejudiced by not having available to them the protection afforded by the non-party disclosure process. (See UCPR Rule 245)
In my view, if the subpoena issue is otherwise justified, it is really irrelevant that the disclosure process and its incidents has not preceded it.
8.Further protection at Hearing Stage
For material to be required to be produced under a non-party subpoena it must be apparently relevant to the litigation (see Spencer Motors Pty Ltd v LNC Industries Ltd [1982] NSWLR 921 at 926). The material sought here meets this test.
It may transpire that some of this material is of such limited assistance that it ought not be admitted into evidence at the hearing. Given this additional safeguard, the subpoena course here proposed would not seem unusual nor would it be expected to result in an unfair outcome.
9."Same Camp" Argument
The respondent submitted that the applicants are really in the "same camp" as the appellant and thus are not entitled to the protection of a non-party disclosure process.
In my view, there needs to be a sound basis for claiming the applicants and appellants should be treated as one: as occurred in Fu-Shun Lin v Lin [2003] QSC 177. The respondent should have made a separate application relating to such a submission if he wished it to be considered. On the present application that claim has no cogent basis.
There is consequently no need to consider a Jones v Dunkel [1959] 101 CLR 298 submission of the respondent.
10.Agency Claim
The respondent has also raised the suggestion that the applicants act as agent for Westfield Management (and presumably the subpoena should be considered in this light). However, such allegation is not properly supported in the evidence before the Court.
12.Onus of Proof
Two separate considerations arise in the matter of onus of proof. First, where an elaborate case management process has applied, it is for the party seeking the subpoena to advance some justification for its issue.
Once this threshold has been crossed (as it has been now done in the instance case), there is an onus falling on the party who subsequently seeks to have the subpoena set aside (Petoneport Pty Ltd v Barnes [1999] 2 QdR 267 at 278). The present evidence points to the applicants not having satisfied such onus.
After considering the issues detailed above, I am of the view that sufficient basis has been established for the issue of the subpoenas and that the applicants have not shown why they should be set aside.
Order
The application that the subpoenas be set aside is dismissed.
RP SCOTT
MEMBER OF THE LAND COURT
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