Palace Group of Hotels trading as: Beach Palace Hotel v Randwick City Council

[2007] NSWLEC 406

Land and Environment Court

of New South Wales

CITATION:

Palace Group of Hotels trading as Beach Palace Hotel v Randwick City Council [2007] NSWLEC 406

PARTIES:

APPLICANT
Palace Group of Hotels Trading As: Beach Palace Hotel

RESPONDENT
Randwick City Council

FILE NUMBER(S):

10423 of 2007

CORAM:

Jagot J

KEY ISSUES:

Practice and Procedure :- subpoenas - legitimate forensic purpose - merit appeal - subpoenas set aside

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED:

Milne v The Minister for Planning & Anor (2006) NSWLEC 745

DATES OF HEARING:

28 June 2007

EX TEMPORE JUDGMENT DATE:

28 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen SC
SOLICITORS
DLA Phillips Fox

RESPONDENT
Mr S Flanigan
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

28 June 2007

10423 of 2007

PALACE GROUP OF HOTELS TRADING AS: BEACH PALACE HOTEL
Applicant

RANDWICK CITY COUNCIL
Respondent

JUDGMENT

Jagot J:

1 This is a notice of motion by the respondent, Randwick City Council, to set aside four subpoenas that have been taken out by the applicant in the proceedings. The proceedings are a class 1 appeal under s 97(6) of the Environmental Planning and Assessment Act 1979, appealing against the Council’s refusal of an application to modify a development consent.

2 The application as described in the documents annexed to the class 1 appeal seeks consent retrospectively for a new sports bar to the rear of the ground floor of the Coogee Palace Hotel.

3 The subpoenas are addressed to two Councillors, the Council’s general manager and the Council’s planning manager. They are in similar terms and require the recipients to produce their correspondence with Ms Rona Wade of 4/138 Beach Street Coogee and any other person in relation to the Beach Palace Hotel (being the premises the subject of the modification application). Insofar as the two Councillors are concerned the subpoenas also seek production of all press releases, discussions with the media and speeches to the Council in draft form or otherwise in relation to the premises. Production in all categories is limited to the period from 1 January 2007 to date.

4 The applicant says that there is a legitimate forensic purpose to the subpoenas. The modification application was not notified or advertised by the Council. Notwithstanding this fact, the Council received two written objections to the application. Moreover, in its contentions the Council identified one of the reasons for refusal of the application at its meeting on 24 April 2007, that the proposal was not in the public interest having regard to the objections received and the circumstances of the case. According to the applicant it is unfair for the applicant to be in a position where, apparently, the Council received unsolicited objections in relation to an application that was not notified or advertised. In a context where various pieces of correspondence demonstrate that there seems to be some long history, possibly a disputatious history, between the premises and the Council, it was a legitimate forensic purpose for the applicant to seek the subpoenaed documents.

5 The Council submits that this is a classic fishing expedition. The subpoenas are issued to third parties and seek documents that can have no relevance to a de novo merit appeal. At the time the subpoenas were taken out the contentions had not been filed or served. Having regard to the terms of the subpoenas, the third parties would need to make judgment calls about what documents were required to be produced or could possibly be of any relevance to the proceedings.

6 I am satisfied that the subpoenas on their face do not disclose a legitimate forensic purpose having regard to the nature of this appeal. In Milne v Minister for Planning & Anor [2006] NSWLEC 745 at [17] I briefly summarised the traditional and well-known principles about subpoenas, including that the party who issues a subpoena must be able to point to a legitimate forensic purpose and, ultimately, that the only legitimate forensic purpose is to add to the relevant evidence at the hearing. Although the rules of evidence do not apply in class 1 appeals that does not mean hearings take place subject to no procedural or substantive provisions. The material the parties place before the Court in a class 1 appeal must be relevant. “Relevant” must mean relevant to the exercise of the particular function having regard to the provisions of ss 38 and 39 of the Land and Environment Court Act 1979 and s 96 of the Environmental Planning and Assessment Act 1979which incorporates by reference s 79C of that Act.

7 It seems to me that the material required to be produced by the four recipients of the subpoenas is a fishing expedition as Mr Flanigan, on behalf of the Council, has submitted. The applicant has identified what it says is the potential relevance of that material, but the matter identified when properly assessed can have no relevance to the outcome of this appeal having regard to its nature as a de novo merit hearing and the statutory framework within which this appeal is to be determined. As I indicated to the parties it would be entirely different if these proceedings were, for example, some form of judicial review of the Council’s decision of 27 April 2004. But that is not so. These are not judicial review proceedings. Accordingly, I can see no legitimate forensic purpose to these subpoenas, with the consequence that they should be set aside and I so order.

Order in accordance with order 1 of the respondent’s notice of motion filed 22 June 2007 setting aside the subpoenas to each of Ray Brownlee, Roman Wereszczynski, Councillor Murray Mathieson and Councillor Margaret Woodsmith.

8 The respondent seeks the costs of its notice of motion. The applicant says nothing to the contrary. It seems to me that Pt 16 r 4(2) of the Land and Environment Court Rules 1996 applies so that there should be no order as to costs unless it is fair and reasonable in the particular circumstances of the case that there be a costs order. Given the nature of the notice of motion and the outcome it is fair and reasonable that there be a costs order in favour of the respondent.

The applicant is to pay the respondent’s costs of the notice of motion filed 22 June 2007 as agreed or assessed.

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