Project 28 Pty Ltd v Minister for Planning

[2016] NSWLEC 1363

Land and Environment Court

New South Wales

Medium Neutral Citation:	Project 28 Pty Ltd v Minister for Planning [2016] NSWLEC 1363
Hearing dates:	26 August 2016
Date of orders:	29 August 2016
Decision date:	29 August 2016
Jurisdiction:	Class 1
Before:	Registrar Gray
Decision:	(1) The Notice of Motion filed by the Respondent on 24 August 2016 is granted; (2) The Notice to Produce to Court filed by the Applicant on 16 August 2016 is set aside; (3) The Applicant pay the Respondent’s costs of the notice of motion filed 24 August 2016 and the Notice to Produce filed 16 August 2016, as agreed or assessed; (4) The Notice of Motion filed by the Applicant on 19 August 2016 is dismissed; (5) Each party pay their own costs of the Notice of Motion filed by the Applicant on 19 August 2016.
Catchwords:	NOTICE TO PRODUCE; Application to set aside; Application for order under s 68 of Civil Procedure Act 2005; Legitimate forensic purpose; Draft assessment reports and internal correspondence; Relevance in merit appeal
Legislation Cited:	Administrative Arrangements (Administrative Changes – Ministers and Public Service Agencies) Order 2014 Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005
Cases Cited:	Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Barrick Australia Ltd v Williams [2009] NSWCA 275 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors [2006] NSWSC 831 Regina v Saleam [1999] NSWCCA 86 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 Young v King (No 3) [2012] NSWLEC 42
Category:	Procedural and other rulings
Parties:	Project 28 Pty Ltd (Applicant)  Minister for Planning (Respondent)
Representation:	Counsel: Mr A Gadiel (Solicitor) (Applicant) Ms J McKelvey (Barrister) (Respondent)   Solicitors: Mills Oakley (Applicant) NSW Department of Planning and Environment (Respondent)
File Number(s):	2016/178476

Judgment

1. In these proceedings two Notices of Motion have been filed concerning a Notice to Produce to Court issued by the Applicant. The substantive proceedings are an appeal by the Applicant, Project 28 Pty Ltd, against a decision made by the Minister for Planning, the Respondent, to disapprove a modification of a project approval granted under Part 3A of the Environmental Planning and Assessment Act 1979. Whilst Part 3A has been repealed, it continues to apply to projects approved under that part, and allows requests to modify those project approvals to be made under s 75W.

2. On 16 August 2016 the Applicant in these proceedings filed a Notice to Produce to Court issued to the Respondent, requiring the Respondent to produce what can be summarised as draft assessment reports and internal correspondence concerning the modification request. After some correspondence between the parties, the Applicant formed the view that the respondent did not intend to comply with the Notice to Produce and on 19 August 2016 filed a Notice of Motion seeking orders for the production of documents under s 68 of the Civil Procedure Act 2005. On 24 August 2016, the Respondent filed a Notice of Motion seeking to set aside the Notice to Produce. Both Notices of Motion were returnable on 26 August 2016 and are the subject of my consideration.

Background

3. The appeal was commenced by the filing of a Class 1 Application on 10 June 2016. The appeal right arises under s 75W of the Environmental Planning and Assessment Act, which provides as follows:

75W Modification of Minister’s approval

(1) In this section:

Minister’s approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.

modification of approval means changing the terms of a Minister’s approval, including:

(a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and

(b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval.

(2) The proponent may request the Minister to modify the Minister’s approval for a project. The Minister’s approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.

(3) The request for the Minister’s approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.

(4) The Minister may modify the approval (with or without conditions) or disapprove of the modification.

(5) The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal.

(6) Subsection (5) does not apply to a request to modify:

(a) an approval granted by or as directed by the Court on appeal, or

(b) a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

(7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

I note that under clause 7(2)(b) of the Administrative Arrangements (Administrative Changes – Ministers and Public Service Agencies) Order 2014 the reference to ‘Director-General’ is taken to be a reference to the Secretary of the Department.

4. The relevant history of the proceedings prior to the present applications is set out in the affidavits of Mr Gadiel of 19 August 2016 and Ms Sims of 24 August 2016, and can be summarised as follows:

• When the matter first came before the Court on 8 July 2016, it was listed for a s 34 conference on 13 September 2016.

• By letter on 27 June 2016 (prior to the first directions hearing), the Applicant requested to access documents relevant to the decision of the Minister pursuant to the provisions of Practice Note – Class 1, 2 and 3 Miscellaneous Appeals.

• On 20 July 2016, the Respondent provided a list of the documents that it was willing to produce and indicated its objection to the production of draft assessment reports and internal emails on the basis of relevance.

• On 15 and 16 August 2016, correspondence passed between the parties in relation to the relevance of the documents and the Respondent maintained its position in relation to the same.

• On 16 August 2016, the Applicant filed a Notice to Produce to the Court.

• Between 16 and 18 August 2016, correspondence passed between the parties in relation to compliance with the Notice to Produce. The Respondent indicated its intention to seek an adjournment of the Notice to Produce to after the s 34 conference and to subsequently file a Notice of Motion to set aside the Notice to Produce, whereas the Applicant re-iterated the requirement to comply with the Notice to Produce on the date stated on the Notice unless an order was made setting it aside.

• On 19 August 2016, the Applicant’s Notice of Motion was filed.

• On 23 August 2016 the Applicant invited the Respondent to file a Notice of Motion setting aside the Notice and consented to short service of such a Notice of Motion for the purpose of making it returnable on the same date as the Applicant’s Notice of Motion. The Respondent’s Notice of Motion was filed the following day.

5. The Notice to Produce seeks the production of the following:

1. The initial draft of the 'Assessment Report' that was provided to the Team Leader Industry Assessments, plus each further draft 'Assessment Report' that was subsequently provided (whether the report was provided by email, in hard copy or by some other means).

2. The initial draft of the 'Assessment Report' that was provided to the Director Industry Assessments (including Acting Director Industry Assessments), plus each further draft 'Assessment Report' that was subsequently provided (whether the report was provided by email, in hard copy or by some other means).

3. The initial draft of the 'Assessment Report' that was provided to the Executive Director Key Sites and Industry Assessments, plus each further draft 'Assessment Report' that was subsequently provided (whether the report was provided by email, in hard copy or by some other means).

4. The initial draft of the 'Assessment Report' that was provided to any Deputy Secretary, plus each further draft 'Assessment Report' that was subsequently provided (whether the report was provided by email, in hard copy or by some other means).

5. The initial draft of the 'Assessment Report' that was provided to the Secretary, plus each further draft 'Assessment Report' that was subsequently provided (whether the report was provided by email, in hard copy or by some other means).

6. Any written communication (including emails, letters and memorandums) between officers of the Department (irrespective of whether that communication included any other persons) concerning the Modification Request. However, this does not include any communication primarily addressed to any person whose title is or includes the words 'Legal Officer' or 'Legal Services' or any communication from any person whose title is or includes the words 'Legal Officer' or 'Legal Services'

6. At the return of the Notice to Produce and prior to commencing the hearing of the Notices of Motion, discussion ensued in relation to the difficulty that the Respondent has in determining which draft was given to which officer. The Respondent agreed that if the Notice to Produce was not set aside, the Department will produce all of the drafts available to them in response to the Notice.

Submissions

7. The Applicant submits that the documents sought are relevant on three separate grounds.

8. The first ground advanced by the Applicant for the relevance of the documents is that the documents will assist the Court in understanding whether there was any basis for requesting, or not requesting, compliance with environmental assessment requirements. The Applicant submits that the anterior functions performed by the Secretary are relevant to the determination of the Minister, and therefore, by extension, are relevant to the determination of the Court when it exercises the functions of the Minister.

9. The respective role of the Minister and the then Director-General under section 75W was considered by the Court of Appeal in Barrick Australia Ltd v Williams [2009] NSWCA 275. In that decision, Basten JA (with McColl JA agreeing) drew a distinction between the Minister's role as the substantive decision-maker and the Secretary's role as a separate statutory officer. Basten JA explained (at [42]) that,

“[T]he section confers different functions on the Minister and the ... [Secretary], with the possibility of inconsistent approaches, there is no reason to suppose that Parliament feared, or would have sought to avoid, such possible consequences. On the contrary, the differing functions reflect roles appropriate to each office holder, who may be expected to co-operate. Thus, the [Secretary] is the senior officer of the Department which will advise the Minister in relation to approval or disapproval.”

10. The documents sought by the Applicant relate to the performance of functions of officers of the Department of Planning and Environment that are anterior (and distinct from) the function of the Minister. The applicant submits that given that the hearing de novo is in relation to the Minister’s decision, as opposed to the anterior functions of the Secretary, the Court will not be able to carry out an assessment of whether a request is required for the applicant to comply with environmental assessment requirements. As such, the Applicant submits that the Court has discretion to consider the exercise of this function by the Secretary, and the documents will be relevant to how and why this function was exercised on this modification request to decline to make the request.

11. The Applicant says that the parties are at odds in relation to why no such request was made by the Secretary. This is established by the Notice to Admit Facts and the Notice Disputing Facts, which clearly demonstrates that whilst the Applicant contends that the request was not made because “the requested modification was not significant enough to require further environmental assessment” whereas the Respondent disputes this assertion. The Applicant says that this factual dispute is in issue because the environmental consequences of the modification has been raised in the Respondent’s Statement of Facts and Contentions. The Applicant therefore submits that a finding of fact in relation to whether the Respondent’s contention is true will be required in the proceedings, and that the documents sought are relevant to that finding of fact.

12. The second basis upon which the Applicant says the documents are relevant is that they will identify relevant matters that are not included in the Statement of Facts and Contentions and that need to be considered by the Court and included in the Applicant’s Statement of Facts and Contentions in Reply. The Applicant relies in this regard on the decision of the Court of Appeal in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105. In considering the decision-making process under section 75J, the Court of Appeal said (at [279]):

“[T]he decision-making process under s 75J required the identification of the relevant matters that need to be considered, fact finding in respect of each relevant matter, a determination of the weight to be given to each such matter and balancing the weighted matters so as to arrive at a managerial decision.”

13. The Applicant submits that it is entitled to be sceptical that the Statement of Facts and Contentions contain all the relevant matters and says that the documents sought will be relevant to whether there are any other relevant matters for the Court’s consideration.

14. The third ground raised by the Applicant as a matter to which the documents are relevant is that the documents sought will be relevant to the Court’s consideration of the public interest. The public interest is a relevant consideration in the exercise of the Court’s functions in accordance with s 39 of the Land and Environment Court Act 1979. The Applicant says that the responses of the internal department officers to the proposed modification request are potentially relevant to the public interest because those department officers are members of the community. In support of this submission, the Applicant relies on the decision of the Court of Appeal in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 (“Terrace Tower Holdings”), where the Court determined that the provisions of a draft state environmental planning policy which, by its own terms would not apply to the development application, nonetheless could be considered and given weight in a development appeal.

15. Further, the Applicant submits that the Notice to Produce is not a fishing expedition in circumstances where the Applicant knows that it has a cause of action and has rightly brought the proceedings before the Court. The Applicant says that a Notice to Produce cannot be considered a fishing expedition unless it is seeking the production of documents in order for the issuing party to discover whether it has a case at all.

16. On the other hand, the Respondent submits that the decisions that are made within the Department prior to the matter being referred to the Minister cannot be relevant to proceedings before the Court in Class 1 of the Court’s jurisdiction. The Respondent submits that in determining what is in issue in the proceedings, I must have regard to the application itself, the Statement of Facts and Contentions filed in the proceedings and the powers of the Court on the appeal. The Respondent says that a submission made by the Applicant that the Secretary decided not to notify the Applicant of environmental assessment requirements because the environmental impact was not significant enough will have no relevance to the Court’s determination of the modification request. The Respondent points out that the role of the Court pursuant to s 39 of the Land and Environment Court Act 1979 is to exercise the functions of the original decision-maker, and says that in determining the modification request, the Court will be considering the competing positions of experts in relation to the merit issues identified in the Statement of Facts and Contentions. The Respondent submits that the views of Departmental officers expressed in internal correspondence or draft assessment reports will not be relevant to this consideration.

17. Similarly, the Respondent submits that the ‘relevant matters’ for the Court’s consideration will be those identified in the Statement of Facts and Contentions, rather than anything that might arise in a draft assessment report or internal communications.

18. The Respondent also submits that it cannot be the case that the views expressed by Departmental officers are representative of the public opinions on the proposal. In considering the public interest, the Respondent says that the Court will have regard to the opinions of the experts, Department policies as well as public submissions. The Respondent submits that in so considering, the Court would not be assisted by what individual officers thought at a particular time during the assessment process. The Respondent submits that the decision of the Court of Appeal in Terrace Tower Holdings demonstrates only that the expression of a policy by an entity is a relevant consideration on the public interest, not that this can be extended to the expression of individual views throughout the assessment process.

19. It is also submitted on behalf of the Respondent that the fact that the Applicant has a clear cause of action does not mean that the Notice of Motion cannot be considered a fishing expedition. The Respondent submits that the Notice to Produce is a fishing expedition as it seeks documents that the Applicant says might contain something favourable. This is particularly in circumstances where the matters contained in the documents were not, and could not have been, before the Minister and relevant to the exercise of the Minister’s decision. Similarly, the Respondent says that they are not relevant to the exercise of the Court’s decision.

20. In response, the Applicant made a submission that the Respondent’s concerns about the relevance of the documents relate to a question of weight that can be placed on the documents once produced, rather than to the question of relevance.

Principles

21. The principles regarding the grounds upon which a Notice to Produce issued pursuant to r 34.1 should be set aside are well established and agreed between the parties. A helpful history of the authorities on setting aside a Notice to Produce on the basis of a failure to establish relevance is provided by Sheahan J in Young v King (No 3) [2012] NSWLEC 42. At [64], Sheahan J adopts Craig J’s analysis of the principles in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation, wherein Craig J indicated that (at [21]):

“Importantly, all the tests, however stated, require identification of an issue or issues in the proceedings with some modicum of particularity which then becomes the measure against which the forensic purpose of the documents can be determined. It is that identification which must inform the requirement to produce the documents sought.”

22. Craig J’s analysis demonstrates two steps to establishing that a legitimate forensic purpose exists. The first is to identify an issue in the proceedings and the second is to demonstrate that the documents sought are relevant to that issue. The decision of the Court of Criminal Appeal in Attorney General for New South Wales v Dylan Chidgey provides further clarification. Beazley JA (as Her Honour then was) states at [59] that

“It is not sufficient for a party seeking product of documents to merely establish that such documents are or may be relevant.”

Her Honour also approves the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 (at 182) that a claim that “I wish to see the document to see if it may assist my case” is not sufficient. Her Honour further elaborates at [62]:

“the second element of the ‘test’, that is, that it must be “on the cards” that documents would materially assist the case, subsumes in it the notion that “mere relevance” is insufficient.”

23. The two part test was also stated by Simpson J in Regina v Saleam [1999] NSWCCA 86 in the following terms (at [11]):

“the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case.”

24. In establishing relevance, therefore, the first step for the Applicant is to identify the issues to which the documents are relevant. The second step is then for the Applicant to satisfy the Court that it is ‘on the cards’ that the documents sought will materially assist in that identified issue.

Consideration

25. The first two grounds advanced by the Applicant as a basis for establishing the relevance of the documents sought do not identify any issue in the proceedings to which the documents sought are, or will be, relevant. That is, these grounds fail to establish, from the outset, that there is an identified issue to which the documents are relevant.

26. I accept that in order to identify the issues in the proceedings, I must have regard to not only the Applicant’s application and any Statement of Facts and Contentions filed in the proceedings, but also to the nature of the Court’s powers. The Court’s powers in Class 1 proceedings are clear: pursuant to s 39 of the Land and Environment Court Act 1979, it exercises all of the functions and discretions of the original decision-maker (s 39(2)), and it exercises those functions through a rehearing (s 39(3)). In Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48, Preston CJ of LEC helpfully summarises the Court’s functions on a merit appeal as follows:

“7. On the appeal, the Court re-exercises the statutory power originally exercised by the Minister to determine Warkworth's project application by either approval or disapproval. The Court stands, metaphorically speaking, in the shoes of the Minister and determines for itself, on the facts and law that exist at the time of determination of the appeal, whether to approve or disapprove the application for the Project.

8. In hearing and disposing of the appeal, the Court has all of the functions and discretions that the Minister had in respect of Warkworth's project application: s 39(2) of the Land and Environment Court Act 1979 ('the Court Act').

9. The appeal is by way of rehearing and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision by the Minister may be given on the appeal: s 39(3)  of the Court Act. The Court is required to determine the appeal on the issues raised and the evidence given on the appeal.

10. In making its decision, the Court is to have regard to the Court Act and any other Act including the EPA Act, any instrument made under any such Act, the circumstances of the case and the public interest  (s 39(4)  of the Court Act).

11. Because new issues may be raised and different emphasis may be placed on other issues, and new or difference evidence may be given, compared to the issues or evidence before the Minister as the original decision-maker, the preferable decision to be reached by the Court on the appeal may be different to the decision of the original decision-maker. This is the nature and consequence of external merits review of administrative decisions.”

27. In considering the present appeal proceedings, the Court is required to determine whether the modification should be approved or disapproved based on the issues raised and the evidence given on the appeal concerning the merits of the modification request. Whilst one of the disputed facts between the parties is the basis for the Secretary’s decision not to request environmental assessment requirements, the resolution of that dispute has no bearing on the determination of the proceedings. The issues in the proceedings concern the merits of the modification itself. At present, those matters of merit that are in contention are those contained in the Statement of Facts and Contentions filed by the Respondent. One of those matters in contention, contained in the first contention, is whether the proposed modification has “more than limited environmental consequences beyond those which had been the subject of assessment when the Project Approval was originally granted”. I cannot accept the submission made by the Applicant that in determining that issue, the Court will be required to make a factual finding in relation to why the Secretary chose not to request environmental assessment requirements. Under s 75W there is no obligation on the Minister, and nor is there an obligation on the Court when exercising the functions of the Minister, to consider the Secretary’s decision not to request environmental assessment requirements in making a decision on the modification request. The dispute about why the Secretary made that decision sits outside the exercise of the Court’s decision-making functions in a merit appeal concerning the modification request.

28. I cannot accept that the observation by Basten JA in Barrick Australia that the two office holders “may be expected to co-operate” and that “the Director-General is the senior officer of the Department which will advise the Minister” is authority for the proposition made by the Applicant that the reason behind the decision of the Secretary not to make the request was relevant to the Minister’s determination and that it is therefore relevant to the Court’s determination. The observation by Basten JA was limited to the examination of the function of the Minister in judicial review proceedings. Whilst the decision of the Secretary may have been taken into account by the Minister’s delegate in the final decision, the Court’s decision will be made based on the issues raised and evidence given in the present proceedings.

29. I similarly do not accept that placing the record of the steps antecedent to the Minister’s decision in the Statement of Facts and Contentions puts the dispute regarding the Secretary’s reasons for making a decision not to request environmental assessment requirements in issue in the proceedings. The record of the steps taken prior to the Minister’s determination, under the heading “Actions of the Respondent” are a necessary part of the Statement of Facts and Contentions (see Schedule C of the Practice Note – Class 1, 2 and 3 Miscellaneous Appeals). Whilst there may be some occasions where these antecedent steps are relevant to the Court’s exercise of the decision-making functions of the respondent (e.g. the preparation of a report by the Director-General on a project application under Part 3A, where that report must be considered in exercising the decision-making function), for the reasons given above I am not satisfied that this is one such occasion.

30. The second ground advanced by the Applicant for the relevance of the documents sought was that the documents will identify “relevant matters that need to be considered” so that the Applicant can include those “relevant matters” in its Statement of Facts and Contentions in Reply. However, the Applicant’s failure to actually nominate what relevant matter they seek to identify through these documents demonstrates that the Notice to Produce is a fishing expedition. To seek to obtain documents without knowing what is in the documents, for the purpose of preparing your pleadings or your case, is the precise use of a Notice to Produce or Subpoena that is impermissible as per Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 (as cited in Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 at [59]) at 181:

“It is not open to a party, as on a ‘fishing expedition’, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.”

31. The third ground advanced by the applicant to support the relevance of the documents is that they will be relevant to the Court’s consideration of the public interest. The public interest is an issue that must be considered by the Court (s 39(4)). However, I do not accept that correspondence between Departmental Officers or the contents of draft assessment reports will materially assist in the Court’s consideration of the public interest. I reject the submission made by the Applicant that the decision of the Court of Appeal in Terrace Tower Holdings means that such documents are pertinent to the assessment of the public interest. Terrace Tower Holdings confirmed that the content of a draft planning instrument can be considered in the Court’s consideration of the public interest. There is a big difference between a draft planning instrument, which contains matters of policy that affect the public interest, and draft assessment reports or internal correspondence, which contain the individual views of Departmental officers on the modification request.

32. Further, I do not accept the Applicant’s submission that the relevance of the documents can be established simply because it is legally permissible within the ambit of s 39 for the Court to consider the individual views of Departmental Officers in making its determination. Whilst that is certainly true, the individual views of Departmental Officers are contained in the final assessment report that has been provided to the Applicant. For relevance to be established in relation to the draft assessment reports and the internal correspondence, the Applicant must identify any issues to which the documents sought will relate. For example, if there was evidence that the officers had back-flipped on an issue and an issue raised in the draft assessment report was not contained in the final report, it could be said that the draft assessment report would be relevant to that particular issue. However, there is no such evidence. It is only if such issues are identified and it is established that it is “on the cards” that the documents sought will materially assist on those issues that it can be said that the individual views of Departmental Officers captured by the documents sought are relevant to the Court’s consideration.

33. Finally, merely because the Applicant asserts that it knows that it has a case through its right of appeal to the Court does not mean that the Notice to Produce cannot be considered a fishing expedition for lack of legitimate forensic purpose. The Applicant does not know what is contained in the draft assessment reports, and it does not know what is contained in the internal communications regarding the modification request. It cannot identify what issue in the proceedings those documents will be relevant to. The only issue that has been identified is a disputed fact that is not relevant to the Court’s merit assessment of the modification request. Even if I am wrong and that disputed fact is relevant to the Court’s merit assessment, it is not ‘on the cards’ that the documents sought will materially assist in the determination of that disputed fact. As such, the Applicant has failed to establish a legitimate forensic purpose for the documents sought in the Notice to Produce and it is liable to be set aside.

Procedure under section 68

34. The consequence of my determination that the Notice to Produce should be set aside is that the Notice of Motion filed by the Applicant seeking orders for the production of the documents should be dismissed.

35. However, some comment needs to be made in relation to the procedure for seeking orders under s 68 of the Civil Procedure Act 2005 on the return date of a Notice to Produce. In Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors [2006] NSWSC 831, Palmer J makes the following observations at [24-25]:

“24 If a party, without lawful excuse, fails to answer a notice to produce properly, that party does not breach an order of the Court; there is no equivalent in UCPR 34 of UCPR 33.12(1) making failure to answer a notice to produce without lawful excuse punishable as a contempt.

25 A party who has served a notice to produce returnable before the Registrar and who is dissatisfied with the adequacy of the answer made is not left without remedy. The dissatisfied party may serve on the other party a subpoena in the same terms as the notice to produce, thus setting in motion the machinery for investigation before the Registrar of the adequacy of an answer under UCPR 33. But the dissatisfied party need not volunteer for another ride on the merry-go-round. On the return of the notice to produce before the Registrar, the dissatisfied party may immediately seek an order under CPA s.68 for better production of documents without service of a subpoena: the Registrar, if satisfied that the answer has been inadequate, may then simply make an order under s.68 to the effect that the notice to produce be answered properly.”

36. I accept the submission made by the Applicant, consistent with the principles enunciated by Palmer J, that the Notice to Produce to Court is not a court order and that therefore the party that filed a Notice to Produce may seek a court order for the production of documents under s 68 of the Civil Procedure Act 2005 in lieu of issuing a subpoena.

37. However, caution needs to be exercised in accepting the principles enunciated by Palmer J as authoritative on court procedure on the return of subpoena. They were given as obiter dicta on a referral from a registrar of a question of whether a registrar has the power to make an order for examination in relation to compliance with a subpoena. As far as my own research reveals, the observations in [25] have not been discussed or adopted in any other decision of a superior court. Further, in his observations Palmer J remains silent on whether a Notice of Motion is required to put the parties affected by the orders sought on notice of the application to be made at the return of subpoena. In that respect, it is important to read His Honour’s observations in conjunction with the rules in relation to Notices of Motion, which provide at Part 18 of the Uniform Civil Procedure Rules 2005:

18.1   Applications for court orders to be made by motion

An interlocutory or other application is to be made by motion unless these rules otherwise provide.

18.2   Requirement for notice

(1)  A person may not move the court to make any order unless notice of motion has been filed and served on each person affected by the proposed order.

(2)  Despite subrule (1), a person may move the court to make an order without notice of motion having been filed or served on a person if:

(a)  that person consents to the making of the order, or

(b)  the preparation, filing or service of the notice would cause undue delay or other prejudice to the person by whom the order is sought, or

(c)  the court dispenses with the requirement for such notice to be filed or served, or

(d)  under these rules or the practice of the court, the motion may be made without the prior filing or service (as the case may be) of notice of motion.

38. Similarly, in the Land and Environment Court of NSW Practice Note – Subpoena Practices, which governs the Court’s practice in relation to subpoenae, paragraphs 20 and 21 provide as follows:

20. Contested applications, including applications to set aside subpoenas, that cannot be conveniently dealt with in the return of subpoena list will be listed before a Registrar at a date and time suitable to both the parties and the Court.

21. Any such applications (other than applications referred to in paragraph 19) are to be made by filing a notice of motion with the return date of that motion being the same as the Return date.

39. Consistent with the Practice Note – Subpoena Practices, I am of the view that a Notice of Motion is required to be filed to put the other party on notice of the order to be sought under s 68 unless any of the circumstances in UCPR 18.2(2) apply. It is not the case that an order for the production of the documents sought in the Notice to Produce is a simple matter for the Court’s consideration. It is distinct from the issue of a subpoena, where the Court immediately issues a subpoena on the request of a party (and by leave if the requesting party is not represented by a solicitor (UCPR 7.3)). If a question about the relevance or breadth of the documents sought arises, either the subpoenaed party or a party to the proceedings can apply to have the subpoena set aside. Such a procedure is generally not available to a party the subject of an order for production made by the Court on request. As such, in determining whether to order the production of documents, the Court must not only be satisfied that there has not been adequate production but must also be satisfied that such an order is appropriate. In that context, the legitimate forensic purpose must be established (see Regina v Saleem [1999] NSWCCA 86 at [11]) and there may be a range of other matters, such as the breadth of the documents sought, that the Court may be required to determine prior to exercising its discretion in favour of making an order for the production of the documents. As such, it is only appropriate that notice of the application be given by the filing of a Notice of Motion, supported by an affidavit.

Costs

40. I accept, in relation to the Notice of Motion to set aside the Notice to Produce, costs ought to follow the event. Having been successful in its application to set aside the Notice, it is fair and reasonable for the Respondent to be reimbursed for the costs of the Notice to Produce and the costs of the application to set it aside.

41. The question of the costs of the Notice of Motion filed by the Applicant is not as clear. An order for dismissal of this Notice of Motion is appropriate but it is consequential upon the success of the Respondent’s Notice of Motion.

42. In having regard to the entire facts and circumstances, as I am required to do in considering the making of a costs order (pursuant to r 3.7 of the Land and Environment Court Rules 2007), it is relevant to note that the Applicant’s Notice of Motion predated that filed by the Respondent. On the evidence, by letter on 18 August 2016, the Respondent indicated its intention to seek an adjournment of the Notice to Produce and file an application to set aside the Notice of Produce at a later stage if the proceedings were not resolved through the conciliation conference. However, in further email communication between the parties on the same date, the Respondent made it clear that it was not refusing to comply with the Notice to Produce. The Applicant indicated that it would oppose any application for an adjournment of the Notice to Produce. In that sense, the Notice of Motion filed by the Applicant was premature. It was filed before there was any certainty that the Respondent was refusing to comply with the Notice to Produce. At that point in time, the only certainty was that there would be a contested application to adjourn the Notice to Produce.

40. However, it does not necessarily follow that a costs order against the Applicant is appropriate. The Applicant’s Notice of Motion was filed in a matrix of circumstances where it is not clear that the Respondent would have filed its Notice of Motion but for the Applicant proceeding to file its Notice of Motion first. The Applicant’s indication that it would file such a Notice of Motion, and its subsequent filing of that motion, set in train a course of correspondence that culminated in the filing of a Notice of Motion by the Respondent seeking to set aside the Notice to Produce. By the Applicant agreeing to short service, the latter Notice of Motion was appropriately returnable on the same day as the Notice to Produce and the Applicant’s Notice of Motion. The course that resulted from the Applicant’s Notice of Motion was appropriate and the costs of that Notice of Motion should therefore lie where they fall.

Court orders

44. The Court orders that:

1. The Notice of Motion filed by the Respondent on 24 August 2016 is granted;

2. The Notice to Produce to Court filed by the Applicant on 16 August 2016 is set aside;

3. The Applicant pay the Respondent’s costs of the notice of motion filed 24 August 2016 and the Notice to Produce filed 16 August 2016, as agreed or assessed;

4. The Notice of Motion filed by the Applicant on 19 August 2016 is dismissed;

5. Each party pay their own costs of the Notice of Motion filed by the Applicant on 19 August 2016.

Joanne Gray

Registrar

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Decision last updated: 29 August 2016