Quarry Products (Newcastle) Pty Ltd and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No. 2)

[2012] NSWLEC 32

Land and Environment Court

New South Wales

Medium Neutral Citation:

Quarry Products (Newcastle) Pty Ltd and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No. 2) [2012] NSWLEC 32

Hearing dates:

29 February 2012

Decision date:

01 March 2012

Jurisdiction:

Class 3

Before:

Sheahan J

Decision:

1. The respondent's Notice of Motion is upheld.

2. The applicants' Notice of Motion is dismissed.

3. The applicants are ordered to provide, within 21 days, materials truly responsive to the respondent's Notice to Produce dated 16 February 2012.

4. The costs of this hearing are reserved.

5. The Exhibits tendered during this hearing by the respondent are returned.

Catchwords:

Practice and Procedure: Notice to Produce

Legislation Cited:

Evidence Act 1995
Land and Environment Court Act 1979
Protection of the Environment Operations Act 1997
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
McLaughlin v Dungowan Manly Pty Ltd (unreported, NSW Supreme Court matter 4927/06, 14 July 2009)
National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Norris v Kandiah [2007] NSWSC 1296
Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869
Portal Software v Bodsworth [2005] NSWSC 1115

Category:

Procedural and other rulings

Parties:

30851 Quarry Products (Newcastle) Pty Ltd (Applicant)
Roads and Maritime Services (Respondent)
30853 Allandale Blue Metal Pty Limited (Applicant)
Roads and Maritime Services (Respondent)

Representation:

Mr J Webster SC (Applicant)
Mr N Eastman (Respondent)
Sparke Helmore (Applicant)
Blake Dawson (Respondent)

File Number(s):

30851 and 30853 of 2010

Judgment

Separate Question

1. On 14 February 2012, I heard oral argument on a separate question in these two proceedings, which are travelling together. The parties were directed to file supplementary written submissions, and they did so. the decision remains reserved, but the urgency of it is accepted by the Court.

1. The respondent sought to re-list the matter before me on 29 February to clarify that it wanted to be heard before any consequential orders are made, following publication of my decision answering the separate question. The applicant agreed on 29 February to that course.

Notice(s) to Produce

1. For convenience, as I had some recent knowledge of the matter, the Registrar also referred to me two notices of motion ('NOM') regarding production of documents in the proceedings. Those documents would not have any relevance to the separate question so I dealt with the motions as the rostered Duty Judge. Both were filed in the Allandale proceedings (30853 of 2011) alone, as consideration is being given to possible discontinuance of the Quarry Products proceedings (30851 of 2011).

1. The respondent's NOM filed 2 February seeks an order that the applicant(s) produce for inspection within 2 days " the documents requested in the respondent's letter dated 3 November 2011 ".

1. The applicant's Amended NOM filed in court on 29 February seeks to set aside that letter of 3 November 2011, to the extent that the Court finds it to be a Notice to Produce ('NTP'), as defined in Uniform Civil Procedure Rules 2005 ('UCPR') 21.9 & 21.10. It also seeks to set aside the respondent's NTP dated 16 February 2012 (copy tendered on the motion as Exhibit R2 ).

1. These Notices or purported NsTP concern the dispute between the parties as to the Market Value of resumed land on which there is a quarry.

The background

1. The acquisition took place on 12 February 2010. The respondent assessed compensation payable by way of s55(a) Market Value at $314,920, and offered also " disturbance " (s55(d)) of $369,826, and " decrease in value of other lands " (s55(f)) of $418,173, a total of $1,162,919.

1. In its Points of Claim filed 29 November 2010, Allandale claimed $2,706,320 under s55(a) (including " diminution in value" of a cottage at $20,000), with disturbance under 55(d) yet to be quantified.

1. The applicants provided further and better particulars on 2 March 2011 ( Exhibit R1 ). In respect of Allandale's claim, they particularized a " Before " value of $12,480,000 and an " After " value of $9,793,680. Claims were made for declining values of timbered, cleared and quarry lands, and for lost royalties calculated in the after situation over a shortened period of production.

1. In respect of Quarry Products' claim, the particulars detail a series of assumptions underpinning its claim for loss of market value, or, alternatively, sterilised resource (s59(f)) of $2,333,630. The assumptions include an extraction rate of 735,000 tonnes per annum; a 300m buffer to the Hunter Expressway; a calculated reduction in the amount of saleable andesite, reducing the life of the quarry; a royalty figure; costs and gross profit per tonne figures; a rate of increase of 3% pa in profit margin, and a discount rate. The claim is based on a model which Quarry Products has lodged with the respondent.

1. Points of Defence were filed on 21 April 2011 in both matters. They rely " for the time being " on the Valuers General's determination of compensation. They simply dispute the details of the claim, which details are, appropriately, matters for rival expert assessments of the supporting material upon which the applicants rely.

First Notice (?) Issued

1. On 3 November 2011, the respondent's solicitors confirmed the respondent's contention that under Environment Protection Licence ('EPL') 554 (prior to its revision in June 2011), the site's extraction rate was 500,000 tonnes per annum, and acknowledged that the applicants disputed that contention.

1. The letter asked that the applicants "outline the basis for their position, including by providing ... the following information" by 15 November 2011:

1. a detailed breakdown of the total quantity of andesite extracted under the categories of:

(a) "Land-based extractive activity"; and

(b) "Other Land-Based Extraction",

for the period 2000 to present; and

2. a detailed description of the types of extractive activities conducted by the quarry under the separate categories of:

(a) "Land-based extractive activity"; and

(b) "Other Land-Based Extraction".

1. On 12 December 2011, the respondent's solicitors asserted that the information sought remained relevant to the proceedings even if only Allandale's matter continues.

The Applicants Respond

1. On 16 December 2011, the applicants' solicitors told the respondent's solicitors that " the relevant information has been compiled ", but that the applicants wanted their solicitors to verify with the Environment Protection Authority ('EPA'), on 11 January 2012, the applicants' methodology for distinguishing between " Hard Rock Quarrying " and " other Land-based Extraction ", and would then " provide the material ", provided that it would be used only for the purposes of the current proceedings.

1. As the hearing before me yesterday (29 February 2012), Mr Webster SC, for the applicants, told the Court that his instructing solicitor was uninformed or misinformed, or misunderstood the quarry operation, when he wrote the letter of 16 December.

1. The respondent submitted that it had made clear, when it filed Ms Li's affidavit on 2 February 2012, that it would rely in its NOM on that letter of 16 December, and that counsel's claim of misunderstanding had not been previously put to those representing the respondent.

1. Mr Webster said he could support it by affidavit if the Court required, but the lengthy postponement to yesterday of the hearing of the respondent's NOM had provided plenty of opportunity for that contention and supporting evidence to be developed.

Production pressed

1. On 19 December 2011, the solicitors for the respondent made clear that it still sought the information as specified on 3 November 2011, and not in terms of " Hard Rock Quarrying ", and that it would use the information only for whatever proceedings continued, but it pressed for the urgent provision of the information, without the need for any checking with the EPA. When the information was still not forthcoming, the solicitors for the respondent chased it up again on 13 January, 2 days after the applications were to have consulted the EPA. The respondent's NOM was threatened.

1. On 16 January 2012, the solicitors for the applicants complained that the request for information was a " fishing expedition ", rather than relevant to the applicants' disputed market value claim.

1. In her affidavit filed 2 February 2012, Ms Li contended that the respondent's expert valuers had indicated why they needed the information for the preparation of their evidence. (See the grounds listed in par 4 of the affidavit). Yesterday, Mr Eastman, counsel for the respondent tendered (as parts of Exhibit R1 ) emails making good that contention, from experts Trevor Hudson and Peter Dempsey.

1. On 13 February 2012, the solicitor for the applicants stated his clients' objections to providing the information to the respondent in the following terms:

1 The document sought to be enforced is not a "notice to produce" as defined since it sought "information" and not "specified documents or things";

2 If the document is a notice to produce, the categories sought are too broad and irrelevant to an identified fact in issue and so should be set aside; and

3 Given it was the Respondent's application to have a separate question determined before any other preparation of evidence in the matter, the enforcement of a notice to produce is premature.

1. On 16 February 2012, after the hearing of the separate question, the respondent's NOM of 2 February was due to be heard by the Registrar, but it was stood over.

A second (?) Notice issued

1. The solicitors for the respondent wrote to the solicitors for the applicant and, without prejudice to their position that the letter of 3 November complied with the UCPR requirements for a NTP, served a " Form 19 NTP ". It is not identical in terms to the 3 November letter, but required production of the following documents or things, for inspection by the respondent by 23 February 2012.

1. All documents created from 1 January 2000 to date detailing the total quantity of material extracted at Allandale Quarry under the categories (as referred to in EPL 544) of:

a. Land-based extractive activity; and

b. Other Land-Based Extraction.

2. All documents created from 1 January 2000 to date detailing the types of extractive activities conducted at Allandale Quarry under the categories (as referred to in EPL 544) of:

a. Land-based extractive activity; and

b. Other Land-Based Extraction.

1. The NTP then indicated that the word " documen t" in it has the meaning given to it in the Evidence Act 1995 (NSW), namely it means " any record of information, and includes:

a. anything on which there is writing, or

b. anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

c. anything form which sound, images writings can be reproduced with or without the aid of anything else, or

d. a map, plan, drawing or photograph."

1. At yesterday's hearing Mr Webster did not press his objections that the NTP is premature because of the Court's consideration of the separate question, and/or that production might offend s34(11) of the Land and Environment Court Act 1979 . The remaining two objections notified to the respondent were (1) that the letter of 3 November was not a proper NTP, as it seeks " information ", rather than " specified documents or things ", and (2) that the categories of documents are too broad, and irrelevant to an identified fact in issue.

Consideration

The Principles/Test

1. The relevant UCPR (21.9, 21.10, 21.11) are quite clear. Much of their terminology reflects leading authorities on the NTP process - " relevance to a fact in issue ", " material that could rationally affect the assessment of the probability of the existence of such a fact ", etc. As long as those UCPR requirements are met, no particular or standard form is prescribed.

1. The tests to be applied in reaching any conclusion on the validity of a NTP are those carefully and clearly articulated by Craig J in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110, at [20]-[21]. Because of argument of another major challenge to a NTP in recent days, I have reviewed most of the cases to which His Honour refers, and I entirely endorse his statements of principle.

1. The other matter has introduced me also to a masterful summary of the principles and case law by Ward J of the NSW Supreme Court in an unreported decision of 14 July 2009 - McLaughlin v Dungowan Manly Pty Ltd (Supreme Court matter number 4924/06).

1. Her Honour quoted many decisions in both civil and criminal arenas, which emphasise the imperative that " fishing " not be allowed, namely the Court should not allow compulsory production of documents to enable a party to " determine whether they may be relevant and may be of assistance to his case in the proceeding " (a formulation endorsed by Beazley JA in Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 in a judgment extensively quoted by Ward J).

1. Ward J also illustrated the point by reference (at [46]) to an example put by Moffitt P in National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372:

"... that a subpoena would be liable to be set aside if it sought all cheques received by a bank in a particular year in order to find a cheque of the opponent in a false name, but not if it sought from a hospital its file in respect of the medical treatment of the opposing party (without knowing what might be in that file)."

1. Her Honour went on to say (in [47]):

"... it matters not, in my view, that the plaintiffs do not know whether any of the documents sought in fact exist."

1. On issues of terminology, Her Honour said (at [88]):

"In general, I consider the objections to the terminology in the schedule are not likely in practical terms to be productive of sufficient uncertainty to render the subpoena objectionable. I would have thought a common sense view could be adopted when construing the terms of the subpoena. In my view it calls for documents with reasonable particularity." (my emphasis)

1. (See also pars [26]-[40] for a survey of cases stating the test, and [41]-[47] in general on its applications)

1. Mr Webster relied yesterday on the decision of Barrett J in Patonga Beach Holdings Pty Ltd v Lyons ("Patonga Beach") [2009] NSWSC 869, a judgment delivered only one month after McLaughlin . Mr Webster drew particular attention to pars [8]-[11], mainly quotations from Brereton J's decision in Norris v Kandiah [2007] NSWSC 1296 (pars [3]-[5] mainly concerning vague classes, boxes or folders of documents being sought, rather than identified, not simply identifi able , specific relevant documents).

1. Brereton J has authored several important judgments on NsTP, most notably Portal Software v Bodsworth [2005] NSWSC 1115, and I can find nothing in Patonga Beach at odds with my thinking on the present matter, which combines the approaches of Craig J and Ward J.

Findings

1. I accept the respondent's submission that the letter of 3 November 2011 and the notice of 16 February 2012 both satisfy the requests of the UCPR, as they required the production of documents or records containing the requested, and quite specific information, clearly relevant to a central issue in the proceedings.

1. I have concluded that the applicants' solicitors well understood what was required, notwithstanding Mr Webster's submissions yesterday about changes over time in the terminology used in the relevant regulations made under the Protection of the Environment Operations Act 1997 . The respondent says it employed, more relevantly, the terms used in the EPL.

1. The claim made by the applicants revolves around an alleged reduction in the value of the subject land, and profit from the quarry, as a result of the impact of the Hunter Expressway, as it develops as a result of the acquisition, and the parties have clearly joined issue on the extraction rate of the quarry operation under the auspices of its EPL. The Evidence Act 1995 defines " document " as " any record of information ", and that definition was included in the NTP dated 16 February 2012.

1. I am also satisfied that a " specific document or thing " is " clearly identified " when the NTP is properly examined, in a common sense way, by those responsible for advising the applicants on the claim they have helped them present. It was only at yesterday's hearing that the applicants contended that their solicitors were in error when they told the respondent's solicitors on 16 December that " the relevant information has been compiled ".

1. The NTP has been drafted with the requirements of the respondent's experts in mind. The Court should not rule on their evidence pre-emptively by upholding the applicant's position on the NsTP.

Conclusion and Orders

1. Accordingly, I uphold the respondent's NOM, and dismiss the applicants' NOM.

1. The applicants are ordered to provide, within 21 days, materials truly responsive to the respondent's NTP dated 16 February 2012.

1. The costs of this hearing are reserved, and the Exhibits tendered during it by the respondent are returned.

1. I will publish these reasons in the next day or so.

Decision last updated: 02 March 2012