Vision Land Glebe Pty Ltd v The Council of the City of Sydney
[2016] NSWLEC 103
•12 August 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Vision Land Glebe Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 103 Hearing dates: 12 August 2016 Date of orders: 12 August 2016 Decision date: 12 August 2016 Jurisdiction: Class 1 Before: Sheahan J Decision: See paragraph [19]
Catchwords: SUBPOENA: motion to set aside – principles to apply – relevance – width – safeguarding sensitive or confidential information. Cases Cited: Helou v Strathfield Municipal Council [2006] NSWLEC 66; 144 LGERA 322
Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32
Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 44
Young v King (No 3) [2012] NSWLEC 42Category: Procedural and other rulings Parties: Vision Land Glebe Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)
Department of Finance, Services and Innovation (Subpoena’d party)Representation: Counsel:
Solicitors:
Mr A Galasso, SC (Applicant)
Ms R Bullmore, solicitor (Respondent)
Mr C R Ireland, barrister (Subpoena’d party)
Landerer & Company (Applicant)
The Council of the City of Sydney (Respondent)
Minter Ellison (Subpoena’d party)
File Number(s): 2016/163200
EXTEMPORE Judgment
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These are complex Class 1 proceedings, in which the applicant has issued a subpoena to the New South Wales Department of Finance, Services, and Innovation (“the Department”), requiring production of documents pertaining to a tender process which resulted in the Department’s sale of the subject land to the applicant for approximately $33,000,000 in January 2015.
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The terms of the subpoena are:
The documents or things you must produce are as follows:
1. Without limiting the generality of the meeting of the word “documents”, where that word appears in this notice it includes letters, correspondence, electronic mails, facsimile transmissions, file notes, memoranda, accounting records, statements, order forms, invoices, receipts, drawings, plans and specifications, minutes of meetings and notes of meetings, deeds, dealings, authorities, consents and anything from which sounds, images or writings can be reproduced with or without the aid of anything else.
2. All documents, records and reports:
(a) evidencing;
(b) recording;
(c) constituting;
(d) advising; or
(e) otherwise relating to:
the results, including but not limited to financial information, of the tender evaluation process for Tender No. 1400919 in respect of the property at 357 Glebe Point Road, Glebe NSW.
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The Department has moved the Court to set aside the subpoena “in whole”.
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The Council is neutral on that application, but the Department and the applicant have today argued it at length.
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The principles to be applied are well established, and most of the cases relied upon today were examined in my judgment in Young v King (No 3) [2012] NSWLEC 42, at [41] and [55] – [97], to which Pepper J referred with approval, and then applied, in Wingecarribee Shire Council v O'Shanassy (No 2) [2014] NSWLEC 32.
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I adopt those principles and apply them again in this case.
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Superficially, the subpoena appears to be premature, and offensively wide, requiring sensitive materials beyond possible relevance to the Class 1 appeal. It also raises some public policy or public interest concerns, especially in respect of confidentiality, to which the Department’s solicitor (Mr Farrell) deposes.
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There is some time pressure from the applicant’s point of view, as the hearing is scheduled to commence on 5 September 2016, and Mr Farrell deposes that it will take some 6 – 7 working days to comply with any order to produce. The Court must seek the most “just, quick and cheap” course for the appeal.
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I am satisfied that production of the materials is not precluded by legislation, nor by any contractual obligation; nor am I satisfied that any harm will flow from disregard of any “public interest immunity” considerations: Woollahra Municipal Council v Minister for Local Government [2016] NSWLEC 44.
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My concern this morning was that the authorities refer to production in respect of an issue identified in the proceedings, whereas, in the present case, the applicant has identified an issue which is not yet joined, and may not be, but an issue which potentially arises if the Council pursues some elements of its present Statement of Facts and Contentions (“SFC” – Exhibit D1).
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I refer particularly to matters pertaining to the heritage status of the subject site, and the applicant’s proposal to demolish a structure on the site considered by Council also to be (Exhibit D1, par 52) “of historical and social significance on a local level”, such that “it should be listed as a local heritage item” (see Exhibit D2).
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That site feature (known as the Metropolitan Remand Centre, or “MRC”) is also argued (SFC 60) to be important, as it responds sympathetically to the relevant conservation areas.
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However, the MRC could potentially be adapted for reuse. Hill PDA, on behalf of the applicant, has prepared a feasibility study for three possible adaptive reuse scenarios (Exhibit D3), but its costings and return calculations for each are based on the actual site purchase price, in the absence of some evidence of the genuine market value of the MRC, which is the value most relevant to issues of commercial sustainability. Each possible reuse scheme shows a significant development loss on the site purchase price.
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What the applicant seeks is sufficient information to address the planning principle detailed by Moore C (as His Honour then was) in Helou v Strathfield Municipal Council [2006] NSWLEC 66; 144 LGERA 322, especially questions 4 and 5 set out in [46], which require the proper assessment of costs and return in any adaptive reuse scenario.
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The applicant’s issues were explained to the Department’s solicitors in Ms Spizzo’s letters of 7 and 19 July, and I am satisfied that the applicant’s representatives respect, and will protect, the sensitivity and confidentiality of such of the subpoena’d material as it may need to call on.
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The applicant wishes to be properly prepared if Council elects to criticise the applicant’s asserted rate of return on the basis that the applicant paid too high a price.
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Mr Galasso assured the Court that he will call on the subpoena’d information only if that assertion is made, and that the Court can hold it in a sealed envelope until that occurs. He will not need all the information/material the subpoena presently suggests, but does need the amount and conditions of each tender. He submitted (at 14):
If there be issues about confidentiality, then in the normal course they can be addressed by a confidentiality order. Equally, if there are issues about access, then there is no reason why the documents should not be produced to the Court, and access restricted only until and upon the issue outlined above is raised by the Council. If it never is, then the subpoenaed material can be returned without access ever having been granted, and the prejudice suffered by the Applicant in the event that the Council takes issue will be averted.
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Mr Ireland pressed for a strike out of the subpoena, but very fairly submitted some Short Minutes of Order for the Court to consider if I decided not to uphold his primary submissions. The applicant was happy to agree to abide by such orders, and, provided it also was granted access, the Council too was happy with them.
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I accept those suggested arrangements, and, therefore, make the following orders:
The subpoena issued at the request of the Applicant dated 29 June 2016 is narrowed by agreement between the subpoena’d party and the issuing party to a request that the Department of Finance, Services and Innovation (Department) produce only a Table of tender offers and any conditions pursuant to which those tender offers were made.
Subject to further order of the Court, no party has a right to inspect the document produced unless and until the Respondent raises as an issue in the proceedings, by written notification to the Applicant, the assertion that the Applicant purchased the subject land for more than fair market value at the date of purchase.
Inspection of the document, when and if it takes place pursuant to the conditional leave to inspect granted in Order 2 above, will be limited to the solicitors/counsel and expert witnesses and other experts retained by the parties to provide expert reports in the proceedings.
Neither the document nor its contents shall be disclosed by any party to any other person (without the express prior permission in writing of the Department), and any copies which are made will be destroyed at the conclusion of the proceedings.
The Notice of Motion filed on 25 July 2016 by the Department of Finance Services and Innovation is otherwise dismissed.
Costs on the Notice of Motion are reserved.
The exhibits are to remain in the Court file.
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Decision last updated: 15 August 2016
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