Willoughby City Council v Transport Infrastructure Development Corporation (TIDC)
[2008] NSWLEC 1287
•11 July 2008
Land and Environment Court
of New South Wales
CITATION: Willoughby City Council v Transport Infrastructure Development Corporation (TIDC) [2008] NSWLEC 1287
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
Willoughby City Council
Transport Infrastructure Development Corporation (TIDC)FILE NUMBER(S): 30213 of 2005 and 30841 of 2006 CORAM: Registrar Dixon KEY ISSUES: Appeal :- Access to serve documents LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 10/07/2008
DATE OF JUDGMENT:
11 July 2008LEGAL REPRESENTATIVES: APPLICANT
Mr Tomasetti, SC
Instructed by Mr EastmanRESPONDENT
Mr Norton, Barrister
Instructed by Ms Daniel
of Clayton Utz
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESDixon, Registrar
11 July 2008
30213 of 2005
30841 of 2006Willoughby City Council
ApplicantJUDGMENTTransport Infrastructure Development Corporation (TIDC)
Respondent
Registrar Dixon:
1 The proceedings relate to two separate notices for acquisitions of land issued under the Land Acquisition (Just Terms Compensation Act 1991) (the Act) on 27 August 2004 for the stated purpose of the Chatswood Transport Interchange (proceedings 30213/05) and on 29 July 2005 for the stated purpose of the Epping to Chatswood Rail Link (proceedings 30841/06).
2 By Notice of Motion filed with the Court on 2 July 2008 the Respondent Transport Infrastructure Development Corporation (TIDC) seeks to set aside the Applicant’s Notice to Produce dated 16 June 2008 as amended by correspondence dated 30 June 2008 referred to in annexure “E” to the affidavit of Rachel Ann Daniel dated 1July.
3 The Respondent also objects to the Applicant being granted access to documents produced by a third party to the proceedings CRI Australia Pty Ltd (CRI) in answer to a Subpoena issued on 13 June 2008.
4 The parties agree that the documents the subject of the Notice to Produce and the Subpoena may overlap. Accordingly, The Court deferred consideration of any order for access to the documents produced by CRI in answer to the Subpoena until after determination of the Motion to set aside the Notice to Produce.
5 The Respondent relied upon written submissions, which helpfully identify that the Respondent’s application in each case is:
- a) The documents have no apparent relevance to the proceedings; and
b) The documents contain information confidential to not only TIDC but also third parties (including CRI)
6 The confidentiality of the documents at issue was not ultimately an issue as all parties by the commencement of the hearing of this Notice of Motion had agreed to execute confidentiality agreements.
7 The Respondent referred to the Court’s decision in Terry Street Limited V Leichhardt Municipal Council (2006) 145 LGRA 137 and the authorities therein and submitted that it was the Applicant’s obligation to displace the allegation of no relevance and to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought.
8 Both parties accepted that without such legitimate forensic purpose that access to the documents should be denied and in turn the Notice to produce be set aside.
9 The Respondent further submitted that the transaction the subject matter of the documents post dated the principal acquisition and did not fall within the three categories of circumstances where subsequent or future events can be considered in proceedings of this nature, as set out in Chino Pty Ltd v Transport Infrastructure Development Corporation and Amor (2006 153 LGRERA 136 at [66].
10 The Respondent submitted that the value of the land on which the public purpose is situated, affected by the public purpose, cannot of itself be relevant to the issue of change in the value of adjoining as severed land (section 55(f) of the Act).
11 The Respondent submitted that the transaction was not a comparable sale for the purpose of the Act and therefore the documents have no apparent relevance to the proceedings.
12 The Respondent submitted that it would amount to “nonsense” if the amount assessed as compensation payable to the respondent were liable to be revised as a result of a transaction of an interest in the acquired land, which took place after the relevant acquisition. The Applicant submits that it may be the best comparable sale.
13 The respondent submits that there is no unfairness to the Applicant if the documents are not to be available.
14 Fortunately, my role is not to adjudicate the compensation value of this claim or the admissibility of any document into evidence that ultimately a matter for the trial judge .
15 The simple question before me is as Mr Tomassetti SC for the Applicant submitted is to determine whether there is a legitimate forensic purpose to support an order for access to the documents.
16 In Terry Street the Court at Para 14 states “ … sufficient or apparent relevance is established if the document may add in some way to the relevant evidence in the case, whether or not the documents are themselves admissible (Waind and Hill at 385) the Court goes on to say that “… the test of relevance is not particularly onerous.”
17 The Applicant submits that documents prepared subsequent to the acquisition relate to a sale of part of the acquired land and therefore are relevant to the issue of the appeal and access to those documents is for a legitimate forensic purpose. In support of its case the applicant relied upon authorities including Melwood Units Pty Ltd v Commissioner of Main Roads (1978) 52ALJR593 and McCathie and Other V Commissioner of Taxation 69 CLR 1944 where the Court stated that “values must be calculated in light of circumstances which existed on the material date,…but subsequent events can be taken into account in order to determine the proper weight to attach to such circumstances.”
Statutory Power
18 The Registrar has delegation pursuant to section 13 of the Civil Procedure Act 2005 to deal with Subpoena and Notices to Produce.
19 Part 33.4 of the Uniform Civil Procedure Rules 2005 empowers the Registrar to set aside a Subpoena.
20 Part 34 deals with Notices to produce requiring a party to produce documents to the Court .The Registrar is empowered to give leave to parties to inspect those documents produced to the Court pursuant to a Notice to Produce but not admitted into evidence.
- Part 34.2(3).
21 After considering the affidavit evidence and the submissions of the parties I am satisfied that “sufficient or apparent relevance is established to allow inspection of the documents at issue subject to agreed confidentiality undertakings. Therefore, I decline to make the Orders set out in the Respondent’s Notice of Motion filed on 2 July 2008.
22 The Court makes the following orders:
- 1. With respect to the Subpoena to CRI dated 13 June 2008:
- a) the Respondent: and
b) upon executing and filing in Court and undertaking in the form which is annexed to these orders and marked “A”.
- i) The legal representatives of the Applicant; and
ii) the Applicant’s experts retained for the purpose of providing expert evidence in these proceedings. (that is Mr Dundas, Mr McFadden and Mr McDonald)
- a) the legal representatives of the applicant; and
b) the Applicant’s experts retained for the purpose of providing expert evidence in these proceedings (that is Mr Dundas, Mr McFadden and Mr McDonald) upon executing and filing in Court an undertaking in the form which is annexed to these orders and marked “B”.
The Applicant must give CRI 7 days notice of any proposed amendments to these orders.
Annexure “A” - Undertaking relating to CRI documents as proposed by CRI.
Annexure “B” - Undertaking relating to TIDC documents as proposed by TIDC.
4. The question of the amount of any reasonable loss or expense incurred in complying with the Notice to Produce are also reserved until such time as they can be quantified or agreed.
I HEREBY CERTIFY THAT THE PRECEDING 5 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF REGISTRAR DIXON
21/07/2008 - Insertion of a sentence - Paragraph(s) 21
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