Wood v Redland City Council

[2016] QPEC 61

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Wood v Redland City Council [2016] QPEC 61

PARTIES:

GREGORY MARK WOOD
(Applicant)

v

REDLAND CITY COUNCIL
(Respondent)

FILE NO/S:

3348/16

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2016

JUDGE:

Rackemann DCJ

ORDER:

The subpoenas are set aside.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Practice and Procedure – subpoenas – where subpoenas set aside

COUNSEL:

M Johnstone for the respondent

SOLICITORS:

The appellant is self-represented
Redland City Council for the respondent

1. This is an application by the respondent council to set aside eight subpoenas which were issued by this court on the 18th of November 2016 on request made by the appellant, Mr Wood.  Seven of the subpoenas were directed to council officers; the eighth was directed to a Mr Wilkinson of Safe Food Queensland.  Upon the hearing of the application, Mr Wood indicated that he no longer wished to persist with the subpoena to Mr Wilkinson, and accordingly that is set aside by consent.  The application to set aside the other subpoenas was, however, opposed. 

1. The subpoenas are returnable on the 28th of November 2016, being the date that the matter has been set down for the hearing of three applications.  Accordingly, this application to set aside the subpoenas was brought on an urgent basis, and upon only short notice.

1. Unfortunately, the solicitors for the council decided to endeavour to serve the application by post, rather than by physically delivering it to Mr Wood’s address for service.  Understandably, in the circumstances, Mr Wood did not actually receive the application or supporting material.  He did, however, receive a telephone call to the effect that an application was on this morning, and he appeared this morning and was given a copy of the material.  I then stood the matter down for some time to enable him to read it, and he indicated a willingness to proceed. Accordingly, I will abridge the time for service of the application.

1. The application to set aside the subpoenas is on a number of bases;  in particular that they are premature, lacking in forensic purpose or relevance, a fishing expedition for a collateral purpose and an abuse, are being used as a substitute for disclosure, and are vague and oppressive.  There were some other grounds in the outline of argument, one related to conduct, money. That does not go so much to whether a subpoena ought to be set aside as to whether the recipient is obliged to comply with it.  But it appears that some money has been received, and in any event that reason is no longer pressed.

1. It was also said that the subpoenas were issued against inappropriate personnel, in the sense that they should have been addressed to the “proper officer” or some such similar term, rather than to specified people.  That may be so, insofar as the subpoenas were served to produce documents, but they were also subpoenas for the giving of evidence.  Further, it should be noted that Mr Wood is a litigant in person, and can be perhaps forgiven for not understanding the correct way to address a subpoena insofar as it is to produce documents. 

1. Another reason related to what was said to be Mr Wood’s breach of his implied undertaking to the court, to proceed in an expeditious way.  The basis for that submission, however, are the grounds otherwise advanced and so it is unnecessary for me to deal with that separately.

1. The appellant is a fisherman who has had a long-running dispute with the council with respect to the use of his property.  The current proceeding between the parties is an appeal brought by Mr Wood against conditions which the council imposed upon its approval for Mr Wood to use his premises for a home business, namely for the processing, cooking and storage of seafood.  That proceeding has not progressed very far since it was commenced by the filing of the notice of appeal on the 26th of  August 2016.  The matter has been set down on the 28th of November 2016 – the date for the return of the subpoenas – not for any hearing of the appeal or the merits thereof, but rather for the court to consider three discrete applications.

1. The first application is one by the council for the notice of appeal to be struck out and for the current notice of appeal to be struck out.  The application also seeks orders setting a timetable for the appellant to file and serve any subsequent application for leave to file an amended notice of appeal.  The grounds of that application is that the notice of appeal is deficient, particularly in respect of the grounds stated therein, which are as follows:

(1) Home business was not code self-assessed as other fisher properties; 

(2) conditions are unsafe; 

(3) stringent conditions imposed; 

(4) orders of Judge R Jones DCJ 28 March 2011; 

(5) no negotiation of final conditions; 

(6) assessing perimeter exceeded; 

(7) no impartial or independent ethics applied; 

(8) applicant’s expert advice not taken; 

(9) unable to work at chosen occupation for over 7 years.

1. The other two applications set down for hearing on the 28th of November are applications by the appellant. One is for directions to progress the matter to a hearing, and the other in an application, pursuant to section 490 of the Sustainable Planning Act for, an order to allow the development to start before the appeal is decided. The court’s power to make such an order is dependent on being satisfied that the outcome of the appeal would not be affected if the development or part of the development is started before the appeal is decided.

1. When those applications were set down for hearing I asked whether the parties had already finalised their material, and whether any more affidavits were to be filed in support of the applications.  Both parties informed me that all of the material had been filed.  It was subsequently to that that Mr Wood caused the subpoenas to be issued.  The subpoenas are both for the production of documents and for the giving of evidence.  Insofar as they are for the production of documents, the subpoenas are cast in very broad, general and vague terms.  The subpoena to Mr Simpson, who is the services manager for development control within the council, requires him to produce:

All notes, letters and documents concerning commercial fishing within Redland City Council limits.  All emails to other relevant agencies and all investigation reports of all professional fishers’ developments approvals within Redland City Council limits that are operating.

1. The subpoena to Mr Dibden, a planning officer in the employ of the council, requires him to produce:

All documents, notes, emails, tape-recordings from all meeting or telephone calls with Gregory Mark Wood, home business MCU013632, or any other relevant office meetings or other relevant agencies that you dealt with concerning this Applicant for home business.

1. The subpoena to Mr Lyon, the council’s chief executive officer, requires him to produce:

All documents, notes, emails concerning Gregory Mark Wood, home business application MCU013632.

1. The subpoena to Mr Ukubamichael, who is a senior planning officer for the council, requires production of:

All documents, notes, emails and other tape-recordings from meetings or telephone calls with Gregory Mark Wood, home business MCU013632, or any other relevant office meetings with this home business.

1. The subpoena to Mr Matheson, the team leader, Local Laws, for the council, requires the production of:

All notes, emails and tape-recordings or any other relevant documents from pre-lodgement meeting that you attended about MCU013632, development application for home business, Gregory Mark Wood, 31 Drevesen Avenue, Cleveland, Queensland.

1. The subpoena to Ms Poole, an environmental health officer within the council, requires production of the following:

File for MCU013632 held by Environmental Health Redland City, all notes, emails concerning Gregory Mark Wood development application.

1. The subpoena directed to Mr Jeans, who is the group manager, City Planning and Assessment for the council, requires production of:

All telephone notes concerning home business applications for 31 Drevesen Avenue, Cleveland;  all letters, emails concerning 31 Drevesen Avenue, Cleveland;  all letters, emails concerning 31 Drevesen Avenue Cleveland;  all inter-departmental documents for 31 Drevesen Avenue, Cleveland.

1. It has already been noted that the subpoenas also require the recipients to attend so as to be able to give testimony.  On the hearing of this application to set aside the subpoenas, Mr Wood said that he would be content to simply ask a small number of questions of Mr Simpson and of Mr Dibden.  He said he wished to adduce from Mr Simpson evidence that in Mr Simpson’s opinion, the council had, in effect, acted badly towards Mr Wood.  He wished to obtain evidence from Mr Dibden that Mr Dibden had had a telephone conversation with another person in which that other person had expressed an opinion to Mr Dibden about what the law required in relation to some storage issue.  It became apparent upon hearing Mr Wood’s submissions that he believes that the council has acted badly towards him in a number of respects, including with respect to the development application and the imposition of certain conditions. It appears that the subpoenas are intended to obtain documents and some oral evidence to support his claims in that regard.

1. There are, however, a number of difficulties with his use of subpoenas in this way at this time.  It has already been noted that this current proceeding is an appeal by Mr Wood against the imposition of conditions on the development approval.  That proceeding will, if it continues, ultimately be heard by way of a hearing anew.  It is not a proceeding in which the Court judicially reviews the way in which a council dealt with the application.  Rather, it is a case of the Court hearing the matter anew and making a decision as to whether the approval should or should not be the subject of the disputed conditions.  Accordingly, the council’s dealings and, in particular, whether there might or might not be scope for particular criticism of some aspects of the council’s handling of the matter, is certainly not the primary focus of the Court’s attention.  Rather, it is where the merits actually lie on the evidence that is ultimately before the Court.

1. Even if one were to put that aside, however, insofar as there are document held within the council which are of relevance to the issues in dispute, then Mr Wood can seek those by way of disclosure.  It is not appropriate for subpoenas to be used as a substitute for disclosure.  Further, the description of the documents which are required to be produced are such that, rather than focusing on specific documents of identifiable relevance, there is simply a catch all requirement for all documents on a certain file or all documents relating to dealings with Mr Wood or his property, or, as I have noted in at least one case, documents dealing with all development approvals relating to other fishery operations.  That is indicative of subpoenas being as used as a fishing expedition or, at best, as a substitute for broad-ranging disclosure, rather than for production of particular documents of identified relevance.

1. A fundamental problem with using subpoenas in this way at this time in this proceeding is that, as I have already noted, the matter is nowhere near a hearing in any event.  These subpoenas have been obtained for the purposes of people producing documents and being required to give evidence on Monday on the return of the three applications which I have described.  The hearing of those applications will not involve a resolution of the merits, or otherwise, of the appeal in respect of the imposition of conditions.  The council’s strike out application is, in essence, based upon pleading points and goes to the way in which the grounds have been formulated in the notice of appeal and whether that is satisfactory or not. The appellant, on the hearing today, indicated that he has already drafted an amended pleading in an attempt to address those complaints.  The documents and evidence, which he seeks by way of the subpoenas, are of no value in determining those pleading issues. 

1. Mr Wood’s application for directions to timetable the matter towards a hearing, if it is not struck out in response to the council’s application, can proceed and be determined without reference to any of the documents or evidence which is sought to be produced by the subpoenas, and none of that evidence would be of any assistance in that application.

1. I acknowledge that one of the applications to be decided on Monday concerns whether Mr Wood will, in the event his appeal is not struck out, be permitted to start the development, or part thereof, before his appeal is decided.  But the question there, for the Court, is not whether the conditions which were imposed should, as a matter of merit, be upheld or set aside.  The primary question is whether the outcome of the appeal would be affected if the development were to start before the appeal is decided.  It is difficult to see the relevance of the subpoenaed material or the oral evidence sought to be obtained by the subpoenas to that question.  Certainly, one cannot see the justification for subpoenas to produce in as wide a terms as has been requested. 

1. It is apparent, therefore, that whilst Mr Wood maintains that the council has acted badly in its dealings with him and has imposed conditions some of which, he says, ought not to have been imposed, and whilst he wishes to have documents produced pursuant to the subpoena and to ask some questions in order to establish that the council has acted badly and unfairly in its dealings with him, the reality is that this proceeding is not one for judicial review.  It is one where the Court will look at the merits of the matter. More fundamentally, the matters to be determined on Monday do not call, or provide a satisfactory basis, for the issuing of the subpoenas that are under challenge. 

1. The subpoenas are, I agree, at least, premature.  They have no legitimate forensic purpose or relevance insofar as the matters to be determined on Monday are concerned.  They are expressed in terms which are far too wide to be supportable in relation to the matters to be determined on Monday, and are, as a consequence, oppressive.  In their form, they also present as a substitute for disclosure, if not also a broad based fishing exercise. 

1. In the circumstances, the subpoenas are set aside.  If the matter does proceed after Monday towards a trial, then, to the extent to which the council holds relevant documents, they can be the subject of disclosure.  To the extent to which Mr Wood may be able to identify documents held by people which are of relevance to a hearing of the merits of the matter, then he could request the issue of subpoenas of appropriate scope for the purpose of any trial.  The subpoenas, as issued, at this stage, for the purposes of Monday’s hearing, however, cannot be justified.  The subpoenas are set aside.