Federal Court of Australia Warburton Environment Inc v Secretary, Department of Energy, Environment and Climate Action [2024] FCA 1272 File number(s): Judgment of: HORAN J Date of judgment: 21 October 2024 Date of publication of reasons 4 November 2024 Catchwords: PRACTICE AND PROCEDURE – application to set aside notice to produce – whether notice is being used as substitute for discovery – whether documents are relevant to issues in proceeding – whether production of documents would be oppressive or burdensome – where production of documents was more appropriately sought through discovery – notice to produce set aside Environment Protection and Biodiversity Conservation Act 1999 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 20.11, 20.12(2), 20.14(3), 30.28(1)-(3) Flora and Fauna Guarantee Act 1988 (Vic) Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Cases cited: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 2) (2018) 108 ATR 730 Division: General Division Registry: Victoria National Practice Area: Number of paragraphs: 50 Date of hearing: 18 and 21 October 2024 Counsel for the Applicant: J Korman and M Beaconsfield Solicitor for the Applicant: J King Legal Counsel for the Respondent: M Hosking and H Douglas Solicitor for the Respondent: Ashurst ORDERS VID 448 of 2024 BETWEEN: WARBURTON ENVIRONMENT INC Applicant AND: SECRETARY, DEPARTMENT OF ENERGY, ENVIRONMENT AND CLIMATE ACTION Respondent order made by: HORAN J DATE OF ORDER: 21 OCTOBER 2024 THE COURT ORDERS THAT: 1. The applicant's notice to produce dated 4 October 2024 be set aside. 2. The costs of the respondent's interlocutory application dated 10 October 2024 be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) HORAN J: Introduction 1. In this proceeding, the applicant seeks injunctive relief under s 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to restrain the respondent from removing hollow-bearing trees and recruitment trees in the course of carrying out works for the maintenance of strategic firebreaks in areas of forest within the Central Highlands. The applicant alleges that the areas contain the habitat of certain listed threatened species, namely the Southern Greater Glider and Leadbeater's Possum. 2. The applicant has served on the respondent a Notice to Produce dated 4 October 2024, seeking the production by the respondent of eight specified categories of documents. The Notice required the documents to be produced at a case management hearing on 11 October 2024 but, that date having passed, the applicant seeks orders for the production of the documents by 25 October 2024. For convenience, the Notice (excluding its annexures) is reproduced at the end of these reasons. 3. By an interlocutory application dated 10 October 2024, the respondent has applied for an order setting aside the Notice. 4. I have had regard to the following material in support of the respondent's interlocutory application: 5. an affidavit of Jane Marie Hall affirmed 10 October 2024; and 6. an affidavit of Ian James Harris affirmed 17 October 2024. 7. I have also read an affidavit of Jamie King affirmed 11 October 2024, which was relied on by the applicant in response to the interlocutory application. In addition, I have had regard to an earlier affidavit of Jamie King affirmed 9 October 2024 which addresses various case management issues. 8. Each of the parties filed written submissions together with a bundle of authorities. To the extent that any other affidavit material was referred to in those submissions, I have had regard to that material. 9. For the following reasons, I have decided that the Notice should be set aside. In summary, I do not consider that the Notice is an appropriate use of the procedure under r 30.28 of the Federal Court Rules 2011 (Cth) in the circumstances of the present case. 10. This is principally because, in my view, the Notice is being used as a substitute for discovery in circumstances where Div 20.2 of the Rules contemplates that discovery should only be given pursuant to an order of the Court on an application made under that Division. A notice to produce cannot be used to circumvent or sidestep the usual procedures that govern the discovery process, whether that be standard discovery or discovery by reference to categories of documents. 11. I accept that some of the categories of documents sought in the Notice may either comprise or include documents that are likely to be relevant to the issues in the proceeding. Nevertheless, such documents may be the subject of a request or an application for discovery, including discovery of particular categories of relevant documents that are, or have been, in the respondent's control. Background 1. The applicant has served two previous notices to produce documents in the present proceeding. One of the notices was withdrawn by the applicant after the respondent filed an application for an order that the notice be set aside. The respondent ultimately produced documents in response to the second notice to produce. 2. By a letter dated 24 September 2024, the respondent's solicitors proposed that any further production of documents should occur through an organised discovery process, rather than by the issue of notices to produce and subpoenas. 3. On 1 October 2024, the applicant's solicitors advised that, subject to any change in the relevant circumstances, the applicant did not intend to seek discovery. Instead, the applicant made an "informal" request for the production by 10 October 2024 of "a limited and defined range of documents" in terms that reflected the categories in the Notice. 4. On 3 October 2024, the respondent's solicitors resisted the informal request for documents, stating that the categories were not "limited and defined" and that the time by which production was sought was not reasonable. The respondent maintained that it was necessary to proceed through an orderly discovery process, rather than by "continuing to seek discovery informally or under cover of a notice to produce". 5. On 4 October 2024, the applicant served the Notice seeking production of the same eight categories of documents that were the subject of its earlier informal request for documents. 6. On 10 October 2024, the respondent filed its interlocutory application to set aside the Notice. Grounds of the application 1. Rule 30.28 provides as follows: 30.28 Notice to produce (1) A party may serve on another party a notice, in accordance with Form 61, requiring the party served to produce any document or thing in the party's control: (a) at any trial or hearing in the proceeding; or (b) at any hearing before a Registrar or any examiner or other person having authority to take evidence in the proceeding. (2) If the document or thing required to be produced under subrule (1) is not produced, the party serving the notice may lead secondary evidence of the contents or nature of the document or thing. (3) If a notice under subrule (1) specifies a date for production, and is served 5 days or more before that date, the party served with the notice must produce the document or thing in accordance with the notice, without the need for a subpoena for production. Note: A party who fails to comply with a notice under subrule (1) may be liable to pay any costs incurred because of the failure. 1. One way in which a notice to produce may be used is to require the production of documents by an opposing party at trial. This is reflected in the terms of r 30.28(1), which refer to production at a trial or hearing at which evidence may be taken. Rule 30.28 is located within Pt 30, which deals with hearings, and Div 30.3, which deals with the trial of a proceeding. Failure to produce the documents at a hearing allows the party serving the notice to lead secondary evidence of the contents or nature of the document: see r 30.28(2). 2. Nevertheless, a notice to produce under r 30.28 has the same coercive force as a subpoena. Subrule 30.28(3) provides that if the notice is served at least five days before the date specified for production, the party served must produce the document without the need for a subpoena. A practice has developed of serving a notice to produce on another party in order to obtain documents prior to trial. For such purposes, the notice may state that it is returnable before a Registrar or, as in the present case, at a case management hearing. 3. In so far as a notice to produce is used for such purposes, it is subject to the same limits as would govern the issue of a subpoena. It may be noted, however, that leave is required under Pt 24 of the Rules to serve a subpoena to produce documents, whereas a notice to produce can be served under r 30.28 without first obtaining leave. 4. The respondent submits that the Notice should be set aside on three alternative grounds: 5. first, that the Notice is being impermissibly used by the applicant as an alternative or substitute for discovery; 6. secondly, that the categories of documents sought in the Notice encompass documents that have no apparent relevance to the issues in the proceedings; and 7. thirdly, that compliance with the Notice would be unduly burdensome on the respondent due to the width or lack of precision in the categories of documents sought. 8. Each of those grounds is a recognised basis on which a notice to produce or a subpoena may be set aside by the Court. Use of the Notice as a substitute for discovery 1. Turning to the first ground of the interlocutory application, the question is whether the Notice is being used as a substitute for the usual processes of discovery under Pt 20 of the Rules. 2. Rule 20.12 provides that a party must not give discovery unless the Court has made an order for discovery. Under r 20.11, a party must not apply for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. 3. The Court may make an order for standard discovery in accordance with r 20.14, or non-standard discovery including discovery by reference to specified categories of documents. Standard discovery requires a party to give discovery of documents that are directly relevant to the issues raised by the pleadings of which the party is aware after a reasonable search and that are or have been in the party's control. "Direct relevance" means documents on which the party intends to rely, documents that adversely affect the party's own case and documents that support or adversely affect another party's case: see r 20.12(2). What is a reasonable search turns on a range of matters, including the nature and complexity of the proceeding, the number and significance of the documents involved and the ease and cost of retrieval: see r 20.14(3). 4. The proper approach to discovery is addressed in section 10 of the Court's Central Practice Note. Among other things, parties and their representatives are expected to cooperate and to take all steps to minimise the burden of discovery, including by the informal exchange of documents and by agreeing on a protocol for discovery. Any request for discovery should be limited and targeted so as to facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. The Practice Note emphasises that the Court expects the parties and their representatives to display common-sense and moderation in requests for discovery, in disputes about discovery, and in expending costs on both. 5. It is common ground between the parties that a notice to produce cannot be used as a substitute for an application for discovery of documents or as an alternative to an application for further and better discovery: see Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575 (Jordan CJ); see also, e.g., Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 2) [2018] FCA 1418; 108 ATR 730 at [8]-[11] (Derrington J). However, the parties differ on the application of that limitation to the circumstances such as the present case. 6. The applicant submits that, in each of the authorities cited by the respondent in which this principle has been relied on to set aside a notice to produce, it was usually in circumstances where the notice was served following the completion of a discovery process and either close to or during the trial in the proceedings: see Construction, Forestry, Mining and Engineering Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61 (CFMEU) at [7]-[8] (Collier J); Australian Competition and Consumer Commission v Bluescope Steel Ltd (No 4) [2021] FCA 1162 at [22] (O'Bryan J); Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212; 161 ALR 686 at [50]-[51] (Cooper J); Diddams v Commonwealth Bank of Australia [1998] FCA 497 (Branson J). In such circumstances, the notice could be seen as untimely and unduly disruptive to the preparation for and orderly conduct of the trial, and inconsistent with the overarching purpose of the civil practice and procedure provisions under s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), or as undermining or circumventing the discovery process that had earlier been carried out. 7. The applicant contrasts the present case in which there has been no application for discovery and where production of the documents is sought well in advance of the trial. The applicant submits that it is seeking the production of a limited subset of relevant documents, and that the production of those documents in response to the Notice will advance the overarching purpose instead of spending time and money on the discovery process. The applicant also submits that the categories sought in the Notice are not in the nature of an attempt to obtain discovery because they do not require the recipient of the Notice to form any judgment or make any decision about the relevance of the documents to the issues in the proceeding. Rather, the respondent is required only to identify documents falling within each of the specified categories. 8. It is clear that the timing of the issue and service of a notice to produce is a relevant factor in respect of any application to set aside the notice: see, e.g., CFMEU at [6] (Collier J). However, that does not mean that a notice to produce can only be set aside as an impermissible attempt to obtain discovery in circumstances where there has already been a discovery process or the timing of the notice is disruptive to the conduct of the trial. In circumstances where there is an established process and procedures under the Rules for discovery, requiring both cooperation between the parties and supervision by the Court, the service of a notice demanding the production by an opposing party of broad categories of documents without having recourse to the discovery process is capable of being regarded as an attempt to sidestep considerations that are properly addressed in the conduct of discovery by agreement or pursuant to an order of the Court. 9. Nor does the fact that compliance with the Notice does not itself require decisions to be made on relevance exhaust the principle that a notice to produce cannot be used as a substitute for discovery. 10. There may be no bright line between the legitimate use of a notice to produce documents for the purposes of a trial or hearing and the illegitimate use of such a notice to obtain discovery of documents. There may well be scope for a party to serve a notice to produce particular documents in addition to or instead of seeking an order for standard or non-standard discovery. 11. In the present case, however, the Notice goes beyond seeking the production of specified or identifiable documents. Taken as a whole, and even with the limitations on some of the categories that has been proffered by the applicant, the Notice requires the respondent to conduct searches in order to identify and collect documents answering various descriptions which are said to be relevant to the issues in the proceeding. This is in the nature of discovery of documents by categories which can and should be made the subject of an application for discovery under Pt 20 of the Rules. 12. In accordance with Pt VB of the FCA Act, and in particular s 37M(3), I have taken into account whether or not the overarching purpose is best promoted by setting aside the Notice and requiring the parties to address any issues concerning the further production of relevant documents through the discovery process. On balance, I am satisfied that the overarching purpose will be better advanced by the parties cooperatively addressing discovery in accordance with the approach required under the Practice Note, under the control and supervision of the Court. 13. In some cases, on an application to set aside a notice to produce, it might be possible for the Court to treat the notice as if it were an application for discovery for the relevant documents or categories, and to consider whether or not to order such discovery without requiring a formal application. In the present case, however, the parties have not approached the matter on that basis. In applying to set aside the Notice, the respondent has not presented submissions directed to whether or not discovery should be ordered and, if so, on the scope of any such discovery. Rather, the respondent simply proposes that the parties should engage in a process to address discovery. The applicant has not indicated that it wishes to press for the production of documents by way of discovery. 14. In such circumstances, it is preferable that any application for discovery should be made separately. As contemplated by the Practice Note, the parties ought to approach any such application cooperatively and in a common-sense manner. In so far as there is any dispute regarding discovery and production, it can be brought before a Registrar or before me for determination in an expeditious manner. Relevance 1. I will deal more briefly with the other grounds on which the respondent seeks to set aside the Notice. 2. In relation to relevance, the documents sought in a subpoena or notice to produce must have apparent relevance to the issues in the proceeding, in the sense that they are reasonably likely to add in some way to the relevant evidence in the case. 3. The respondent submitted that some of the categories specified in the Notice travelled well beyond the bounds of relevance, and were likely to include many documents that have no relevance to the issues in the proceeding. The applicant sought to meet this submission by proposing to limit several of the categories so as to cover only those documents that refer to one or more of the removal of trees, the Southern Greater Glider or Leadbeater's Possum (being the affected species that are the subject of the proceeding). 4. In my view, the categories in the Notice are likely to include some documents that are reasonably likely to add to the relevant evidence in the case. In so far as the width of the categories has the potential to encompass irrelevant documents, that may be able to be addressed by refining or limiting the categories to ensure that they have apparent relevance to the issues in dispute. That is a matter that is best addressed in the course of the discovery process, if and when any application for discovery is made. 5. Because an application for discovery may come back before the Court or before a Registrar, I do not propose to address in detail whether and to what extent the categories in the Notice are relevant to the issues in the proceeding, save for the following observations. 6. Category 1 appears to be directed to evidence in support of a statement made in a departmental document that maintaining strategic firebreaks is an exempt activity under the EPBC Act. If the statement is concerned with the issue of whether or not the EPBC Act applies to that activity, it does not appear that the respondent is seeking to rely on any exemption from that Act in its defence of these proceedings. It is doubtful that the statement can be interpreted as being directed to the absence of any significant impact of the activities on the affected species that are the subject of the present proceeding. Apart from any difficulties about what is meant by documents "evidencing or supporting" the statement in question, this category as currently drafted would not appear to have any apparent relevance to the issues in the proceeding. 7. The respondent accepts that Categories 2 and 6 are relevant (in the sense that it does not raise any objection to those categories on the grounds of relevance). Category 2 is concerned with departmental opinions, advice or recommendations relating to expert assessments in relation to hazardous trees and their habitat value in respect of strategic firebreak maintenance. Category 6 covers various "site-specific values maps" referred to in a departmental document to the extent that those maps relate to hollow-bearing trees or the affected species in the Central Highlands. 8. Categories 3, 5, 7 and 8 are now proposed to be limited to documents referring to tree removal or to either of the affected species. Those categories relate to the implementation of certain recommendations contained in a departmental biodiversity assessment in relation to the impact of strategic firebreak works, including on the affected species; documents relating to the consideration of the "biodiversity duty" under the Flora and Fauna Guarantee Act 1988 (Vic) in the maintenance of strategic firebreaks in the Central Highlands; emails between the Department of Energy, Environment and Climate Action's National Environment Programmes Team and Forest Fire Management Victoria referring to strategic firebreak works in specified locations; and documents referring to planned future strategic firebreak maintenance works in the Central Highlands. 9. Category 4 is directed to sets of documents stored on the Department's Enterprise Content Management System, which comprise "ECM DocSets" for strategic fuel breaks in the Central Highlands. It is accepted that those DocSets will encompass or pick up many documents that are of no relevance to the issues in this proceeding. It is possible that the limitation proposed by the applicant or some other appropriate limitation will address that difficulty. Oppression 1. Finally, the respondent submits that compliance with the Notice will be unduly burdensome. For such purposes, the respondent relies on evidence as to the time involved in searching for, collecting and reviewing the documents responsive to each of the categories of the Notice. The upshot of that evidence is that it would take approximately six weeks to collect the documents and a further four weeks to review the documents prior to their production. The respondent also submits that the Notice is oppressive on the basis that some of the categories are imprecise or unclear. 2. If I had been satisfied that the Notice was otherwise appropriate, I would not have been inclined to set the Notice on the ground that it is unduly oppressive or burdensome. To the extent that the categories have apparent relevance to the issues in the proceeding, having regard to the current stage of the proceeding, I consider that it would not be oppressive to require the respondent to conduct the necessary searches to identify and produce the relevant documents. 3. However, for the reasons previously given, I consider that any such exercise is more appropriately conducted in the context of a discovery process. Conclusion 1. Accordingly, I will make an order that the Notice dated 4 October 2024 be set aside. 2. I propose making orders requiring any application for discovery to be made by a specified date and referring any such discovery application, if and when made, for determination by a Registrar. 3. In my view, while the respondent's interlocutory application has been successful, it is appropriate that the cost of the application should be costs in the cause. The current application might have been unnecessary if the parties had engaged with each other in relation to appropriate categories for discovery in advance of the application. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. Associate: Dated: 4 November 2024 NOTICE TO PRODUCE DATED 4 OCTOBER 2024 To the Respondent In this Notice to Produce: "Affected Species" means the Southern Greater Gliders, and/or Leadbeater's Possum "DEECA" means the Department of Energy, Environment, and Climate Action and (if relevant) its predecessors "EPBC Act" means the Environment Protection and Biodiversity Conservation Act 1999 (Cth) "HBT" means hollow-bearing trees "NEP" means National Environment Program "SFB" means Strategic Fire Break "SFB Works" means SFB maintenance and renewal works The Applicant requires you to produce the following documents or things before the Honourable Justice Horan at the case management hearing on 11 October 2024: 1. All documents evidencing or supporting the statement in your document dated January 2024 titled "Fuel Break Maintenance and Rehabilitation Management Plan Melbourne Water Catchments", a copy of which is annexed to this Notice as Annexure 1, to the effect that maintaining fire breaks is an exempt activity under the EPBC Act. 2. All emails containing opinions, advice or recommendations by an officer of DEECA or a minister, or containing consultation or deliberation that has taken place between officers of DEECA, or officers of DEECA and a minister, or ministers in respect of SFB renewal or maintenance works in the Central Highlands since 1 January 2022, that related to: a. Internal and independent expert assessments considered in determining: i. whether trees that have been felled by DEECA or its agents, or that have been proposed to be felled by DEECA or its agents, are deemed hazardous ii. the habitat value of the trees referred to in subparagraph (i) above for the Affected Species; and iii. the risk the trees referred to in subparagraph (i) above posed to the public and firefighters; and b. Authorisation for the felling of trees by DEECA or its agents in the course of conducting SFB Works. 3. All documents referring to the implementation, or proposed implementation of the following recommendations contained in the document annexed to this Notice as Annexure 2 (Biodiversity values assessment): a. Conduct of a targeted flora and fauna assessment undertaken prior to any works along the Loch Valley – Forty Mile Break (but only to the extent that the assessment relates to the Affected Species); b. In relation to the Southern Greater Glider i. Steps taken to ensure mature trees, especially HBTs and Large Old Trees are not impacted by SFB Works ii. Prevention of removal of vegetation greater than 10 years old iii. Prevention of impacting or removing known nest trees iv. Avoidance of SFB Works within breeding season of February to June v. Discussion with NEP values checker and/or Parks Victoria land managers of trees slated for removal with diameter at breast height greater than 90 cm. vi. Retention of living trees with diameter at breast height greater than 250 cm vii. Presence of a spotter during tree removal to watch for animals trying to exit the tree and to check trees post felling viii. Provision of a list of the number of trees to be removed, including the diameter at breast height and if they have hollows present c. In relation to the Leadbeater's Possum i. Prevention of cutting down known nest trees ii. Careful assessment (tree by tree) of hazardous trees iii. Restriction of tree removal to significant hazards such as a 'killer tree' iv. Prevention of SFB works within 200 m of a Leadbeater's Possum record 4. Each ECM DocSet (as the term is used in the Strategic Fuel Breaks Program Planning & Approvals Framework, at Annexure 3) dedicated to an SFB or SFB's in the Central Highlands, unless that DocSet contains no documents produced after 1 January 2022. 5. All documents not otherwise produced to the applicant, referring to the maintenance of SFBs in the Central Highlands and/or the removal of hollow-bearing trees in the course of or for the purpose of maintaining SFBs in the Central Highlands, produced or collated in the course of the respondent's consideration of the Biodiversity Duty (as referred to on page 23 of Annexure 3) since 1 January 2022 in respect of past or future maintenance of SFBs in the Central Highlands. These documents include but are not limited to the 2022 Values Checking Advice for SFB Works in the Yarra Ranges National Park and Noojee State Forest by the NEP team, prepared for Forest Fire Management Victoria. 6. The site specific values maps referred to in Tables 4 and 6 in the document at Annexure 4 (Specification for Forest Contractor Works Program), to the extent those maps relate to the Affected Species and/or HBTs within the Central Highlands. 7. Emails between the NEP team to Forest Fire Management Victoria between 1 January 2021 and 31 December 2022 referring to SFB Works in the Yarra Ranges National Park and/or Noojee State Forest. 8. Any documents referring to planned future SFB maintenance works within the Central Highlands, excluding such works referred to in documents already made available by the respondent to the applicant in the course of these proceedings.