Land and Environment Court New South Wales Medium Neutral Citation: Weston Aluminium Pty Limited v Environment Protection Authority [2021] NSWLEC 62 Hearing dates: 08 April 2021 Date of orders: 08 April 2021 Decision date: 08 April 2021 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [33] Catchwords: CIVIL PROCEDURE — Subpoenas — Application to set aside Legislation Cited: Civil Procedure Act 2005 (NSW) s 14 Evidence Act 1995 (NSW) s 55 Land and Environment Court Act 1979 (NSW) s 31 Protection of the Environment Operations Act 1997 (NSW) ss 88, 287 Protection of the Environment Operations (Waste) Regulation 2014 (NSW) cl 20 Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 34.2 Cases Cited: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 ICAP Pty Ltd v Moebes [2009] NSWSC 306 Rinehart v Rinehart [2018] NSWSC 1102 Category: Procedural rulings Parties: Weston Aluminium Pty Limited (Respondent on the Motion) Environment Protection Authority (Applicant on the Motion) Representation: Counsel: Dr S Berveling (Respondent on the Motion) T Poisel (Applicant on the Motion) Solicitors: G&B Lawyers (Respondent on the Motion) Environment Protection Authority (Applicant on the Motion) File Number(s): 2021/00032004 Publication restriction: Nil EX TEMPORE Judgment (REVISED) 1. Before the Court is a notice of motion filed on 24 March 2021 by the Environment Protection Authority ('EPA'), the respondent in the substantive Class 4 proceedings commenced by Weston Aluminium Pty Limited ('Weston'). The motion seeks an order pursuant to r 34.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') and s 14 of the Civil Procedure Act 2005 (NSW) ('CP Act') setting aside a notice to produce to court filed in the earlier Class 1 incarnation of the proceedings by Weston on 23 October 2020. 2. The motion was heard by me today. Mr T Poisel of counsel, appeared for the EPA, and Dr S Berveling of counsel, appeared for Weston. For the reasons that I now give, I have decided that it is appropriate that the notice to produce be set aside. Background 1. In the Class 4 proceedings, Weston, the owner of premises being Lot 61 in DP 1237125 and known as 129 Mitchell Avenue, Kurri Kurri on which industrial activities are undertaken pursuant to an environment protection licence, seeks a declaration that it is exempt from the requirement to pay contributions under s 88 of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act'). 2. The notice to produce the subject of the present motion seeks production of documents by the EPA, and provides as follows: "You are required to produce the following documents or things to the court: "Document(s)" has the meaning provided in the Evidence Act 1995 (NSW) and includes originals and/or copies and/or drafts of letters, emails, facsimiles, memoranda, reports, notes, and file notes, diary notes, accounts, quotations, business cards, policy and procedure manuals and any other written material (including documents stored in computerised form or electronic form) in your possession, custody, or control. 1 A copy of this Notice to Produce to Court. 2 All documents relating to the Respondent's assessment and decision dated 16 October 2020 that the Applicant is not exempt from the waste levy under clause 20(4) of the Protection of the Environment Operations (Waste) Regulation 2014, including. a. A copy of the entire file held by the Respondent; b. A copy of the entire file held by the Respondent's individual officers; c. All documents between the Environment Protection Authority officers; d. All other documents relating to the Respondent's assessment and decision dated 16 October 2020. …" 1. As some understanding of the largely uncontested background to the Class 4 proceedings provides context for the consideration of the detailed submissions made by the parties in relation to the motion, I now summarise the salient facts and relevant legislation. 2. By an application filed in Class 1 of the Court's jurisdiction on 20 October 2020 ('Class 1 proceedings'), Weston appealed against a purported "decision" of the EPA contained in correspondence dated 16 October 2020, that Weston was not exempt from a waste levy under s 20(4) of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) ('Waste Regulation'), and sought an order that: "… The Applicant is exempt from the requirement to pay contributions under section 88 of the Protection of the Environment Operations Act 1997 pursuant to clause 20(4)(a) of the Protection of the Environment Operations (Waste) Regulation 2014. …" 1. For concision and convenience, I set out below the relevant parts of s 88 of the POEO Act and cl 20 of the Waste Regulation. 2. Section 88 of the POEO Act provides: 88 Contributions by licensee of waste facility (1) This section applies to waste facilities that are required to be licensed under this Chapter. (2) The occupier of a waste facility to which this section applies is required to pay to the EPA in respect of all waste received at the facility such contribution as is prescribed by the regulations. … (5) The regulations may— (a) provide for contributions to be calculated on such basis (including such estimates), and in accordance with such factors, as may be specified or described in the regulations, and (b) provide for the exemption of specified occupiers, or specified classes of occupiers, from the requirement to pay contributions, and (c) provide for the exemption of specified wastes from the calculation of contributions (including for example wastes that are recycled, re-used, recovered or processed), and (d) provide for the payment of rebates to specified occupiers or specified classes of occupiers. … 1. Clause 20 of the Waste Regulation provides: 20 Exemption of certain other occupiers from requirement to pay contributions … (4) The occupier of a scheduled waste facility is exempt from the requirement to pay contributions to the EPA under section 88 of the Act if— (a) the facility is a scheduled waste facility only in respect of the storage, treatment, processing or sorting of clinical and related waste, hazardous waste, liquid waste or restricted solid waste (or any combination of those kinds of waste), or (b) the facility is a scheduled waste facility only in respect of the disposal of slags or virgin excavated natural material (or both of those kinds of waste). (5) Nothing in this clause exempts the occupier of a scheduled waste facility from the requirement to pay contributions to the EPA in respect of trackable liquid waste received at the facility. … 1. The Class 1 proceedings were brought pursuant to s 287(1)(b) of the POEO Act. Section 287 relevantly provides: 287 Appeals regarding licence applications and licences (1) Any person— … (b) who is or was the holder of a licence and who is aggrieved by any decision of the appropriate regulatory authority with respect to the licence, may, within 21 days (or such other period as is prescribed instead by the regulations) after being given notice of the decision of that authority, appeal to the Land and Environment Court against the decision. … (2) An appeal under this section extends to a decision to refuse the licence application, to impose conditions on the issue of a licence, to vary the conditions of a licence, to revoke or suspend a licence, to refuse to approve the surrender of a licence, to impose conditions on a revocation, suspension or surrender of a licence or to attach any new conditions to, or to vary any conditions of, a suspension, revocation or surrender of a licence. … 1. The notice to produce the subject of the present motion was filed in the then denominated Class 1 proceedings. Although not ultimately determinative, the transmogrification of those Class 1 proceedings to the present Class 4 proceedings requires some explication. 2. On 18 November 2020, the EPA filed a notice of motion in the Class 1 proceedings seeking an order that those proceedings be dismissed pursuant to r 13.4 of the UCPR, contending that the purported "decision" of the EPA in correspondence dated 16 October 2020 (that was specifically the subject of the Class 1 proceedings) was not a "decision" that was appealable under s 287(1)(b), having regard to the limited scope of decisions listed in 287(2) of the POEO Act for which there was a right of merits review, and that any "decision" made by the EPA had occurred at an earlier date such that the appeal was out of time in any event. As can be seen from the recitation of that section above, s 287(2) provides for discrete matters in relation to licences and the like for which there is a specific right of merits review. 3. The motion for the dismissal of the Class 1 proceedings was set down for hearing before Duggan J on 4 February 2021. However, by consent on that day, the Court made orders, I am told by counsel in the present matter, pursuant to s 31 of the Land and Environment Court Act 1979 (NSW), transferring the Class 1 proceedings to Class 4 of the Court's jurisdiction and setting a timetable for the conduct of the (now) Class 4 proceedings. 4. On 9 February 2021, Weston filed its summons in the Class 4 proceedings seeking a declaration that Weston is exempt from the requirement to pay contributions under s 88 of the POEO Act by reason of the exemptions contained in cl 20 of the Waste Regulation. The parties thereafter filed their respective points of claim and points of defence. The parties also filed affidavits in the Class 4 proceedings. Statutory framework 1. The EPA relies on r 34.2(1) of the UCPR which provides: 34.2 Production under notice to produce to court (1) Unless the court orders otherwise, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession. … 1. The EPA also relies on s 14 of the CP Act which contains a general power of the Court to dispense with any requirement of the rules of the Court. Section 14 provides: 14 Court may dispense with rules in particular cases In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case. Evidence 1. The EPA reads the affidavit of James Herbert Marshman, solicitor, affirmed 24 March 2021 and the documents exhibited thereto, comprising correspondence between the parties which included correspondence from the EPA to Weston's solicitors dated 8 March 2021, requesting that Weston identify the forensic purpose and/or the relevance of the documents sought in the notice to produce, on the basis that the proceedings no longer dealt with an appeal in Class 1 of the Court's jurisdiction. The EPA indicated that it did not consider the documents sought in the notice to produce to be relevant to the now Class 4 proceedings. By reply correspondence from Weston's solicitors to the EPA dated 10 March 2021, Weston's solicitors responded that the documents sought in the notice to produce "go directly to the issue of whether the declaration sought should, or should not, be made". Weston's solicitors specifically contended that the purported "decision" of the EPA in correspondence dated 16 October 2020 remained directly relevant to the relief now sought in the Class 4 proceedings. Submissions 1. The parties provided detailed written and made oral submissions. Without disrespect to the careful submissions made by counsel, I summarise briefly the submissions made. The EPA's position 1. The EPA makes four related submissions. First, it says that the summons and the points of claim do not seek to challenge the "validity" of the purported "decision" that was the subject of the earlier Class 1 incarnation of these Class 4 proceedings. Second, the documents sought by the notice to produce, comprising all the documents relating to the EPA's assessment and the purported "decision" in correspondence dated 16 October 2020, are not relevant to any issue articulated or otherwise relevant to these Class 4 proceedings. Third, that despite Weston's solicitors making certain assertions in their correspondence dated 10 March 2021 to the EPA (including that the EPA's correspondence dated 16 October 2020 was the "latest of a series of communications" in relation to the EPA's position that Weston is not exempt from the waste levy and, in those circumstances, the material surrounding that correspondence is directly relevant to the declaration sought), the correspondence dated 10 March 2021 from Weston did not identify how the documents sought in the notice to produce would satisfy any of the formulations in the test for legitimate forensic purpose appropriately and frequently adopted by the courts. Finally, the EPA submits that the nature of the dispute presently before the Court in the Class 4 proceedings is confined to an issue of statutory interpretation. In those circumstances, Weston has not satisfied the onus which it has to indicate to the Court why the documents sought in the notice to produce have a legitimate forensic purpose. Weston's position 1. Weston also makes four submissions. First, that the documents sought in the notice to produce will materially assist the Court and, in any event, that there is a reasonable basis beyond speculation that the documents are likely to assist the question of whether Weston is exempt from paying contributions under s 88 of the POEO Act. Second, there is a sufficient apparent connection between the issue in the Class 4 proceedings and the documents to justify their production or inspection (here Weston refers to the matters it set out in its correspondence dated 10 March 2021 to the EPA). Third, the documents sought go directly to the issue before the Court and could rationally affect the "assessment of the probability of the existence of a fact in issue", adopting the words of s 55 of the Evidence Act 1995 (NSW). Fourth, that it is "on the cards" that the documents sought will materially assist the issue and/or that the documents "could reasonably throw light on" that issue and, that there is a reasonable basis "beyond speculation" that the documents will materially assist. 2. Weston also submits that the scope of the documents sought in the notice to produce is confined and clear and not a "fishing expedition", and notes that there is no objection by the EPA to the width of the wording of the notice to produce. Consideration 1. I consider that the relevant legal principles which I am required to apply in dealing with the respective submissions of the parties were succinctly stated by Ward J, CJ in Eq, in Rinehart v Rinehart [2018] NSWSC 1102 ('Rinehart') at [43]-[48], [51], as follows: "[43] As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: … it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will. [44] Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]): … the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise. [45] In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306). [46] More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]). [47] Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA). [48] Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said: A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition". … [51] It is well recognised that a subpoena may be set aside as an abuse of process where it is used as a substitute for discovery or discovery against a third party (see Associated Dominions Assurance; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed))." 1. By way of summary, having considered the various authorities up until at least 2018, her Honour noted the following: 1. It must be shown that the documents sought will materially assist the case, or that there is a reasonable basis beyond speculation that they are likely to assist: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9], [13]-[14]; 2. The context of the particular case, or identified issue, is relevant to the determination of a legitimate forensic purpose: ICAP Pty Ltd v Moebes [2009] NSWSC 306 at [33]; 3. While there are various formulations of the test in civil proceedings, the task to be undertaken is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings: Rinehart at [47]; and 4. Without a legitimate forensic purpose, issuing a subpoena may be a fishing expedition: Rinehart at [48]. 1. I have adopted those principles in my consideration of the matters presently before me. I have also considered the cases referred to by the parties in their respective submissions (and the cases referred to as authorities in those cases). 2. For the reasons that follow, I consider that Weston has not satisfied its onus to establish a legitimate forensic purpose for the notice to produce, and that the EPA is entitled to the relief sought. Before coming to the discrete reasons, I make a number of preliminary remarks. 3. First, the essential dispute in the Class 4 proceedings is clearly related to the proper construction of, and interaction between, s 88 of the POEO Act and cl 20 of the Waste Regulation. Obviously, there will need to be facts upon which the Court will consider this dispute, but that does not mean that those facts are otherwise in dispute. Second, although I have a concern as to the width of the wording of the notice to produce, as this is not a submission discretely made by the EPA, I do not give it weight in my consideration of the motion. Third, and moreover, Weston has not called evidence or articulated with precision a discrete issue in dispute against which the legitimate forensic purpose for the call for the documents in the notice to produce could be measured. In this respect, I do not accept that the matters set out in Weston's solicitors' correspondence dated 10 March 2021 provide any clarification of the issue in dispute, and the relevance of the documents sought in the notice to produce to this issue. 4. Finally, I am conscious that if the issue before the Court was otherwise than set out in the Class 1 proceedings – that is, if it was the fact that the EPA's correspondence dated 16 October 2020 was a "decision" that could be challenged – the documents sought in the notice to produce may have had some greater relevance. However, I am of the view, although it is not a matter for me to decide, that the relief sought in the Class 1 proceedings prior to its reincarnation as the (now) Class 4 proceedings seeking declaratory relief would not have been able to have been progressed as it appears to me, as I have indicated earlier, that s 287(2) of the POEO Act does confine the scope of any appeal otherwise available under s 287(1)(b) of the POEO Act. As such, I accept that the decision to progress the dispute by way of the Court's Class 4 jurisdiction, which was done by way of agreement between the parties, was understandable. 5. Those matters aside, I am now confined to considering the legitimate forensic purpose of the documents sought in the notice to produce with respect to the relief now sought in the summons in the Class 4 proceedings. Considering the relief now sought, and the matters raised in the points of claim and the points of defence, as well as the positions stated in the correspondence that has passed between the parties, I am satisfied that as there is now no discrete challenge to what may have been, or what is said to be, a "decision" constituted by the EPA's correspondence dated 16 October 2020. Confirming this, I also note that there is no reference at all to the purported "decision" in the correspondence dated 16 October 2020, or the prior conduct of the EPA, in the summons or in the points of claim now filed. 6. I note that the context of the particular case is relevant to the determination of the legitimate forensic purpose. In these circumstances, I am not satisfied that the context which I have outlined in the background above assists in establishing a legitimate forensic purpose for the documents sought. 7. I accept the submission which I have summarised earlier, that the Court takes into account the nature of the dispute, and here I consider that the nature of the dispute in the Class 4 proceedings is confined to the issue of statutory interpretation. As such, the documents sought must be considered against the real nature of the extant Class 4 proceedings, which as I have indicated on a number of occasions, deals with, and is related to and concerns, the construction and application of s 88 of the POEO Act and cl 20 of the Waste Regulation and the interaction between those two provisions. In these circumstances, I do not accept that any previous consideration undertaken by the EPA which resulted in the purported "decision" of the EPA in correspondence dated 16 October 2020 would be material to the matters now before the Court, except by way of some background material or context. 8. The determination of a legitimate forensic purpose of a notice to produce necessarily depends upon identification of the case which is likely the documentation will assist. As has been noted in the cases referred to, meeting the test of a legitimate forensic purpose becomes difficult when the issue in proceedings relied upon cannot be identified, either because it has not been included in the pleadings or the particulars, or the terms in which it has been expressed are obscure or imprecise. The material in Weston's correspondence dated 10 March 2021 satisfies me that the identification of the issue in proceedings is obscure and imprecise. It cannot be said, as I understand is submitted by Weston, that the relevant issue in proceedings is whether or not the Court would make the declaration. As such, I cannot accept that the previous consideration of the EPA is relevant, such that the documents should be produced. As such, there has been no identification of an issue in proceedings where the documents sought will materially assist the case or that there is a reasonable basis beyond speculation that the documents are likely to assist. Costs 1. I consider that these are interlocutory proceedings in which costs ordinarily follow the event and, as the EPA has enjoyed success, I consider that Weston should pay the EPA's costs. Orders 1. The orders of the Court are: 1. The notice to produce to court filed by Weston Aluminium Pty Limited on 23 October 2020 is set aside. 2. Weston Aluminium Pty Limited, the respondent to the notice of motion, is to pay the Environment Protection Authority's costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2021