Reported Decision : (2006) 145 LGERA 137 Land and Environment Court of New South Wales CITATION : Terry Street Pty Limited v Leichhardt Municipal Council [2006] NSWLEC 129 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Terry Street Pty Limited PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 11464 of 2005 CORAM: Jagot J KEY ISSUES: Practice and Procedure :- Leave to inspect documents produced under subpoena - motion to set aside subpoena in part - legitimate forensic purpose and relevance - confidentiality undertakings Environmental Planning and Assessment Act 1979 s 79C, s 97 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 1 r 5A, Pt 6 r 1(1) Supreme Court Rules 1970 Pt 37 r 9(3) Australian Broadcasting Commission v Parish and Others (1980) 29 ALR 228; Church of Scientology of California v Department of Health and Social Security [1979] 1 WLR 723, [1979] 3 All ER 97; Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99; Kimberley Mineral Holdings Ltd (in liq) and Another v McEwan [1980] 1 NSWLR 210; Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1254; CASES CITED: National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372; NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139; Principal Registrar of the Supreme Court of New South Wales v Ali Tastan (1994) 75 A Crim R 498; Russell v Russell (1976) 134 CLR 495; Scott v Scott [1913] AC 417; The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 DATES OF HEARING: 16/3/2006, 17/03/2006 DATE OF JUDGMENT: 03/21/2006 APPLICANT H Macfarlane (solicitor) SOLICITORS LEGAL REPRESENTATIVES: Minter Ellison RESPONDENT J Reid (solicitor) SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 21 March 2006 11464 of 2005 TERRY STREET PTY LIMITED] Applicant LEICHHARDT MUNICIPAL COUNCIL Respondent JUDGMENT Jagot J: The Appeal 1 Leichhardt Municipal Council ("the Council") is the respondent to an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against its deemed refusal of DA 2004/632 dated 15 April 2004 for the development of a bulky goods retail building and gymnasium on the property known as 120 Terry Street, Rozelle. 2 The applicant for consent is Terry Street Pty Limited, an entity related to Multiplex Developments Australia Pty Limited ("Multiplex"). The Subpoena 3 On 27 February 2006, the Council served a subpoena for production on Multiplex. That subpoena has subsequently been amended on a number of occasions, including on 16 March 2006 (following the principal argument on the motion). The Council also foreshadowed that it was willing to make a further amendment to the subpoena by moving the preamble after para 2 in the schedule to the subpoena (although a document in that form has not yet been filed). The amended subpoena (including the foreshadowed amendment which has not yet been filed) requires Multiplex to produce the following documents: SCHEDULE 1. Balmain Employment Precinct Economic Assessment of Proposed Rezoning prepared by Urbis JHD dated July 2005; 2. Transport Report: Terry Street Precinct Rezoning Application dated August 2005; All files, books, papers, applications, reports, memoranda, correspondence, plans, maps and all other records of whatever kind and in whatever form relating or referring to: 3. The name or names of the prospective operator of the proposed gymnasium; 4. Any contract, draft contract or negotiations that have been entered into on behalf of Multiplex Developments Australia Pty Limited, Multiplex Developments, Multiplex Balmain Holdings Pty Limited, Multiplex Balmain Pty Limited and Terry Street Pty Limited with prospective tenants for the proposed development in development application 2004/632 lodged with Leichhardt Municipal Council and dated 15 October 2004. 4 On 10 March 2006, Multiplex filed an amended notice of motion seeking orders that the subpoena (in the form it then took) be set aside in its entirety or, alternatively, that access to the documents produced be made subject to certain confidentiality undertakings. Due to amendments to the subpoena arising from the hearing of the motion, the remaining issues in dispute are within a narrow compass. 5 Multiplex now contends that: (i) the order for access to the documents in paras 1 to 4 should be subject to the Council giving an undertaking as to confidentiality over and above the usual implied undertaking (namely, that the documents, and information contained in the documents, will not be used for any purpose other than the litigation); (ii) the documents sought to be produced under paras 3 and 4 are irrelevant and, to that extent, the subpoena ought to be set aside. 6 For its part, the Council was prepared to accept that the documents falling within para 4 of the schedule to the further amended subpoena were confidential and indicated that it would be willing to give undertakings as to confidentiality over and above the implied undertaking with respect to those documents. The Council disputed the confidentiality of the documents falling within paras 1 to 3. It pressed for ordinary access orders for all documents within paras 1 to 3 subject to the usual implied undertaking. The relevant background 7 Under cover of a letter dated 12 October 2005, Multiplex provided to the Council an "information pack" relating to "the Terry Street precinct rezoning application". The letter described the material within the "information pack" as "sensitive" and "highly confidential" in respect of which "public disclosure could result in a significant adverse effect on the proposal's commercial viability resulting in negative impacts on the company itself". The information pack includes the documents described in paras 1 and 2 of the further amended subpoena. The Council apparently allowed the documents to be lodged on this basis. 8 Neither the 12 October 2005 letter, nor the fact that a rezoning is foreshadowed by Multiplex, nor indeed certain details associated with the proposed rezoning, are claimed by Multiplex to be confidential. Certain information relating to the proposed rezoning, for example, has been released by Multiplex and has been published in a newspaper article. Rather, Multiplex submits that the precise details of the rezoning disclosed in the documents (as noted, two of which are the subject of the subpoena as amended) are confidential in that:- (i) there was no rezoning application as yet, the documents being a foreshadowed application at best, (ii) knowledge of the details within the documents may benefit commercial competitors of Multiplex. 9 After the subpoena was amended, I gave Multiplex leave to rely on such further evidence as it saw fit with respect to the confidentiality of the documents falling within paras 1 to 3 of the amended subpoena (as the Council, prior to the hearing of the motion, had not raised any concern with the provision of the confidentiality undertakings sought by Multiplex with respect to all documents sought by the Council in the subpoena). Multiplex informed me on 17 March 2006 that it did not propose to rely on any further evidence. 10 The land to which the development application relates is part of the land the subject of the proposed rezoning (although the proposed rezoning apparently relates to a considerably larger area of land). The applicant for consent, as noted, is an entity related to Multiplex. Principles 11 Documents produced in answer to a subpoena are produced to the Court and not to the parties (see Pt 37 r 9(3) of the Supreme Court Rules 1970 as incorporated by reference into the Land and Environment Court Rules 1996, Pt 6 r 1(1)). Hence, it is a matter for the Court to determine whether, when and in what circumstances the documents may be made available to the parties ( National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372). (See Butterworths, Ritchie's Supreme Court Procedure NSW, Vol. 1 at [37.9.1].) 12 Where the recipient of a subpoena contends that the documents required to be produced are not relevant to the proceedings and that, consequently, the subpoena is not for a legitimate forensic purpose, it is "the duty of the Court to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made" ( Principal Registrar of the Supreme Court of New South Wales v Ali Tastan (1994) 75 A Crim R 498 at 504, cited in NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [21] – [22]). 13 The standard of relevance on the production of documents pursuant to subpoena is "sufficient" or "apparent" relevance. This recognises the fact that there are distinct steps involved in the subpoena procedure. The first step is the bringing of the documents to the Court. The second step is the decision of the Court to permit inspection of the documents. The third step is the admission into evidence of the documents (in whole or part) or their use (such as in cross-examination or otherwise) (see The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 and National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 381). 14 At the second step in the process, sufficient or apparent relevance is established if the documents may add in some way to the relevant evidence in the case, whether or not the documents are themselves admissible ( Waind & Hill at 385). A document may add to the relevant evidence in the case where, for example, it will provide material to assist in cross-examination or will assist in the presentation of the hearing (for example, by providing information which may then be established in some other manner). Hence, at the second step in the process, the test of relevance is not particularly onerous. 15 The Court has discretion to grant leave to parties to inspect documents. In an appropriate case, it may be in the interests of justice to permit inspection subject to undertakings as to confidentiality over and above the implied undertaking or to restrict the classes of persons who may inspect the documents (although, in the ordinary course, inspection would be limited in any event to the legal representatives of the parties and their experts, given the terms of the implied undertaking). 16 The Court exercises its discretion having regard to the interests of justice (considered in a principled manner and not by reference to any vague notions of fairness operating at large). It evaluates multiple interests. On the one hand, there is the interest in ensuring that all relevant material may be placed before the Court in the most convenient and effective manner. On the other, there is the interest in ensuring that a recipient to a subpoena yields control of their documents only insofar as reasonably may be necessary in order fairly to determine the proceedings before the Court ( Kimberley Mineral Holdings Ltd (in liq) and Another v McEwan [1980] 1 NSWLR 210 at 211). The exercise of the discretion is also to be informed by the overriding purpose of the Land and Environment Court Rules 1996 as set out in Pt 1 r 5A – namely: (1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings. (2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule. 17 In Church of Scientology of California v Department of Health and Social Security [ 1979] 1 WLR 723 at 735; [1979] 3 All ER 97 at 106 – 107, Stephenson LJ said: The court has always, in my judgment, inherent jurisdiction to prevent abuse of that process, and indeed must take steps to prevent it of its own motion, as where illegality is brought to its attention. Discovery, including production of documents for inspection, is part of its process to enable an action to be carried to a just conclusion. As Lord Denning MR said in Riddick's case ([1977] 3 All ER 677 at 688, [1977] QB 881 at 896): 'A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose.' To use a document produced for inspection for a collateral or ulterior purpose is a misuse against which the court will proceed for contempt or by injunction: see Alterskye v Scott . But that proceeding may be after the abuse has taken place. The court has power to prevent or reduce the chance of such an abuse taking place by an undertaking. As it seems to me, it can do it in two ways; it can do it either by refusing an order except on an undertaking or it can do it by giving an order conditional on an undertaking being given. Which way it does it does not seem to me to matter, and seems to me a question of form rather than substance, with all respect to counsel for the plaintiffs' argument. Furthermore I do not think it matters in most cases whether the object of preventing an abuse of process is achieved or attempted to be achieved by restricting inspection to a person other than the party or only by refusing to order any inspection unless the party undertakes not to misuse the material. In most cases, an undertaking is unnecessary because it is implied, as was pointed out in Alterskye v Scott where an undertaking was refused. In the remainder, an undertaking by the party himself or by his counsel or solicitor may be enough; but it seems to me that there is a very small hard core of cases where the undertaking is not enough and where the court may come to the conclusion that the party cannot be trusted not to misuse the information and so abuse the process of discovery. 18 This decision has been referred to with approval or applied on a number of occasions (for example , Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1254 , Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210, Australian Broadcasting Commission v Parish and Others (1980) 29 ALR 228). Conclusions Relevance – paras 3 and 4 19 Multiplex submits that the identity of tenants, prospective tenants, or tenants potentially identified by it for the purpose or negotiations, cannot have any relevance to the determination of its appeal. This submission, presumably, is based on the principle that planning is not concerned with the identity of the user, but the use of land (see, for example, the authorities collated by Preston J in Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 in particular as at [34]). 20 The correctness of this principle is not in issue. The submission, however, disregards two important considerations which are relevant (or potentially relevant) to assessing a proposed use under s 79C of the Environmental Planning and Assessment Act 1979. (1) The range of potential users may well be relevant to the nature and intensity of the likely range of uses within the (sought to be) authorised purpose and, hence, relevant to the assessment of the nature and degree of likely impacts (economic and traffic in particular) raised in the Council's statement of issues. It is for this reason that the absence of any concluded lease, licence or agreement is not to the point (although, apparently, an agreement has been concluded with the gymnasium operator). This consideration is analogous to Preston J's observation in Jonah at [38] – [39] that past uses may be relevant to an assessment of the impacts likely to be associated with a proposed use; equally, the identity of the user or the likely range of potential users may be relevant. This consideration has particular force in this case given the issues raised by the Council in its statement of issues (particularly issue 2, 5 and 8(a)). (2) The test of relevance at this stage is not particularly onerous. The documents sought by paras 3 and 4 of the amended subpoena, having regard to my observations at (1) above, may well add to the relevant evidence in the case even if those documents are not themselves admissible (by way, for example, of cross-examination of the applicant's experts as to the legitimacy of assumptions about the nature and degree of likely impacts anticipated or by providing a factual foundation for assumptions to be made by the Council's experts). 21 Accordingly, I am satisfied that paras 3 and 4 of the amended subpoena have a legitimate forensic purpose. I thus decline to make the order sought setting aside those paragraphs. Confidentiality 22 I will deal with the documents in para 4 of the amended subpoena first. The Council accepts that those documents are confidential and has indicated it is willing to provide the confidentiality undertakings sought. I agree with this acknowledgment by the Council. From the nature of the documents the subject of para 4, I am prepared to infer that such documents are confidential and that disclosure beyond the legal representatives of the parties and (if necessary) their experts, is inappropriate. I accept that the implied undertaking (at least at this time) may be insufficient protection for Multiplex with respect to those documents, having regard to the potential commercial sensitivity of ongoing negotiations with prospective tenants. 23 As the Council accepts that it should provide the confidentiality undertakings sought by Multiplex with respect to these documents, it is not necessary that I make any special order. However, I consider it appropriate that I do so to ensure that there is no dispute between the parties with respect to the form of the undertaking. The form of undertaking incorporated within my orders is the undertaking as agreed between the parties subject to minor amendments. 24 With respect to para 3 of the amended subpoena, the name of the prospective operator of the proposed gymnasium does not strike me as confidential. Although I gave Multiplex the opportunity to put evidence before me with respect to the confidentiality of the documents within para 3, no such evidence (such as the terms of the agreement) was provided. I do not accept that the mere name of the operator is confidential if a concluded agreement with that operator has been reached (as, apparently, is the case). I do accept that documents leading up to the concluded agreement with the operator and parts of the concluded agreement (other than the part recording the operator's name) and documents relating to parties who were unsuccessful in their negotiations may be confidential. I propose to tailor my orders accordingly. 25 The confidentiality of the documents described in paras 1 and 2 of the amended subpoena poses the greatest difficulty for Multiplex. I have inspected those documents. Notwithstanding the letter from Multiplex to the Council of 12 October 2005 asserting the sensitivity and confidentiality of those documents, and the Council's (apparent) acceptance of the provision of the documents on that basis, I am unable to accept that assertion. 26 The critical fact in this regard is that the documents the subject of the claimed confidentiality have been provided to the Council for the purpose of the Council potentially exercising (even if in the most preliminary sense) a public function under the Environmental Planning and Assessment Act 1979. It is not apparent to me that a prospective applicant for a rezoning may lodge with a council documents relating solely to the potential exercise by the council of the public function of rezoning land (no matter how inchoate the proposal) on a "confidential" basis. The applicant (or prospective applicant) controls the timing of the provision of documents to a council in this respect and can thus protect itself against disclosure that it considers to be premature. However, once the documents are provided to the council, the performance of public functions by the council is potentially enlivened. I consider that such documents lose any quality of confidentiality on provision to the council in these circumstances, absent some fact or facts which may give rise to a different result (such as, possibly, the involvement of some commercial or proprietary interest of the council itself). I do not consider the assertion of confidentiality by Multiplex in its letter, or the apparent acceptance by the Council of that assertion, lead to a different result in this case. 27 Moreover, there is no evidence (other than the assertion in the 12 October 2005 letter) that the documents falling within paras 1 and 2 of the amended subpoena contain confidential information. I have examined the documents and am unable to discern the presence of confidential information in them (as noted, I do not consider the details of the rezoning, having been given to the Council, to be confidential). 28 Finally, there are substantial countervailing considerations that operate with respect to the documents identified in paras 1 and 2 of the subpoena. One aspect of the interests of justice is that proceedings must ordinarily be conducted in public ( Scott v Scott [1913] AC 417 at 441; Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J cited in Australian Broadcasting Commission v Parish & Ors (1980) 29 ALR 228). I consider that the making of orders by the court for confidentiality undertakings (over and above the implied undertaking) ought to be limited to that "small hard core of cases where the undertaking is not enough" in all of the circumstances (see Church of Scientology of California v Department of Health and Social Security [ 1979] 1 WLR 723 at 735; [1979] 3 All ER 97 at 107). The documents identified in paras 1 and 2, in the circumstances of this matter, are not part of such a class. 29 For the reasons I have given, I am not satisfied that inspection of the documents which fall within paras 1 and 2 of the subpoena should be made conditional on the giving of any confidentiality undertaking. I consider the implied undertaking that will apply to be sufficient. 30 By reasons of the matters set out above, I propose to make orders to the following effect, subject to the parties addressing me further, if necessary, with respect to the return date of the further amended subpoena: (1) The orders made by me during the hearing of the notice of motion on 14 March 2006 that those parts of the transcript dealing with the following documents not be made public be revoked: (a) Economic Assessment of Proposed Rezoning – Urbis JHD dated July 2005. (b) Transport Report - Terry Street Precinct – Rezoning Application dated August 2005 prepared by Masson Wilson Twiney. (2) The respondent is to forthwith file and serve a further amended subpoena conforming to its foreshadowed further amendment thereto (as identified in para 3 of my reasons for judgment). (3) The further amended subpoena is to be returnable before the Registrar on 24 March 2006. (4) The grant of leave of the Court to the parties to inspect the documents produced in answer to paras 3 and 4 of the subpoena from the respondent to Multiplex Developments Australia Pty Limited is subject to the person inspecting the documents providing an undertaking as to confidentiality to the same general effect as the undertaking set out in Annexure "A" hereto except that no such undertaking is required with respect to any document (or part) that discloses the name of the actual operator of the gymnasium as proposed in development application 2004/632 lodged with the respondent on or about 15 October 2004. Such undertakings, as and when executed, are to be provided to the solicitor for Multiplex Developments Australia Pty Limited and are not to be filed with the Court absent leave being granted to do so. (5) The notice of motion dated 10 March 2006 filed on behalf of Multiplex Developments Australia Pty Limited is otherwise dismissed. (6) All exhibits are returned. (7) Grant to each party liberty to restore on 24 hours' notice. (8) Costs of the motion are reserved. ********** ANNEXURE "A" IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES No. 11464 of 2005 TERRY STREET PTY LIMITED Applicant LEICHHARDT MUNICIPAL COUNCIL Respondent CONFIDENTIALITY UNDERTAKING I, of undertake to the Court in relation to the documents produced by Multiplex Developments to the Court, either formally or informally, in response to paragraphs 3 and 4 of the Schedule to the Subpoena for Production dated 27 February 2005 (as amended) issued in these proceedings to Multiplex Developments at the request of the Respondent ("Documents") and in relation to the contents of the Documents ("Information") that: 1 I will not use the Documents, the Information or any part of them except for the purposes of these proceedings. 2 I will not disclose, without the leave of the Court, the Documents and the Information to any other person other than: (a) a Judge or Commissioner of the Court and the Court's administrative staff; (b) Multiplex Developments, its employees and legal representatives; (c) the Applicant, its employees and legal representatives; (d) the following persons, provided they have executed a confidentiality undertaking in the same form of this undertaking and a copy of which has been provided to the solicitors for Multiplex Developments: (i) legal advisors of the Respondent; (ii) any employee of the Respondent; (iii) any expert witness briefed to give evidence on behalf of the Respondent at the hearing of these proceedings; and (iv) any expert witness appointed by the Court to give evidence at the hearing of these proceedings. 3 When the proceedings are resolved by way of judgment or otherwise, I will return all copies of the Documents which I hold to the solicitors for Multiplex Developments. 4 This undertaking does not apply to any part of the Documents or Information which is made public at any time. DATED: SIGNED: 27/03/2006 - Addition of reference to Butterworths Ritchie's Supreme Court Procedure NSW, Vol. 1 at [37.9.1] - Paragraph(s) 11 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.