Land and Environment Court of New South Wales CITATION : Hodgson & Ors v The Minister Administering the Water Management Act 2000 & Ors [2007] NSWLEC 193 FIRST APPLICANT Mark Wentworth Hodgson SECOND APPLICANT M W Hodgson Investments Pty Ltd THIRD APPLICANT Peter Grace PARTIES : FIRST RESPONDENT The Minister Administering the Water Management Act 2000 SECOND RESPONDENT Namoi Catchment Management Authority THIRD RESPONDENT Director General Department of Natural Resources FILE NUMBER(S) : 41273 of 2006 CORAM: Jagot J KEY ISSUES: Practice and Procedure :- subpoena - motion to set aside subpoenas - insufficient particularity - oppression - subpoenas set aside LEGISLATION CITED: Water Management Act 2000 s 87AA Bailey & Others v Beagle Management Pty Limited & Others (2001) 182 ALR 264; CASES CITED: National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372; The Commissioner for Railways v Small (1938) 38 SR 564; Regina v Timothy Edward Anderson [1989] NSWCCA No 60439 of 1989 (Unreported, 12 October 1989) DATES OF HEARING: 28 March 2007 EX TEMPORE JUDGMENT DATE : 28 March 2007 APPLICANTS ON NOTICE OF MOTION (The Minister and the Secretary of the Department of the Environment and Water Resources and the National Water Commission) Mr S Vorreiter (solicitor) SOLICITORS Australian Government Solicitor RESPONDENTS TO NOTICE OF MOTION LEGAL REPRESENTATIVES: (First and Second Applicants) Mr P King SOLICITORS Lyons Barnett Kennedy FIRST TO THIRD RESPONDENTS No appearance SOLICITORS Crown Solicitor's Office JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 28 March 2007 41273 of 2006 MARK WENTWORTH HODGSON First Applicant M W HODGSON INVESTMENTS PTY LTD Second Applicant PETER GRACE Third Applicant THE MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 First Respondent NAOMI CATCHMENT MANAGEMENT AUTHORITY Second Respondent DIRECTOR GENERAL DEPARTMENT OF NATURAL RESOURCES Third Respondent JUDGMENT Jagot J: A. Introduction 1 This is a notice of motion by The Minister and The Secretary of the Department of the Environment and Water Resources and the National Water Commission to set aside two subpoenas. The first subpoena was issued to "The Water Resources Commission, Department of the Environment and Water Sources" and the second to "The Honourable Malcolm Turnbull Minister for National Water Commission, Department of the Environment and Water Resources". The subpoenas were filed with the Court on 27 February 2007. 2 While there are some issues with respect to the names of the person and bodies identified in each subpoena, the parties have made arrangements that make it unnecessary for me to deal with any such issue. Accordingly, I may move straight to the substance of the notice of motion to set aside the subpoenas. 3 The recipients seek to set aside the subpoenas on three grounds as follows: (1) The subpoenas do not identify the documents sought with reasonable particularity. (2) The subpoenas are an exercise in fishing as they seek all documents in respect of wide subject matters. (3) The subpoenas are oppressive in the sense that they impose an unduly onerous obligation upon a person to collect and produce documents which can have little or no relevance to the proceedings. 4 The class 4 proceedings seek various declarations and orders with respect to the Water Sharing Plan for the Upper and Lower Namoi Groundwater Sources 2003 and a related amendment order of 2006. In effect, the proceedings seek declarations that those instruments are void and that related decisions with respect to those instruments are void. The applicants also seek declarations that, but for certain breaches of the Water Management Act 2000 as alleged, the applicants are persons to whom (relevantly) s 87AA of the Water Management Act 2000 would apply and there is in force an agreement between the Commonwealth and the State of New South Wales for the payment of compensation to the applicants for the purpose of paying farmers, and the applicants in particular, for the reduction in their water access licence allocations. 5 The class 4 application is supported by points of claim which, insofar as relevant, reflect the claims for declarations relating to s 87AA of the Water Management Act 2000 and include certain allegations with respect to alleged failures of consideration by the respondent of socio-economic issues which the applicant says were required to be considered by law. 6 The schedule to each subpoena in substantially the same terms comprises eleven paragraphs. Through the course of the hearing of the notice of motion it has been clarified that para 3 of each subpoena is not pressed and that paras 5, 6 and 7 of each subpoena, insofar as they use the word "concerning", should be understood as meaning the words "referring to". 7 The basis of the application to set aside the subpoenas on the three grounds to which I have referred can best be understood by considering certain paragraphs of the subpoenas by way of example. Accordingly, para 4 seeks production of: All reports, file notes, memoranda, including original and copy documentation between 1 January 2005 and the date of this subpoena referring to the payment or possible payment of compensation to irrigation farmers in New South Wales whose water allocations have been or will be reduced by State laws, including but not limited to the amount of such compensation, the nature and extent of funding by the Commonwealth to the State, the effect of taxation laws, and investigations. Similarly para 5 requires production of: All correspondence between the Water Resources Commission and the State of New South Wales including any officer or organization which is part of the State between 1 January 2005 and the date of this subpoena concerning the payment of compensation or other moneys by the Commonwealth to the State for the purposes of compensating irrigation farmers in New South Wales for the reduction in water allocations or water licences, including copy correspondence, facsimile transmissions and emails. B. Submissions 8 Mr Vorreiter, who appeared on behalf of the recipients to the subpoenas, submitted that the subpoenas are: - (a) manifestly deficient in that they seek production of such wide classes of documents absent any reasonable particularity, and (b) manifestly oppressive in that it is obvious from their face that they would involve application of enormous resources to trawl through an extraordinary range of documents in order to ascertain whether any one or more of those documents might fall within any of the paragraphs of the subpoenas, including for example paras 4 and 5 which I have quoted. In this context Mr Vorreiter also observed that the proceedings are in essence a judicial review application relating to the actions of the State Government. Accordingly it could not be said that, having regard to the nature of the proceedings, the production of the documents sought is reasonably necessary fairly to dispose of the proceedings. 9 Mr King of counsel appeared on behalf of the applicants. He submitted that there was no evidence that production of the documents would be oppressive. By that I understood Mr King to mean there was no affidavit evidence before the Court that, for example, it would take some extraordinary effort or amount of time to produce these documents. This is indeed so because Mr Vorreiter relied on the subpoenas being manifestly oppressive on their face. Mr King also submitted that there was no basis for the suggestion that the subpoenas involve a fishing expedition. When regard is had to the points of claim in the proceedings and the class 4 application Mr King submitted that it was obvious that there was a "prior pleading which raised issues for which the evidence sought by the process would be relevant" (Bailey & Others v Beagle Management Pty Limited & Others (2001) 182 ALR 264 at [28]). Accordingly that left the first ground relied upon by Mr Vorreiter - the subpoenas did not identify the documents sought with particularity. Mr King said that it was necessary to consider the context of the subpoenas having regard to the terms of s 87AA of the Water Management Act 2000. Insofar as relevant subs (2) provides that a holder of an access licence to which the section applies whose water allocations are reduced because of a change to provisions of the relevant management plan dealing with water sharing is entitled to compensation as assessed by the Minister in accordance with subss (5) and (6). Subsections (5) and (6) then set out a specific regime for the payment of compensation, however subss (8) and (9) relevantly provide as follows: (8) This section has effect only while there is in force an agreement entered into by, or on behalf of, the State and the Commonwealth for or with respect to supplementing the payment of compensation under this section. (9) Despite any other provision of this section, no compensation is payable under this section in respect of a reduction in water allocations of the kind referred to in subsection (6) if the Commonwealth has not provided funding in respect of that reduction to meet its obligations under the agreement referred to in subsection (8). 10 Accordingly, Mr King submitted that it was obvious that the existence of an agreement and funding under the agreement are relevant matters for the purpose of these proceedings. Further, with respect to the authorities relied upon by Mr Vorreiter, consideration of The Commissioner for Railways v Small (1938) 38 SR 564 discloses that the subpoena there in question was wholly objectionable having no time limits, no geographical limits and in fact no limits in terms of the relationship between the defendant in those proceedings and the trains about which documents were sought to be produced. Mr King submitted that when regard is had to the particular paragraphs of the subpoenas in this case, what is involved on the part of the recipients is an arid textual objection because those paragraphs are limited by reference to date and subject matter. 11 Mr King also noted that it is not the case that a subpoena in general terms is necessarily bad having regard to the observations in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 382 where Moffit P observed: It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of "discovery". To state it does involve a misconception of the different functions of discovery and of a subpoena for production. 12 This founded Mr King's submission that the allegation of absence of reasonable particularity could not operate in this case unconnected, as it were, to any real suggestion of oppression or fishing. C. Decision 13 I accept that the class 4 application and the pleadings in this case raise an issue under s 87AA of the Water Management Act 2000. This section refers to an agreement between the State and the Commonwealth with respect to supplementing the payment of compensation under the section and the provision of funding by the Commonwealth. I understand the phrase "that reduction" in s 87AA(9) to be a reference to a reduction within the meaning of s 87AA(2) – namely, where a holder of an access licence to which the section applies has water allocations reduced because of a change to provisions of the relevant management plan dealing with water sharing (in this case particularly relating to the Water Sharing Plan for the Upper and Lower Namoi Groundwater Sources 2003 and the related amendment order of 2006). However, this acceptance in my view is not an answer to the case which is put forward by the recipients to the subpoenas in this matter. 14 In Small's case Jordan CJ observed at 573 that if a subpoena is addressed to a stranger the subpoena must specify with reasonable particularity the documents which are required to be produced. The recipients are strangers to these proceedings. The observation in Waind's case about the potential for a misconception of the different functions of discovery and a subpoena for production does not suggest that a subpoena to a stranger may be issued absent reasonable particularity. This, in my view, is the explanation for the distinction drawn in Waind's case between the example of a subpoena to a bank to produce all cheques received by it in a particular year, described as oppressive, and a subpoena to a hospital to produce a file in respect of the medical treatment of the opposing party which would obviously be general in terms but would not be oppressive. 15 The difficulty with the subpoenas in this case is that, although they are limited in date and although they relate to a subject matter, the subject matter to which they relate has been expressed in such broad terms that in my view Mr Vorreiter's submissions (the subpoenas manifestly have not been drafted with sufficient particularity and manifestly are oppressive) should be upheld. The subpoenas, for example, in para 4 relate to a subject matter which extends to the payment or possible payment of compensation to irrigation farmers in New South Wales whose water allocations have been or will be reduced by State laws. That is, the subpoenas seek production of all documents referring to the fact of any such payment to any irrigation farmer in the whole of New South Wales or indeed any document referring in any way to any possible payment to any irrigation farmer in the whole of New South Wales. The same drafting technique is used in para 5 and the bulk of the other paragraphs in the subpoena. 16 In Regina v Timothy Edward Anderson [1989] NSWCCA No 60439 of 1989 (Unreported, 12 October 1989) Gleeson CJ confirmed the continued application of the observation in Small's case, that a subpoena addressed to a stranger must specify with reasonable particularity the documents required to be produced, and further explained that the most elementary requirement is that the subpoena be couched in such a form that the person to whom it is addressed may readily understand the task which besets him and with which he must comply in obedience to an order of the court. He observed that it was apparent in that case that the subpoenas were framed on a basis which sacrificed particularity to a desire for comprehensiveness. While it is true that Gleeson CJ (at the foot of p 3) noted that the subpoenas were unspecific in point of time, subject matter of the conversation or location of the conversation, these were the particular defects in that case. These observations do not undermine the general principle that a subpoena must be couched in terms of reasonable particularity so that the recipient can readily understand their task. 17 In this case the matters to which I have referred, namely that the subpoenas relate on their face to any possible payment to any irrigation farmer in the entirety of the State, make good Mr Vorreiter's submissions that there are many paragraphs of the subpoenas which are manifestly not sufficiently particular and oppressive. I do not think that it is an answer to this issue to focus on what Mr King identified as the scheme for Commonwealth funding not relating to a particular farmer or other. This may well be so, but it is a matter for the drafter of the subpoena to formulate a text which will meet the requirement of reasonable particularity in all of the circumstances. 18 In common with the observation in Small's case I do not think that this is a matter where it is appropriate that I attempt to sever some part or other of each subpoena, even though as I have said it is clear that the issue of the existence of an agreement and of funding within the meaning of s 87AA(9) have been raised as issues on the pleadings. 19 As Mr King observed, the matter has not yet been allocated a hearing date and it seems to me that the appropriate course is to deal with these subpoenas as a whole, as occurred in Anderson's case. 20 I should observe if I have not made it clear already that I have accepted that the word "concerning" has been amended and replaced by the words "referring to". 21 For these reasons in my view the notice of motion should be upheld and I should make orders setting aside the two subpoenas. (1) The subpoena issued to "The Water Resources Commission, Department of the Environment and Water Resources" (sic) made returnable on 21 March 2007 is set aside. (2) The subpoena issued to the "Honourable Malcolm Turnbull, Minister for National Water Commission, Department of the Environment and Water Resources" (sic) made returnable on 21 March 2007 is set aside. COUNSEL ADDRESSED 22 The recipients of the subpoenas seek an order for costs with respect to their notice of motion on the basis that they have been wholly successful and had, before moving on the motion, forwarded a letter to the applicants' solicitors setting out the precise basis upon which they would seek these orders, including orders for costs. The applicants submit that there should not be an order for costs. The applicants are small local farmers involved in proceedings which should be characterised as public interest litigation and the appropriate order would be each party pay its own costs. 23 I consider that the appropriate order in this case is that the applicant should be ordered to pay the costs of the recipients of each subpoena as agreed or assessed with respect to the notice of motion. The recipients of the subpoenas are strangers to the proceedings, they did put the applicants on notice of the precise grounds upon which they would be seeking to set aside the subpoena and they have been wholly successful in those grounds. The nature of the proceedings seeking to set aside certain administrative decisions of the respondents to the proceedings and otherwise for compensation do not in my view outweigh the other considerations to which I have referred. Therefore the usual order as to costs should be made and I make order 3: (3) The applicants (Mark Wentworth Hodgson, M W Hodgson Investments Pty Ltd and Peter Grace) are to pay the costs of the applicants on the notice of motion filed 21 March 2007 (that is, the Minister and the Secretary of the Department of the Environment and Water Resources and the National Water Commission) 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.