Land and Environment Court of New South Wales CITATION : Avalon Property Developments Pty Ltd v Ballina Shire Council [2008] NSWLEC 214 APPLICANT Avalon Property Developments Pty Ltd PARTIES : RESPONDENT Ballina Shire Council FILE NUMBER(S) : 10181 of 2008 CORAM: Sheahan J KEY ISSUES: Practice and Procedure :- subpoena; application to set aside LEGISLATION CITED: Interpretation Act 1987 CASES CITED: Arhill Pty Ltd & Others v General Terminal Company Pty Ltd & Others (1990) 23 NSWLR 545 Commonwealth of Australia v Randwick City Council (2000) 109 LGERA 297 DATES OF HEARING: 23 July 2008 DATE OF JUDGMENT: 24 July 2008 APPLICANT Mr J Webster SC SOLICITORS LEGAL REPRESENTATIVES: Somerville Laundry Lomax RESPONDENT Mr P Lalich, Solicitor of Allens Arthur Robinson JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 24 July 2008 10181 of 2008 Avalon Property Developments Pty Ltd v Ballina Shire Council JUDGMENT 1 His Honour: This Class 1 appeal has already been to an unsuccessful s.34 conference, and is now on the path towards a hearing. This judgment concerns a subpoena. 2 The development application which is the subject of this appeal envisages that some sewerage, stormwater, and other pumping facilities will be positioned on land to the north of, and contiguous with, that which is to be subdivided. 3 Under the Ballina Local Environmental Plan 1987 that land to the north is zoned 7(d) Environmental Protection (Scenic/Escarpment) Zone, the objectives of which zone are as follows: " 1. Objectives of zone A. The primary objectives are: (a) to protect and enhance those areas of particular scenic value to the Shire of Ballina, and (b) to minimise soil erosion from escarpment areas and prevent development in geologically hazardous areas. B. The secondary objective is to enable development as permitted by the primary and secondary objectives for Zone No 1 (b), except for development which could conflict with the primary objectives of this zone. C. The exception to these objectives is development of public works and services, outside the parameters specified in the primary and secondary objectives, but only in cases of demonstrated and overriding public need and subject to the visual impact being minimised as much as is reasonably practical". 4 Council resolved on 27 July 1995 to prepare the LEP amendment which inserted the Zone 7(d) provisions, and approved the amendment on 24 April 2002. It was inserted in the LEP on 8 November 2002. 5 The Applicant has raised a Preliminary Question of Law, with an associated question of fact. The text of the related questions is as follows: " 1. Are any or all of the proposed drainage basins, drainage treatment works, drainage channels and sewerage works proposed to be constructed in land Zoned No. 7(d) Environmental Protection (Scenic/Escarpment), 'public works and services' within the meaning of objective 1(C) of Zone No. 7 (d) in the Table to clause 9 of the Ballina Local Environmental Plan 1987 (BLEP)? 2. If the answer to 1. above is yes, is there any evidence that there is an 'overriding public need' for the drainage basins, drainage treatment works, drainage channels and sewerage works to conform to objective 1(C) of Zone No. 7(d) in the Table to clause 9 of the BLEP?" 6 In anticipation of a hearing on that preliminary question of law, the Applicant has issued a subpoena to the Respondent requiring the Respondent to produce the following: " 1. All files records reports and any other documentation relating to the change of zoning of any and all land within the Wollongbar Urban Expansion Area to 7(d) Environmental Protection – Scenic Escapement (sic), including but not limited to any reports prepared by the Director General of the Department of Planning pursuant to S69 of the Environmental Planning and Assessment Act. 2. All files records reports and any other documentation relating to investigations into and approvals to construct a drainage structure and associated swale under the Coast Road at Skennars Head adjacent to the residential subdivision known as Headlands. 3. All files records reports and any other documentation relating to the approval to construct a dwelling house and storm water drainage on land owned by Christopher Dean at 31 Compton Drive East Ballina being Lot 4 DP574594. 4. All files records reports and any other documentation relating to the approval to carry out a rural residential subdivision at Martins Lane Knockrow on land owned by Norman George Parker." 7 By Notice of Motion filed 22 July, following an exchange of correspondence (annexed to Thomas Cregan's affidavit) the Respondent seeks to set aside this subpoena on the following grounds (par 14 of the Respondent's written submissions): · "The documents called for are not necessary, either for disposing fairly of the cause or for the Court to determine the Preliminary Questions, or for saving costs having regard to the Preliminary Questions; · The subpoena is onerous in that it will not assist the Court in the determination of a fact in issue between the parties in the context of the Preliminary Questions; · Production of the documents is oppressive in the circumstances as the scope of the request is unduly broad, not limited as to time (specifically paragraph 1), and would yield a large number of irrelevant documents. It is therefore used for the purpose of 'fishing'; · No legitimate forensic purpose has been established by the Applicant for the documents; and · It therefore represents an abuse of process." 8 The Applicant contents that as the term "public works and services" is not defined in the planning legislation, the model provisions, or the LEP itself, the documents sought will assist in the construction task set by the preliminary question of law, they being "extrinsic materials" admissible for that purpose pursuant to s.34 of the Interpretation Act 1987. 9 The Respondent draws attention to the focus in that section on Parliamentary debates and the like, but I am not satisfied that materials of the type sought in the subpoena are necessarily beyond its reach. 10 Mr Webster also referred me to some commentary in "Statutory Interpretation in Australia" by D C Pearce and R S Geddes (6th edition). Chapter 3 of that well regarded text deals with the use of "extrinsic aids to interpretation" and the discussion at page 74 fortifies me in the liberal view I have taken regarding the scope of s.34. 11 The question for the Court now is whether this subpoena offends the well-established principles governing appropriateness in terms of breadth, precision, and use of the court's processes. 12 The Respondent indicated in argument that it was open to the suggestion that par 1 of the subpoena could be acceptable if an appropriately limited timeframe for the documents were specified, but the parties have been unable to agree upon such a timeframe, and the Court has proceeded on the basis that the Respondent continues to oppose all 4 paragraphs of the subpoena. 13 The Applicant intends to rely on the documents in par 1 of the subpoena to establish the "legislative intent" of the zone 7(d) amendment, and its key words. It will rely on the documents in pars 2-4 to show how those provisions were applied in Council's decisions to approve earlier development applications, thought by the Applicant to be relevantly similar to its own. 14 The two most relevant authorities would appear to me to be the decision of Rogers CJ Comm D in Arhill Pty Ltd & Others v General Terminal Company Pty Ltd & Others (1990) 23 NSWLR 545 ("Arhill"); and the decision of Talbot J in Commonwealth of Australia v Randwick City Council (2000) 109 LGERA 297 ("Randwick"). 15 Mr Webster observed that his subpoena in this matter is relevantly similar in its breadth to that challenged and upheld in Randwick, and there is some strength in that contention (see par 8 of His Honour's judgment). Talbot J stated the guiding principles as follows (pars 23, 24 and 30): "23. A subpoena will be set aside if it is used for the purpose of "fishing" or discovery which requires the recipient of the subpoena (or a party to the proceedings) to make a judgment as to which of the documents relate to the issues in the proceedings. This represents an abuse of process (The Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573). At 575 Jordan CJ made the following point:- In the absence of special circumstances, e.g. Griebart v. Morris [1920] 1 KB 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of "fishing," i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: Hennessy v. Wright (1890) 24 QBD 445 at 448, or to discover the nature of the other side's evidence: Griebart v Morris. 24. In addition to any objection on the grounds of discovery is the claim that a subpoena is too widely or oppressively drawn. … 30. The issue is whether the task of producing the documents places an unreasonable burden on the recipient. The test was expressed by Smithers J in Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555 at 570:- Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and produce the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organized and well staffed. What may be burdensome to lesser entities may be of small significance to a large one." 16 His Honour went on to deal with Arhill (at pars 32-34), in which Rogers J said (at 556): "…it is specifically provided that no order for production of documents for inspection, or to a court, shall be made "unless the court is of the opinion that the order is necessary, either for disposing fairly of the cause or matter, or for saving costs". That, it seems to me, should be the criteria whereby courts should approach applications in relation to setting aside subpoenas, discovery and inspection. There should only ever be the one true guide. Obviously, if a document is not relevant, it cannot be necessary for disposing of the cause. Obviously, if the document does not open up a new line of inquiry, it cannot be necessary. But merely because it is relevant, or opens up a new line of inquiry, does not make it necessary. Obviously, it is at times difficult to determine ahead of a trial what is "necessary" to "disposing fairly" of a cause. All lawyers have known of cases where the odd document, which might have seemed of tangential importance, made all the difference. On the other hand, more often than not, hundreds of documents will be searched for and produced that will be of absolutely no use." 17 I am satisfied that, on these principles, par 1 of the subpoena should stand, but be time-limited to the period 1 January 1995 to 31 December 2002. 18 Mr Webster presses pars 2-4 on the basis that an investigation of the three allegedly relevant approvals may "open a new line of inquiry" on the question of law raised in this case. Once that question has been answered one might be able to draw a conclusion in the case of each of those approvals as to the soundness of the view taken by the Council of the DA involved, in the light of the provisions of the LEP, but any such conclusion is not relevant to any of the tasks facing the Court in the present case, and the documents sought would appear to me to have no relevance to the question posed. 19 I, therefore, set aside pars 2 to 4 of the subpoena. 20 The matter is returned to the Registrar to be placed in her call over list for further case management. 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.