Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 2) [2014] NSWLEC 53

Land and Environment Court New South Wales

Medium Neutral Citation: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 2) [2014] NSWLEC 53 Hearing dates: 6 May 2014 Decision date: 06 May 2014 Jurisdiction: Class 4 Before: Pepper J Decision: Notice to produce set aside. Catchwords: PRACTICE AND PROCEDURE: application to set aside notice to produce - whether time given for compliance reasonable - whether a legitimate forensic purpose in seeking documents - time for production unreasonable - notice to produce set aside. Legislation Cited: Uniform Civil Procedure Rules 2005, r 21.11 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122

Azzi v Volvo [2006] NSWSC 283

Welker v Rinehart [2012] NSWSC 839 Category: Interlocutory applications Parties: Agricultural Equity Investments Pty Ltd (Applicant) Westlime Pty Ltd (First Respondent) Parkes Shire Council (Second Respondent) Representation: Mr I J Hemmings SC with Ms A C Hemmings (Applicant) Mr C R Ireland (First Respondent) Ms H Irish (Second Respondent) Hones La Hood Lawyers (Applicant) Ashurst (First Respondent) Pikes & Verekers Lawyers (Second Respondent) File Number(s): 41125 of 2012

EX TEMPORE Judgment

The Applicant Seeks to Set Aside a Notice to Produce 1This is an oral application by the applicant, Agricultural Equity Investments Pty Ltd ("AEI"), to set aside a notice to produce issued by the second respondent, Parkes Shire Council ("the council"). 2The notice to produce was filed in the Court on Tuesday, 6 May 2014 although a copy of the notice had been served on AEI on Friday, 2 May 2014. The hearing of this matter commenced on Monday, 5 May 2014. 3The background to this application and to the litigation generally is described in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 (at [6]-[12]). 4The notice sought the following documents: 1. Any document or thing that is referred to in paragraph [4] of the affidavit of Brain [sic] Locke sworn 28 April 2014 and served on 29 April 2014, including but not limited to any document or thing comprising or evidencing communication since 16 December 2008 between (a) the applicant's lawyers and the second respondent's lawyers, (b) the applicant's lawyers and Brian Locke, (c) the applicant or its lawyers or Brian Locke or Russell Hetherington or any of them and any other party or person concerning the 2009 Mine Modification Approval document; 2. Any document or thing that is referred to in paragraph [5] of Locke's affidavit sworn 28 April 2014 and served on 29 April 2014, including but not limited to: (a) the public announcement by the mining company, Cortona; (b) any document or thing comprising or evidencing communication since the date of that public announcement between the applicant or its lawyers or Brian Locke and Russell Hetherington concerning the modification application referred to in paragraph [5]; 5Paragraphas four and five of the affidavit of Mr Brian Locke sworn 28 April 2014 stated the following: 4. I was not aware of the terms of 2009 Mine Modification Approval until that document was provided to my lawyers by the Second Respondents lawyers. This occurred sometime in about December 2012 or early January 2013 the exact date I cannot recall. 5. Further, I did not become aware of the proposed reactivation of the London Victoria Mine (LVM) until I read a public announcement concerning it by the Mining Company, Cortona. It was following that publication that I instructed Russell Hetherington of Hetherington Exploration & Mining Title Services to prepare a submission in relation to that modification application which submission I understand he provided to the Second Respondent sometime in June 2012. 6After some debate between the parties paragraph one of the notice to produce was narrowed by the council as follows: 1. Any document or thing that is referred to in paragraph [4] of the affidavit of Brain [sic] Locke sworn 28 April 2014 and served on 29 April 2014, including but not limited to any document or thing comprising or evidencing communication since 16 December 2008 between (a) the applicant's lawyers and the second respondent's lawyers, (b) the applicant's lawyers and Brian Locke, (c) the applicant or its lawyers or Brian Locke or Russell Hetherington or any of them and any other party or person concerning the 2009 Mine Modification Approval document; 7Further, because AEI had already produced documents in relation to paragraph 2(a) of the notice to produce, the council did not press any further production of documents in respect of that paragraph.