Land and Environment Court New South Wales Medium Neutral Citation: Zhang v Woodgate [2014] NSWLEC 143 Hearing dates: 8 September 2014 Decision date: 08 September 2014 Jurisdiction: Class 4 Before: Pain J Decision: 1. An interlocutory injunction restraining the First Respondent and/or Second Respondent from purporting to exercise power under s 118BA of the Environmental Planning and Assessment Act 1979 in furtherance of the notice dated 29 August 2014 given by the First Respondent to Richard Ferguson entitled "Notice to Attend a Place to Answer Questions pursuant to s 118BA of the Environmental Planning and Assessment Act 1979 (NSW)", pending final determination of these proceedings. 2. Costs reserved. 3. Matter listed before the List Judge on 12 September 2014. Catchwords: INTERLOCUTORY RELIEF - exercise of discretion to make interlocutory injunction - serious question to be tried of whether statutory notice to attend to answer questions sent to third party after commencement of proceedings valid - balance of convenience favours making of interlocutory injunction Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A, s 118BA Food Act 2003 Land and Environment Court Act 1979 s 20 Cases Cited: Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215 Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 Texts Cited: Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005 to date (loose leaf at Service 87, July 2014) Category: Interlocutory applications Parties: Jian Wen Zhang (Applicant) Matthew Woodgate (First Respondent) Lane Cove Council (Second Respondent) Representation: Mr T Howard SC (Applicant) Mr A Isaacs (First and Second Respondents) Hones La Hood (Applicant) Pikes & Verekers (First and Second Respondents) File Number(s): 40704 of 2014 EX TEMPORE Judgment 1The Applicant Mr Zhang is being prosecuted in the Local Court for breach of development consent conditions in contravention of s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). The prosecuting council, Lane Cove Council (the Second Respondent) is alleging over excavation of land. Mr Zhang has pleaded not guilty to the charge. 2This Class 4 summons seeks declaratory relief that a notice to attend to answer questions addressed to Mr Ferguson, a potential witness in the Local Court proceedings, is invalid and of no effect and further orders restraining the exercise of power under s 118BA of the EPA Act. The jurisdiction of the Court under s 20(1)(c) of the Land and Environment Court Act 1979 (the Court Act) and under s 123 of the EPA Act is relied on in making this application, the declaratory relief sought not being available in the Local Court. 3The relevant background is identified in the Class 4 summons at par 9-15. Mr Woodgate (the First Respondent), council officer, has issued a notice requiring Mr Ferguson to attend to answer questions on 10 September 2014 at 1 pm pursuant to s 118BA of the EPA Act, called in the summons the Woodgate Notice. 4Section 118BA provides: 118BA Power of authorised persons to require answers and record evidence (1) A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters. (2) An authorised person may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section. (3) An authorised person may, by notice in writing, require a person referred to in subsection (1) to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered. (4) The place and time at which a person may be required to attend under subsection (3) is to be: (a) a place and time nominated by the person, or (b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised person that is reasonable in the circumstances. (5) An authorised person may cause any questions and answers to questions given under this section to be recorded if the authorised person has informed the person who is to be questioned that the record is to be made. (6) A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the authorised person. (7) A copy of any such record must be provided by the authorised person to the person who is questioned as soon as practicable after it is made. (8) A record may be made under this section despite the provisions of any other law. 5The summons seeks an interlocutory injunction restraining the First Respondent and/or Second Respondent from purporting to exercise power under s 118BA of the EPA Act in furtherance of the Woodgate Notice, pending the final determination of these proceedings, 6The affidavit of Mr Dutt solicitor was read but it was not necessary to refer to it as the facts relevant to today's interlocutory application are essentially agreed. 7Paragraphs 17 and 18 of the summons identify the substantive legal issues in the proceedings as to why the Woodgate notice is invalid. They state: 17. First, section 118BA of the EPA Act, on its proper construction, did not empower the first respondent to compel Mr Ferguson, or any other person, to attend at a place and time to answer questions in relation to the subject matter of the current criminal proceedings being prosecuted by the second respondent against the applicant. That power, if it were otherwise properly exercised, could no longer be validly exercised when the Local Court Proceedings were commenced: Brambles v TPC (No 2) (1980) 44 FLR 182; NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252 at [72]-[74] and the authorities cited therein. 18. Secondly, it is a species of contempt of court for the respondents to seek to exercise the power under s 118BA of the EPA Act for the sole or dominant purpose of obtaining evidence to be used in the Local Court proceedings and in such a way as to obtain an advantage which could not be obtained under the procedural rules of the Local Court: Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWCCA 1215 at [90]; NSW Food Authority v Nutricia [2008] NSWCCA 252 at [97]-[137]. 8The Applicant relied on NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 which concerned the validity of notices to produce information served on a defendant under the Food Act 2003 after prosecution proceedings had commenced. The principles identified at [90] by James J at first instance cited in Nutricia (CCA) at [15] were affirmed and the finding of invalidity of the notices was upheld in the Court of Criminal Appeal. 9The Respondents submit that Nutricia (CCA) dealt only with a defendant being served with a statutory notice and this case differs because the third party served is not a defendant. The Respondents' counsel referred to other passages of Nutricia (CCA) to support the argument that not all uses of statutory notice powers after proceedings have been commenced are improper exercises of power, referring to Austin J in Australian Securities and Investments Commission v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295, Nutricia (CCA) at [88]-[95]. Finding 10I must determine if there is a serious question to be tried and whether the balance of convenience favours the making of an interlocutory order per Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 and many subsequent authorities. 11The extent to which the ratio of Nutricia (CCA), directed to service of statutory notices on a defendant after the commencement of proceedings applies to a third party potential witness in criminal proceedings raises a serious question to be tried. There is potential for the principles identified by James J at first instance in Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215 at [90], to apply here also: [90] ... [I]f a statutory power conferred in general terms is sought to be exercised by a party to pending court proceedings for the sole purpose or a dominant purpose of obtaining evidence to be used in the pending proceedings and in such a way as to obtain an advantage which could not be obtained under the procedural rules of the court in which the proceedings are pending, then there would be a contempt of the court in which the proceedings are pending; and, if the statutory power is conferred only in general terms and does not clearly authorise such an exercise, the statutory power will be construed so as not to authorise such a purported exercise of the power. Alternatively, such a purported exercise of the statutory power will amount to a contempt or an abuse of process, which the court in which the proceedings have been brought will restrain or, at least, not facilitate. 12Contrary to the Respondents' submissions it is not self evident from the cases cited in Nutricia (CCA) in the principal judgment of Spigelman CJ that service of statutory notices after the commencement of proceedings on a third party are a valid exercise of statutory power. The numerous cases cited in Nutricia (CCA) by Spigelman CJ at [47]-[96] and in answer to the stated case question (c) at [97]-[136] suggest that the statutory context must be closely considered. For example, the Respondents' reliance on Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 in the High Court must be considered in its context. In that case the relevant notice for the production of documents related to documents that could otherwise be required under a Notice to Produce. 13Referring to Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005 to date (loose leaf at Service 87, July 2014) at page 7341, an applicant for an interlocutory injunction must establish a prima facie case, meaning a probability that at trial the plaintiff will be entitled to relief, is made out. 14Clearly the matter is urgent as the notice requires compulsory attendance to answer questions this Wednesday and failure to do so results in an offence under the EPA Act. 15The balance of convenience favours the making of the order as without it these proceedings will be at nought, the interview otherwise occurring in two days time. I weigh this up against the potential for delay of the Local Court proceedings, the brief of evidence being due on 10 September 2014. No hearing date has been set for the Local Court proceedings and a longer timetable for the preparation of a brief of evidence is likely to be necessary. That circumstance does not outweigh the substantial prejudice that may be occasioned to Mr Zhang if no interlocutory order is made. 16The exercise of statutory power by a prosecuting council is also at issue, arguably a matter of significant public importance, another reason I consider I should exercise my discretion to make the order sought in prayer 3 of the summons. Orders 17The Court makes the following orders: (1)An interlocutory injunction restraining the First Respondent and/or Second Respondent from purporting to exercise power under s 118BA of the Environmental Planning and Assessment Act 1979 in furtherance of the notice dated 29 August 2014 given by the First Respondent to Richard Ferguson entitled "Notice to Attend a Place to Answer Questions pursuant to s 118BA of the Environmental Planning and Assessment Act 1979 (NSW)", pending final determination of these proceedings. (2)Costs reserved. (3)Matter listed before the List Judge on 12 September 2014. ********** 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: 09 September 2014