Land and Environment Court New South Wales Medium Neutral Citation: Marshall Rural Pty Ltd v Basscave Pty Ltd (No 2) [2017] NSWLEC 137 Hearing dates: 28 September 2017 Date of orders: 28 September 2017 Decision date: 28 September 2017 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [31] Catchwords: PRACTICE AND PROCEDURE – motion to set aside, or strike out various paragraphs of, notice to produce for inspection – whether legitimate forensic purpose disclosed – principles governing legitimate forensic purpose considered and applied ­– paragraphs of notice to produce struck out for want of legitimate forensic purpose Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 Attorney General for New South Wales v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Carroll v Attorney General for New South Wales (1993) 70 A Crim R 162 City of Ryde Council v Principal Healthcare Finance Pty Ltd [2017] NSWLEC 126 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Gardiner v Regina (2006) 162 A Crim R 233; [2006] NSWCCA 190 Harvey v New South Wales [2005] NSWSC 1389 In the matter of Colorado Products Pty Ltd [2013] NSWSC 392 Marshall Rural Pty Ltd v Basscave Pty Ltd [2017] NSWLEC 84 Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278 R v Robinson (1996) 89 A Crim R 42 R v Saleam (1989) 16 NSWLR 14 R v Saleam [1999] NSWCCA 86 R v Tastan (1994) 75 A Crim R 498 Re Don [2006] NSWSC 1125 Category: Procedural and other rulings Parties: Marshall Rural Pty Ltd (Applicant) Basscave Pty Ltd (Respondent) Representation: Counsel: Mr D W Robertson (Applicant) Mr H Grace (Respondent) Solicitors: Hall & Wilcox (Applicant) Dibbs Barker (Respondent) File Number(s): 2017/00169851 Publication restriction: N/A EX TEMPORE Judgment 1. By way of introduction, the following paragraph repeats what I said in Marshall Rural Pty Ltd v Basscave Pty Ltd [2017] NSWLEC 84 at [1]. 2. In these civil enforcement proceedings, Marshall Rural Pty Ltd ('the Applicant') claims that Basscave Pty Ltd ('the Respondent') has carried out unauthorised earthworks and filling by importing large quantities of soil and other materials onto land and spreading this material across parts of the land. The Applicant claims that these earthworks were carried out without the requisite development consent or were prohibited and, therefore, contravened the Environmental Planning and Assessment Act 1979 ('EPA Act'). Additionally, the Applicant claims that the Respondent has also contravened the EPA Act by erecting numerous buildings – including function centres, accommodation units and 'cabana type structures' – on the land. The relevant land is said by the Applicant to comprise 17 Lots that are located proximate to the Hawkesbury River in North Richmond (Amended Summons, filed 26 June 2017). On this basis, the Applicant seeks various declarations and orders to restore the land to the state that it was in prior to the allegedly unlawful earthworks and to demolish the allegedly unlawful buildings (Amended Summons). 3. On 5 September 2017, the Applicant filed a Notice to Produce for Inspection requiring the Respondent to provide a range of documents and things. At the hearing today, the Applicant has handed up to the Court an amended version of that Notice to Produce for Inspection ('Notice to Produce'), being marked for identification as 'MFI-1', which lists the documents or things required to be produced as follows: 1. Any correspondence between any director, officer, employee, servant or agent of Basscave Pty Ltd (Basscave) and any officer or employee of Hawkesbury City Council (Council) in respect of: a. Any earthworks or landfill or filling activities undertaken on any of the Properties in the period 1 January 2016 to the date of this Notice to Produce; b. Sunnybrook Barn; c. The Polo Barn; d. The Grandstand; e. The Amenities/toilet block; f. The Accommodation units; g. The Cabana-type structures; or h. the flora or fauna on the Properties in the period 1 January 2016 to the date of this Notice to Produce; excluding copies of any development applications and any applications for building certificates, construction certificates and occupation certificates, submitted to the Council by Basscave or any director, officer, employee, servant or agent of Basscave on its behalf, and excluding any documents accompanying or in respect of such applications submitted to the Council. 2. Any correspondence between any director, officer, employee, servant or agent of Basscave and any officer or employee of the NSW Department of Planning and Environment (Department) in respect of: a. Any earthworks or landfill or filling activities undertaken on any of the Properties in the period 1 January 2016 to the date of this Notice to Produce; b. Sunnybrook Barn; c. The Polo Barn; d. The Grandstand; e. The Amenities/toilet block; f. The Accommodation units; g. The Cabana-type structures; or h. The flora or fauna on the Properties in the period 1 January 2016 to the date of this Notice to Produce; excluding copies of any documents submitted to the Department by Basscave or any director, officer, employee, servant or agent of Basscave on its behalf, in respect of planning proposal PP_2016_HAWKE_004_00, or any development application or any documents accompanying or in respect of such application submitted to the Department. 3. Any documents held by Basscave (other than those documents in categories 1 and 2 above, and other than the excluded documents expressly referred to in categories 1 and 2 above) (including memoranda, file notes, and correspondence exchanged between any directors, officers, employees, servants or agents of Basscave) in respect of: a. Any earthworks or landfill or filling activities undertaken on any of the Properties in the period 1 January 2016 to the date of this Notice to Produce; b. Sunnybrook Barn; c. The Polo Barn; d. The Grandstand; e. The Amenities/toilet block; f. The Accommodation units; g. The Cabana-type structures; or h. The flora or fauna on the Properties in the period 1 January 2016 to the date of this Notice to Produce. 4. Any correspondence between any director, officer, employee, servant or agent of Basscave and any officer or employee of the NSW Office of Environment and Heritage in the period 1 January 2016 to the date of this Notice to Produce in respect of fill placed on any of the Properties or any earthworks undertaken on any of the Properties. 5. Any correspondence between any director, officer, employee, servant or agent of Basscave and any officer or employee of the NSW Office of Water in the period 1 January 2016 to the date of this Notice to Produce in respect of fill placed on any of the Properties or any earthworks undertaken on any of the Properties. 6. Any Prevention Notice, Penalty Infringement or other formal notice issued to Basscave by the NSW Office of Water in the period 1 January 2016 to the date of this Notice to Produce in respect of fill placed on any of the Properties or any earthworks undertaken on any of the Properties. 7. Any Prevention Notice, Penalty Infringement or other formal notice issued to Basscave by the NSW Office of Environment and Heritage in the period 1 January 2016 to the date of this Notice to Produce in respect of fill placed on any of the Properties or any earthworks undertaken on any of the Properties. 8. Any documents recording any deliveries to any of the Properties of any soil, fill, landfill or other materials used for any earthworks or landfill or filling activities undertaken on any of the Properties 1 January 2016 to the date of this Notice to Produce. 9. Any documents recording any payments made by Basscave to any third party for any soil, fill, landfill or other materials used for any earthworks or landfill or filling activities undertaken on any of the Properties in the period 1 January 2016 to the date of this Notice to Produce. 10. Any documents recording any payments made by Basscave to any third party for the delivery to any of the Properties of any soil, fill, landfill or other materials used for any earthworks or landfill or filling activities undertaken on any of the Properties in the period 1 January 2016 to the date of this Notice to Produce. 11. Any documents recording the contracting, hire or supply of, or any payment to or from, any third party to undertake any earthworks or landfill or filling activities undertaken on any of the Properties in the period 1 January 2016 to the date of this Notice to Produce. 12. Any documents recording: a. the testing for any contaminants, b. the results of any such testing for contaminants undertaken, or c. any notice or certificate issued in respect of the contamination-status, of any soil, fill, landfill or other materials used for any earthworks or landfill or filling activities undertaken on any of the Properties in the period 1 January 2016 to the date of this Notice to Produce but not relating to any such testing etc undertaken in respect of any development application or planning proposal. 13. Any document created, sent to or received by Basscave or any of its officers or employees on or after 1 July 2015 relating to or describing flora or fauna on the Properties which are or may be threatened species, populations or ecological communities within the meaning of the Threatened Species Conservation Act 1995 (NSW), including without limitation: a. The report titled "Lake Fernleigh Wetland Restoration Plan" prepared in or around 2016 by the Hawkesbury Environmental Network (HEN) or any of its employees, agents or representatives; b. correspondence with HEN or any of its employees, agents or representatives; and c. correspondence with any statutory or regulatory agency (other than those documents in categories 1 to 12 above inclusive). ... 1. On 25 September 2017, the Respondent filed a Notice of Motion seeking an order that the Notice to Produce be set aside or, in the alternative, that various paragraphs be struck out and other paragraphs amended. 2. The Applicant denies that the Notice to Produce should be set aside. 3. During the hearing of this motion today, counsel for the Applicant, Mr Robertson, indicated that the Applicant no longer presses paragraphs 3 and 13 of the original Notice to Produce and sought leave to make amendments to most of the other paragraphs in the original Notice to Produce. Those amendments are apparent from the MFI-1 version that I have set out above at paragraph 3. The question for the Court is whether or not to dismiss the Notice to Produce as amended or, alternatively, to make amendments to that Notice to Produce. 4. In deciding the question before the Court, it is useful to have regard to the principles governing legitimate forensic purpose. Principles governing legitimate forensic purpose 1. As I identified in City of Ryde Council v Principal Healthcare Finance Pty Ltd [2017] NSWLEC 126 at [27], the accepted principles governing legitimate forensic purpose were set out in Attorney General for New South Wales v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at [58]–[80]. In that decision, Beazley JA, as Her Honour then was, synthesised the relevant case law and set out a statement of the correct test at [64]. I gratefully repeat what Her Honour said from [58]-[64]. Principles governing legitimate forensic purpose [58] The principles that govern the application of a party to produce documents pursuant to a subpoena are well settled. In this regard, the basic principle was stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575: "… a party is no more entitled to use a subpoena … than he is a summons for interrogatories, for the purposes of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all …" (Emphasis added) (Citations omitted) Mere relevance not sufficient [59] It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181: "… the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding." (Emphasis added) [60] His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough". His Honour continued: "In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion or belief' referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." [61] Senior counsel for the respondent submitted that the judgment of Mahoney AP did not represent a majority statement on this issue, nor had it been endorsed or applied in later decisions. [62] Neither Kirby ACJ (as his Honour then was) (who dissented on the facts) nor Hunt AJA (who agreed with Mahoney AP in the result) made any reference to "mere relevance". However, each applied a test of "forensic purpose" and the need for it to be "on the cards" that the documents would "materially assist the accused". Accordingly, the second element of the 'test', that is, that it must be "on the cards" that documents would materially assist the case, subsumes in it the notion that "mere relevance" is insufficient. Documents may be relevant even if they do not assist a party's case. To that extent therefore, there is no difference in principle in the test applied by each of the members of the Court. [63] But in any event (and contrary to the respondent's submissions) the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria: see Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278 at 282-283; Bruce Harvey v State of New South Wales (Supreme Court of New South Wales, per Johnson J at 3-4, 15 June 2005, unreported); R v Robinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6]. The correct test [64] The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: "The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was." 1. As adopted by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 at [35], the decision of Craig J in Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 at [20] sets out a further useful summary of some of the circumstances in which a Subpoena or a Notice to Produce (which are relevantly subject to the same principles) will be liable to be set aside on the basis that no legitimate forensic purpose can be established. Consideration 1. As identified in Attorney General for New South Wales v Chidgey, for the Applicant to be justified in gaining access to the documents that it seeks, it must establish that: (1) the documents are sought for a legitimate forensic purpose, and (2) that it is "on the cards" that the documents will materially assist the Applicant's case. It is not sufficient for the Applicant to show that there is a defined category of documents that may be relevant to an issue in the proceedings. In fact, it is not open for the Applicant to call for the production of a broad class of documents unless, perhaps, the class of documents implicitly identifies a number of specific documents, such as bank statements relating to a bank account: See In the matter of Colorado Products Pty Ltd [2013] NSWSC 392 at [17]-[18]. 2. I will consider the above mentioned two elements seriatim with respect to each paragraph of the Notice to Produce. Paragraph 1 1. With respect to paragraph 1, I will not allow it. I do not believe that it discloses a legitimate forensic purpose and I certainly do not believe that, without knowledge of the documents that might be produced, the Applicant can establish that it is 'on the cards' that the document would materially assist the Applicant's case. 2. I make that decision because I think that paragraph 1 is too broad. It adopts the class approach. There is insufficient particularity. And I particularly make that finding because I do not accept that the Applicant could not have been more specific in circumstances where there have already been three subpoenas served on Hawkesbury City Council which – as was evident from the affidavit of Ms Penelope Louise Murray (sworn 25 September 2017) – resulted in the production of some thousands of pages of documents in relation to which the Court made a general access order. 3. As a consequence of the general access order, I am of the view that the Applicant could have particularised in sufficient detail the specific documents, dated specifically, and identified the forensic purpose that would have assisted its case, such that it could be said to be 'on the cards' that the documents would so assist. And, so, given that paragraph 1 is phrased in general terms, and despite the fact that the context involves access to documents which could have assisted the Applicant's case, I do not believe that paragraph 1 should remain in the Notice to Produce. So, I strike that paragraph out. Paragraph 2 1. In respect to paragraph 2, I similarly strike this paragraph out. Although this paragraph is directed at the correspondence between the Respondent and the Department of Planning and Environment, I am again of the view that a legitimate forensic purpose cannot be identified, nor can the Court be satisfied that it is 'on the cards' that the documents will materially assist the Applicant's case. 2. I so conclude because, again, the broad class approach has been adopted by referring to "any correspondence". There is insufficient specification of a confined period and, therefore, in my opinion it is an instance of an unacceptable 'fishing exercise'. Hence, I strike out paragraph 2. Paragraph 3 1. As paragraph 3 is not pressed, I need not address that paragraph. Paragraphs 4-7 1. Paragraphs 4, 5, 6 and 7 all relate to correspondence with two government offices. Paragraph 4 relates to the Office of Environment and Heritage, paragraph 5 relates to the Office of Water, paragraph 6 relates to the Office of Water, and paragraph 7 relates to the Office of Environment and Heritage. 2. With respect to each of these paragraphs, I will not allow them to remain in the Notice to Produce. I stike these paragraphs out on the basis that I do not believe that a legitimate forensic purpose has been established for seeking documents which relate to the actions that may or may not be taken by those two offices in relation to the alleged filling activities said to have occurred on the land in November 2016. 3. The proceedings which are before the Court are civil enforcement proceedings brought by a private corporation against another private corporation. The basis on which the Applicant might succeed in its case is specifically confined to how the case is brought and how it is pleaded. It is not, in my view, assisted by understanding what may or may not be the case with respect to public authorities commencing or not commencing enforcement proceedings. So issues of relevance arise and, even if there were some documents that might be considered to be capable of serving some forensic purpose, which I doubt, again the broad open class approach has been adopted. Furthermore, the dates are too broad in that they commence from 1 January 2016 in each instance and extend through to the date of the Notice to Produce, being a date in September 2017. 4. So I will not allow those paragraphs to remain and, in making that assessment that no forensic purpose has been disclosed, I also conclude – to quote Kirby ACJ, as His Honour then was, in Carroll v Attorney General for New South Wales – that it is not 'on the cards' that the documents would assist the Applicant's case in the circumstances of civil enforcement proceedings brought by a private corporation. Paragraphs 8-11 1. With respect to paragraphs 8, 9, 10 and 11, I will allow those documents to be produced subject to this qualification, and that is that I do not believe that the end-date is appropriate. The commencement date of 1 January 2016 I will allow to remain but I do not accept that the specified end-date (the date of the Notice to Produce) is appropriate. 2. The reason I am allowing paragaphs 8, 9, 10 and 11 to remain is that, in my review of the Amended Summons and the Points of Claim, I understand that the entire proceedings (apart from the alleged unlawful building construction) do focus on the alleged importation of earth, soil and fill onto the land. The primary basis by which the Applicant brings these civil enforcement proceedings is that the alleged exercise of importing soil onto the land, and altering the surface of it, has resulted in the contravention of the planning controls and the relevant legislation. So, as a consequence, I find that the seeking of that material is relevant, that the Notice to Produce discloses a legitimate forensic purpose, and that it is 'on the cards' that the material will assist the Applicant in its case. 3. In allowing access to those documents identified in paragraphs 8, 9, 10, and 11, I do note that, in the motion before me, the Respondent does not take issue with respect to the production of the documents in those paragraphs. So, to the extent that the Respondent does not take issue with producing those documents, then the contest with respect to those paragraphs is not before me. Furthermore, I note that in the letter from Dibbs Barker dated 14 September 2017 (which was Annexure P to the affidavit of Ms Murray), it is confirmed that the Respondent did not initially take issue with the production of those documents identified in paragraphs 8, 9, 10 and 11. In other words, the production of those documents was not suggested to be oppressive. 4. Notwithstanding the above, I do take issue with the end-date and so I am seeking a shorter date. I am not interested in allowing access to the documents all the way through to September 2017. Accordingly, I look to counsel to identify a more appropriate end point. Given that those paragraphs seek information regarding the delivery of material and the works allegedly carried out in relation to that material on the land, it may be that we can assume that all such works were completed by early 2017. If so, an appropriate end-date might be something like a date in March or April 2017. Paragraph 12 1. Moving then to paragraph 12, I do not propose to allow that paragraph to remain on the basis that I consider it to constitute an unacceptable 'fishing exercise'. I consider that it adopts the broad class approach, as distinct from specifying particular documents. Consequently, I am satisfied that no legitimate forensic purpose is disclosed and that it is not 'on the cards' that the Applicant's case will be assisted by the production of the documents sought in paragraph 12. 2. I further reinforce that statement by examining the Amended Summons and the Points of Claim and noting that there is no suggestion that the soil in question might have been contaminated. Paragraph 12 is directed to the issue of whether there was testing for contaminants, whether certificates were issued in relation to such testing and the like. I am aware from my earlier involvement in this matter that there were broad statements made to the Court earlier to the effect of: 'We don't know what was in the soil and there might be issues that give rise to contamination' and the like. In fact, I recall that I had cause to look at an expert report which had been prepared almost hypothetically without having access to the site and that the expert in question, I seem to recall, raised the prospect that there might be contamination. 3. Be that as it may, it is not pleaded as a basis by which the relief is sought in the Amended Summons and, therefore, I am emboldened in my belief that no legitimate forensic purpose has been disclosed for the production of the documents specified in paragraph 12. Paragraph 13 1. With respect to paragraph 13, it is not being pressed by the Applicant. Costs 1. I have decided that it is appropriate to make a costs order against the Applicant because, in essence, the Respondent has been entirely successful in having the paragraphs it was concerned with struck out and only the four paragraphs with which it did not take any issue remain. Orders 1. The Court: 1. Orders that the following paragraphs of the Notice to Produce filed 5 September 2017 (as amended in Court on 28 September 2017) are struck out: paragraphs 1, 2, 3, 4, 5, 6, 7, 12 and 13. 2. Orders that, with respect to paragraphs 8, 9, 10 and 11, the end-date be amended to 31 March 2017. 3. Orders that Marshall Rural Pty Ltd is to pay the costs of Basscave Pty Ltd for the Notice of Motion filed 25 September 2017. ********** 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: 10 October 2017