Land and Environment Court New South Wales Medium Neutral Citation: Gloucester Resources Limited v Minister for Planning and Environment [2018] NSWLEC 1185 Hearing dates: 21 March 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Class 1 Before: Froh R Decision: The Court orders that: (1) Order 1 of the Notice of Motion filed by the Secretary, Department of Planning and Environment on 7 March 2018 is granted; and (2) The Subpoena to Produce addressed to the Secretary, Department of Planning and Environment filed by GRL on 21 February 2018 is set aside. Catchwords: SUBPOENA: Motion to set aside a subpoena; Application for order under rule 33.4 UCPR; lack of legitimate forensic purpose; motion granted Legislation Cited: Environmental Planning and Assessment Act 1979 Gloucester Local Environmental Plan Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2004 Cases Cited: Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 Project 28 Pty Ltd v Minister for Planning [2016] NSWLEC 1363 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 NSW Commissioner for Police v Tuxford [2002] NSWCA 139 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 Category: Principal judgment Parties: Secretary, Department of Planning and Environment (Applicant on the Motion) Gloucester Resources Limited (Applicant) Minister for Planning (Respondent) Representation: Counsel: T Phillips (Applicant on the Motion) C Ireland (Applicant) Solicitors: Department of Planning and Environment (Applicant on the Motion) McCullough Robertson (Applicant) File Number(s): 2017/383563 Publication restriction: No Judgment 1. REGISTRAR: The notice of motion filed on 7 March 2018 (Motion) on behalf of the Secretary, Department of Planning and Environment (Secretary) is seeking, pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2004, to set aside the Subpoena dated 21 February 2018 (Subpoena) addressed to her and which was issued at the request of the Applicant in the substantive proceedings, being Gloucester Resources Limited (GRL). 2. In the substantive proceedings the Applicant appeals from a determination (Decision) by the Planning Assessment Commission (Commission), dated 14 December 2017 under delegation from the Minister for Planning and Environment (Minister) to refuse State Significant Development Application No SSD 5156 (Development Application) for the Amended Rocky Hill Project (Project). 3. The Subpoena in its original form calls for the production of the following: 1. All documents including emails created between 18 December 2012 and 14 December 2017 relating to State Significant Development Application No. SSD 5156 for the Rocky Hill Coal Project. 2. All documents including emails held by the Department of Planning & Environment relating to State Significant Development Application No. SSD 5156 for the Rocky Hill Coal Project. 1. Since the Subpoena was issued, GRL has narrowed the scope of the documentation sought from the Secretary under the Subpoena, and it is now as follows: 1. All documents including emails created between 18 December 2012 and 14 December 2017 relating to State Significant Development Application No. SSD 5156 for the Rocky Hill Coal Project and which disclose advice (other than privileged legal advice), recommendations, directions, analysis or views on the merits of the proposal. 2. All documents including emails held by the Department of Planning & Environment relating to State Significant Development Application No. SSD 5156 for the Rocky Hill Coal Project and which disclose advice (other than privileged legal advice), recommendations, directions, analysis or views on the merits of the proposal. 1. The Secretary contends that the Subpoena in its narrowed form ought be set aside on the basis that it lacks legitimate forensic purpose and/or is oppressive. 2. GRL opposes the Motion and contends that its Subpoena serves a legitimate forensic purpose, that the Motion be dismissed with an order for its costs. It is important at this point to note that GRL acknowledges that the task of responding to the subpoena will potentially be costly and time consuming and has agreed to pay the Secretary's reasonable costs of production and for a 4 week time period from the date of this decision to allow production under the Subpoena to occur. 3. For the reasons set out below, I grant the Secretary's motion. Background 1. The appeal in the substantive proceedings was commenced by the filing of a Class 1 application on 19 December 2017, pursuant to what was then s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which then provided: (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after: the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or the date on which that application is taken to have been determined under section 82 (1). 1. On 18 January 2018, the Minister filed his Statement of Facts and Contentions in the proceedings. That document contends that the Project ought be refused based on the following four contentions: 1. The public benefit of the Project is outweighed by its incompatibility with existing, approved and likely preferred uses of land in the vicinity of the development; 2. The Project is in direct contravention of the zone objectives of the RU1 and E3 zones of the Gloucester Local Environmental Plan; 3. The residual visual impact would be significant throughout all stages of the Project; and 4. The Project is not in the public interest. 1. On 2 March 2018 GRL filed its Statement of Facts and Contentions in Reply. 2. On 15 March 2018 GRL was granted leave to file an Amended Class 1 Application. Documents already available or to be made available to GRL 1. It is important to observe in these proceedings that material relating to the Project has been made publicly available on the Major Project Assessments website, which forms part of the Department of Planning and Environment's website, as well as on the Commission's website. 2. This material includes the Development Application, the Department's Environmental Assessment Report for the Project, the consultants' reports, submissions received from various government agencies and submissions made by the proponent and members of the public at the exhibition stage and before the Commission. 3. In support of the motion, the Secretary relies on: 1. a copy of the Rocky Hill page of the Department's Major Project Assessments website, as accessed on 19 March 2018, which indicates the hyperlinked documents available to be accessed from that website. (In the version provided to the Court, the relevant drop down menus have been expanded so that the names of the documents under each folder heading are displayed); and 2. a copy of the Project's page on the Commission's website. 1. Directions were made in these proceedings on 6 February 2018 by Dixon SC for the filing and service of individual and joint reports by the parties' town planning and visual experts. 2. Furthermore, in accordance with the Court's usual practice, a direction was also made by Dixon SC requiring the Minister to file and serve a bundle of documents 14 days before the hearing containing copies of relevant environmental planning instruments and policies, and documents evidencing the lodgment, processing and determination of the application by the consent authority, including all submissions from objectors and the decision of the consent authority. 3. As is the ordinary course in matters such as these, this material would also be provided to the Court and would be considered by the Court in determining the appeal. Submissions 1. The basis upon which GRL says the documents sought under the Subpoena serve a legitimate forensic purpose and ought to be produced is that those documents go to the merits of the Project, and as this is a merit appeal it is therefore, "on the cards" that such documents will identify either support for GRL's position or forewarn of matters that are required to be addressed and which will need to be put to the expert witnesses in instructions, conferences and at hearing. 2. The Secretary contends that the documents the subject of the Subpoena that go beyond those already publicly available or accessible to GRL - whether from the Major Projects website, the Commission's website, or its own internal records – serve no forensic purpose in relation to the proceedings in the sense that there is no reasonable basis for supposing that such material is likely to add to the relevant evidence in the case. 3. In particular, the Secretary contends that internal communications between officers of the Department in respect of the Project, or exchanges between them and other persons that are not available to GRL will not shed light on the issues between the parties. Legitimate forensic purpose - Principles 1. The production of documents in response to a return of Subpoena or Notice to Produce may be resisted unless the documents sought can properly be said to have a "legitimate forensic purpose": Commissioner for Railways v Small (1938) 38 SR (NSW) 564; NSW Commissioner for Police v Tuxford [2002] NSWCA 139 at [20]-[22]. 2. In Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110, Craig J stated at [20] that: Whether such [legitimate forensic] purpose is met in a given case will turn upon the connection between the issues raised in the proceedings and documents which are the subject of a subpoena or notice to produce. The requisite connection to be established has been variously described. Without intending to be exhaustive, it is apparent that a subpoena or notice to produce will be liable to be set aside where the party seeking production of documents cannot establish: (i) that it is "on the cards" that the documents will materially assist on an identified issue: Alister v The Queen (1984) 154 CLR 404 at 414; R v Saleam [1999] NSWCCA 86 at [11]; Attorney-General for NSW v Chidgey [2008] NSW CCA 65; 182 A Crim R 536 at [58] - [69]; (ii) that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings: Trade Practices Commission v Arnotts Limited (No 2)(1989) 21 FCR 306;88 ALR 90 at 103; Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504;(1997) 37 ATR432; (iii) that there is a reasonable basis for supposing that the material called for will likely add to the relevant evidence in the case: A v Z [2007] NSWSC 899; (2007) 212 FLR at [4]; (iv) that it is likely the documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will do so: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR494; ICAP Australia Pty Ltd v Moebes [2009] NSWSC 306; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307. 1. At [21], Craig J observed that "[i]mportantly, all the tests, however stated, require identification of an issue or issues in the proceedings with some modicum of particularity which then becomes the measure against which the forensic purpose of the documents can be determined. It is that identification which must inform the requirement to produce the documents sought". 2. In other words, there is a two-step process to establishing that documents sought under subpoena have a legitimate forensic purpose. The first is to identify an issue in the proceedings and the second is to demonstrate that the documents sought are relevant to that issue. 3. In this respect, in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (Chidgey), Beazley JA (as her Honour then was) said at [59] that: 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." 1. At [60], her Honour endorsed the view that "mere relevance is not enough" in that a claim that "I wish to see the document to see if it may assist my case" is not sufficient. Consideration 1. In order to identify the issues in these proceedings, I must have regard to not only GRL's Amended Class 1 Application and any Statement of Facts and Contentions filed in the proceedings, but also to the nature of the Court's powers. 2. It is useful at this point to consider s 39 of the Land and Environment Court Act 1979 (Court Act), which sets out the powers of the Court when determining an appeal. I am assisted in this analysis by the decision of Preston CJ in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48, which was affirmed on appeal, where Preston CJ summarises the Court's functions on a merit appeal as follows: "7. On the appeal, the Court re-exercises the statutory power originally exercised by the Minister to determine Warkworth's project application by either approval or disapproval. The Court stands, metaphorically speaking, in the shoes of the Minister and determines for itself, on the facts and law that exist at the time of determination of the appeal, whether to approve or disapprove the application for the Project. 8. In hearing and disposing of the appeal, the Court has all of the functions and discretions that the Minister had in respect of Warkworth's project application: s 39(2) of the Land and Environment Court Act 1979 ('the Court Act'). 9. The appeal is by way of rehearing and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision by the Minister may be given on the appeal: s 39(3) of the Court Act. The Court is required to determine the appeal on the issues raised and the evidence given on the appeal. 10. In making its decision, the Court is to have regard to the Court Act and any other Act including the EPA Act, any instrument made under any such Act, the circumstances of the case and the public interest (s 39(4) of the Court Act). 11. Because new issues may be raised and different emphasis may be placed on other issues, and new or difference evidence may be given, compared to the issues or evidence before the Minister as the original decision-maker, the preferable decision to be reached by the Court on the appeal may be different to the decision of the original decision-maker. This is the nature and consequence of external merits review of administrative decisions." 1. I am also assisted by the Court's approach in Project 28 Pty Ltd v Minister for Planning [2016] NSWLEC 1363 ('Project 28'). In that case a Notice to Produce issued to the Respondent Minister, seeking production of draft assessment reports and internal correspondence amongst departmental officers in relation to the modification request the subject of Class 1 proceedings, was set aside on the basis that the applicant had failed to establish a legitimate forensic purpose for the documents sought in the notice. 2. Whilst the decision in Project 28 must be understood having regard to the particular facts of that case, the reasoning of Gray R (as she then was) provides persuasive guidance as to how this motion ought to be resolved. 3. In hearing these proceedings, the Court will be required to determine whether the Development Application should be approved or refused based on the issues raised and the evidence given on the appeal concerning the merits of the Project: s39 of the Court Act and Project 28 at [29]. 4. The issues in these proceedings are set out in the parties' respective Statements of Facts and Contentions. 5. The determination of those issues will turn on the relevant expert evidence placed before the Court, and the Court's assessment of the relevant planning documents and environmental reports (which are already available to GRL and the public) and by having regard to the Court Act and any other Act, including the EPA Act, any instrument made under any such Act, the circumstances of this case and the public interest (s.39 (4) of the Court Act). 6. Internal correspondence between Departmental officers relating to the Project and other material within the scope of the Subpoena that is not already publicly available will not assist in the Court's consideration of whether to approve or refuse the Development Application. 7. In this regard, the individual views of Departmental officers, to the extent relevant to the Court's decision making process, are already encapsulated in the final assessment report prepared by the Department in October 2017. 8. There is no basis for considering that documents within the scope of the Subpoena falling outside those already accessible to GRL, and which include internal and external Departmental communications in relation to the Project, will materially assist the resolution of any fact in issue in the Class 1 Appeal. 9. I find that GRL has failed to identify any issues to which the documents sought by the Subpoena and which are not already available to it may or will relate. It is simply not "on the cards" that the documents sought will materially assist GRL to make good its contentions as set out in its Statements of Facts and Contentions in Reply: Project 28 at [29]-[31]. Orders 1. The Court orders that: 1. Order 1 of the Notice of Motion filed by the Secretary, Department of Planning and Environment on 7 March 2018 is granted; and 2. The Subpoena to Produce addressed to the Secretary, Department of Planning and Environment filed by GRL on 21 February 2018 is set aside. ______________________ Sarah Froh Registrar of the Land & Environment Court ********** 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: 24 April 2018