Elanor Investors Limited v Sydney Zoo Pty Limited (No 4) [2019] NSWLEC 191

Land and Environment Court New South Wales

Medium Neutral Citation: Elanor Investors Limited v Sydney Zoo Pty Limited (No 4) [2019] NSWLEC 191 Hearing dates: 2 December 2019 Date of orders: 11 December 2019 Decision date: 11 December 2019 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraph 35 Catchwords: CIVIL PROCEDURE – Notice to Produce – objection to production of documents – relevance – legitimate forensic purpose – oppression – Notice to Produce amended Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Elanor Investors Limited v Sydney Zoo Pty Limited (No. 2) [2019] NSWLEC 121 Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 Rinehart v Rinehart [2018] NSWSC 1102 Van Duren v Hammond and Roberts Pty Ltd [2017] WASC 308 Category: Procedural and other rulings Parties: Elanor Investors Limited (Applicant) Sydney Zoo Pty Limited (Respondent) Representation: Counsel: Mr R Lancaster SC (Applicant) Mr A Shearer (Respondent)

Solicitors: Gilbert and Tobin Lawyers (Applicant) Addisons Lawyers (Respondent) File Number(s): 2018/359630 Publication restriction: No

Judgment

Nature of the proceedings 1. The Applicant in these proceedings has filed a Notice of Motion to set aside paragraphs 2, 3, 5, 8 and 11 of the Notice to Produce to Court dated 11 October 2019 issued to the Applicant by the Respondent (the Notice to Produce). 2. Elanor Investors Ltd (the Applicant) operates Featherdale Wildlife Park at Doonside, NSW. 3. The Respondent was granted Development Consent by the former Planning Assessment Commission (PAC) for a new zoo (Sydney Zoo), approximately 3km from the Applicant's wildlife park. The Development Consent imposed a number of obligations on Sydney Zoo to "differentiate" it from Featherdale. These obligations are said to arise as a consequence of the consent and require differentiation with respect to: 1. The type of facility it provides; 2. Pricing; 3. The type of Australian animal encounters offered; 4. The number of Australian species at the facility. 1. The Applicant has commenced Class 4 proceedings contending a breach or threatened breach of the Development Consent insofar as the Respondent has not complied, inter alia, with the differentiation requirement. In particular, relating to its marketing of the Sydney Zoo, and seeks declarations that the Respondent has not complied with its obligations and therefore has breached or threatened to breach the Environmental Planning and Assessment Act 1979 (EP&A Act). Consequential orders restraining the use of certain marketing material by the Respondent are also sought. 2. Those parts of the claim to which this Notice to Produce relates, are more particularly those relating to the declarations sought in paragraphs 1 and 2 of the Amended Summons that provides: 1 A declaration that the Respondent has threatened to breach, or in the alternative has breached, section 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by failing to comply with condition B2 of Schedule B of Development Consent (SSD 722B) granted by the Planning Assessment Commission of NSW, as delegate for the Minister for Planning, to the respondent dated 8 September 2019 (Development Consent). … 2 A declaration that the Respondent has threatened to breach, or in the alternative has breached, section 4.2(1)(b) of the EP&A Act by failing to comply with condition B6 of Schedule B of the Development Consent. 1. The proceedings have been the subject of a number of interlocutory applications which are not relevant to this application. The Applicant has filed an Amended Summons and Amended Points of Claim together with a number of affidavits. 2. In support of this Notice of Motion the parties adduced the following evidence: 1. Affidavit of Benjamin David Fuller sworn 11 November 2019, together with the documents exhibited to that affidavit that became Exhibit A; 2. Affidavit of Tony Chiefari sworn 12 November 2019; 3. The Respondent's Bundle of Documents (Exhibit 1); and 4. Letter dated 12 November 2019, from the Applicant's solicitors, Gilbert and Tobin, to the Registrar of the Land and Environment Court (Exhibit 2).