Land and Environment Court New South Wales

• Medium Neutral Citation: Newcastle Muslim Association Incorporated v Newcastle City Council [2012] NSWLEC 20
• Decision date: 17 February 2012
• Jurisdiction: Class 1
• Before: Biscoe J

Decision

Order that the respondent is at liberty to provide copies of expert reports to objectors to the amended development application who wish to consider them for the purposes of their objections, and related orders: see [30] of judgment.

• Catchwords: EXPERT EVIDENCE:- whether leave should be granted to the parties to a Class 1 development refusal appeal to provide copies of expert reports to objectors who wish to consider them for the purposes of their objections to the amended proposal - implied undertaking of a party not to use documents provided by the other party under compulsion of the Court other than for the purposes of the proceedings until received in evidence except with the leave of the Court - whether provision of expert reports to objectors to development application would breach the undertaking - whether leave should be granted to provide expert reports to objectors - discretion.
• Legislation Cited: Environmental Planning and Assessment Act 1979 s 5(c); Government Information (Public Access) Act 2009 ss 3(1), 4 and Schedule 4; Land and Environment Court Act 1979 ss 38(2), 39A, 39(2) and 39(5); Environmental Planning and Assessment Regulation 2000 cl 91; Government Information (Public Access) Regulation 2009 Schedule 1; Land and Environment Court Rules 2007 r 3.7(2); Land and Environment Court Practice Note Class 1 Development Appeals; Land and Environment Court Site Inspections Policy
• Cases Cited: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313; Esso Australia Resources Ltd v Plowman [1995] HCA 19,183 CLR 10; Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street [2008] HCA 36, 235 CLR 125; Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13
• Category: Interlocutory applications
• Parties: Newcastle Muslim Association Incorporated (Applicant); Newcastle City Council (Respondent)
• Representation: COUNSEL: Mr T To (Applicant); Mr P Larkin SC (Respondent); SOLICITORS: Gadens Lawyers (Applicant); Newcastle City Council (Respondent)
• File Number(s): 10854 of 2011

Judgment

1 These proceedings are a merits appeal against refusal by a joint regional planning panel of a development application for a mosque and community facilities. After the commencement of the proceedings the applicant was granted leave to significantly amend the development application. The parties served each other with expert reports in the proceedings pursuant to orders of the Court. The proceedings are listed for hearing for two days within the next week. There have been over 1,000 objections to the amended development application.

2 I am now dealing with an urgent notice of motion by the respondent, Newcastle City Council, for:

A direction that the Council is at liberty to provide copies of expert reports filed in these proceedings to persons who have objected to the amended development application and who wish to consider those reports for the purposes of their objection.

3 The applicant in the proceedings and the respondent to this motion, Newcastle Muslim Association Incorporated, opposes the direction sought on the following grounds:

(a) Disclosure of the expert reports to objectors would breach an implied undertaking to the Court by the parties to the proceedings that they will not, without leave of the Court, use them in such a way until they are received into evidence.

(b) Leave should be refused. There is a short third ground of opposition relating to discretion, which can be rolled into the second ground.

4 This appears to be the first time that such an order has been sought in this Court outside the context of "Double Bay Marina orders" (discussed below). At the heart of the dispute is the role of objectors in Class 1 development appeals.

BACKGROUND

5 On 7 February 2012 Sheahan J dismissed a notice of motion by an objector, Elermore Vale Community for Appropriate Residential and Environmental Strategies Incorporated (known by the acronym "EVCARES"), for orders and directions under s 38(2) of the Land and Environment Court Act 1979 (Court Act) entitling EVCARES to participate in the proceedings so that it may, with the benefit of access to all the expert evidence, make submissions on that evidence by 20 February, cross - examine witnesses at the hearing, and make final submissions to the Court at the conclusion of the hearing: Newcastle Muslim Association v Newcastle City Council [2012] NSWLEC 13. Such orders are commonly referred to as Double Bay Marina orders (after Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313). The requirements of s 39A of the Court Act effectively identify the principles to be applied even if the application is made for Double Bay Marina participation relying upon s 38(2). Section 39A provides that:

39A Joinder of parties in certain appeals

...the Court may, at any time...order the joinder of a person as a party to the appeal if the Court is of the opinion:

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b) that:

(i) it is in the interests of justice, or

(ii) it is in the public interest,

that the person be joined as a party to the appeal.

6 Sheahan J said at [20] - [21]:

20 I have concluded that it is not necessary to make the order sought in this case in order for all EVCARES's concerns to be properly ventilated and considered at the hearing. I am satisfied that Council has demonstrated it has put the relevant concerns before the court. The capacity of the Commissioners and Judges who deal with such cases as this ought not be underestimated. It is common for the material before them to be more voluminous and detailed than that before the consent authority at the time of refusal. The test for the making of the orders under ss 38(2) or 39A requires something " special " or " additional " to be made available to the court only through such an order, and it has not been satisfied in this case.

21 The interests of the Council and the intervenor have not been shown to be significantly different ( Meriton , at [11]), so I see no utility in making the order sought.

7 On 9 February 2012, two days after his Honour delivered judgment, a solicitor employed by the council had conversations with two objectors, which seem to have sparked the notice of motion with which I am dealing. The first was an objector who lives on a property immediately adjoining the development site who told the solicitor that he needed to see the reports about the amended proposal to be able to understand the amended proposal properly and finalise his position regarding it. The second was from a Dr Beveridge of EVCARES who said that residents cannot understand the amended proposal without having seen the expert reports. Later the same day, the council's solicitor emailed the applicant's solicitor seeking consent to a direction that the council provide EVCARES with a copy of the expert reports served in the proceedings to facilitate consideration of those reports by objectors prior to the hearing. The applicant's solicitor declined to give consent and identified various grounds of objection in a letter of 9 February 2012.

8 Senior counsel for the council told me that in his experience it was common practice for parties in proceedings such as these to agree informally, without troubling the Court, to expert reports being provided to objectors. However, counsel for the applicant told me that that was not his experience nor that of his instructing solicitor.

THE IMPLIED UNDERTAKING

9 The applicant submits that disclosure of expert reports to objectors without leave of the Court would breach the council's implied undertaking to the Court not to use them in such a way without leave of the Court unless they are received into evidence. This is the so - called " Harman principle" (after Harman v Secretary of State for the Home Department [1983] 1 AC 280) accepted by the High Court in Hearne v Street [2008] HCA 36, 235 CLR 125. The joint judgment in Hearne v Street , a contempt case for breach of the implied undertaking, stated:

61 ...a corporate litigant is bound by an "implied undertaking" not to use affidavits or witness statements served by another party on it otherwise than for the purpose of the proceedings in which they were prepared...

96 Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.

10 Kirby J agreed with the conclusions and reasons in the joint judgment at [57]. Gleeson CJ said at [1]:

The parties to this appeal agreed that it raised two issues for decision. The issues were said to arise "where documents prepared for legal proceedings have been served upon another party to those proceedings, and the party so served is treated as having undertaken to the court not to use the documents otherwise than for the purpose of the proceedings." The documents in question in the appeal were treated as being in the same position, legally, as documents produced pursuant to an order for discovery. It was accepted that they were the subject of what is often described as an "implied undertaking" not to use them for a purpose other than the conduct of the legal proceedings in question.

11 The applicant submits that the passage at [96] of the joint judgment indicates that the implied undertaking is not to use a document "for any purpose other than that for which it was given". According to the applicant, its expert reports were provided to the council, not for the purpose of the proceedings, but for the purpose of the parties to join issue. Therefore, the applicant submits, the purpose does not include providing copies to non - parties such as objectors. I disagree. I do not think that the plurality intended to say anything different about the purpose at [96] than they had said at [61].

12 In my opinion, where documents are provided to a party to legal proceedings under some compulsive process of the Court, that party is taken to have impliedly undertaken to the Court not to use the documents otherwise than for the purposes of those proceedings. That is, that party may not use the documents for the purposes of some other proceedings or otherwise for a collateral purpose. This is plain enough from the other passages in Hearne v Street quoted above as well as from other cases cited therein, including Harman . As Mason CJ said in Esso Australia Resources Ltd v Plowman [1995] HCA 19,183 CLR 10 at 32 - 33 (Dawson and McHugh JJ agreeing at 39 and 48) (omitting citations):

In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed. Over a century ago, Bray on Discovery stated:

A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order.

Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.

It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.

13 The reason for the rule is that compulsion by the Court to produce documents involves an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires: Hearne v Street at [107] citing English authority.

14 That opens the door some way to the council's submission that there is no breach of the implied undertaking if expert reports are provided to objectors in a Class 1 development appeal such as this. The council submits that providing expert reports to objectors who wish to consider them for the purposes of their objections is for the purpose of the proceedings because the Court receives objectors' evidence and submissions in accordance with the Court's Practice Note Class 1 Development Appeals , and under the Court's published Site Inspections Policy the council is obliged to ensure that local residents (including objectors) have a full understanding of the proposal (including recent amendments) so that any concerns expressed on - site are relevant: see [23] - [24] below.

15 The question whether the implied undertaking applies to the expert reports of one party served pursuant to court orders or rules of court, where the other party wishes to provide them to objectors, requires consideration of the unique status of objectors in development appeals. Their status has no equivalent in conventional civil litigation: see [18] - [23] below. However, I do not propose to finally answer that question in this case for two related reasons. First, it is unnecessary to do so because, assuming that the implied undertaking arises, I have decided that in any event leave should be granted to the council to provide the expert reports to objectors (as discussed below). Secondly, having made the leave decision, it is preferable not to decide whether the implied undertaking applies to expert reports in circumstances such as these in the present proceedings because I have had little time during the course of the day to reflect on the question due to the urgency with which the council's notice of motion, heard earlier today, has had to be decided. Having said that, my preliminary view is that a party is free to give copies of its own expert reports to whomever it wishes in any civil litigation. That is because the implied undertaking is intended only to protect that party against disclosure by the other party of documents produced to the latter under compulsion of the court which the former could otherwise have kept private. As I have indicated, I prefer to express no preliminary view and reserve for another day the question whether the implied undertaking extends in development appeals to disclosure to objectors by party A of expert reports produced to party A by party B under compulsion of the court.

LEAVE

16 Assuming that the implied undertaking applies to expert reports sought to be provided to objectors in development appeals, the applicant submits that leave should not be granted because: (a) it is inappropriate for objectors to enter the expert witness arena as their interests will be adequately represented by the council; (b) Sheahan J reached a similar conclusion in the general context of dismissing EVCARES' application for Double Bay Marina orders (see [ 6 ] above); and (c) access to expert reports by objectors could potentially lead to inefficiency or disruption at the hearing if objectors seek to respond inexpertly or to introduce, formally or informally, expert evidence in reply.

17 In my opinion, the regulatory context, legislative and curial, favours the grant of leave in the circumstances of this case. This context is one of providing opportunity for public involvement, participation and access to information, as well as transparency.

18 First, one of the objects of the Environmental Planning and Assessment Act 1979, under which development applications are made to consent authorities and appeals made to this Court, is "to provide increased opportunity for public involvement and participation in environmental planning and assessment": s 5(c).

19 Secondly, when a development application is before a council for consideration, prior to any appeal to the Court, any person may inspect the development application and accompanying information and make written objections: cl 91 Environmental Planning and Assessment Regulation 2000. Further, persons may apply for, and have a legally enforceable right to be provided with, access to government information associated with development applications, including expert reports, under the Government Information (Public Access) Act 2009 and the Government Information (Public Access) Regulation 2009 Schedule 1. Section 3(1) of that Act sets out the objects:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

Section 4 defines "government information" as being "information contained in a record held by an agency", including a "local authority" which Schedule 4 of the Act defines to mean a council or county council.

20 Thirdly, in an appeal against a council's refusal of a development consent, the Court stands in the shoes of the council: ss 39(2) and 39(5) Land and Environment Court Act 1979.

21 Fourthly, after a document is tendered in evidence at the hearing of an appeal before the Court, it is accessible by an objector without breaching the implied undertaking.

22 Fifthly, the Court's usual directions in Class 1 development appeals provide for objectors to give evidence and for their submissions to be received, and the Court's Site Inspections Policy requires the council to ensure that local residents (including objectors) have a full understanding of the proposal (including recent amendments) so that any concerns expressed on - site are relevant.

23 The usual directions in Schedule D to the Court's Practice Note Class 1 Development Appeals include direction 13 in Part G which provides :

13 The respondent consent authority is to file and serve a notice of objectors who wish to give evidence in the hearing, of whom the consent authority is aware, by # [7 days before the hearing]. The notice is to identify the objector, their address, where they wish to give evidence (on site or in Court) and whether they made a written submission about the application (in which event, the notice is to provide the page number of that submission in the key bundle). If there is no submission, the respondent consent authority should, if possible, file and serve a short statement identifying the topics about which the objector wishes to give evidence.

24 Paragraphs 10 and 11 of the Court's Site Inspections Policy provide:

10. The council is to ensure that:

• Local residents are advised of the time of the site inspection so they have the opportunity to give evidence on - site.
• Local residents have a full understanding of the proposal (including recent amendments) so that any concerns expressed on - site are relevant.
• The local residents understand their obligation to the Court to provide their evidence in a truthful and helpful manner.
• The local residents understand that while their evidence is to be given on - site, their evidence has the same effect as if it was given in a courtroom.
• Where written submissions have been prepared, on - site evidence should address only the main points of concern. The full text of the submission can be tendered by the council as part of the proceedings.
• Where one specific issue has been addressed in detail by one local resident, it is not necessary for each subsequent resident objector to address in full the same issue. It is sufficient for the Court's assessment if the subsequent local residents acknowledge that they hold similar views to the previous resident who has given evidence.
• When local residents give evidence, there should be no interruptions or interjections so that those attending the site inspection can fully understand the matters raised by the resident.
• The local residents understand that their opportunity to give evidence is limited to their formal presentation of their evidence and it is not appropriate that further comments be made during the site inspection unless requested by the Judge or Commissioner, agreed by the parties or as part of an explanation of the previously given evidence, for example, from their property if their evidence was given elsewhere.
• The local residents understand that they may be cross - examined on their evidence.

11. Where local residents give evidence on - site, notes are to be taken by each party or their legal representatives or agents and an agreed summary of the evidence is to be tendered to the Court.

25 To my mind, it is paradoxical and inefficient that objectors, who may give evidence, and who wish to consider expert reports for the purposes of their objections can see expert reports before a council determination of a development application and other expert reports after they are received in evidence at the hearing of an appeal but not earlier in the appeal process. I think that access by objectors to expert reports before they are tendered is generally likely to improve the efficient conduct of the hearing, especially in a case such as this where only two days have been fixed for the hearing and there are over 1,000 objectors. It is customary in such proceedings for objectors to generally give evidence on - site at the commencement of the hearing. It is possible that objectors who later during the hearing become aware of the content of expert reports may seek to be heard further, thus protracting and disrupting the hearing. It may be that some objections are met by expert evidence and that an objector could be cross - examined to that effect. Prior access could therefore eliminate false issues and save time. Such access to expert reports should also enhance the confidence of objectors in the transparency of the appeal process.

26 However, the mere fact of an order granting leave to a party to provide copies of expert reports to objectors who wish to consider them for the purposes of their objections does not mean that such objectors are entitled to enter the expert evidence arena as if they were parties or the beneficiaries of Double Bay Marina orders. Therefore, the prospect of inefficiency or disruption suggested by the applicant (see [ 16 ] above) should not arise.

27 Finally, a discretionary factor raised by the applicant is that on 25 January 2012 the council's solicitor wrote to EVCARES' solicitor stating that the council was unable to provide the latter or EVCARES with copies of statements of evidence filed in the proceedings without a direction of the Court to do so and that the council did not propose to seek such a direction. There seems to have been a change of position by the council. I do not think that is sufficient to outweigh the considerations to which I have referred.

28 For these reasons, I have decided to grant leave along the lines sought by the council. On this basis, counsel for the parties agree that there should be an exception for expert evidence to which objection to admissibility is successfully taken and, having conferred, they propose the orders set out below at [ 30 ].

COSTS

29 The council seeks the costs of its notice of motion. Costs are not awarded in proceedings such as these unless the Court considers the making of a costs order is "fair and reasonable in the circumstances": r 3.7(2) Land and Environment Court Rules 2007. I do not consider that it is fair and reasonable in the circumstances to make a costs order in relation to the notice of motion. The issue which I have decided does not appear to have come before the Court before and involves a question of principle and general application which it was appropriate to debate.

ORDERS

30 The orders of the Court are as follows:

1. The respondent is at liberty to provide copies of the expert reports served in these proceedings to persons who have objected to the amended development application and who wish to consider those reports for the purposes of their objections, with the exception of the following reports: -

(a) the supplementary report of Patricia McCarthy dated 3 February 2012; and

(b) any joint report not yet served of the following experts: -

(i) the traffic experts;

(ii) the arborists; and

(iii) the planners.

2. In respect of any reports referred to in sub - paragraphs 1(a) and (b) above, the applicant is to advise the respondent of any objection to the provision of any such report, or part thereof, to any person who objected to the amended application: -

(a) by 4pm on Monday, 20 February 2012; or

(b) within 24 hours of the service of any such report;

whichever later occurs.

3. In relation to any report to which order 2 applies: -

(a) if there is no objection within the time referred to in order 2 to any such report, the respondent is at liberty to provide copies of such report to persons who have objected to the amended application and who wish to consider those reports for the purposes of their objection;

(b) if there is objection within the time referred to in order 2 to a part or parts of such report but not to the whole of such report, the respondent is at liberty to provide copies of so much of the report to which there is no objection to persons who have objected to the amended development application and who wish to consider such report for the purposes of their objection; and

(c) if there is objection notified within the time referred to in order 2 to the whole or part of any such report, such whole or part is not to be provided to any person who has objected to the original or amended development application, without further order of the Court.

4. Liberty is granted to the parties to apply on an urgent basis to restore the matter to the list.

5. No order as to costs of the respondent's notice of motion filed on 14 February 2012.

6. The exhibit may be returned.

Decision last updated: 16 November 2012