e-legal Bulletin October 2013 Volume 24
Motion to set aside subpoena - Fivex Pty Ltd v Valuer-General  NSWLEC 114
This case dealt with a notice of motion filed by the applicant seeking an order to set aside a subpoena issued at the request of the Valuer-General. The Court did not uphold the subpoena however it ultimately afforded the opportunity for the Valuer-General to request and for Fivex to produce certain documents.
Fivex Pty Limited appealed to the Court pursuant to section 37 of the Valuation of Land Act 1916 objecting to a determination of land value by the Valuer-General.
During the proceedings, Fivex filed a notice of motion seeking an order to set aside a subpoena issued at the request of the Valuer-General which requested Fivex to produce a number of tenancy documents.
Fivex sought that the subpoena be set aside on 2 bases:
1.First, it contends that there is no legitimate forensic purpose to be served by production of the documents sought. 2.Second, it contends that the terms in which the documents sought are expressed constitute a fishing expedition, as the subpoena fails to identify the documents sought in the manner required by Pt 33 r 33.3(4)(a) of the Uniform Civil Procedure Rules 2005. As a consequence of this failure, so Fivex submits, uncertainty attends the content of the documents required to be produced rendering attempts at compliance "oppressive".
As to the first ground of challenge, the Court noted that a document will have a legitimate forensic purpose if it is likely that the document or documents will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the document will materially assist on such an issue. In this case, the "issue" for determination in the principal proceedings was the land value of the property on each of the base dates for which a determination had been made and which is the subject of appeal to the Court.
The Valuer General contended that the documents sought in the subpoena were relevant to the valuation method proposed to be addressed in evidence by it whereas Fivex argued the documents had no bearing upon the valuation.
The Court held that having regard to the nature of the documents sought and the manner in which the material obtained from them is intended to be used, there was a reasonable basis beyond speculation that those documents would likely provide material assistance on the issue of valuation proposed to be addressed by the Valuer-General. Thus the Court was satisfied that production of the documents did serve a legitimate forensic purpose. The Court also noted that generally, courts will be slow to deny to a party the use of a valuation method that appears rational to be applied to the valuation task at hand.
With respect to the second ground of challenge, the Court would not uphold the subpoena in its present form as it considered that the schedule to the subpoena was inadequate to identify documents sought as required by r 33.3(4) and it had the “hallmarks of a fishing expedition”. Notwithstanding this, the Court afforded the opportunity for the Valuer-General to request and for Fivex to produce certain documents identified by the Valuer General as falling within the generic description of tenancy documents. This was so because the applicant noted that if required to produce leases, tenancy agreements and other specific documents relating to the existing building and its occupancy, it would not foresee that such a request would be resisted once the legitimate forensic purpose issue had been determined. In coming to this decision the Court noted that it was incumbent upon the Court and the parties to the appeal to have the proceedings determined in a just, quick and cheap manner conformably with s 56 of the Civil Procedure Act 2005.
The judgment may be accessed by clicking on the below link:
Whether stays should be granted in respect of a costs order and a publication order pending appeal – Harrison v Harris (No 3)  NSWLEC 140
This was a stay application in the NSW Land and Environment Court on whether the Court ought to grant a stay of a previous costs order and publication order until an appeal case could be heard. The Court held that it did have the power to stay costs orders, however, it ought not to in this case. The Court similarly decided that it did have the power to stay the publication order but it should not do so on the facts at hand.
On 17 July 2013 the Court delivered a sentence judgment for an offence by the defendant, Mr Ronald Harris, against s 91K(1) of the Water Management Act 2000 (WMA). Mr Harris had pleaded guilty to the offence. The Court convicted Mr Harris and imposed a fine. In addition, Mr Harris was ordered to pay the prosecutor's legal costs (costs order) and to publish a notice in two newspapers disclosing his conviction for the offence and the penalty imposed by the Court (publication order). Mr Harris did not oppose the making of the costs order or the publication order at the time of sentence.
On 14 August 2013 Mr Harris made an application to the duty judge seeking the temporary stay of the costs order and the publication order, but not the fine. The application was urgent because the fact that compliance with each of the orders sought to be stayed was required by either 14 or 15 August 2013 being the following two days. While this may have been correct in respect of the publication order, it could not have been correct in respect of the costs order, which was simply expressed as "the defendant is to pay the prosecutor's legal costs as agreed or assessed". No timeframe for payment of the prosecutor's costs was stipulated in the order. The duty judge stood Mr Harris’ application over to be heard by the original trial judge.
The costs order
The Court considered the application to stay the costs order and the publication order separately. Regarding the costs order, the Court found that there was no warrant to prevent the Court from having such a power to stay the costs order. However the Court refused to stay the order on the facts at hand because:
1.Mr Harris’ prospects of overturning the order upon appeal appeared remote; 2.It may be some time before the actual costs are assessed under the UCPR; 3.The Court was not informed about how burdensome it would be on Mr Harris to refuse a stay; and 4.Absent something more, the mere lack of costs being assessed is an insufficient argument to grant a stay pending appeal.
The publication order
Regarding the publication order, the Court found that it did have the power to stay the order pending appeal because the publication order itself can be considered an aspect of a ‘sentence’. The Court decided not to grant the stay to Mr Harris because:
1.Mr Harris had already agreed that there ought to be an advertisement; 2.It would not affect the subject matter of a subsequent appeal if the stay were not granted; and 3.The public interest warrants compliance with the publication order to achieve the required element of general deterrence.
The Court ordered that Mr Harris’ application be dismissed and Mr Harris pay the prosecutor’s costs of the application.
The Court’s decision may be viewed via the following link:
Marsden Park Precinct Rezoned for Urban Development
On 4 October 2013 the Marsden Park Precinct was rezoned for urban development having previously been released as an accelerated precinct under the NSW Government Precinct Acceleration protocol.
Marsden Park was released for planning as one of two Precincts advanced under the NSW Government's Precinct Acceleration Protocol in July 2011 and rezoned for urban development on 4 October 2013.
The State Environmental Planning Policy (Sydney Region Growth Centres) 2006 has been amended to reflect the rezoning with the addition of Appendix 12 Blacktown Growth Centres Precinct Plan 2013.
The 1,800 hectare precinct will deliver more than 10,000 new dwellings to accommodate 30,000 residents.
The rezoning is accompanied by a Development Control Plan which will become available shortly. In addition a Section 94 Contributions Plan, which details the local infrastructure required to support development will be finalised by Blacktown City Council in the near future.
Further information can be found on the Department of Planning & Infrastructure’s website:
New South Wales Environment and Protection Authority to introduce changes to Environment Protection Licenses
The NSW Environment Protection Authority (EPA) has recently identified necessary improvements to the licensing framework for all environment protection licensees. These improvements were identified through the EPA’s review of the Environment Operations Act 1997. The EPA proposed changes to licenses primarily involve a shift toward a risk-based licensing system.
The EPA has proposed a new risk-based licensing system which is modelled on the Australian/New Zealand risk management standards. The risk-based system aims to ensure that all licensees receive an appropriate level of regulation based on the level of risk they pose. The EPA considers providing incentives for licensees will result in improving compliance and environmental performance across the board.
To determine the level of risk applicable to each licensee the EPA will consider the following components in consultation with licensees:
1.The day-to-day operations at the site by assessing the types of environmental media relevant to the premises (air, odour, water and noise emissions); 2.The pollutant incident risk at the premises; and 3.The environmental management performance of the licensee.
To successfully effect this change the EPA will need to be well equipped to regulate high risk pollution facilities. In addition, the community and local businesses should be provided with more information about industry environmental performance and EPA regulatory decisions.
The EPA proposes to introduce the risk-based licensing system and a new structure to calculate licensing fees from 1 January 2015. This aims to give licensees the opportunity to reduce their risks where possible and thereby reduce their fees and costs.
The proposed changes to the licensing system can be found on the NSW Environmental Protection Authority’s website: