McMillan v Taylor

PAYNE JA: This dispute was referred to me and heard in the referrals list on 3 July 2023. The applicants seek access to certain documents contained from a Land and Environment Court file.

The documents are sought in aid of judicial review proceedings brought in this Court, in which the applicants challenge a decision of a Land and Environment Court Commissioner. The judicial review proceedings are listed for hearing in this Court on 28 July 2023. The applicants have filed their written submissions and evidence in support of that application. The respondents’ submissions and materials were filed on 4 July 2023. The applicants’ reply submissions are due on 20 July 2023.

The applicants in the judicial review proceedings are Julie-Anne McMillan, Frances Ezra, Jack Ezra, Michael Hammond, Lisa Stephens, neighbouring home owners of the first and second respondents, Campbell Taylor and Sarah Curtis who own the property at the centre of this dispute and who oppose the application. The third and fourth respondents, respectively the Land and Environment Court of NSW and the Council of the Municipality of Woollahra, have entered submitting appearances.

The applicants challenge the Commissioner’s decision in Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 1658. In that decision, the Commissioner disposed of an appeal against a refusal of development consent in accordance with a conciliation agreement dated 16 November 2022 made between Woollahra Council and the first respondent. That agreement was made under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which provides:

The applicants twice unsuccessfully sought to be joined as parties to the proceedings which were resolved by the s 34 agreement: Campbell Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 96; Campbell Taylor v Council of the Municipality of Woollahra (No 2) [2022] NSWLEC 106. No appeal was brought from those decisions but, rather, the judicial review proceedings were launched.

On 30 March 2023, after commencing the review proceedings, the applicants served a notice to produce seeking access to the entire court file in the Land and Environment Court proceedings. It appears that no production was made under that notice to produce but that on 3 May 2023, the file was obtained by the Registrar of the Court of Appeal, in accordance with the Court’s usual practice.

The Registrar allowed first access to that file to the first respondent. On 19 May 2023, the first and second respondents sent to the applicants a schedule of documents in the file which they claimed should not be produced by reason of s 34(11) of the LEC Act. Originally, the applicants sought access to draft versions of the s 34 agreement. In the course of argument on 3 July, following production to the applicants by the first respondent of the final s 34 agreement, the claim for drafts was not pressed.

What remains in issue are the following categories of documents:

The applicants press their claim for access to these documents. They no longer rely on the 30 March notice to produce, but instead on the power in r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) which provides:

When a party seeks a document or thing from a court’s registrar, then under subrule (3), the registrar must take certain steps unless the court has “otherwise ordered”. The real question is therefore whether I should “otherwise order” in relation to the documents sought by the applicants. I have decided to “otherwise order”.

This is because I am satisfied that in the present circumstances to allow access to the file would be inconsistent with the dictates of Part 6 of the Civil Procedure Act 2005 (NSW).

The applicants seek those documents in aid of grounds 3 and 4 of the judicial review application. Grounds 3 and 4 are:

As I have said, the applicants’ evidence and submissions in support of these grounds have already been filed. I am satisfied that the documents sought are “confidential” within the meaning of s 34(11) of the LEC Act. In context, “purpose” within the meaning of s 34(11) seems to me to mean dominant, in the sense of ruling or prevailing, purpose.

In addressing dominant purpose, it is relevant that in proceedings concerning development applications of the present kind a conciliation conference is mandatory: s 34AA of the LEC Act. It seems tolerably clear from the schedule’s description of the documents that they were prepared for the dominant purpose of use in the compulsory conciliation which led to the s 34 agreement. That is: the documents were likely prepared for the purposes of, or in the course of, or as a result of, a conciliation conference, within the meaning of s 34(11)(b) of the LEC Act.

I reject the applicants’ attempt to characterise the documents as prepared for the dominant purpose of a future hearing. The better characterisation, given the compulsory conciliation here engaged is that these were documents made for use in that conciliation.

Because I find the documents sought are confidential within the meaning of s 34(11)(b), they could not be admissible in the judicial review proceedings, absent consent of the respondents. The applicants submitted that, although s 34(11) renders inadmissible the documents it captures, the section does not in terms prevent their access to documents. It was submitted that the respondents may in future consent to their tender.

When it comes to consent, the first and second respondent have clearly stated their position: they do not consent to granting access to the applicants to the outstanding documents. I am satisfied that position will not change. It would not be in accordance with the dictates of Part 6 of the Civil Procedure Act to go through the solemn farce of providing access to the documents so that the respondent can refuse consent to their tender. The applicants have suggested no other purpose for access other than tender in evidence.

Even if I had not reached this conclusion on case management grounds, there may well be an additional reason not to permit access. The respondents submitted that r 1.9 of the UCPR, along with the definition of “privilege” in the dictionary, allowed the Court to determine an objection to production on the basis of s 34(11). Rule 1.9 relevantly provides:

The UCPR Dictionary’s definition of “privileged document” and “privileged information” is:

The documents sought in these proceedings were privileged under (h)(iii), because their admission would be contrary to “any Act”, namely s 34(11) of the LEC Act. Even if I had been persuaded on case management grounds to permit the applicants to obtain access to the documents, the respondents are entitled to object to production on the grounds of privilege, under r 1.9(3). It would then be open to the Court to uphold or overrule the objection under r 1.9(4). Given the conclusions I have reached it is unnecessary finally to determine the correct construction of UCPR r 1.9.

Neither is it necessary to determine the operation of s 131A of the Evidence Act 1995 (NSW) and whether, as the applicants submitted, s 131A applies to the present dispute.

Given the time which has elapsed and the state of the proceedings which are all but ready for hearing and are listed within a few weeks, it would not be an appropriate exercise of the Court’s powers to permit access to the Land and Environment Court file in circumstances where I am satisfied that the documents concerned are in any event not admissible pursuant to s 34 of the LEC Act, without the consent of the respondent which I am comfortably satisfied would not be given.

Despite the way the argument developed, for abundant caution, I will set aside the applicants’ notice to produce dated 30 March 2023.

Accordingly, I make the following orders: