Environment and planning – courts and tribunals with environment jurisdiction – Queensland – Supreme Court – leave to appeal – where applicants seek leave to appeal under s 498(2) of the Sustainable Planning Act 2009 against decision setting aside subpoena to Chief Executive Officer of respondent Council and ordering applicants pay costs in relation to setting aside – where applicants are owners of residential property with boundaries contiguous to path constructed by respondent Council – where applicants sought declarations, and consequential orders, against respondent Council in Planning and Environment Court for unlawful construction of path – where trial commenced and adjourned part heard – where applicants came into possession of email sent by councillor's personal assistant to constituent regarding path – where applicants issued subpoenas against Chief Executive Officer of respondent Council, five councillors and councillor's personal assistant who sent email – where respondent Council applied to set aside subpoenas – where applicants abandoned reliance on all subpoenas other than subpoena directed to Chief Executive Officer of respondent Council – where primary judge ordered subpoena directed to Chief Executive Officer of respondent Council to be set aside for abuse of process – where applicants seek liberty to further subpoena to Chief Executive Officer of respondent Council seeking same documents as in subpoena that was set aside – where applicants argued documents describe in subpoena relevant to issues in litigation and "on the cards" that it would materially assist applicants – where applicants argue primary judge wrongly disregarded particulars in deciding pleadings did not raise any issue concerning subjects in subpoena – where applicants argued subpoena should be varied if too wide – whether the primary judge erred in setting aside subpoena – whether leave to appeal should be granted
Facts: The applicants sought leave to appeal under s 498(2) of the Sustainable Planning Act 2009 (SPA) against a decision setting aside their subpoena to the Chief Executive Officer of Gold Coast City Council and ordering the applicants to pay the Council's costs of and incidental to the application to set aside the subpoenas.
Each applicant owned residential property fronting an unformed road reserve, Pacific Parade, at Currumbin. In May 2009, Council constructed a path on Pacific Parade, contiguous with the eastern boundaries of the residential properties fronting Pacific Parade. The path was apparently constructed on the landward side of, and partly on, misaligned, discontinuous boulder walls buried under the coastal dune.
In April 2010, the applicants sought declarations that the path had been constructed unlawfully, without an effective development permit.
The hearing was adjourned, part heard, in May 2011.
Following the adjournment of the hearing, the applicants came into possession of an email dated 4 October 2011 which had been sent by a councillor's personal assistant to a constituent. The email included a statement that a section of path in front of Hedges Avenue at Mermaid Beach had not been done "because Hedges Avenue has an inconsistent 'A' line which means that realignment of the boulder wall will be necessary before the pathway is constructed". The "A-line" was referred to in Council's Planning Scheme Policy No 7: Foreshore Rock Wall Design and Construction as the "leading edge" of the boulder walls (in the applicants' submission) or of walls to be constructed (according to Council's submission).
The applicants issue subpoenas against Council's Chief Executive Officer, five councillors and the councillor's personal assistant who had sent the email. The Council applied to set aside the subpoenas on the grounds that they were issued for an improper purpose, did not disclose a legitimate forensic purpose, were an abuse of process, were tantamount to disclosure, were an impermissible fishing exercise, and were oppressive and not in compliance with the approved form and Rule 415 of the Uniform Civil Procedure Rules 1999 (UCPR).
The primary judge heard Council's application on 14 November 2011. Towards the end of the hearing, the applicants abandoned reliance upon all of the subpoenas other than the subpoena directed to the Chief Executive Officer. The primary judge found that the subpoenas did not comply with the approved form as required by r. 415 of the UCPR, were an abuse of process and should be set aside, saying that the issue of the subpoenas was "...an ill-conceived, opportunistic attempt on the part of the applicants to embark upon a fishing exercise to seek to force the CEO and Councillors to produce documents unrelating to any matter in issue before the court".
In relation to the issue of oppressiveness, the primary judge found that the evidence from Council's legal information unit coordinator indicated that a minimum of 16 days continuous work would be required to comply with the subpoenas.
The substantive order sought by the applicants' draft notice of appeal was that the applicants be at liberty to issue a further subpoena to the Chief Executive Officer seeking the same documents set out in the original subpoena which was set aside by the primary judge.
The subpoena required the production of documents described in a schedule, all of which concerned the boulder walls. The central question in the proposed appeal was whether the documents described in the subpoena were relevant to the issues in the litigation.
At first instance, the applicants had submitted that the documents sought by the subpoena were relevant to allegations raised in two paragraphs of their fourth further amended originating application, in relation to which they had purported to give further and better particulars (although such particulars had not been requested by Council).\
In seeking leave to appeal against the primary judge's decision, the applicants argued that:
- the primary judge wrongly disregarded the unrequested particulars when deciding that the pleadings did not raise any issue concerning the subjects mentioned in the subpoena;
- the primary judge had not made a finding that the subpoena was oppressive and that his statement about the issue of oppressiveness amounted merely to a recitation of the evidence; and
- if the subpoena was too wide, it should be saved by appropriate variation.
Decision: The Court held in refusing the application with costs, that:
- it was not accepted that, under the guise of supplying particulars which had not been requested, the applicants were entitled unilaterally to expand their case or reintroduce a case which they had earlier abandoned. In any case, the subpoena did not limit the documents sought by reference to the allegations contained in the relevant paragraphs of the fourth further amended originating application
- the primary judge's conclusion that the issue of the subpoenas constituted an abuse of the Court's process was plainly informed by the oppressive nature of the subpoena as revealed by unchallenged evidence. There was no error in the primary judge's conclusion that the issue of the subpoena in the terms in which it was issued was an abuse of process
- the applicants had not sought to amend the subpoena, describe any narrower class of documents which might legitimately be sought, or address those topics in their submissions. Leave to appeal should be refused because there was no prospect that the Court would make an order that the subpoena be re-issued in the same terms.
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