Application does not fly: Planning and Environment Court of Queensland has dismissed an application seeking non-party disclosure
By Ian Wright, Nadia Czachor, Krystal Cunningham-Foran and Mary Do
An application seeking non-party disclosure is dismissed because the Court was not satisfied that there exists an obligation to keep the documents sought.
In brief
The case of Noosa Shire Council v Noosa Airfield Pty Ltd & Anor (No 2) [2024] QPEC 38 concerned an application in pending proceedings by Noosa Shire Council (Council) to the Planning and Environment Court of Queensland (Court) seeking non-party disclosure (Disclosure Application) from some identified commercial aircraft operators at Noosa Airfield (Airfield) and the regulatory authorities, Civil Aviation Safety Authority (CASA) and Airservices Australia (AA).
The Court considered the following issues:
1. Whether the Disclosure Application is premature pursuant to Practice Direction 5 of 2023 (Practice Direction).
2. Whether there is sufficient evidence to demonstrate direct relevance to an allegation in issue in the substantive proceeding pursuant to rule 242 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
The Court dismissed the Disclosure Application finding that there is an " … absence of sufficient identification of the availability of any document, or type of document, which would be amenable to the non-party disclosure …" (at [40]).
Background
The Council commenced proceedings in the Court relevantly seeking the following (Enforcement Proceeding) (see Amended Originating Application dated 16 February 2024):
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Declarations – Declarations under section 11(1)(c) of the Planning and Environment Court Act 2016 (Qld) that a town planning consent for a private airstrip issued on 7 July 1975 be taken to have lapsed and that a rezoning approval issued on 5 August 1994 has not taken effect.
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Enforcement Orders – Enforcement orders under section 180(3) of the Planning Act 2016 (Qld) (Planning Act) in respect of restraining the First Respondent and Second Respondent (Respondents) from committing a development offence under section 163 of the Planning Act for carrying out assessable development without a development permit and under section 165 of the Planning Act for the unlawful use of premises.
The Respondents made an application for a stay of the Enforcement Proceeding, pending the determination of an appeal brought by the First Respondent against the Council's decision to give it an enforcement notice (at [1]). The Court dismissed the application to stay the Enforcement Proceeding (at [1]).
The Council made the Disclosure Application seeking disclosure from the Airfield, CASA and AA for the following classes of documents to support the issues which arise in the Enforcement Proceeding (at [3]):
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Those which detail the number and type of aircraft using the land, from 1 January 2010 to 16 February 2024.
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Those which detail any safety incidents or other complaints concerning aircraft using the land from 1 January 2010 to 16 February 2024.
Court finds the Disclosure Application is not necessarily premature pursuant to the Practice Direction
The Respondents argued that the Disclosure Application is premature, having regard to the Practice Direction (at [15]).
The Court acknowledged that the requirement in the Practice Direction for the party alleging the development offence to file its material before allowing the election of a responding party may be a recognition of privileges against self-crimination and self-exposure to a penalty, and considered whether those privileges are relevant to the First Respondent which is a corporation (at [20]).
The Court observed the following in respect of the Practice Direction (at [30]):
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Privileges against self-incrimination and against exposure to penalty are important rights relating to individuals.
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Despite the absence of the legal recognition of the privilege against self-incrimination and self-exposure to a penalty for corporations, the Practice Direction applies to a corporate respondent.
The Court stated that there has been no attempt to discriminate the position between the Respondents and therefore "…each of them point to their common position pursuant to the Practice Direction" (at [31]).
The Court accepted that the Disclosure Application does not infringe any privilege of the Second Respondent against self-incrimination and self-exposure to a penalty, and found that the Disclosure Application "…is not necessarily to be regarded as premature because of the position of the [Respondents]…" under the Practice Direction (at [32]).
Court finds there is insufficient evidence to demonstrate direct relevance to an allegation in issue in the Enforcement Proceeding under rule 242 of the UCPR
Rule 242 of the UCPR states as follows (at [6]):
"(1) A party (the applicant) to a proceeding may by notice of non-party disclosure require a person who is not party to the proceeding (the respondent) to produce to the applicant, within 14 days after service of the notice on the respondent, a document—
(a) directly relevant to an allegation in issue in the proceeding; and
(b) in the possession or under the control of the respondent; and
(c) that is a document the respondent could be required to produce at the trial of the matter.
(2) The applicant may not require production of a document if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
(3) The respondent must comply with the notice but not before the end of 7 days after service of the notice on the respondent.
(4) Disclosure under this division is not an ongoing duty."
The Amended Originating Application for the Enforcement Proceeding alleges that there is no valid development approval which exists for the Respondents to use the land for purpose of air services and therefore, the use of land for air services is not a lawful existing use of the land (at [13]).
The Council argued that non-party disclosure was required for the purposes of establishing "…that the land has been and is used for the purposes of air services but also as to the nature scale and intensity of that use, as may be particularly relevant to the contention as to an unapproved material change of use of land and also to discretionary issues as may arise…" in the Enforcement Proceeding (at [3]), and that CASA is responsible for the safety regulation of civil air operations in Australia and AA is responsible for the provision of air navigation services and facilities (at [37]).
The Respondents argued that there is an absence of explanation as to why documents extending back to 2010 are sought (at [15]).
The Court recognised that the notice requiring non-party disclosure under rule 242 of the UCPR is not a "fishing expedition" and "…must be 'founded on a legitimate forensic purpose' and 'represent a genuine attempt to obtain evidence to support the party's pleaded case as opposed to what might be though to be speculation or general intelligence gathering.'" (at [8]).
The Court observed that the Council did not identify any particular obligation or expectation by the non-parties regarding records for particular use of any aerodrome (at [37]), and that the submissions of the Council show an absence of an identified basis upon which there could be an expectation by the non-parties to keep records and are the clear appearance of speculation and intelligence gathering (at [38]).
The Court found that the Council did not demonstrate how a limited approach from seeking non-party disclosure from only some operators could be directed at evidence in establishing proof of the material change of use related to the Enforcement Proceeding (at [39]).
The Court held that the essential problem with the Disclosure Application is that it lacks the sufficient identification of the availability of any document which would be amenable to non-party disclosure in allowing the Council to prove an allegation in issue in the Enforcement Proceeding (at [40]).
Conclusion
The Court dismissed the Disclosure Application (at [41]).