ADC Group Pty Ltd v Brisbane City Council [2020] QPEC 44 [2021] QPELR 728

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: ADC Group Pty Ltd v Brisbane City Council [2020] QPEC 44 PARTIES: ADC GROUP PTY LTD (ACN 609 452 271) (applicant/respondent) v BRISBANE CITY COUNCIL (respondent/applicant) FILE NO/S: Appeal Number BD4591/2019 and Appeal Number BD559/2020 DIVISION: Planning and Environment PROCEEDING: Hearing of Applications ORIGINATING COURT: Planning and Environment Court of Queensland, at Brisbane DELIVERED ON: 3 September 2020 DELIVERED AT: Brisbane HEARING DATE: 21 August 2020 JUDGE: R S Jones DCJ ORDER: The orders of the court are as follows: 1. The words it appears to be imposed for the ulterior motive of avoiding infrastructure offsets where they appear in the notices of appeal are struck out. 2. Those documents identified in the following categories are to be disclosed: (a) The documents in category E to the extent identified in paragraph 36 herein; (b) The documents within categories B, C and D to the extent identified by Mr Gibson QC; (c) Those other documents identified in paragraph 30 herein. The extent of such disclosure to be resolved by the parties or otherwise by the Court. 3. Save as identified above the application for further disclosure will otherwise be dismissed. -- 1 of 17 -- 2 4. I will leave it to the parties to formulate appropriate orders embodying the conclusions that I have reached 5. I will hear further from the parties if necessary as to any consequential orders. CATCHWORDS: STRIKE OUT PROCEEDING – Where it is sought that words contained within the notices of appeal, filed on behalf of ADC, be struck out DISCLOSURE – Where disclosure of a number of documents identified under various classes is sought LEGISLATION: Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) Uniform Civil Procedure Rules 1999 (Qld) CASES: Allesch v Maunz (2000) 203 CLR 172 Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co. Ltd [2011] QSC 183 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Jakel Pty Ltd v Brisbane City Council [2018] QPELR 763 Lacey v Attorney General (Qld) (2011) 242 CLR 573 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd [2001] 1 Qd R 276 R v Brisbane City Council, ex parte; Read [1986] Qd R 22 The Village Retirement Group Pty Ltd v Brisbane City Council [2019] QPELR 980 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Wong v Minister for Immigration (2002) FCA 1271 COUNSEL: Mr Gore QC with Mr Lyons for the applicant/respondent Mr Gibson QC with Mr Yuen for the respondent/applicant SOLICITORS: McCullough Robertson for the applicant/respondent Brisbane City Legal for the respondent/applicant [1] These proceedings are concerned with two applications. The first in time filed by ADC Group Pty Ltd (ADC) seeking disclosure of a number of documents identified -- 2 of 17 -- 2 under various categories or classes. The second application in time was that of the Brisbane City Council (Council) seeking certain words contained in the notices of appeal filed on behalf of ADC be struck out. For the following reasons the orders of the Court are: 1. The words it appears to be imposed for the ulterior motive of avoiding infrastructure offsets where they appear in the notices of appeal are struck out. 2. Those documents identified in the following categories are to be disclosed: (a) The documents in category E to the extent identified in paragraph 36 herein; (b) The documents within categories B, C and D to the extent identified by Mr Gibson QC; (c) Those other documents identified in paragraph 30 herein. The extent of such disclosure to be resolved by the parties or otherwise by the Court. 3. Save as identified above the application for further disclosure will otherwise be dismissed; 4. I will leave it to the parties to formulate appropriate orders embodying the conclusions that I have reached; 5. I will hear further from the parties if necessary as to any consequential orders. Background [2] Before going on to recite some of the relevant background, it is appropriate at this stage to identify the following matters. First, it is uncontroversial that this Court has the power to grant the relief sought under both applications. It is also uncontroversial that in respect of the strikeout proceeding, the appropriate test is that enunciated in General Steel Industries Inc v Commissioner for Railways (NSW).1 Finally, insofar as r 211 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) was concerned, there was no dispute about the appropriate test to be applied. That rule provides: “(1) A party to a proceeding has a duty to disclose to each other party each document – (a) in the possession under the control of the first party; and 1 (1964) 112 CLR 125. -- 3 of 17 -- 3 (b) directly relevant to an allegation in issue in the pleadings; and (c) if there are no pleadings – directly relevant to a matter in issue in the proceeding. …” (emphasis added) [3] Mr Gore QC, senior counsel for ADC, submitted to the effect that his clients’ notices of appeal together with the Council’s Statement of Facts, Matters and Contentions in Response to Notices of Appeal, could or should be treated as if pleadings for the purposes of the UCPR. Mr Gibson QC, senior counsel for the Council, submitted that given the limited nature of the definition of what constitutes a pleading for the purposes of the UCPR, r 211(1)(c) was applicable. While I strongly suspect Mr Gibson QC’s position is the correct one, it is unnecessary to express a final view on the matter because it was agreed that, for the purposes of these proceedings, nothing turned on the difference in the terminology used in r 211(1)(b) or (c). [4] ADC intends to carry out subdivision development within the Council’s local government area. On various dates in 2018 and 2019 ADC, through its consultants, lodged with the Council development applications to facilitate the proposed development. In respect of one of the proposed developments, on 11 October 2019, the Council issued its decision notice approving the development application subject to conditions. In respect of the second development application, on 24 January 2020, the Council issued its decision notice approving it but again subject to conditions. The controversial conditions under appeal are, in respect of the 2019 approvals, conditions 25 and 83 and, in respect of the 2020 approvals, conditions 32, 77 and 118. The controversial conditions, if not in identical terms, are materially to the same effect and provide: “The proposed development and the future use of the site must not prejudice the future road reserve widening along the Ritchie Road frontage of the site by keeping an area clear of permanent buildings, improvements and structures. The extent of the land to be kept clear for the future road reserve widening is indicatively shown on sketch plan RC16017 Issue 1 which forms part of the approved Drawings and Documents. The extent of the land to the full frontage of the Ritchie Road frontage may only have permitted structures and improvements eg. fences. -- 4 of 17 -- 4 Note: A development condition in a building development approval must not be inconsistent with this condition, see section 66(2) of the Planning Act 2016 (Qld). Timing: Ongoing until future road widening.” [5] On 18 December 2019 and 24 February 2020, ADC filed its notices of appeal. In respect of each of the controversial conditions it was asserted that those conditions could not be lawfully imposed under s 65 of the of the Planning Act 2016 (Qld) (the Planning Act) because: (a) It is not reasonably required for the development, and appears to be imposed for the ulterior motive of avoiding infrastructure offsets; (emphasis added) (b) It is not reasonably required for the Proposed Development because the Proposed Development will not add substantial traffic to Ritchie Road; and (c) The Proposed Development will not require Ritchie Road to be upgraded; and (d) (This condition) will not improve the function of Ritchie Road. [6] It is only the words emphasised that are sought to be struck out. Further, insofar as s 65(1)(b) of the Planning Act is concerned, the Council accepts that the controversial conditions could not be said to be reasonably required in relation to the development or the use of the premises as a consequence of the development, but says that the conditions have been lawfully imposed under s 65(1)(a) of the Planning Act which provides: “A development condition imposed on a development approval must — (a) be relevant to, but not be an unreasonably imposition on, the development or the use of premises as a consequence of the development…” [7] While the disclosure application of ADC was filed before the Council’s strikeout application, it was agreed that the outcome of the strikeout proceedings would have a material impact on the disclosure issue and, as a consequence, ought to be dealt with first. The strikeout proceedings [8] As identified above, it is common ground that the appropriate test was that articulated by Barwick CJ in General Steel Industries and, as a consequence, to adopt the -- 5 of 17 -- 5 terminology of the Council, for it to succeed it would need to establish “(relevantly to the circumstances of these applications) the inclusion of the words complained of is ‘manifestly groundless’ or that the issue apparently sought to be raised by those words ‘is so clearly untenable that it cannot possibly succeed’.”2 As Mr Gore QC correctly pointed out, consistent with the observations made by Barwick CJ, great care must be exercised to ensure that a litigant is not improperly deprived of its opportunity to have the issues it raises determined at trial. [9] The Council expressly disavowed itself of any attack on the subject words on the basis of it amounting to an allegation or at least a suggestion of illegality on the part of the Council and any lack of particulars thereof. Instead, the attack centred on the assertion that, pursuant to s 43 of the Planning and Environment Court Act 2016 (Qld) (PECA), the merits of ADC’s appeals would be determined by way of a hearing anew. No other Act displaces the operation of s 43 in respect of the appeals. The distinction between appeals being dealt with by way of hearing anew (or de-novo) and appeals in a strict sense, have been considered in a number of cases. In Allesch v Maunz,3 it was said: “For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error… the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.” (footnotes omitted) [10] Similar observations have been made in a number of other decisions of the High Court. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors,4 it was said: 2 Respondent’s outline of submissions at [28]. 3 (2000) 203 CLR 172 at [23] per Gaudron, McHugh, Gummow and Hayne JJ. 4 (2000) 203 CLR 194 at [13] per Gleeson CJ, Gaudron and Hayne JJ. -- 6 of 17 -- 6 “In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.” [11] To similar effect were the observations made in Lacey v Attorney General (Qld),5 said: “… Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.” [12] More recently in a decision of this court, The Village Retirement Group Pty Ltd v Brisbane City Council,6 citing Lacey, it was said: “As to the nature of the appeal, s.43 of PECA provides that an appeal is by way of a hearing anew. In a hearing of this nature, the court hears the matter afresh on fresh material, and may overturn the decision appealed against regardless of error. In this context, an assessment manager is not bound by, or limited to its reasons for refusal. It is a fresh hearing, on fresh material where the correctness or otherwise of the original decision does not determine the outcome of the appeal.” [13] It was submitted on behalf of the Council:7 “In summary: (a) it is abundantly clear from the case-law, and a matter of first principle, that a hearing de novo is: (i) a hearing afresh; (ii) in relation to which it is unnecessary, and therefore irrelevant, to identify any error by the decision maker; (b) an appeal by way of a rehearing anew is, therefore, fundamentally different in principle from, for example, a review or challenge of a decision on administrative grounds; (c) that is especially so in the case of an appeal against the imposition of a condition on a development approval, because the considerations relevant to the imposition of a condition (and therefore, to an appeal from the imposition of such a condition) are identified by s 65(1) of the Act; (d) whether or not the Council’s decision is ‘valid’ or ‘invalid’ is not a matter for determination by the P&E Court on an appeal.” 5 (2011) 242 CLR 573 per French CJ, Gummow, Hayne, Crennan, Keifel (as her Honour then was) and Bell JJ at [57]. 6 [2019] QPELR 980 at [33] per Williamson QC DCJ. 7 Written submissions at para 33. -- 7 of 17 -- 7 [14] It is then submitted that as a consequence the alleged apparent ulterior purpose is irrelevant to the outcome of the appeals. [15] Somewhat ironically, both parties placed reliance on the decision of the then Full Court in R v Brisbane City Council, ex parte; Read.8 On behalf of the Council, reliance was placed on observations made by McPherson J (as he then was) where His Honour observed:9 “But to suggest that it is therefore a function of the jurisdiction of the Local Government Court to undertake a minute investigation of the motives of the Council in arriving at their decision is to mistake form for substance and to confuse question of weight of evidence with the matter to be determined. Whether or not the Council decision is ‘valid’ or ‘invalid’ is not a matter to be determined by that Court on appeal …” [16] On the other hand, on behalf of ADC it was submitted:10 “8. Read is authority that works against the Council’s argument: (a) McPherson J accepted that it was proper for the Court to consider whether a Council decision was ‘improperly arrived at”, even though the Court did not have the jurisdiction to declare that a Council decision was invalid; (b) to similar effect, Thomas J accepted that, in the course of reaching its decision, the Court ‘may examine the question whether a Council decision was bona fide, and may conclude that it was reached pursuant to extraneous considerations”, even though ‘the jurisdictional invalidly of the Council’s determination is not a matter which has been solely entrusted to the decision of the Local Government Court’; (c) similarly, de Jersey J held that the issue whether a planning authority had taken some irrelevant consideration into account ‘could be raised conveniently in the course of a local government appeal’ and… ‘could… be taken into account by the Local Government Court in assessing the town planning soundless of a local authority’s decision’ (d) as de Jersey J then concluded: ‘If it appeared that the Local Authority had been substantially influenced to its decision by an extraneous consideration, the Local Government Court would presumably therefore place less weight on the Authority’s approach, in the course of the Court’s own de novo determination of the application.’ 8 [1986] Qd R 22. 9 At [33]. 10 Appellant’s reply at paras 8 to 10. -- 8 of 17 -- 8 9. Further, the discussion in Read was concerned with a decision by the local authority to approve or refuse an application, rather than with the imposition of a condition. With a conditions appeal, as ADC has already submitted, it is well established that a condition which is not imposed for a legitimate planning purpose is invalid. Proof in an appeal to this Court that a condition has not been imposed for a legitimate planning purpose is a good starting point for an appellant, as the evidence that demonstrates that the condition was imposed for an improper purpose may be incapable of being cured in this Court by any fresh evidence. 10. And that is ADC’s case. ADC contends that the inference is open that the Council’s purpose in creating the fiction of the LTIP is to avoid offset or refund requirements under s.129 of the PA, and proof of that will go a long way towards the setting aside of the condition, notwithstanding any fresh evidence.” (footnotes deleted – original emphasis) [17] There are, with respect, a number of difficulties associated with those submissions. The first is that in Read, unlike the situation here, there was direct evidence of unlawful conduct (albeit well intentioned) on the part of the Council. The allegation under challenge does no more than state that there is an appearance of an ulterior purpose. Second, each of the judgments of the members of that Court make it clear that any ulterior motive or purpose may or may not be influential let alone determinative. Associated with the first point, it is difficult to imagine how an appearance of something without more could in any way be persuasive. Also, while it can be accepted that proof of a condition imposed for illegitimate purposes might render the decision invalid, it does not follow that evidence of such conduct would “go a long way to the setting aside of the condition” as the court made abundantly clear in Read, even evidence of a serious breach of its duty may not necessarily affect the final outcome on the merits. [18] That the decision of the Council and the reasoning behind that decision was not an issue of substance, but merely an incidental or collateral matter in the circumstances of the court below is made clear in other observations of the members of the court in Read. McPherson J said:11 “… the Local Government Court has no jurisdiction to quash the Council decision or to declare its invalidity, or to require that the application be reconsidered by the Council. Those functions belong to this Court. The function of the Local Government Court is simply to determine the application for rezoning; and the 11 At p 28. -- 9 of 17 -- 9 circumstances that in the course of doing so a question may arise, which may at some point or in some respect be common to both the enquiry in the Court and in this, does not make that question the ‘matter’ to be determined …” [19] Thomas J (as he then was) said:12 “The duty of the Local Government Court on such an appeal is to decide whether the application should be approved or disapproved. It is not an exercise to review the correctness of the Council’s decision … thus a Local Government Court may have before it evidence indicating that a local authority’s decision was improper and void, but be bound to give the same decision, because it coincidentally happened to be correct. This exemplifies the fact that the issues entrusted to the Local Government Court are quite distinct from the prerogative remedies exercised by this Court.” [20] His Honour went on to say:13 “I have already described the difference in function of a Local Government Court in hearing an appeal and the function of this court in deciding whether or not to grant a prerogative writ. Although the Local Government Court may incidentally come to the view that a local authority acted contrary to law in reaching a particular decision, at the end of the day that will not be a ground for granting or refusing the appeal. … It is a court of merit which decides the ultimate question de novo.” (emphasis added) [21] During oral submissions Mr Gore QC reiterated paragraph 18 of ADC’s reply which said “on the council’s argument it may act as improperly as it likes at the decision stage and that will be excluded from examination by this Court in a merits review.” According to Mr Gore QC, that was a “very powerful submission” and that “on their argument they can act as improperly as they like at the decision stage and this Court is excluded form examining that on a merits review.”14 I am unable to accept those submissions as, in my respectful view, they confuse what may be led as evidence with what the issues or matters are that have to be determined at trial. To adopt the words of McPehrson J in Read, for this court to undertake an examination of the motives of the Council in arriving at its decision would be to mistake form for substance and “to confuse a question of weight of evidence with the matter to be determined”. 12 At p 40. 13 At p 22. 14 Transcript (T) 1-32, ll 14-19. -- 10 of 17 -- 10 [22] As Mr Gibson QC pointed out, the substantive issues for determination in both appeals will likely centre around whether the “without prejudice” conditions are “relevant to, but not an unreasonable imposition…” for the purposes of s 65(1)(a) of the Planning Act. ADC, as presently pleaded in the notice of appeal, intends to convince the court that the conditions ought be set aside by leading evidence that the proposed developments would not add substantial traffic to Ritchie Road and/or the conditions would not improve the function of that road and nor will it be necessary for that road to be upgraded.15 While I can accept that, in respect of appeals to be determined on their respective merits by way of a re-hearing, it is not the function of the court to carry out “a minute investigation of the motives of the Council in arriving at their decision.” I do not take Read to be authority for the proposition that an allegation of an ulterior purpose cannot legitimately be raised as a matter in issue on appeal. In this context, Mr Gore QC emphasised the reasoning of the High Court in West Australian Planning Commission v Temwood Holdings Pty Ltd16 where the High Court restated the well-established principle that a development condition must be imposed for a legitimate planning purpose. [23] Given that statement of principle which was accepted by Mr Gibson QC,17 I am unable to accept that it could not be alleged as a matter of fact in a notice of appeal in this court, that the condition was not imposed for a legitimate planning purpose, the particulars thereof being that the condition was imposed solely or substantially for the purpose of avoiding having to pay compensation (as was alleged in Temwood) or, as is alleged here, to avoid infrastructure offsets. If probative evidence of such conduct existed, I can see no reason why, as was recognised in Read, that evidence could not be raised during the course of the appeal to undermine what weight (if any) ought be given to the Council’s decision to impose the condition and, conceivably, to also attack the weight that ought be given to expert witnesses called to give evidence in support of the Council’s decision. [24] During oral submissions, Mr Gibson QC submitted that while the statement of principle in Temwood could be accepted, it did not assist ADC on the basis that it was clearly distinguishable from the facts, matters and circumstances in issue in the 15 E.g notice of appeal 559/2020 at paras 5(b), (c) and (d). 16 (2004) 221 CLR 30 at [57]-[58] per McHugh J and [93] per Gummow and Hayne JJ. 17 T1-29, ll 13-15. -- 11 of 17 -- 11 subject appeals. The first matter relied on was that there is no suggestion here that the actions of the Council were taken to avoid paying compensation. Second, that in Temwood, the court was confined to a question of law and “it does not lend any support for the conclusion that, contrary to all the cases we have referred to, this court should engage in an examination of the validity of its decision.”18 I am unable to accept those submissions. Firstly I do not consider the distinction between the competing alleged ulterior motives to be of any particular relevance. Secondly, as I have already observed, while I can accept in a merits appeal it is not the role of this court to engage in an examination of the validity of the Council’s decision, that does not mean that this court could not have regard to probative evidence which might raise real doubts about whether the conditions were imposed for a legitimate planning purpose. And, of course, for evidence to be admissible it has to be relevant to a matter put in issue, in cases such as this, in the notices of appeal. [25] For the reasons given, I have reached the conclusion that there is no reason why, in appropriate circumstances, an appellant ought be prevented from alleging that a development condition was imposed not for a legitimate planning purpose, but to achieve some other illegitimate objective on the part of the Council. [26] That however, is not the end of the matter. Leaving aside for the moment that there is no clear allegation of an ulterior purpose merely an assertion of an “appearance” thereof, the allegation itself seems to be based on what I consider to be a misconception about the Council’s long-term infrastructure plan where it is asserted that it is but a “fiction” created to avoid offset or refund requirements.19 That assertion is without merit. It is a legitimate planning objective contained within the Council’s planning scheme. During oral submissions, Mr Gore QC accepted as much, but said that it was a matter or inference his client wanted to investigate further.20 That is not a sufficient reason or basis for maintaining the allegation of an ulterior purpose in my view. That finding, together with the actual wording of the pleading, which Mr Gibson QC, accurately in my view, described to as raising no more than a prospect or a possibility that the condition was imposed for an ulterior purpose, leads me to conclude that where they appear in the various notices of appeal, the words “it 18 T1-29, ll 20-47. 19 ADC submissions at [20]-[23]. 20 T1-49, ll 1-11. -- 12 of 17 -- 12 appears to be imposed for the ulterior purpose of avoiding infrastructure offsets” ought be struck out on the basis that, on the material presently before the court, the allegation is manifestly groundless and could not possibly succeed at trial. [27] Before going on to deal with the issue of disclosure, I would make the following observation. In a technical sense, the current difficulty with the wording of the allegation could be cured by way of amendment by simply deleting the words “it appears to be” and replacing them with the word “was” but, in my view, that would require there being a sufficient basis to justify the making of such a serious allegation. The disclosure dispute [28] ADC’s application for further disclosure seeks the following orders: “1. To define the issues in dispute in the appeal to include reference to (ADC’s) reply… 2. That the (Council) shall make disclosure by way of a supplementary list of documents… of those documents identified in the letter from (ADC’s solicitor) dated 7 May 2020.” [29] In paragraph 17 of ADC’s written submissions it is said:21 “The letter of 7 May 2020 requested documents in 11 separate categories which are directed towards the improper purpose allegation – e.g – (e) all internal advice, correspondence and memos as to whether the road widening can be considered as necessary truck infrastructure… … (g) all reports and other documents … as to the removal of Ritchie Road from the LGIP; (h) all reports and other documents… as to the identification of Ritchie Road as future local road infrastructure…; (i) all reports and other documents… as to the inclusion Ritchie Road in the LTIP; (j) all versions and amended packages… relating to Map 311; (k) all upgrade plans and future upgrade requirements for Ritchie Road, including plan future road widening.” (emphasis added) 21 A full list of the class of documents sought is set out in Appendix 1 of ADC’s written reply. -- 13 of 17 -- 13 The acronyms LGIP and LTIP are references to the local government infrastructure plan and the long-term infrastructure plan respectively. [30] As identified above, the disposal of the strikeout application in favour of the Council goes a long way to determining the outcome of the application by ADC for further disclosure. As ADC’s written submissions themselves identify, the 11 separate categories of documents sought to be disclosed “are directed towards the improper purpose allegation.”22 That does not however, fully dispose of this issue. In this regard the Council has already disclosed those documents falling within Category (k) and, in respect of those documents falling within Categories (b), (c) and (d) the Council has agreed “to disclose all development approvals which are in effect for a material change of use or reconfiguring a lot, infrastructure agreements and offset agreements in respect of land which has frontage to Ritchie Road.23 Further, during oral submissions Mr Gibson QC advised the Court that he held instructions to make further disclosure in respect of development approvals, infrastructure agreements and offset agreements involved with development on Devries Road, Van Bieren Road, Laxton Road, Kraft Road, Sweets Road, Vied Road, Landel Street and Esky Road.24 The full nature and extent of that additional disclosure was left to be particularised by the parties. [31] Turning to the balance of the various categories of documents sought to be disclosed, as identified above, r 211 of the UCPR identifies that the duty of disclosure is limited to only those documents that are directly relevant to a matter in issue in the proceeding. [32] For the purposes of disclosure a document is considered to be “directly relevant” if it tends to prove or disprove an issue in dispute or a matter in issue.25 In Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd26 Pincus JA said: “… If a document is not ‘directly relevant’ to an allegation in issue it need not be disclosed. It is not enough to justify an order for disclosure to hold the opinion that ‘it is reasonable to suppose (that the document) 22 Paragraph 17 of appellant’s written submissions. 23 Council’s submissions in reply at para 28. 24 T1-59, ll 23-47. T1-60, ll 1-5. 25 Gibson & Ors v The Minister for Finance, Natural Resources and the Arts & Anor [2012] QSC 12 at [7]. Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 at 105. 26 [2001] 1 Qd R 276 at 282-283 per Pincus JA. -- 14 of 17 -- 14 contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary’. Nor, if a document sought is not directly relevant to an allegation in issue, does it matter whether or not it ‘is a document which may fairly lead [the party requiring discovery] to a train of enquiry which may have either of those two consequences. … The … the former inflexible approach to applications for further discovery… is no longer necessarily appropriate under the current disclosure system and because of the notions expressed in r 5 of the Uniform Civil Procedure Rules. If it appeared for example, that an order for further disclosure would be likely to ‘facilitate the just and expeditious resolution of the real issues’, that would enable and perhaps require the making of such an order. But there must at least in the ordinary case, be something more than mere suspicion to justify granting relief to a party complaining of incomplete disclosure.” (original emphasis)27 [33] The full extent of the disclosure required and some reasoning why that disclosure should occur is set out in an affidavit of Ms Jones sworn 18 August 2020.28 In the written reply of ADC, Mr Gore QC correctly pointed out that pursuant to s 45(3)(b) of the Planning Act and s 27(1)(g) of the Planning Regulations 2017, regard must be had to, among a raft of other things, the “common material”. The common material is defined to mean “all the material about the application that the assessment manager receives before the application is decided…”. The inclusive examples of what could be included in the common material clearly can include a very broad range of matters.29 [34] Thereafter, a number of propositions were then advanced on behalf of ADC including that, “in the circumstances of this case, it is almost certain that the common material will include some of the documents or categories of documents the subject of ADC’s disclosure application, and it is possible that the term may capture them all”.30 And that “it would be unsurprising if at least some of the other categories were also part of the common material”.31 (emphasis added) 27 Adopted and applied more recently by Applegarth J in Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co. Ltd [2011] QSC 183. 28 Exhibit 2 at Tab 27. 29 e.g., Jakel Pty Ltd v Brisbane City Council [2018] QPELR 763 at [76]. 30 ADC’s reply at para 13. 31 At para 14. -- 15 of 17 -- 15 [35] Having disposed of the strikeout application in the manner that I have, I am left unconvinced that, save for one exception to which I will turn to in a moment, any of the documents other than those to which I have already referred could reasonably be described as being directly relevant to an allegation or matter left in issue for the purposes of r 211 of the UCPR. However, even assuming the allegation of ulterior purpose remained on foot, it seems tolerably clear to me that the disclosure sought is more an attempt to determine whether there is a case to be made out in respect of that allegation rather than requiring the production of evidence that would go to prove that the case that has sought to be made out has in fact been made out. The latter is legitimate, the former more of a fishing exercise.32 [36] The exception to which I have referred is some of the documents which fall under the heading “Category E” of Ms Jones’ affidavit. By reference to the notices of appeal33 and the Council’s Statement of Facts, Matters and Contentions34 the status and function of Ritchie Road within the Council’s planning regime and the decision to treat the road widening on a “not to prejudice” basis and not as trunk infrastructure is a matter that will in all likelihood, be in issue in the substantive hearing. The documents currently sought in this category are cast too widely in my view however, I do accept the force of Mr Gore QC’s submissions concerning those documents that are concerned with or relate to the decision of “DRG”.35 Those documents are likely to be of direct relevance to those matter and ought be disclosed. Amendment of the notices of appeal [37] During submissions, Mr Gibson QC, on behalf of the Council, in response to a matter raised by me said that the Council did not accept that the notices of appeal as presently drafted raised as an issue that the subject conditions imposed an unreasonable imposition on ADC for the purposes of s 65(1)(a) of the Planning Act. In response Mr Gore QC sought leave to amend the notices of appeal to include an allegation that:36 “In view of the difficulties for the future and the present identified in paragraph 8(c) of the Notice of Appeal, in (i) to (v) of the extracts set 32 Wong v Minister for Immigration (2002) FCA 1271 at [26] per Wilson J (as he then was). 33 E.g. Appeal 4951 of 2019 at paras 8(c) and 14. 34 Paras 14(b) and (c) and 16(c). 35 Ex 1, tab 27, paras (o)-(q): T1-41 l 13-47; 42 l 1-27. 36 T1-65, ll 5-7. -- 16 of 17 -- 16 out in paragraph 8(c), the condition is an unreasonable imposition on the development for the purposes of s 65(1)(a) of the Planning Act. [38] Unsurprisingly Mr Gibson QC responded by saying that that was a matter about which he would have to seek instructions. The proposed amendment was left on the basis that Mr Gore QC would draft and have his solicitors forward the proposed amendment to Mr Gibson QC’s instructing solicitors for their consideration. At the time of publishing this judgment, as far as I am aware, that matter has yet to be resolved. Conclusions [39] For the reasons given, the orders that I propose to make are that: 3. The words it appears to be imposed for the ulterior motive of avoiding infrastructure offsets where they appear in the notices of appeal are struck out. 4. Those documents identified in the following categories are to be disclosed: (a) The documents in category E to the extent identified in paragraph 36 herein; (b) The documents within categories B, C and D to the extent identified by Mr Gibson QC; (c) Those other documents identified in paragraph 30 herein. The extent of such disclosure to be resolved by the parties or otherwise by the Court. 5. Save as identified above the application for further disclosure will otherwise be dismissed; 6. I will leave it to the parties to formulate appropriate orders embodying the conclusions that I have reached; 7. I will hear further from the parties if necessary as to any consequential orders. -- 17 of 17 --