Braudmont & Ors v Gold Coast City Council & Anor [2011] QPEC 157

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Braudmont & Ors v Gold Coast City Council & Anor [2011] QPEC 157 PARTIES: BRAUDMONT (First applicant) and GEM NOMINEES PTY LTD (Second applicant) and BRIAN NEIL SINGER (Third applicant) V GOLD COAST CITY COUNCIL (First respondent) and CHIEF EXECUTIVE OF DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (Second respondent) FILE NO/S: 217/2010 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 16 November 2011 DELIVERED AT: BRISBANE HEARING DATE: 14 November 2011 JUDGE: Searles DCJ ORDER: [1] Order that the subpoenas issued to the following persons be set aside :- -- 1 of 15 -- 2 (a) The Chief Executive Officer of the Council; (b) Councillor Greg Betts; (c) Councillor Susie Douglas; (d) Councillor Daphne McDonald; (e) Councillor Eddy Sarroff; (f) Councillor Chris Robbins; and (g) Ms. Karen Oaten. CATCHWORDS: Subpoena – standing to apply to set aside – Improper purpose - abusive process - tantamount to disclosure – fishing – oppressive - set aside COUNSEL: Applicant: Mr G Allan Respondent: Ms N J Kefford Respondent: Mr R A Quirk SOLICITORS: Mark Treherne & Ass Minter Ellison Gold Coast Application [2] This is an application by the Council to set aside five subpoenas all filed on 4 November 2011 issued on application by the applicants against:- (a) The Chief Executive Officer of the Council; -- 2 of 15 -- 3 (b) Councillor Greg Betts; (c) Councillor Susie Douglas; (d) Councillor Daphne McDonald; (e) Councillor Eddy Sarroff; and (f) Councillor Chris Robbins. [3] On the hearing of the application on 14 November it emerged that there was another subpoena in existence directed to Ms. Karen Oaten the personal assistant to Councillor Douglas. [4] Towards the end of the day long hearing of this application, the applicants abandoned reliance upon the subpoenas directed to all of the above, but for the Chief Executive Officer. In relation to the remaining subpoena, I ordered that compliance with it be postponed until a time stated by me after delivery of this judgment if appropriate. Background to substantive Application [5] This application for declaratory relief and consequential orders came on for hearing in Southport on 4/5/6 May 2011. On that day the Applicants applied to amend the then Third Amended Originating Application by adding a new issue relating to the collection and depositing of beach sand in relation to the construction of the beach access way. The application was denied.1 Evidence was heard on the first day. The following day, 5 May, the Applicants again applied to further amend their Originating Application by adding another new issue.2 1 Transcript1.46-49 2 Transcript 2.2.35 -- 3 of 15 -- 4 [6] Some minor amendments were allowed but the applicants were denied amendments which sought to change the nature of the applicant‟s case by adding an entirely new issue relating to the construction of the boulder wall under the pathway the subject of the appeal which I shall shortly refer. Mr Allan for the applicants properly conceded that the amendment involved a change in the applicant‟s case.3 The application for leave to make that amendment was dismissed. The hearing, not having finished, was then adjourned to Brisbane and set down for three days commencing 14 November, the day this application was heard. [7] Last Friday, 10 November 2011, I made orders extending the time for compliance with the subpoenas until after the hearing of this application to the intent no action was required in response to the subpoenas until the application was heard and determined. Background to issue of subpoenas [8] At some time, undisclosed, between 4 October 2011, the date of an email referred to below, and the issue of the subpoenas a month later on 4 November 2011 10 days before the resumed hearing, the applicants‟ solicitors came into possession of an exchange of emails between Ms Oaten the PA to Councillor Douglas and an unidentified constituent4. That exchange started with a constituent emailing Councillor Douglas on 30 September 2011 at 1.47pm:- “Hi Susie, I just heard about a proposed beach walkway in Surfers/Broadbeach area. 3 Transcript 2.17.5 4 Affidavit C Salam, Court document 63, Exhibit CS 2 -- 4 of 15 -- 5 I don‟t remember voting for this so can you tell me what it is all about. Regards Principal” The name of the author has been expunged on the Exhibit. [9] Ms Oaten responded on behalf of Cr Douglas by email dated 4 October 2011 at 10.22am and provided to the constituent details of the subject project, consultation activities of the Council, consultation surveys and the like seeking to satisfy the query. Then by further email that same day 4 October 2011 at 10.28am, the constituent replied:- “Why is it not running in front of the beachfront houses at Main Beach and Mermaid Beach? Not to do so is discrimination.” To this email, Ms Oaten responded on the same day at 10.34am:- “Mr It will be going in front of the properties at Main Beach – Council just hasn‟t done that section yet. The section in front of Hedges Avenue has not been done because Hedges Avenue has an inconsistent „A‟ line which means that a realignment of the boulder wall will be necessary before the pathway is constructed.” The subpoenas were applied for and issued the same day. [10] Four days later, by letter of 8 November 20115, the Council‟s solicitors wrote to the Applicants‟ solicitors in relation to the subpoenas asking that they be advised, as a matter of urgency by 12 noon that day, whether it was the Applicants‟ intention that 5 Ibid Exhibit CS 1 -- 5 of 15 -- 6 all Councillors and the Chief Executive Officer merely produce the documents to the court at the specified time or produce the documents and attend for the purpose of giving evidence before the court. The applicants‟ solicitors responded the same day telling the Council‟s solicitors that the subpoenas were self-explanatory. In fact, they did not comply with the approved form as required by UCPR 415(1) in that each subpoena was headed “Subpoena for production and to give evidence” but did not contain the words “and attend for the purpose of giving evidence as required by the approved Form 43”. In any event the application to set aside, followed that response. Applicants’Substantive Application [11] The Applicants‟ substantive application relates to the construction by the Council, in May 2009, of a public access-way on an unformed road being part of land identified as Pacific Parade and situated to the south of the intersection of Pacific Parade and Tomewin Street, Currumbin north of Len Wort Park6. The applicants‟ properties have frontages to Pacific Parade. Relief sought by applicants [12] The applicants seek the following declarations :- (a) That the landward boundary of the South East Queensland Coastal Management District – Currumbin – Gold Coast is in accordance with Plan 13802- A prepared by Goodwin Midson Surveying and dated 2 November 2010; 6 4th amended originating application, para 1(b) -- 6 of 15 -- 7 (b) That the construction of part of the public access way by the Council was an assessable development namely operational works within or partly within a Coastal Management District involving interference with quarry material (sand and soil) under Schedule 8, Part 1, Table 4, Item 5(b)(i) of the repealed Integrated Planning Act 1997 (IPA); (c) That the construction of part of the public access way by the Council in May 2009 without an effective development permit was unlawful and in breach of s 4.3.1(1) of IPA; (d) That the construction of the part of the public access-way by the Council has caused and will or has potential to continue to cause a serious or material environmental harm in breach of either 437(2) or 438(2) of the Environmental Protection Act 1994 (EPA); (e) Consequential orders that the Council:- (i) Remove within five business days all improvements visible and invisible that comprise the public access-way; (ii) Following the removal of all such improvements, restore all land upon which the public access was constructed within 15 business days to a condition it was in prior to the construction of the public access- way; or (iii) Further or in the alternative, within seven business days permanently close the public access-way. -- 7 of 15 -- 8 [13] The issues raised on the pleading are as set out in the Council‟s written submissions7 namely8 [a] the location of the coastal management district; [b] whether the construction of the public access way in 2009 was assessable development requiring a development permit on the basis that it is operational works within or partly within a coastal management district involving interference with quarry material (sand and soil) on State coastal land above the high water mark; [c] whether the Council has committed development offences being the carrying out of assessable development without an effective development permit; [d] whether the construction of the public access way has caused and will or has the potential to continue to cause either serious environmental harm or material environmental harm in breach of the Environmental Protection Act 1994 (“EP Act”); [e] whether the Court ought make orders that: [i] within 5 business days, the Council remove all improvements, visible and invisible, that comprise the public access way; [ii] within 15 business days, the Council restore all land upon which the public access way were constructed, including any adjacent land interfered with by the construction of the public access way, as near as practicable to the condition it was in prior to the construction of the public access way, with such restoration works to include the replanting of all native vegetation cleared or destroyed during the construction of the public access way; and [iii] further, or in the alternative, within 7 business days the Council undertake such works to permanently close the public access way. 7 Para 27 -- 8 of 15 -- 9 Documents sought by the subpoenas [14] Annexure A to these reasons are copies of the subpoenas addressed to the Chief Executive Officer of the Council and that addressed to Councillor Douglas. The subpoenas addressed to other Councillors were in identical terms to that addressed to that Cr. Douglas. It will be seen from the CEO‟s subpoena that the documents required from the CEO are:- (a) All minutes of meetings of the Council since 1 December 2010 which refer to or relate to Foreshore Rock Walls (also called Boulder Walls, Boulder Sea Walls, Foreshore Sea Walls) including the discontinuous nature of the walls, the ineffective nature of the walls, the risks posed to persons and/or property and/or coastal dunes and/or coastal resources by the walls; the realignment of, and/or the need to realign the walls (including any part or section of the said walls) constructed along, approximate or adjacent to the “foreshore seawall line (A line)”; (b) All reports, memorandum, maps, records, surveyed plans, engineering detail or other documents prepared by any person for the purpose of informing or providing information to the Gold Coast City Council, the Mayor or any Councillor or Councillors since 1 December 2010 and which refer to or relate to the alignment of the walls: the ineffective nature of the walls, the risks posed to persons and/or property and/or 8 See the Fourth Further Amended Originating Application filed 23 May 2011. -- 9 of 15 -- 10 coastal dunes and/or coastal resources by the walls, the realignment of, and/or the need to realign the walls (including any part or section of the said walls) constructed along, approximate or adjacent to the “foreshore seawall line (A line)”; (c) All email correspondence, letters, memorandum, reports or other documents received by the Chief Executive Officer or any person on his/her behalf since 1 October 2010 relating to the above matters; and (d) All emails, correspondence, letters, memorandum, reports or other documents sent by the Chief Executive Officer after 1 December 2010 to any member or members of the public, the Mayor, Councillor or Councillors, Council officer, employee or agent or any other person relating to above matter. [15] The subpoenas directed to the Councillors are of similar detail. Council’s grounds for setting aside subpoenas [16] The Council relies on the following grounds to set aside the subpoenas:- (a) They were issued for an improper purpose; (b) They do not disclose a legitimate forensic purpose; (c) They are an abuse of process; (d) They are tantamount to disclosure; (e) They are an impermissible fishing exercise; -- 10 of 15 -- 11 (f) They are oppressive and they do not comply with Form 43 and UCPR 415(1). Standing of Council [17] The applicants challenged the standing of the Council to make the application given that the Council was not the person to whom the subpoenas were directed. I shall return to this issue. Relevancy [18] Council says that the documents sought under the subpoenas are not relevant to any of the above outlined issues in the pleadings. Evidence is relevant if it could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.9 [19] The applicants respond by saying that there is already evidence before the court as to realignment and that it is an issue on the pleadings.10 I do not agree. The only reference to the alignment of the Boulder Sea Wall is in paragraph 5R[c] [viii] of the applicant‟s 4th Amended Originating Application contained in one of 14 subparagraphs of particulars relating to the allegation that the boundaries of the Coastal Management District for Currumbin cannot be delineated by reference to data held by the Council. That is an entirely different issue from the issue that the misalignment of the Boulder Sea Wall under the subject public access way caused or contributed to the alleged serious or material environmental harm. 9 HMO v The Queen (2008) HCA 16 [5] per Justice Gleeson CJ 10 Transcript 4.35.15 -- 11 of 15 -- 12 [20] Likewise no issue has been pleaded as to:- (a) The discontinuous nature of foreshore rock walls; (b) The ineffective nature of foreshore rock walls; (c) The risks posed to persons and/or property and/or coastal dunes and/or coastal resources by foreshore rock walls; (d) The realignment of and/or the need to realign the foreshore rock walls (including any part or section of the said walls) or the malalignment of foreshore rock walls, all of which are issues referred to in the subpoena. [21] It is one thing to make reference to a different alignment as the applicants‟ have done in paragraph 5R(c)(viii) in particularising the issue of the correct boundaries for the Coastal Management District but to now say that by that reference, the issue of alignment is an issue so as to justify the issue of the subpoenas is unsupportable. Improper purpose/abusive process/tantamount to disclosure/fishing/oppressive [22] It is clear to me that the issue of these 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. The applicants seek to somehow transpose facts relating to another entirely different section of the Gold Coast coastline to its case to seek to establish, as far as I can glean, that the Council at some point has received a report or formulated a policy or otherwise committed itself to a position where a pathway, should not occur until realignment of any relevant boulder wall is addressed. Even if that was the tenor of any document sought, those documents would not be relevant to -- 12 of 15 -- 13 this case. A mere reference to a different alignment of the leading edge of the boulder seawall in the applicants‟ pleadings in relation to the issue of the boundaries of the Coastal Management District – Currumbin does not make relevant documents which may relate to another part of the Gold Coast, where a boulder wall may be misaligned. [23] On the issue of oppressiveness, Ms Amanda Dowers the legal information unit coordinator deposed11 to the enormity of the task involved in identifying and collating the documents the subject of the subpoena directed to the Council‟s CEO. She estimated12 that a minimum of 127 hours would be involved, which, on an eight hour day, represents around 16 days of continuous work. [24] I‟m satisfied that the issue of the subpoenas constitutes an abuse of the court‟s process, was issued for an improper purpose, not a legitimate purpose. It constituted an impermissible fishing exercise on the part of the applicants seeking to find something in the documents of the Council and Councillors which might somehow assist them in prosecuting their case. [25] The course the Applicants should have followed, if they thought the documents were relevant, is the usual course of calling upon the Council to make further disclosure and, if that was not done, apply to the court for an order for further disclosure. That would have involved the Applicants identifying the documents or class of documents sought and satisfying the court as to their relevance if an order was to be made. That could have been done at any time since the adjournment of this hearing in May and would have avoided further hearing dates being set until that matter was resolved. A 11 Affidavit of 10 November 2011 12 Ibid, para 21 -- 13 of 15 -- 14 similar application was made by them on 23 July 2010 before His Honour Judge Wall. The fact nothing was done until receipt of the copy email from Cr.Douglas to her constituent is consistent with the Applicants only seeing the opportunity of this issue at that point. Instead, however, 10 days out from the resumed hearing, the Applicants employed the amateurish scatter gun approach of issuing multiple subpoenas. The result is that the resumed hearing will now have to be further adjourned. A truly unacceptable state of affairs. Standing [26] Returning now to the issue of standing. There is no need for me to consider the authorities relied upon by the applicants because Mr Allan correctly conceded that, in the event that an abuse of process was found, the court has an inherent jurisdiction to regulate its own proceedings and to set aside the subpoena. [27] There is one further matter. This is the second occasion that the substantive hearing of this matter has been unjustifiably delayed by the Applicants. The first instance was the late application for amendment to pleadings to change their case. Then the current instance of what I see as totally unjustifiable applications for the issue of these subpoenas. This court, as with all courts, will always be available to determine as quickly as possible the real issues in dispute between parties. There is a corresponding obligation on parties and legal advisors to conduct their cases in conformity with that concept, to identify issues, particularise them and prepare to prove them. Rule 4 of this court‟s rules entrenches the concept of the facilitation of a just and expeditious resolution of the real issues in proceedings at a minimum -- 14 of 15 -- 15 expense, avoiding undue delay, expense and technicality. Each party impliedly undertakes to the court to proceed in that expeditious manner. [28] That obligation imposes on parties an obligation to conduct themselves in a manner consistent with that purpose. That obligation has not been met by the Applicants in this case. [29] I order that the subpoenas issued to the following persons be set aside :- (a) The Chief Executive Officer of the Council; (b) Councillor Greg Betts; (c) Councillor Susie Douglas; (d) Councillor Daphne McDonald; (e) Councillor Eddy Sarroff; (f) Councillor Chris Robbins; and (g) Ms Karen Oaten. -- 15 of 15 --