Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPEC 29

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Darwen & Anor v Pacific Reef Fisheries (Australia) Pty Ltd & Ors [2009] QPEC 29 PARTIES: KEITH ALEXANDER DARWEN (First Applicant) and GARY WILLIAM STEWART (Second Applicant) v PACIFIC REEF FISHERIES (AUSTRALIA) PTY LTD ACN 084 456 931 (First Respondent) and BURDEKIN SHIRE COUNCIL (Second Respondent) and CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY (Third Respondent) FILE NO/S: BD3181 of 2008 DIVISION: Planning & Environment PROCEEDING: Application within a proceeding ORIGINATING COURT: Planning & Environment Court of Queensland, Brisbane DELIVERED ON: 30 April 2009 DELIVERED AT: Brisbane HEARING DATE: 23 April 2009 JUDGE: Alan Wilson SC DCJ ORDER: Order that the first and second applicants pay the first respondent’s costs of and incidental to the application returnable on 23 April 2009, assessed on the standard basis -- 1 of 4 -- 2 CATCHWORDS: ENVIRONMENT AND PLANNING – PRACTICE AND PROCEDURE – COSTS – COSTS IN PLANNING AND ENVIRONMENT COURT – whether attempt to use a subpoena for the purpose of obtaining disclosure enlivens the discretion in s 4.1.23(2) of IPA to award costs to parties opposing the order for subpoena Environmental Protection Act 1994 Integrated Planning Act 1997 s 4.1.23(1) and (2) Uniform Civil Procedure Rules Cases considered: Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98 Gauci Developments Pty Ltd v Bundaberg City Council [2009] QPELR 66; [2008] QPEC 41 Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2003] QPELR 151; 2002] QPEC 058 Re Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 Qd R 262; [2000] QSC 027 Walsgott v Maroochy Shire Council & Anor [2005] QPELR 521; [2005] QPEC 12 COUNSEL: P Sheridan for the applicants N Andreatidis for the first respondent SOLICITORS: Anderssen Lawyers for the applicants Corrs Chambers Westgarth for the first respondent [1] Mr Darwen and Mr Stewart seek enforcement orders under the Environmental Protection Act 1994 the effect of which, in short, would require the first respondent Pacific Reef Fisheries (Australia) Pty Ltd to cease an aquaculture enterprise it is conducting in North Queensland. In the course of the proceedings the applicants have been pursuing non-party disclosure from Sinclair Knight Merz Pty Ltd (SKM) looking, among other things, to identify and locate documents concerning the establishment and operation of a prawn farm at Trent Road Ayr. [2] Affidavit material filed on the applicants’ behalves shows the exercise of disclosure by SKM has been going on since early 2009; and that, recently, the applicants came to a view that the disclosure was inadequate, and sought two things – that SKM comply with the original notice of non-party disclosure; and, independently, the issue of a subpoena against Mr Ralph Burch of that company, requiring that he produce documents. The court file only contains a request for that subpoena but I was told, without demur, that it was issued. The application for disclosure, and the return of the subpoena, both came before the court on 23 April 2009. Neither Mr Burch nor SKM appeared on 23 April but Pacific Reef Fisheries did, by counsel. [3] At the outset of the hearing, however, counsel appearing for Mr Darwen and Mr Stewart advised that the application for compliance with the Notice of Non-Party Disclosure against SKM would not, now be pursued; and, that the subpoena against Mr Burch was to be discharged. Orders were made to that effect, by consent. [4] Pacific Reef Fisheries, however, seeks an order for its costs associated with its appearance to oppose the issue of the subpoena to Mr Burch. At first blush, the -- 2 of 4 -- 3 nature of Pacific Reef Fisheries interest, and its standing in respect of an order against an unrelated party, was not immediately apparent but helpful and careful submissions from Mr Andreatidis are persuasive that his client did, in fact, have a right of appearance and a right to oppose the subpoena and, for the reasons which follow, ought to have its costs. [5] It is common ground that the applicants’ decision to discharge the subpoena directed to Mr Burch was not communicated to Pacific Reef Fisheries until the evening before the hearing. It is also common ground that the matter which enlivens the court’s discretion about costs is the applicants’ request to the court to issue a subpoena, returnable on 23 April 2004, against Mr Burch requiring him to produce documents and give evidence; and, that the request resulted in the issue of a subpoena. [6] Pacific Reef’s application for costs is necessarily brought under the aegis of s 4.1.23(2) of the Integrated Planning Act 1997. It says it should have its costs under two of the exceptions to the primary costs rule (that, in this court, each party pays its own costs: s 4.1.23(1)) listed in that subsection. Under subsection (2)(b), costs may be awarded if it is shown that part of a proceeding was frivolous or vexatious; or, under subsection (2)(e) if a party has defaulted in the court’s procedural requirements. [7] The rules of this court do not deal with subpoenas and, accordingly, the Uniform Civil Procedure Rules apply1 : non-party discovery is addressed in Chapter 7, Part 2 of the UCPR; rule 414, in Chapter 11, deals with the issue of subpoenas. [8] Pacific Reef Fisheries contends that the subpoena to Mr Burch to produce documents is an abuse of process for a number of reasons but, in light of the applicant’s agreement not to pursue the subpoena, it is only necessary to address submissions that it should not have been issued in the context of or, in effect, as an adjunct to attempts to obtain non-party disclosure. [9] It is unarguable that the subpoena was issued in an attempt to achieve compliance with the Notice of Non-Party Disclosure which had previously been directly to Mr Burch’s employer, but by an alternative method. On its face that is an abuse of process, and was so described by Mackenzie J in Re Leighton Contractors Pty Ltd v Western Metals Resources Limited [2001] 1 Qd R 262, at 265. His Honour said, at paragraph [22]: … if it is apparent that a request for a subpoena is made where it is unconnected with a trial or hearing, it would be appropriate for the discretion in Rule 414(4) to be exercised against issuing it. There can now be no misapprehension about the scope of the respective rules and any attempt henceforth to use a subpoena for the purpose of obtaining disclosure would be an abuse of process. If a subpoena were issued for that purpose, it would be liable to be set aside on that ground. [10] The right of a party to argue that a subpoena issued by another party should be set aside (with costs) was apparently accepted, without debate, in this court in Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors [2003] QPELR 151. The question had, however, been earlier explored by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98 in which his 1 Planning & Environment Court Rules 2008, Rule 3. -- 3 of 4 -- 4 Honour, while unable to locate any authority on the point, was nevertheless satisfied that (as two earlier practice decisions suggested) there was sufficient support for the view that an application to set aside a subpoena which is, on its face, an abuse of process may be made not only by the person to whom the subpoena is directed, but also by a party to the litigation. [11] While this was an interlocutory application, it has previously been held in this court that the discretion about costs arising under s 4.1.23(2) applies to applications of that kind2 . [12] On any view the subpoena here was misconceived. The two criticisms of it advanced by the first respondent – that it was an abuse of process and therefore, by definition, frivolous3 ; and, that it necessarily involved a default in respect of the proper method of pursuing non-party disclosure, are made out. For those reasons, it will be ordered that the first and second applicants pay the first respondent’s costs of and incidental to the application returnable on 23 April 2009, assessed on the standard basis. 2 Gauci Developments Pty Ltd v Bundaberg City Council [2009] QPELR 66. 3 In the sense of that word discussed and considered in Walsgott v Maroochy Shire Council & Anor [2005] QPELR 521 at 524-5 – ‘having no reasonable grounds’. -- 4 of 4 --