Australian Capital Holdings Pty Ltd and Anor v Mackay City Council & Ors [2007] QPEC 55 (2007) QPELR 586

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Australian Capital Holdings Pty Ltd and Anor v The Chief Executive under the Transport Infrastructure Act 1994 and Ors [2007] QPEC 055 PARTIES: AUSTRALIAN CAPITAL HOLDINGS PTY LTD Appellant (Applicant) and MACKAY CITY COUNCIL Respondent and THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 First co-respondent and EULCOM PTY LTD Second co-respondent and WA STOCKWELL PTY LTD Third co-respondent and PORTERCO PTY LTD Fourth co-respondent FILE NO: Appeal No 3575 of 2006 DIVISION: PROCEEDING: Application ORIGINATING COURT: DELIVERED ON: 10 July 2007 DELIVERED AT: Brisbane HEARING DATE: 27 June 2007 JUDGE: Skoien SJDC ORDER: Application dismissed CATCHWORDS: Further and better disclosure; direct relevance; drawing of inference of existence of document COUNSEL: E Morzone for applicant SJ Williams for respondent R Litster for 2nd , 3rd and 4 th co-respondents -- 1 of 4 -- 2 SOLICITORS: MacDonnells Law for applicant SB Wright, Wright & Connie for respondent Hopgood Ganim for 2nd , 3rd and 4 th co-respondents [1] This is an application under rule 223 of the Uniform Civil Procedure Rules by the appellant (“ACH”) for an order that the second, third and fourth co-respondents (for convenience, they having a common interest in the proceedings, I will call them “Eulcom”) provide further and better disclosure to the appellant. The application describes the material sought as “documents relevant to the investigations into the feasibility of the proposed extension to [Eulcom’s] shopping centre”. Facts [2] ACH applied to the Council for a development permit for a material change of use of land for a shopping centre, service station and catering shop. The Council refused that application. Eulcom operates an existing supermarket shopping centre across the road from ACH’s land and is currently pursuing a code assessable extension of that supermarket. Eulcom lodged submissions opposing ACH’s application to the Council. [3] The notice of appeal which was lodged by ACH on the Council’s refusal of its development application challenges the ground of refusal that ACH had not “demonstrated need for development of this scale on the site”. It also alleges that Eulcom’s shopping centre fails to fill the community need for a modern supermarket and certain supporting shops. [4] ACH has no evidence that documents of the type sought actually exist or ever existed in Eulcom’s possession or power. Its submission is that it is the only rational inference that such documents must have been obtained by Eulcom before embarking on the planned extension. The Law [5] Rule 211 of the UCPR relevantly provides: “211 (1) A party to a proceeding has a duty to disclose to each other party each document:- (a) in the possession or under the control of the first party; and (b) directly relevant to an allegation in issue in the proceeding; (c) if there are no pleadings – directly relevant to a matter in issue in the proceedings.” [6] There are, strictly, no pleadings in the proceedings on this appeal, so it may be that sub-rule (c) is the relevant one. The issues however are very clearly established (as clearly as if there were pleadings) by order of the court. But whether the applicable rule is sub-rule (b) or (c), the “allegation”, or “issue” of need, relating to ACH’s proposal is clearly raised: -- 2 of 4 -- 3 [7] Rule 223 relevantly provides: “223 (1) The court may order a party to a proceeding to disclose to another party a document or class of documents by: (a) delivering to the other party in accordance with this part a copy of the document, or of each document in the class; or (b) producing for the inspection of the other party in accordance with this part the document, or each document in the class. (2) The court may order a party to a proceeding (the “first party”) to file and serve on another party an affidavit stating – (a) that a specified document or class of documents does not exist or has never existed; or (b) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party. (3) … (4) An order mentioned in sub-rule (1) or (2) may be made only if – (a) there are special circumstances and the interests of justice require it; or (b) it appears there is an objective likelihood – (i) the duty to disclose has not been complied with; or (ii) a specified document or class of documents exists or existed and has passed out of the possession or control of a party. [8] I was referred to the decision of Demack J in Robson v REB Engineering Pty Ltd [1997] Qd. R. 102. That case was decided under the provisions of the superceded Rules of the Supreme Court but those rules were in material respects identical to the provisions of the UCPR. Thus order 35 rule 4(1) required the disclosure of documents “directly relevant to an allegation in issue in the case”. That is materially identical with UCPR rule 211(1)(b) and with rule 211(1)(c). Then, order 35 rule 14(4) required the disclosure of documents only when there was “an objective likelihood that the duty to disclose has not been complied with. Rule 223(4)(b) of UCPR is in virtually the same terms. [9] Demack J held that “directly relevant” meant more than “directly or indirectly allowing a party to advance his own case” and that it meant “something which tends to prove or disprove the allegation in issue”. I respectfully agree with that. [10] As in this case, there was no evidence before Demack J that a document of the type sought existed and on the facts before him he was not prepared to infer that such a document existed. Of course, whether an inference can be drawn depends entirely on the nature of the facts which are established. The Inference -- 3 of 4 -- 4 [11] Based on my experience in appeals of this type I have no difficulty in finding that Eulcom would have obtained expert advice on the “feasibility” of its planned extension. According to the Shorter Oxford English Dictionary a thing is feasible if it is “capable of being done, carried out or dealt with successfully in any way”, or as Hudson Modern Australian Usage puts it “An event is feasible if no man-made obstacles (especially financial) stand in its way.” It is most unlikely that an extension of the type proposed would be embarked upon by commercial developers without an investigation into the feasibility, or financial probabilities of success or otherwise. Relevance [12] However the document is to be disclosed only if it is “directly relevant” and that seems to me to be the crux of this application. The SOED defines the adjective “direct” as “straightforward, uninterrupted, immediate (as opposed to collateral); without intervening agency; immediate”. [13] The document sought is obviously directly relevant to the financial prospects of Eulcom’s expansion but is it directly relevant to the community need for ACH’s proposed shopping centre? An obvious argument for Eulcom would be “Yes, because by identifying the community need for Eulcom’s expanded business one can see, by subtraction, what would be left for ACH: Could that remainder demonstrate a real need for ACH’s development?” [14] That argument seems to me to be too simplistic. It is most unlikely that Eulcom would have intimate knowledge of ACH’s intentions in relation to many of the details of its proposed operations which would bear of the question of need, that is improving in a material way, the general well-being of the community. How would the ACH development be managed? Would it be so operated as to attract greater or lesser custom than bare statistics would suggest? The supporting attractions to the proposed shopping centre (which could be anything from the type of shops other than the supermarket, the quality and quantity of their retail goods, the quality of their management, the provision of children’s play facilities, to the pleasantness of the staff) would not be adequately known to Eulcom. [15] In summary, the document sought is likely to be directly relevant to the need for Eulcom’s expanded shopping centre but not directly relevant to ACH’s proposed development, the latter being, of course, the nub of the appeal. Conclusion [16] I dismiss the application. -- 4 of 4 --