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Stephen Family Pastoral Pty Ltd v Logan City Council QPEC 43
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Stephen Family Pastoral Pty Ltd v Logan City Council & Ors  QPEC 43
STEPHEN FAMILY PASTORAL PTY LTD (ACN 087 776 369)
LOGAN CITY COUNCIL
FABCOT PTY LTD
(ACN 002 960 983)
(first co-respondent by election)
LOGAN VIEW ROAD NORTH PTY LTD (ACN 616 370 597)
(second co-respondent by election)
Planning and Environment
Application in pending proceeding
Planning and Environment Court at Brisbane
27 August 2021
16 August 2021
RS Jones DCJ
PLANNING AND ENVIRONMENT – APPLICATION IN PENDING PROCEEDING – where original appeal concerned refusal of development application for supermarket-based shopping centre – where Appellant sought preliminary approval for material change of use including variation request – where first co-respondent by election sought order to protect disclosure of privileged materials contained in Appellant’s List of Documents by way of application in pending proceeding – where first co-respondent by election submitted documents identified as privileged were produced as part of commercial negotiations with Appellant
DISCLOSURE – WITHOUT PREJUDICE PRIVILEGE – where first co-respondent by election nor related entity waived privilege in respect of identified documents – whether litigation as between parties contemplated when identified documents produced – whether identified documents relied on by Appellant materially relevant for disclosure – whether identified documents subject of a confidentiality deed poll as between first co-respondent by election and Appellant – where application refused
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd  QCA 115
Ex-parte Fielder Gillespie Limited  QSC 111; (1984) 2 Qd R 339
Field v Commissioner for Railways for New South Wales  HCA 92; 99 CLR 285
Jones v Dunkel (1959) 101 CLR 298;  ALR 367
Liu v Chan & Ors  QCA 25;  9 QLR
Payne v Parker  1 NSWLR 191
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69
Mr R Litster QC with Mr W MacIntosh for the appellant
Mr M Batty for the first co-respondent by election
HWL Ebsworth Lawyers for the appellant
Connor O'Meara Solicitors for the first co-respondent by election
- This proceeding is concerned with an application in pending proceeding brought by the first co-respondent by election (Fabcot) seeking orders that certain documents are privileged and ought not be disclosed. The only parties involved in this proceeding are Stephen Family Pastoral Pty Ltd (the appellant) and Fabcot. The relief sought are a series of orders as follows:
- 1.That certain identified documents be declared to be privileged;
- 2.That the appellant serve an amended confidential list of documents deleting the documents the subject of privilege; and
- 3.Such other orders as the court considers necessary.
- The substantive ground relied on for the relief sought is identified in the application in pending proceeding as:
“Documents numbered 12-21, 23-35 and 45 identified in the appellant’s Confidential List of Documents where documents produced as part of negotiations between the appellant and the First Co-Respondent by Election for its related entity, Woolworths Group Limited, in an attempt to resolve the First Co-Respondent by Election objection to the appellant’s development application for a Preliminary Approval for a Material Change of Use including a Variation Request over land located …” (emphasis added)
- As is revealed below, strictly speaking, that is not an entirely accurate description of the dispute Fabcot considered itself to be in with the appellant.
- For the reasons set out below, the orders are:
- 1.The application is refused.
- 2.I will hear further from the parties as to any consequential orders.
- The appellant and Fabcot are commercial competitors. Fabcot is a wholly owned subsidiary of the Woolworths Group and is the owner of a large majority of the real estate held for the purposes of Woolworths supermarket operations. The appellant is an experienced developer of land including land developed to accommodate supermarkets and other commercial activities. Fabcot owns land that adjoins that of the appellant. However, the land owned by Fabcot has the benefit of a centre zoning whereas that of the appellant is zoned Low-medium density and is situated in the Townhouse precinct in the Council’s town plan.
- On or about 21 December 2018, the appellant lodged a development application which is the subject of a merits appeal presently before this court. Fabcot had previously had the benefit of a development approval over its land, but that approval has since lapsed.
- The appellant’s development application sought the approval of a development which included a shopping centre on its land. In or between March and April 2019, Fabcot attended a number of meetings with the appellant to explore the opportunity for Fabcot and the appellant to act in conjunction with one another to deliver a single centre. The centre was to include a Woolworths supermarket on the appellant’s land, rather than on the land owned by Fabcot. Ms Redmond, the regional property manager employed by Woolworths, was the principal representative of Woolworths involved in the negotiations with the appellant. In her affidavit sworn 9 March 2021, she described the purpose of the negotiations in the following terms:
“My primary interest in the negotiations being held with Stephen Family Pastoral about the potential for a Woolworths Supermarket to be established within a centre to be delivered by Stephen Family Pastoral was to secure the best supermarket outcome while protecting Fabcot’s interest in the Fabcot land. From my perspective, there was nothing about the leasing negotiations that I was conducting with Stephen Family Pastoral that could be perceived as relinquishing Woolworths and Fabcot’s rights to protect the business interests in the Fabcot land in the event that a satisfactory planning outcome could not be achieved on the SFP land or that a satisfactory outcome could not be reached in the negotiations with Stephen Family Pastoral.”
- To a similar effect was the evidence of Mr Sheehan, also employed by Woolworths as the State Manager Property Development of Queensland. More will be said about the affidavits of Ms Redmond and Mr Sheehan below.
- The documents which are the subject of this application were produced in the furtherance of the negotiations between the appellant and Fabcot to act jointly in the development of a supermarket on the appellant’s land. On the material before me, it would appear that tensions between the parties began to appear at or around August 2019. Subsequently on 4 October 2019, Fabcot lodged an objection to the appellant’s development application.
- On 27 November 2019, the Council refused the appellant’s development application. On 18 December 2019, the appellant commenced its appeal in this court and on 20 December 2019, Fabcot elected to become a party to the appeal opposing the appellant’s development application. At some unspecified date, but probably early in 2020, the negotiations came to an end.
- Of particular significance in respect of this proceeding is that in the consolidated list of issues of the parties to the appeal, the issue of need is identified in the following terms:
- 1.Whether there is sufficient planning, economic and community need for the proposed development to justify approval?
- 2.Whether there is an unsatisfied need for at least one (1) full-line supermarket in the locality and whether the proposed development will meet this demand?
- On 27 November 2020, this court made a number of orders and, in particular in respect of the issue of need, that:
By 11 December 2020, each party shall make disclosure, by way of list of documents, of all documents under its possession or in its control directly relevant to the question of whether there is a need for the Proposed Development including (but not limited to) any of the following documents:
- (a)Economic analyses;
- (b)Information relating to retail supply and demand;
- (c)Supermarket turnover and catchment area analyses;
- (d)Agreements for lease or lease documents; and
- (e)Expressions of interest.
To the extent that a party considers that any of the Disclosure Material is confidential, that material should be included in a separate list of documents (list of confidential documents).
List of confidential documents, and the documents to which it relates, is only to be disclosed to a party in accordance with, and upon the party giving the undertaking annexed to this order and marked “C”.
By 18 December 2020, the disclosing party’s solicitors will provide an inspecting party’s solicitors with a copy of the Disclosure Material where requested to do so (with any such request to be made by 16 October 2020).
- The undertaking that was required to be given in respect of the confidential material was consistent with the orthodox form of Fielder Gillespie orders often made by this court.
- The appellant made disclosure of the documents in dispute which resulted in the application in pending proceeding before me. I should note at this stage that the orders made by this court on 27 November 2020 were made with consent of all the parties.
- Pending the determination of this application, further orders were made on 25 March 2021 to the effect that until ordered otherwise by this court, the delivery, production or inspection of the documents in dispute be deferred, other than as between the appellant and its legal team and Fabcot and its legal team.
Issues for consideration
- A number of issues were raised. First, whether by consenting to the orders made on 27 November 2020 Fabcot waived its right to claim privilege and, in effect entered into a contract as between the parties requiring disclosure of the subject documents. Second, whether in any event the documents are directly relevant to the issue of need. Third, whether the documents in truth attract without prejudice privilege.
- In the event that the documents do not attract privilege, it is unnecessary to deal with the first of those matters.
- The raising of the question of relevance on the part of Fabcot is somewhat of a curiosity. By that I mean, it seemed to have only gained prominence during the oral submissions of Mr Batty, counsel for Fabcot, at the hearing of the application. In total, Fabcot’s written submissions totalled some 20 pages and 78 paragraphs. The question of relevance gained but one paragraph where it was said:
“Turning to the second basis for Fabcot’s objection to the disclosure, the order requires disclosure of documents “directly relevant to the question of whether there is a need for the proposed development.” The lease negotiations were unsuccessful. There is no agreement for lease or expression of interest that demonstrate any need for the proposed development. The unsuccessful negotiations are not directly relevant to the question of need.” (footnotes deleted) (original emphasis)
- The appellant’s proposed development is intended to include a full-line supermarket. As already identified, two of the issues raised in respect of the question of need were whether there was a sufficient planning, economic or community need for the proposed development or, to perhaps to put it another way, whether there is an unsatisfied demand for at least one full-line supermarket in this location and whether the proposed development would meet that demand if it existed.
- At first blush, one might be excused for thinking that the interest of an entity such as Woolworths was a relevant piece of evidence going to whether or not there was a demand for a full-line supermarket in this location. Fabcot’s own evidence is that negotiations were being conducted with the appellant around a commercial development, which would include a Woolworths full-line supermarket, from at or around March/April 2019 through to sometime in 2020. That no executed lease was achieved is irrelevant in my view. Further, I am at a loss to understand how it could be said that there was no expression of interest on the part of Woolworths. The negotiations and the documents prove otherwise. Woolworths had expressed keen interest in the development of a full-line supermarket on the appellant’s land.
- Leaving aside for the moment the issue of privilege, to deny the appellant the opportunity to rely on the subject documents, or at least some of them, would likely result in a situation where there is a patent contradiction. By that I mean, the granting of the relief sought would permit Fabcot to dispute at trial that there was a need for a full-line supermarket at the location when Woolworths had already expressed a genuine interest in achieving that very outcome. To permit that to occur would, to adopt the language used by Fraser JA in Liu v Chan & Ors, involve “a patent contradiction between a party’s conduct in negotiations and the same party’s conduct in litigation.”
- Of course, as his Honour observed, if the documents are truly privileged, that is but the inevitable outcome.
- During oral submissions, I expressed some concern about deciding the question of relevance at this early stage of the proceedings. I still maintain those concerns but having been asked to decide the issue, I have reached the conclusion that documents 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 31 and 33 are relevant and subject to the issue of privilege, would be admissible. As I have already said, the fact that no final lease document was executed is not to the point. The only inference that could sensibly be drawn from the documents identified above is that Woolworths was obviously interested and considered there was an opportunity to meet an unsatisfied demand for a full-line supermarket in this location. I would note here that the extent of Woolworths’ interest is not only revealed by reference to those documents, but also by the affidavit of Ms Redmond.
- The fact that Coles has also expressed an interest in locating on the subject land does not render those documents any less relevant. Indeed, it might be thought that having two major players in this field interested in locating on the subject land might go a long way to refuting any allegation about there being a lack of need, be it planning, economic or community need.
- As to the balance of the documents, many if not most or all of them seem to appear in an information vacuum. That is, without any context. Examples of this are documents 24, 25 and 45. In such circumstances, and bearing in mind the current status of this litigation, I will refrain from making any ruling about the admissibility of those documents on the basis of relevance.
- I should point out in this regard that no meaningful attempt was made to establish the relevance of those or any of the contested documents. Counsel for the appellant seemed to have adopted the position that relevance was established on the face of the documents.
Without prejudice privilege
- As was observed by the High Court in Field v Commissioner for Railways for NSW, the existence of without prejudice privilege can operate to exclude from evidence “admissions by words or conduct made by parties in the course of negotiations to settle litigation.” Field was cited with approved by Beaumont J in Trade Practices Commission v Arnotts Ltd where his Honour observed:
“The extent of the protection of the privileged depends, not so much upon the (objective) expectations of the parties, but upon the (objective) considerations of what form part of the negotiations for the settlement of the action and “what was reasonably incidental there to” … to attract privilege a “proper connection with any purpose connected with the settlement of the action” must exist …”
- In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd, Williams JA carried out a very careful analysis of the questions of legal professional privilege and without prejudice privilege. McPherson JA and Ambrose J agreed with his Honour’s analyses. The agreement of McPherson JA is such a ringing endorsement that it bears repeating. His Honour said:
“I have read what has been written by Williams JA on this appeal. His Honour's reasons express so completely my own views of the issues that no useful purpose would be served by producing a judgment of my own. I therefore agree with the orders proposed by Williams JA for disposing of both appeals.”
- In respect of the issue of without prejudice privilege, Williams JA made the following observations:
" The classical definition for Australia of the "without prejudice" doctrine is to be found in Field v Commissioner for Railways (NSW) (1957) 99 CLR 285. There Dixon CJ, Webb, Kitto and Taylor JJ said at 291-2:
"The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission. For some centuries almost it has been recognised that parties may properly give definition to the occasions when they are communicating in this manner by the use of the words 'without prejudice' and to some extent the area of protection may be enlarged by the tacit acceptance by one side of the use by the other of these words".
That also appears to be the basic position in the United Kingdom. Lord Griffiths with the approval of the other members of the House of Lords, said in Rush & Tompkins Ltd v Greater London Council  AC 1280 at 1299-1300:
"The 'without prejudice' rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. . . . The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. . . . evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission. . . . If the compromise fails the admission of the facts made for the purpose of the compromise should not be held against the maker of the admission and should therefore not be received in evidence".
 Those statements of principle appear to establish that the two essential prerequisites for the operation of the rule are (1) a genuine attempt to reach a settlement of a dispute the subject of litigation or which will become so if the dispute is not resolved; and (2) the making of an express or implied admission in so doing. The rule then operates to prevent the use of such admissions in subsequent litigation.
 In Field there was specific reference to the admissions in question being made "in the course of negotiations to settle litigation". But it is clear that the rule operates even where litigation has not yet commenced; so much is made clear by Rodgers v Rodgers (1964) 114 CLR 608 at 614 and Harrington v Lowe (1996) 190 CLR 311 at 323. The statements there would clearly extend the operation of the rule to a situation where litigation was contemplated if the negotiations did not result in a satisfactory resolution of the matters in dispute between the parties. But I am not convinced that the rule applies to negotiations where litigation is not contemplated. Mr Cooper referred to a passage in the judgment of Vaughan Williams J in re Daintrey, Re: ex parte Holt  2 QB 116 at 119, where it was said:
"In our opinion the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation . . . ".
 It is not clear to me what his Lordship precisely had in mind by adding the term "negotiation" to the term "dispute", but I can see no justification for concluding that the use of the term extended the operation of the "without prejudice" rule beyond attempts to settle a dispute which will result in litigation if not resolved.” (emphasis added)
- Putting to one side the nature of the alleged dispute as particularised in the application in pending proceeding, it is relevant to bear in mind the observations of Williams JA as to the two essential prerequisites for the operation of this rule. First, there must be a genuine attempt to reach a settlement of a dispute the subject of litigation or which will become so if the dispute is not resolved. Second, in making an express or implied admission, it is then appropriate to then try and discern exactly what the dispute was about. In the affidavit of Mr Sheehan, the dispute was referred to in these terms:
“20. …… . The discussions proceeding on the footing that if Steven Family Pastoral could deliver a successful development outcome, Woolworths would consider taking up a tenancy in an approved centre and Steven Family Pastoral would consider purchasing the Fabcot land. That outcome would quell the dispute between the parties about the Steven Family Pastoral Development Application.
- 31.Whilst the majority of the communications between Steven Family Pastoral and Woolworths/Fabcot were not marked “without prejudice” (although some were), it was clear to me that the discussions were confidential and of without prejudice character because they were designed to resolve an underlying dispute about where a supermarket in this locality would be established.
36(b) Unless and until commercial terms could be reached with Steven Family Pastoral, there was a dispute as between Steven Family Pastoral and Woolworths/Fabcot about where a supermarket would be established in this locality (either the Fabcot land or the SFP land) and that dispute was likely to result in an appeal before the Planning and Environment Court, which has since eventuated. (emphasis added)
- Before proceeding further, I would make the following two observations. First, as I understand it, the only document which came into existence prior to Fabcot becoming a party to the subject appeal was that generated by Woolworths on 29 August 2019. Second, the only document I could find headed “without prejudice,” contrary to what Mr Sheehan thought, was that generated by the appellant on 1 June 2020.
- I agree with the submission made by Mr Batty that the evidence of Mr Stephen about why that document was headed “without prejudice” was confusing to say the least. Nonetheless, it appears tolerably clear to me in any event that to describe that document a “without prejudice communication” was a misnomer.
- Turning then to the documents I have decided are relevant. The first of the subject documents (Document 12) was a response to an unidentified document dated 15 August 2019, presumably generated by the appellant, which contained a number of proposals. Those included an initial lease term, a proposed initial base rent and what was referred to as a “percentage rent.” The next document (Document 13) is an unsigned Deed generated by parties unknown sometime in October 2019. That Deed contemplated, subject to the appellant and Fabcot negotiating satisfactory commercial arrangements in relation to the appellant granting a lease to Fabcot for a supermarket to be erected on part of the appellant’s land, Fabcot would agree to sell its land to the appellant.
- The next document (Document 14) is an offer made by Woolworths on 21 October 2019 where it was proposed that Woolworths would enter into a lease agreement with the appellant on certain terms and conditions. The next document (Document 15) is a later offer made by Woolworths on 18 November 2019 which was essentially to the same effect in substance as the initial offer. That offer was followed with yet another offer made on behalf of Woolworths dated 18 November 2019 (Document 16). Documents 18, 20, 32 and 33 are documents either described as “agreement for lease” or “lease.”
- As has already been observed, none of those documents were eventually executed. The balance of the documents, particularly at the later stage of the negotiations, were made up of communications between the appellant and Fabcot/Woolworths trying to resurrect the negotiations in circumstances where things were apparently beginning to turn sour.
- It can be accepted that in the event the negotiations between the appellant and Fabcot/Woolworths were unsuccessful, Fabcot would take all appropriate steps to protect its interest in having a shopping centre developed on its land rather than that of the appellant. It is also reasonable to expect that litigation might ensue as between the appellant and Fabcot about that.
- However, in my view, on any fair reading of the documents, they were not generated in a genuine attempt to reach a settlement of a dispute the subject of litigation or, which would become so if the dispute was not resolved. It seems tolerably clear to me that the documents in dispute were, in truth, generated for the purpose of reaching a mutually acceptable commercial outcome for both parties and not for the purpose of avoiding litigation or the prospect thereof. As a consequence, the disputed documents could not be reasonably said to involve an express or implied admission against interest on the part of Fabcot.
- Returning briefly to the observation of the dispute as discussed by Mr Sheehan. At the time of the negotiations, there was no dispute as between Fabcot and the appellant. Mr Sheehan’s assertion that the negotiations were “designed to resolve an underlying dispute about where a supermarket in this locality would be established” is clearly an inaccurate description.
- The documents in issue were not generated to resolve any underlying dispute about where a supermarket was to be established. They were generated as a consequence of Fabcot and the appellant trying to negotiate a commercial outcome that would have seen a Woolworths supermarket on the appellant’s land and the appellant then purchasing the land owned by Fabcot. One would search the documents in vain to find any reference at all about an alternate site being in contemplation for the Woolworths supermarket.
- In this regard, I found the affidavit filed by Ms Redmond quite telling. Ms Redmond was, according to Mr Sheehan, the chief negotiator on behalf of Fabcot. She was also responsible for the preparation of offers to lease, draft agreements for lease and other lease documents. She was also the author of a number of the pieces of correspondence that passed between Woolworths and the appellant. While Ms Redmond refers to the fact that if negotiations broke down, Fabcot would seek to advance its interests in respect of its own land, including locating Woolworths supermarket on that land, she does not refer to any dispute either existing or pending. Quite to the contrary, as pointed out in paragraph 14 of her affidavit set out above, her “primary interest” was not to attempt to reach a settlement of a dispute or the potential for a dispute. It was, as she said, to “secure the best supermarket outcome while protecting Fabcot’s interest in the Fabcot land.”
- That Fabcot is now involved in litigation with the appellant to protect its interest in its land does not in some retrospective way bestow a without prejudice privilege to documents created for the primary, if not sole, purpose of reaching a commercially advantageous outcome acceptable to both parties.
Jones v Dunkel
- I am unpersuaded by this submission. Mr Stephen, who was the controlling mind behind the appellant, did give evidence on its behalf and was cross-examined. Despite vigorous cross-examination, his evidence, at least on the main issue, was not shaken. Further, the outcome of this proceeding really turned on the contents of the documents themselves together with the evidence of Ms Redmond and Mr Sheehan.
- For the reasons given, the following conclusions can be made. First, it is not necessary for me to resolve the waiver/contract issues raised. Second, it is not necessary to deal with the question about the consequence of any agreement being reached between Fabcot and the appellant, given that the central issue in dispute is the Council’s refusal of the appellants’ development application. Clearly no negotiated agreement between Fabcot and the appellant about the location of the supermarket on the appellant’s land would have any binding effect on the Council, being the respondent to the appeal.
- The final conclusion is that Fabcot’s application should be refused. However, in circumstances where it is almost inevitable that some or all of the documents will contain commercially sensitive material, I will, apart from refusing the application, refrain from making any further final orders until I hear from the parties.
- 1.The application is refused.
- 2.I will hear further from the parties as to any consequential orders.
 Affidavit of Candice Judith Redmond filed 10 March 2021 at para 14.
 Ex-parte Fielder Gillespie Limited (1984) 2 Qd R 339.
 Outline of Submissions for the First Co-Respondent by Election’s Application in Pending Proceeding filed 10 February 2021 at para 38.
  9 QLR at .
 Disputed Document No. 23, 24, 25, 26, 27, 28, 29 and 30.
  99 CLR 285 at 291.
 (1989) 88 ALR 69 at  – .
  QCA 115.
 Ibid at -.
 Affidavit of Christopher James Sheehan filed 10 February 2021 at paras 20, 31 and 36(b).
 Disputed Document No. 12.
 Disputed Document No. 24.
 Disputed Document No. 23, 25, 26, 27, 29, 30, 34, 35 and 45.
 Affidavit of Candice Judith Redmond filed 10 March 2021 at para 11.
 Namely Messrs Chapman, Vorkas and Somerville.
 (1959) 101 CLR 298. Also Payne v Parker  1 NSWLR 191 at 202.
- Published Case Name:
Stephen Family Pastoral Pty Ltd v Logan City Council & Ors
- Shortened Case Name:
Stephen Family Pastoral Pty Ltd v Logan City Council
 QPEC 43
RS Jones DCJ
27 Aug 2021