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Noosa Shire Council v Noosa Airfield Pty Ltd (No 2)[2024] QPEC 38

Noosa Shire Council v Noosa Airfield Pty Ltd (No 2)[2024] QPEC 38

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Noosa Shire Council v Noosa Airfield Pty Ltd & Anor (No 2) [2024] QPEC 38

PARTIES:

NOOSA SHIRE COUNCIL

(Applicant)

v

NOOSA AIRFIELD PTY LTD

ACN 080 500 376

(First Respondent)

and

ROBERT CLIVE LINKE

(Second Respondent)

FILE NO:

D13/2024

PROCEEDING:

Application in pending proceedings

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

23 August 2024

DELIVERED AT:

Maroochydore

HEARING DATE:

28 March 2024, 20 May 2024 and further written submissions filed to 6 June 2024.

JUDGE:

Judge Long SC

ORDER:

The application filed on 15 February 2024 for non-party disclosure pursuant to the UCPR, is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT LAW – APPLICATION IN PENDING PROCEEDINGS – application for non-party disclosure – obtaining access to documents which are directly relevant to an issue in the proceeding – whether the non-party disclosure sought had direct relevance to an allegation in issue in the proceeding – application of Practice Direction 5 of 2023 in the context the privileges against self-incrimination or exposure to penalty and the applicability of such privileges to corporations

LEGISLATION:

Evidence Act 1977 s 14

Planning Act 2016 ss 44, 163, 165, 168, 180

Planning and Environment Court Act 2016 s 10

Planning and Environment Court Rules 2018 r 4

Uniform Civil Procedures Rules 1999 rr 209, 242, 250

CASES:

Bridal Fashions Pty Ltd v Comptroller General of Customs (1996) 17 WAR 499

Caldwell Resources Pty Ltd v Noosa Shire Council [2024] QPEC 18

Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477

Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612

Niceforo v Berkshire Hathaway Speciality Insurance Company & Ors [2023] QSC 282

Noosa Shire Council v Noosa Airfield Pty Ltd & Anor [2024] QPEC 23

Rich v Australian Securities and Investments Commission (ASIC) (2004) 220 CLR 129

Trade Practices Commission v Abbco Ice Works Pty Ltd (1994) 52 FCR 96

COUNSEL:

MJ Batty and SJ Hedge for the Applicant

KW Wylie for the Respondents

SOLICITORS:

Thynne + Macartney for the Applicant

P&E Law for the Respondents

Introduction

  1. [1]
    On 10 May 2024, an application of the respondents that this originating application of the Council for enforcement orders be stayed, at least pending the determination of the appeal brought by the first respondent against an enforcement notice issued by the Council,[1] was dismissed.  The essential background circumstances to those and the remaining issues are set out in that decision.[2]
  2. [2]
    Consequently to that determination, on 20 May 2024 orders were made to the effect that:
    1. the appeal and this originating application be heard together; and
    2. the Council’s application, in this originating application, for non-party disclosure,[3] be determined upon the allowance of further written submissions.
  3. [3]
    For present purposes it suffices to note that in these enforcement proceedings brought pursuant to s 180 of the Planning Act 2016 (“PA”), the Council seeks, by application in pending proceeding filed 15 February 2024, to have disclosure of records from some identified commercial aircraft operators at the Noosa Airfield (“the airfield”) and also from the regulatory authorities: the Civil Aviation Safety Authority (“CASA”) and Airservices Australia (“AA”).  Such disclosure is expressed to be in support of the onus borne by the Council, in these enforcement proceedings, to not only establish that the land has been and is used for the purposes of air services but also as to the nature scale and intensity of that use, as may be particularly relevant to the contention as to an unapproved material change of use of the land and also to discretionary issues as may arise in the enforcement proceeding.  Non-party disclosure of two classes of documents are sought:
    1. those which detail the number and type of aircraft using the land, from 1 January 2010 to 16 February 2024; and
    2. those which detail any safety incidents or other complaints concerning aircraft using the land from 1 January 2010 to 16 February 2024.
  4. [4]
    The Council contends that the first class of documents which it seeks are directly relevant to proof of the following facts alleged in the amended originating application:[4]
    1. the land is being used for the purposes of air services (paragraphs 12(e), 23, 24, 25 and 26(a));
    2. aircraft landing on and taking off from the land are adversely affecting the amenity of location residents (paragraphs 12(f), 30 and 31(a));
    3. the use of the land has intensified since 2018 and that intensification was a material increase in the intensity or use of the land for air services (paragraphs 25 and 26(b)); and
    4. that the use of the land should not continue without a contemporary town planning assessment and planning approval to ensure the use is appropriate, operated in accordance with modern standards (including as to amenity and safety) and that adverse amenity impacts are avoided or mitigated (paragraphs 29, 30 and 31(b)).
  5. [5]
    As to the second class of documents sought, the Council submission is that the documents are directly relevant to the discretionary issue noted at paragraph 31(b)(ii) of the originating application, being as to whether a contemporary town planning assessment is necessary to ensure the use is operated in accordance with modern amenity and safety standards.

Applicable principles

  1. [6]
    Accordingly and as permitted by r 4(2) of the Planning and Environment Court Rules 2018, the Council seeks to engage r 242 of the Uniform Civil Procedures Rules 1999, as the source of power to make the orders sought.  UCPR 242 provides:

“242 Notice requiring non-party disclosure

  1. A party (the applicant) to a proceeding may by notice of non-party disclosure require a person who is not party to the proceeding (the respondent) to produce to the applicant, within 14 days after service of the notice on the respondent, a document—
  1. directly relevant to an allegation in issue in the proceeding; and
  1. in the possession or under the control of the respondent; and
  1. that is a document the respondent could be required to produce at the trial of the matter.
  1. The applicant may not require production of a document if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
  1. The respondent must comply with the notice but not before the end of 7 days after service of the notice on the respondent.
  1. Disclosure under this division is not an ongoing duty.”
  1. [7]
    It is necessary to note that UCPR 242 is to be found in Division 3 of Part 2 of Chapter 7 of the UCPR.  That chapter deals with “Disclosure” and the application of Part 2 is provided as follows, in UCPR 209:

“209 Application of part

  1. This part applies to the following types of proceeding—
  1. a proceeding started by claim;
  1. a proceeding in which the court has made an order under rule 14 ordering the proceeding to continue as if started by claim;
  1. if the court directs—a proceeding started by application.
  1. This part applies to all parties, including a party who is a young person and a litigation guardian of a young person.
  1. This part does not affect—
  1. the right of a party to inspect a document if the party has a common interest in the document with the party who has possession or control of the document; or
  1. another right of access to the document other than under this part.”

Accordingly, it may be seen that the right expressed in UCPR 242 to issue a relevant non-party disclosure notice, is limited in application to proceedings started by claim.  Therefore and as was common ground here, the Council is required to have the leave or direction of this Court, so as to be able to engage UCPR 242 and to give the notices it seeks.

  1. [8]
    The applicant refers to Niceforo v Berkshire Hathaway Speciality Insurance Company & Ors,[5] for a statement of applicable principles and particularly in emphasis of what is expressly evident from UCPR 242(1), in focus upon obtaining access to documents which are directly relevant to an issue in the proceeding and which the respondent to a notice “could be required to produce at the trial of the matter.”  As is appropriately pointed out for the respondents, Niceforo was not concerned with any question of leave or direction as to the issuing of any such notice, as the proceeding there had been commenced by way of claim and statement of claim. But, as was there noted, the rule does not authorise a “fishing expedition” and a notice must be “founded on a legitimate forensic purpose” and “represent a genuine attempt to obtain evidence to support the party’s pleaded case as opposed to what might be though to be speculation or general intelligence gathering”.

The respective contentions

  1. [9]
    Understandably the Council seeks to emphasise the underlying public interest in its application, brought from the perspective of the relevant planning authority and in seeking to appropriately enforce the applicable planning laws.  Reliance is also placed on the principle set out in s 10(1) of the Planning and Environment Court Act 2016, in requiring that P&E Court proceedings be conducted so as to “facilitate the just and expeditious resolution of the issues” and so as to “avoid undue delay, expense and technicality”.
  2. [10]
    It is nevertheless necessary to also understand the nature of the proceeding brought pursuant to s 180 of the PA and that the underlying premise for any enforcement order is proof that a “development offence” has been or will be committed unless the order is made.[6]  However, whilst so premised, such proceedings are not directly brought for the purpose of punishing any commission of a development offence.[7]  Rather, an “enforcement order” is one which requires a person “to refrain from committing a development offence” and/or “remedy the effect of the development offence in a stated way”.  Various forms of enforcement order are expressly permitted, including, by way of example, compensation for loss or damage occasioned because of the offence.[8]  Generally, it is provided that an enforcement order “may be in terms the P&E Court considers appropriate to secure compliance with [the PA]”.[9]
  3. [11]
    Development offences under the PA are proscribed in Part 2 of Chapter 5 and as relevant to this proceeding:
    1. section 163(1) provides that “a person must not carry out assessable development unless all necessary development permits are in effect for the development”; and
    2. section 165 provides that “[a] person must not use premises unless the use is a lawful use”.
  4. [12]
    It is to be noted that “assessable development” is defined in s 44(3) as “development for which a development approval is required”. Further, in the dictionary in Schedule 2 there is also definition of:
    1. “development”: as including “making a material change of use of premises”;
    2. “material change of use of premises”: to include “a material increase in the intensity or scale of the use of the premises”; and
    3. “premises”; to include “land, whether or not a building or other structure is on the land”.
  5. [13]
    In the Amended Originating Application,[10] after setting out the essential history of the establishment and ongoing operation of the airfield,[11] the pleading of the application is as follows:

“16. The Applicant repeats and relies on the grounds stated above.

  1. The Land is improved by the following items:
  1. Runway.
  1. Three (3) hangars.
  1. Access roads and tracks.
  1. Two (2) storage containers.
  1. Shed.
  1. Noosa Plan commenced on 31 July 2020.
  1. Under Noosa Plan, the land is zoned for community facilities.

20.  At all relevant times, under Noosa Plan 2020 the use of the Land for Air services required (and requires) a development permit for material change of use which is impact assessable.

2021. No valid development approval exists which permits the First and Second Respondents to use the land for the purposes of Air services.

2122. No lawful existing use rights exist in respect of the Land that would authorise the Land to be used for Air services.

23.  Since 1 September 2020 at least 2010, the First and Second Respondents have used the Land for Air services, including the departure and arrival of aeroplanes and helicopters.

24.  Between 2010 and 2018, the use of the Land for Air services involved between (approximately) one and six flights per week.

2225. Since 2018, the use of the Land for Air services has intensified as it involves approximately 20 flights per week.

2326. The use of the Land for Air services:

  1. is ongoing;
  1. is the start of a new use of the Land or alternatively, since 2018, is a material increase in the intensity or scale of the use of the Land for Air services;
  1. is not a lawful existing use of the Land and is not authorised by an effective development permit;
  1. is not identified as accepted development;
  1. is not ancillary to an accepted development or to a lawful existing use of the Land;
  1. is not for a business activity that is subordinate to another use of the Land;
  1. does not come within the scope of the exceptions in section 163(2) of the Planning Act because:
  1. such use is not carried out under section 29(10)(a) of the Planning Act;
  1. such use was not carried out in accordance with an exemption certificate under section 46 of the Planning Act;
  1. such use was not carried out under section 88 of the Planning Act; and
  1. properly describes the use of the Land, applying the definitions from the Planning Scheme.

2427. For these reasons, a development offence has been committed pursuant to section 163 of the Planning Act.

2528. Further and in the alternative, a development offence has been committed pursuant to section 165 of the Planning Act.

Discretionary Matters for Orders & Declarations to be made:

2629. Declarations and orders are sought by the Applicant, which is a publicly elected body, whose interests in the proceeding encompass the good order and good governance of the locality, including in respect of the lawfulness of land use and governance of assessable development in the locality.

2730. The declarations and orders sought are in the public interest, especially given the level of community compliant complaint about the use of the Land for Air services.

31.  Further, it is appropriate to make the orders and declarations sought for the following reasons:

  1. the use of the Land for Air services is resulting in adverse amenity impacts upon local residents, as outlined at paragraph 12(f) above;
  1. it is appropriate that the use of the Land for Air services continue in circumstances where it has not been the subject of contemporary town planning assessment to ensure that:
  1. it is an appropriate use in the locality;
  1. the use is operated in accordance with the moderns standards (including as to amenity and safety); and
  1. the potential for adverse impacts (including as to amenity) upon nearby uses and local residents are avoided, or mitigated to an acceptable level.

2832. In the premises, the Applicant should be granted the relief that it seeks.”

  1. [14]
    The respondents oppose the granting of an order permitting the applicant to serve non-party disclosure notices.  It is particularly contended that:
    1. what is proposed is directed too broadly, including in respect of time periods, such as to be considered as directed at documents “directly relevant to an issue in dispute”;
    2. there is an absence of cogent explanation as to why the documents are necessary to advance the applicant’s case and of any explanation as to why there has been the issuing of the enforcement notice and the commencement at this proceeding, in the absence of such material; and
    3. having regard to the “quasi-criminal” nature of the proceedings, it would not be in the interests of justice for the order to be made.
  2. [15]
    By way of enlargement of these contentions, the respondents:
    1. point to an acknowledgement that, as has been identified in the proceeding in respect of the appeal against the enforcement notice, the site has and is continued to be used as an airfield;
    2. contend that this application is premature, having regard to the steps prescribed in Practice Direction 5 of 2023 and particularly those in paragraphs 10 and 13 to 15,[12] not having been carried out so as to inform what factual disputes are actually in issue between the parties, in the context that it is otherwise noted that the following paragraphs of the originating application are “potentially germane to the issues in dispute”;
      1. paragraph 12(d), as it relates to complains received by the Council;
      2. paragraph 12(f), as it relates to the impact of landing and taking off of aircraft, on residential amenity;
      3. paragraph 24, as it contains that the use of the land between 2010 and 2018, for air services, involved between one and six flights per week;
      4. paragraph 25, as it contends that there has been intensification of that use of the land since 2018 for air services involving approximately 20 flights per week;[13]
    3. contend that there is an absence of explanation as to why documents extending back to 2010 are to be sought (or even as to why 2010 is an appropriate commencement point) in circumstances where the allegation is to a development offence under the PA (which Act came in to affect in July 2017), by way of unapproved material change of use of the premises.  Subsidiary contentions are that:
      1. it is not demonstrated that seeking piecemeal information from some identified operators at the airfield, rather than all such operators over a relevant period, “will be germane to [the applicant’s] enquiries”;
      2. seeking information about safety incidents is not germane to any issue which may be in dispute in respect of the originating application;
      3. a broad or generalised request for information about complaints made by residents is not apt “to sheet back to the contention that aircraft operations adversely impact the amenity of local residents”; and
    4. the potential consequences of proceedings for the respondents and others, are dire, where they confront proposed orders that, without approval pursuant to an expensive impact assessment development approval, with an uncertain outcome, they are to cease the operation of an airfield which has operated on the land since 1975, with the further prospect of criminal sanction for non-compliance with any such enforcement order.
  3. [16]
    Finally and in an overall sense, the respondents’ submission is:

“That proceedings of this type be commenced and then broad third-party notices be given, akin to fishing expeditions, to bolster (or worse, establish) the Council’s evidential case, is not a litigation strategy that ought to be supported by this Court.”[14]

Discussion

  1. [17]
    As noted in the earlier decision,[15] as far as issues had been identified, as relating to the appeal against the enforcement notice (now to be heard together with this OA), it is not in issue that there is no extant or effective development permit for the use of the airfield. Accordingly, there is understood to be no issue as to there being a relevant development offence pursuant to s 163 and there have been some identified issues which appear to be directed at discretionary considerations as to whether any enforcement relief is to be granted. But, as matters stand and in accordance with Practice Direction 5 of 2023, the stage at which the respondent may elect to respond to this application including as it extends to an allegation of a further development offence of an unapproved material change of use of the airfield, on the basis of a material increase in the scale and intensity of that albeit unapproved use, has not been reached.
  2. [18]
    It is first convenient to consider some broader aspects of the competing contentions and particularly as they relate to the nature of these enforcement proceedings, the reliance upon public interest considerations and how they are directed pursuant to Practice Direction 5 of 2023.
  3. [19]
    Despite enforcement proceedings under the PA, whether arising in respect of an appeal against an enforcement notice issued pursuant to s 168 or such as brought pursuant to s 180, not being for the direct purpose of punishing the occurrence of a development offence, for a proceeding pursuant to s 180, it is necessary for the applicant prove that a development offence has been or will be committed unless an enforcement order is made.[16]
  4. [20]
    Accordingly, it may be seen that the generally applicable requirements of paragraphs [9] and [10] of Practice Direction 5 of 2023, in first requiring the party alleging the development offence to file its material in support of its case before allowing the election of a responding party pursuant to paragraphs [13], may be seen as having some foundation in recognition of the privileges against self-incrimination and against self-exposure to a penalty, such as are recognised at law as inhering in individuals such as the second respondent here. However, a potential complication is that neither privilege is recognised as inhering in respect of a corporation, such as the first respondent.
  5. [21]
    The first proposition was established by majority determination in Environmental Protection Authority v Caltex Refining Co Pty Ltd.[17] That decision was concerned with questions which had been stated to the Court of Appeal (NSW) by a judge of the Land and Environment Court (NSW), in respect of the appellant’s service of notices on the respondent, after commencement of prosecution proceedings against that corporation for offences under the Clean Waters Act 1970 (NSW). One notice was issued pursuant to a power provided in s 29(2)(a) of the Clean Waters Act and the other was a notice to produce issued pursuant to the Rules of the Land and Environment Court.[18]  It was acknowledged that the “sole purpose of the notices was to obtain evidence and information for use against Caltex in the prosecution”.[19]
  6. [22]
    Even in the joint judgment of the three justices who dissented to uphold a privilege against self-incrimination for corporations, there is otherwise noted to be particular observations as to the necessarily limited application of such a right. Notably this included observations that such privilege:[20]
    1. “… is no ground for resisting production of the corporation’s documents by another person …”;
    2. would not permit an officer or employee of a corporation, as a witness in proceedings to refuse to answer questions “upon the basis that the answer would tend to incriminate the corporation”; and
    3. is limited to or “centres on the relatively confined area of the production of documents or the answering of interrogatories because these are things which a corporation itself may be required to do.”

However, this judgment and that of Brennan J, provided a different majority determination as to the reliance upon the notice to produce pursuant to the processes of the Court. In the joint judgement, that flowed from the recognition of the privilege against self-incrimination in the corporation. In the case of Brennan J, it was due to the recognition of the corporation’s entitlement to claim privilege against self-exposure to a penalty.[21]

  1. [23]
    Under the heading in his judgment: “Discovery qualified by privilege”, Brennan J concluded, in the context of discernment of difference of underlying policy for the privilege against exposure to penalty and in seeking to avoid any incongruence of approach as between criminal and civil proceedings and as between individuals and corporations,[22] that:

“As penalties may be imposed on a corporation either in criminal or in civil proceedings and as the policy of the law leads the court to refuse to exercise its powers to compel discovery designed to procure evidence of liability to penalties, I would hold corporations exempt from an obligation to give discovery in any proceedings brought to enforce a liability to a penalty, whether criminal or civil, unless a statute or rule of court otherwise provides expressly or by necessary intendment.”[23]

As noted below, that view has not prevailed in subsequent authority upon the topic of application of any privilege against exposure of a corporation to penalty. It is therefore only convenient to note the following observations of Brennan J:

“The penalty privilege owes its existence not to the law's historical protection of human dignity but to the limitation which the courts placed on the exercise of their powers to compel a defendant in an action for the recovery of a penalty to furnish against himself the evidence needed to establish his liability. Thus in Martin v. Treacher, Lord Esher M.R. noted:

"The reasons given seem substantially to amount to this: although the penalty is not in strict law a criminal penalty, yet the action is in the nature of a criminal charge against the defendant ... and, the object of the action being to subject the defendant to a penalty in the nature of a criminal penalty, it would be monstrous that the plaintiff should be allowed to bring such an action on speculation, and then, admitting that he had not evidence to support it, to ask the defendant to supply such evidence out of his own mouth and so to criminate himself. It is on this principle, as it seems to me, that a court of equity would not grant its aid to such an action."

Thus the court refuses to lend its process to compel discovery on the application of a plaintiff whose action is brought merely to recover a penalty. Discovery is denied because the policy of the law requires that the court should not give discovery at all in such an action. The courts refused discovery to a party where discovery was sought simply to acquire proof of a criminal offence or of the opposing party's liability to a penalty. The rationale behind restrictions on discovery in actions of forfeiture and penalties was suggested by Lord James in National Association of Operative Plasterers v. Smithies to be "that the Courts of Equity were so averse to actions of that nature being brought at all that they would not assist them, and therefore they did not allow discovery to be obtained."[24]

  1. [24]
    Further recognition of the potential application of the privileges against penalties and forfeitures, as recognised at common law in relation to individuals, is found in the decision of Rich v ASIC.[25] Before examining any presently relevant observations, it is necessary to note that whilst the plurality judgement there proceeded upon an absence of any relevant abrogation of any such privilege,[26] it may be noted that s 14(1)(a) of the Evidence Act 1977 does have such an effect, in providing that:

“(1) The following rules of law are hereby abrogated except in relation to criminal proceedings, that is to say—

  1. the rule whereby, in any proceeding, a person can not be compelled to answer any question or produce any document or thing if to do so would tend to expose the person to a forfeiture;”
  1. [25]
    In the Rich decision, the High Court ultimately set aside an order for discovery made in proceedings brought against the directors of a company which had been placed in liquidation, which proceedings involved the seeking of relief pursuant to ss 206C and 206E of the Corporations Act 2001 (Cth), by way of compensation orders for contraventions of that Act and orders disqualifying each director from managing a corporation for a period to be determined.
  2. [26]
    Accordingly, the decision in Rich does not proceed upon any discernment as between “forfeiture” and “penalty”, in the application of any such privilege. The plurality reasoning does, however, proceed upon a basis of rejection of any relevant utility in any distinction to be drawn between “punitive” and “protective”, proceedings and as distracting “attention from the relevant question which is whether the privilege against exposure to penalties applies”.[27] The plurality noted the following context to the application of that privilege:

“Four members of the Court, in their joint reasons in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission, pointed out that the privilege against exposure to penalties is one of a trilogy of privileges that bear some similarity with the privilege against incrimination. (The other two privileges are the privilege against exposure to forfeiture and the privilege against exposure to ecclesiastical censure.) As was also pointed out in those joint reasons:

‘The privilege against exposure to penalties and that against exposure to forfeiture had their origins in the rules of equity relating to discovery, but it is clear, as noted by Mason A-CJ, Wilson and Dawson JJ in Pyneboard [Pty Ltd v Trade Practices Commission], that the privilege against exposure to penalties has long been recognised by the common law and is no longer simply a rule of equity relating to discovery.’

Although the privilege against exposure to penalties had its origins in the rules of equity relating to discovery, when discovery and interrogatories were provided for under the rules made under the Judicature Act, the Court of Equity’s principle (that an order for discovery or for the administration of interrogatories in favour of the prosecutor, whether the prosecutor was the Crown or a common informer or some other person, should not be made where the proceeding was of such nature that it might result in a penalty or forfeiture) was applied more generally. As was further pointed out in the joint reasons in Daniels Corporation, the privilege against exposure to penalty now serves the purpose of ensuring that those who allege criminality or other illegal conduct should prove it.”[28]

It was further noted that:

“The penalties and forfeitures which attract the privileges include, but are not confined to, monetary exactions. The privilege against exposure to penalties has been applied in common informer proceedings and actions for monetary penalties or treble damages. But:

‘[t]he term ‘penalty’ was not used in courts of equity merely in the sense of an exaction pursuant to statute as a punishment for contravention thereof. It embraced the wider concept of penalty as understood in the law of relief in equity against the exaction of penal payments in contractual disputes and the forfeiture of property interests.’’’[29]

And further observed that:

“These considerations respecting the scope of the privileges against exposure to penalties or forfeiture, necessarily drawn from experience in the legal tradition inherited in this country, do more than shed vague illumination upon the central issue on this appeal. They explain, why, for example, to conclude that the legislation has the character of a regulatory law to be applied in accordance with civil procedures, including those respecting discovery, would be to stop well short of resolving the issue whether the proceedings expose the appellants to penalties or forfeitures.”[30]

Finally and after notation of authority holding that orders for compensation are not in the nature of a penalty,[31] concluded that “exposure to a disqualification order is exposure to a penalty”,[32] and that the order requiring the appellants to make disclosure of documents should not have been made.[33]

  1. [27]
    There is also authority for the proposition that the privilege against exposure to penalty extends to permit refusal of disclosure because of the risk of subsequent action to recover a penalty.[34]
  2. [28]
    However and as has been noted, the law has not developed to recognition of any privilege against exposure to penalty, in respect of corporations. Essentially, that position was determined in Trade Practices Commission v Abbco Ice Works Pty Ltd,[35] as followed in Bridal Fashions Pty Ltd v Comptroller General of Customs.[36] For present purposes it is only necessary to note the following exposition in the judgment of the Western Australian Court of Appeal, in summary of determination to follow the earlier conclusion of the Full Court of the Federal Court (as that exposition proceeds after explanation of the difficulty identified in the Federal Court of discerning any binding determination in the High Court decision in the Caltex Refining decision):

“Burchett J and Gummow J delivered substantive judgments in which each rules that the privilege against self-exposure to a penalty did not extend to corporations. Black CJ and Davies J expressed agreement with the reasons of Burchett J. Sheppard J dissented.

Having identified the problem presented by the reasons in Caltex Refining Burchett J entered upon an exhaustive review of the authorities and principles relating to the privilege against self-incrimination. It is unnecessary for us to deal with it in any great detail. We merely wish to say, with respect, that we find Burchett J's treatment of the subject compelling. It is, we think necessary only for me to set out the conclusion to which his Honour came (at 129-130):

‘My conclusion from the survey made in these reasons of the texts and authorities since the 18th century is that the privilege against self-incrimination, and that against self-exposure to a penalty, are both reflections of the one fundamental principle. It has been stated with differing emphases. But, with respect, it cannot be better expressed than by the words which Deane, Dawson and Gaudron JJ used in Caltex (at 532) with reference to self-incrimination:

“In the end, [the privilege] is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself.”

Substituting “the incurring of a penalty” for “the commission of a crime” and “the defendant” for “the accused”, I think this statement applies to the privilege against self-exposure to a penalty. So applied, the principle may evoke less feeling, but it remains the same principle. It is therefore wrong to regard the two grounds or aspects of privilege as depending on unrelated or different considerations. They should not be seen as separate props in the system of justice but rather as interlocking parts of a single column. The foundation of this column is that ‘great justice and tenderness in the law of England’, that ‘humane policy of the law’, which Lord Hardwicke and Alexander CB expounded [in Smith v Read (1737) 1 Atk 526; 26 ER 332], and the High Court has so recently examined.

If that foundation will not support the allowance of the privilege in respect of self-incrimination to a body corporate, it will not support the allowance to the same body of the privilege against self-exposure to a penalty.

…

In my opinion the court should hold that, now that the common law of Australia has been held by the High Court not to extend to corporations a privilege against self-incrimination, the common law of Australia does not extend to them any privilege against self-exposure to a penalty either.’

Gummow J approached the issue in a slightly different way, but with the same result. His Honour preferred to see the problem not so much in terms of whether the privilege should be withdrawn from corporations but whether the privilege, as it grew out of the common law and equitable doctrine and practice ever extended to corporations…”[37]

  1. [29]
    It may be further noted that in the Bridal Fashions decision, the Court also rejected the following further contention:

“There is one other issue with which we should deal. Counsel for the appellant submitted that in a case such as this, where there are two defendants, one of which is a corporation and the other an individual, to deny to the corporation the privilege would, in a practical sense, destroy the utility of the privilege for the individual. This is because the information disclosed by the corporate defendant would of necessity refer directly to the individual. This problem was raised in Abbco. Burchett J rejected it as a basis for holding that the privilege applied to corporations. We adopt, without repeating them, his Honour's reasons for that rejection (at 116). We would add that a similar approach to this issue was taken in Trade Practices Commission v IMB Group Pty Ltd (1994) 16 ATPR 42,544 at 42,526.”[38]

  1. [30]
    Therefore and in respect of the underlying context of the application of Practice Direction 5 of 2023 to the competing contentions of the parties, it may be seen that this Practice Direction:
    1. as far as it relates to the position of individuals made the subject of an enforcement notice or enforcement proceedings,[39] reflects what has been recognised as important rights, in terms of the privileges against self-incrimination and against exposure (or self-exposure) to penalty; and
    2. despite the absence of legal recognition of such rights in respect of corporations, the Practice Direction does not expressly discriminate as to its application and a prima facie sense of application to a corporate appellant or respondent is nevertheless consistent with the recognition in the authorities, to which reference has been made, of an underlying premise of requiring that the alleger of the commission of a criminal offence prove it.[40]
  2. [31]
    Here there has been no attempt to discriminate between the position of the respective respondents and each of them point to their common position pursuant to the Practice Direction. However, that position will not necessarily determine an application of this kind, as far as it may be appropriately directed at the obligation of the applicant to first present its case under that Practice Direction and does not offend any privilege which may be recognised as inhering in an individual respondent.  In Macdonald v Australian Securities and Investments Commission,[41] another case concerned with the privilege against self-exposure to a penalty attaching to an individual in civil penalty proceedings in relation to contraventions of the Corporations Law, it was determined that dispensation from the usual applicable rules of civil procedure, in requirement of pleadings, “should only go so far as is necessary to serve the privilege against self-exposure to a penalty and the interests it serves to protect”.[42]
  3. [32]
    As is contended for the applicant, it is in the context of the obligation which it has under the Practice Direction to first present its case, that it seeks to engage the non-party disclosure provision in the UCPR, so as to aid that proof.  Axiomatically, this application for the allowance of non-party disclosure cannot be regarded as infringing any privilege inhering in the second respondent, against self-incrimination or self-exposure to a penalty. Therefore and to the extent that it may be discerned that there is appropriate engagement of UCPR 242 in support of the applicant’s case, that is not necessarily to be regarded as premature because of the position of the respondents under the Practice Direction.
  4. [33]
    Necessarily, each application to engage a process of the court in aid of a party’s case, must be considered in the appropriate context.  That is the essential reason why there is no particular assistance to be gained from reference to the decision in Caldwell Resources Pty Ltd v Noosa Shire Council,[43] where the particular distinctions, in respect of the allowance of an order for inspection of the site in issue by the Council’s expert witnesses (pursuant to UCPR 250), are in respect of that decision being in respect of a corporation’s appeal against an enforcement notice and where in the corporation’s notice of appeal, issues had been identified such as to have led to the engagement of relevant experts in respect of those identified issues. 

Conclusions

  1. [34]
    Accordingly, the focus must be upon the principles which have been noted as to the application of UCPR 242, to the proof of the applicant’s case pursuant to s 180 of the PA and primarily, as that entails assessment as to the extent to which it may be demonstrated that relevant assistance is sought in respect of proof of the development offences alleged, as opposed to any sense of enquiry as to whether such an offence may have occurred or be proven. 
  2. [35]
    The extent to which the applicant seeks to postulate relevance to potential discretionary issues, as may arise in the enforcement proceedings,[44] may be more problematic.  Whilst it may be noted that some such issues have been identified in the proceeding in respect of the appeal against the enforcement notice and which remains to be heard conjointly,[45] as has been previously observed it at least remains to be seen what utility may remain in respect of this separate proceeding upon resolution of the enforcement proceeding.[46]  In any event, and as far as this enforcement proceeding is concerned, particularly as it relates to the additional allegation of a development offence in the nature of unapproved material change of use of the premises, it largely remains to be seen what, if any, discretionary considerations might be identified in the context of the outcome of any election of the respondents under the Practice Direction.[47] Further and whilst reference is made to the matters identified at paragraphs 29, 30 and 31(b) of the Amended Originating Application, as raising potential discretionary issues, that is in respect of contentions which reflect the type of countervailing considerations which are recognised as arising from the public interest in the “orderly development and use of the environment” pursuant to the applicable law.[48]
  3. [36]
    The assertion in paragraph 31(a), of resultant adverse amenity impacts upon local residents, does appear to raise a relevant issue which might be expected to be addressed in the applicant’s case. Whilst it is to be noted that the Amended Originating Application reflects the applicant’s reliance on the evidence of and complaints raised by some local residents as to the observed use of the airfield,[49] that does not preclude the applicant from putting into evidence available records as to the use of aircraft at the airfield and particularly, as asserted,[50] to provide a basis for expert evidence in respect of noise disturbance from aircraft using the land.
  4. [37]
    Once it is understood that the engagement of UCPR 242 is not permissible upon the basis of “speculation or general intelligence gathering”, it is apparent that leave may not be granted for non-party disclosure by the regulatory authorities CASA and AA. The submissions for the applicant go no further than identifying that:
    1. CASA has responsibility for the safety regulation of civil air operations in Australia, including by issuing certificates, registration and permits,[51] with particular responsibility for maintaining the register of civil aircraft[52] and regulating the use of aerodromes;[53] and
    2. AA has responsibility for providing services and facilities for air navigation.[54]

But does not identify any particular obligation or expectation in respect of either body in relation to records as to the particular use of any aerodrome, as reflected in the written submission “that each of those authorities may have documents that are relevant to determining the number, type and frequency of aircraft using the land”.[55]

  1. [38]
    A similar conclusion is driven by not only the absence of any identified basis upon which there could be an expectation of any requirement for the keeping of records as to safety incidents or complaints in connection with the use of the airfield but also the clear appearance of speculation and intelligence gathering in respect of seeking this type of record.
  2. [39]
    Whilst there may be some more definitive identification of the legislative obligation of the operators of some individual aircraft to have made records in connection with fights to and from the airfield,[56] as is pointed out for the respondents, the obligation as to retention of such records appears to be for no longer than six months post flight.[57] Further, the approach of the applicant in seeking non-party disclosure of such records from only some such identified operators,[58] is problematic, notwithstanding what has been noted as to potential relevance to the general issue of amenity impact of the use of the airfield, in that it is not demonstrated how such a limited or piecemeal approach could be viewed as directed at evidence which is capable of establishing or meaningfully assisting in the proof of the material change of use which is alleged, or that there is also likely to be any meaningful assistance from reference to only some of the extent of that impact.
  3. [40]
    Moreover and particularly to the extent that such evidence might be considered to have potential relevance to the proof of the unlawful use of an airfield, there is the requirement in UCPR 242(1)(a) of direct relevance “to an allegation in issue in the proceeding” and all of the material before the Court tends to a conclusion that this will not be an allegation in issue in this proceeding. As well, there are the requirements of UCPR 242(2). Quite apart from anything which may have been touched upon in the hearing of this application as to the use of the investigative powers available to the applicant,[59] in respect of the entities from which the non-party disclosure is proposed, no attention has been paid to what may reasonably be expected to be the statutory obligation of the operator of this airfield or aerodrome to maintain records as to such use and any expectation as to the respondents having such records or to why there has not previously been any exercise of such statutory power to obtain such real evidence or documentary records.  But it is unnecessary to dwell upon any such consideration because the essential problem with the application is the absence of sufficient identification of the availability of any document, or type of document, which would be amenable to the non-party disclosure, in the sense of allowing the applicant to prove an allegation in issue in the proceeding.
  4. [41]
    Accordingly, the appropriate order is that the application filed on 15 February 2024 for non-party disclosure pursuant to the UCPR, is dismissed.

Footnotes

[1]Noosa Airfield Pty Ltd v Noosa Shire Council, No D100 of 2022.

[2]Noosa Shire Council v Noosa Airfield Pty Ltd & Anor [2024] QPEC 23.

[3]Filed 15/02/2024.

[4]Filed 26/03/2024.

[5][2023] QSC 282, [18]-[19].

[6]Section 180(3), PA.

[7]Such proceedings might have been instituted in the Magistrates Court pursuant to s 174 of the PA and could potentially be the outcome of any contravention of any enforcement order made: see s 180(8).

[8]See s 180(2) and (5).

[9]See s 180(6).

[10]Filed 26/03/2024.

[11]See: Noosa Shire Council v Noosa Airfield Pty Ltd [2024] QPEC 23 at [2].

[12]As that Practice Direction has been adopted and modified to apply in the Maroochydore registry of the Planning and Environment Court.

[13]Respondents’ written submissions, filed 20/03/2024, [10]-[11].

[14]Respondents’ written submissions, filed 20/03/2024, [21].

[15]Noosa Shire Council v Noosa Airfield Pty Ltd & Anor [2024] QPEC 23, [2].

[16]In respect of proceedings relating to an enforcement notice and whilst such a notice may be issued if an “enforcement authority reasonably believes a person has committed, or is committing, a development offence”, such a notice is otherwise described as being directed at requiring a person to “refrain from committing a development offence” and/or “remedy the effect of a development offence in a stated way”.

[17](1993) 178 CLR 477, 504, 507-8, 516, 538-9 and 556.

[18]This was noted to be by those rules adopting a rule of the Supreme Court (NSW) allowing for a such a notice, effecting an obligation to produce the documents “unless the Court otherwise orders”: (1993) 178 CLR 477, 518.

[19]Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 486.

[20]Ibid at 535-6.

[21]Mason CJ and Toohey J (at 504) concluded that “Although the point was not fully argued in this case, the reasons for denying the privilege against self-incrimination to corporations apply with equal force to the privilege against exposure to a penalty.” And otherwise (at 505) saw that privilege as inapplicable “as the proceedings here are not civil proceedings for a penalty”. Mc Hugh J (at 547) noted the recognition at law and equity of “privilege against exposure to civil penalty of forfeiture” as underpinning traditional refusal of “orders for the discovery of documents or the administration of interrogatories in aid of civil actions for penalties or forfeitures”.  However and after noting the effect of the decision in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, in establishing such as a general privilege as “may be invoked outside the course of judicial proceedings” and therefore the difficulty in distinguishing the rationales underpinning each privilege, he determined (at 552) that by similar reasoning to that denying the privilege against self-incrimination to corporations, there was also denial of the privilege against exposure to penalties and forfeiture.

[22]Ibid at 520-521.

[23](1993) 178 CLR 477, 521.

[24]Ibid, 519-520 (citations omitted).

[25](2004) 220 CLR 129.

[26]Ibid, [19] and [25].

[27]Ibid, [30]-[31] and noting that in a separate judgement McHugh J (at [41]) substantially agreed with the plurality reasons, whilst proceeding to elaborate his own view as why the “disqualification provisions” were not purely protective in character.

[28]Ibid, [23]-[24], citations omitted, other than to note that the citation for the last sentence was: “See Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129, per Burchett J.”

[29]Ibid, [26], citations omitted.

[30]Ibid, [27].

[31]Ibid, [28], in reference to Adams v Batley; Cole v Francis (1887) 18 QBD 625.

[32]Ibid, [37].

[33]Ibid, [39].

[34]See Refrigerated Express Lines (A’asia) Pty Ltd v Australian Meat & Livestock Corp (1979) 42 FLR 204 (FCA), 207 (per Deane J), as approved in Pyneboard Pty. Ltd. V. Trade Practices Commission (1983) 152 CLR 328, 336 and also Reid v Howard (1995) 184 CLR 1, 17 in respect of the absolute nature of the privilege against self-incrimination.

[35](1994) 52 FCR 96.

[36](1996) 17 WAR 499.

[37](1996) 17 WAR 499, 512-513.

[38](1996) 17 WAR 499, 515.

[39]In this instance, the only discernible basis for the inclusion of the second respondent in the originating application is that he is identified as the director and secretary of the first respondent: see the Amended Originating Application, filed 26/03/2024, [3].

[40]See also, Macdonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612, [64].

[41](2007) 73 NSWLR 612, [64].

[42]Ibid, [54] and [77].

[43][2024] QPEC 18.

[44]Understood to be such as are discussed in Warringah Shire council v Sedevcic (1987) 10 NSWLR 335.

[45]See Noosa Shire Council v Noosa Airfield Pty Ltd & Anor [2024] QPEC 23, [2].

[46]Ibid, [18] and [21].

[47]It may be observed that notwithstanding the onus of proof placed on the applicant in the enforcement proceedings, it may be difficult to see how any relevant discretionary issue may otherwise arise, upon that onus being satisfied and so as to prevent any grant of the relief which is sought, other than by preparedness of the respondents to make full disclosure as to the use and thereby to allow assessment of the impacts of that use of the premises.

[48]See Warringah Shire council v Sedevcic (1987) 10 NSWLR 335, 339-341.

[49]Amended Originating Application, filed 26/03/2024, [12(d)-(f)].

[50]Applicant’s Supplementary Submissions, filed 29/05/2024, [12].

[51]Civil Aviation Act 1988 (Cth), s 9(1)(a) and (e).

[52]Civil Aviation Safety Regulations 1998 (Cth) r 47.025.

[53]Ibid, Part 139.

[54]Air Services Act 1995 (Cth), s 8(1)(a)(iii).

[55]Applicant’s written submissions, filed 16/02/2024, [30]; and see Applicant’s written submissions, filed 26/03/2024 and Applicant’s Supplementary written submissions, filed 29/05/2024, [2(d)].

[56]Civil Aviation Safety Regulations 1998 (Cth) rr 133.075, 133.095, 135.085 and 135.105.

[57]Ibid, r 119.250 and see also r 119.245.

[58]Affidavit of APM Calligeros, filed 15/02/2024, [5]-[8].

[59]Pursuant to Parts 7 and 8 of the PA, including as to seizure of things reasonably believed to be evidence of an offence against that Act pursuant to division 2 of Part 8.

Close

Editorial Notes

  • Published Case Name:

    Noosa Shire Council v Noosa Airfield Pty Ltd & Anor (No 2)

  • Shortened Case Name:

    Noosa Shire Council v Noosa Airfield Pty Ltd (No 2)

  • MNC:

    [2024] QPEC 38

  • Court:

    QPEC

  • Judge(s):

    Judge Long SC

  • Date:

    23 Aug 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adams v Batley; Cole v Francis (1887) 18 QBD 625
1 citation
Jump To
Cite 1 - (1887) 18 QBD 625
Bridal Fashions Pty Ltd v Comptroller-General of Customs (1996) 17 WAR 499
4 citations
Jump To
Cite 1 - (1996) 17 WAR 499
Cite 2 - (1996) 17 WAR 499
Cite 3 - (1996) 17 WAR 499
Cite 4 - (1996) 17 WAR 499
Cordwell Resources Pty Ltd ACN 066 294 773 v Noosa Shire Council [2024] QPEC 18
2 citations
Jump To
Cite 1 - [2024] QPEC 18
Cite 2 - [2024] QPEC 18
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
5 citations
Jump To
Cite 1 - (1993) 178 CLR 477
Cite 2 - (1993) 178 CLR 477
Cite 3 - (1993) 178 CLR 477
Cite 4 - (1993) 178 CLR 477
Cite 5 - (1993) 178 CLR 477
MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612
3 citations
Jump To
Cite 1 - (2007) 73 NSWLR 612
Cite 2 - (2007) 73 NSWLR 612
Cite 3 - (2007) 73 NSWLR 612
Niceforo v Berkshire Hathaway Specialty Insurance Company [2023] QSC 282
2 citations
Jump To
Cite 1 - [2023] QSC 282
Cite 2 - [2023] QSC 282
Noosa Shire Council v Noosa Airfield Pty Ltd & Anor [2024] QPEC 23
5 citations
Jump To
Cite 1 - [2024] QPEC 23
Cite 2 - [2024] QPEC 23
Cite 3 - [2024] QPEC 23
Cite 4 - [2024] QPEC 23
Cite 5 - [2024] QPEC 23
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
2 citations
Jump To
Cite 1 - (1983) 152 CLR 328
Cite 2 - (1983) 152 CLR 328
Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204
1 citation
Jump To
Cite 1 - (1979) 42 FLR 204
Reid v Howard (1995) 184 CLR 1
1 citation
Jump To
Cite 1 - (1995) 184 CLR 1
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
2 citations
Jump To
Cite 1 - (2004) 220 CLR 129
Cite 2 - (2004) 220 CLR 129
Smith v Read (1737) 1 Atk 526
1 citation
Jump To
Cite 1 - (1737) 1 Atk 526
TPC v Abbco Iceworks Pty Ltd (1994) 52 FCR 96
3 citations
Jump To
Cite 1 - (1994) 52 FCR 96
Cite 2 - (1994) 52 FCR 96
Cite 3 - (1994) 52 FCR 96
Trade Practices Commission v IMB Group Pty Ltd (1994) 16 ATPR 42
1 citation
Jump To
Cite 1 - (1994) 16 ATPR 42
Warringah Shire Council v Sedevcic (1987) 10 NSW LR 335
2 citations
Jump To
Cite 1 - (1987) 10 NSW LR 335
Cite 2 - (1987) 10 NSW LR 335

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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