Sader v Elgammal [2023] NSWLEC 21

Sader v Elgammal [2023] NSWLEC 21

The notices to produce should substantially stand because the disputed categories, as narrowed where applicable, had apparent relevance to the issues in the CDC proceedings, including landowner's consent, the scope of the works, the land to which the CDC applied, and the location of the mean high water mark. There was no evidence supporting improper purpose or oppression. The applicants did not press specified categories, and Category 5 for the first respondent was confined to documents relating to any application to change the mean high water mark shown in Schedule 3 to Crown licence RN 566152 dated 23 July 2019.

Jurisdiction
Australia
Judgment Date
13 March 2023
Procedural Posture
Class 4 Judicial Review Proceedings Concerning a Complying Development Certificate; Notice of Motion to Set Aside Notices to Produce / Procedural Ruling on First Respondent's Notice of Motion Filed 16 December 2022
Outcome
The first respondent's motion to set aside the notices to produce was not granted; production was ordered subject to categories not pressed and a narrowing of Category 5 for the first respondent. Costs reserved.
Legal Topics
['notice to Produce' 'setting Aside Notices to Produce' 'forensic Purpose' 'relevance to Issues in Dispute' 'oppression' 'complying Development Certificate' "landowner's Consent" 'mean High Water Mark' 'crown Land']
['practice and Procedure' 'environmental Planning and Assessment' 'land Law'] ['notice to Produce' 'setting Aside Notices to Produce' 'forensic Purpose' 'relevance to Issues in Dispute' 'oppression' 'complying Development Certificate' "landowner's Consent" 'mean High Water Mark' 'crown Land']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Concerning a Complying Development Certificate; Notice of Motion to Set Aside Notices to Produce / Procedural Ruling on First Respondent's Notice of Motion Filed 16 December 2022

Legal Issues

  1. 1 ['Whether the notices to produce were issued for a legitimate forensic purpose.' "Whether the documents sought had apparent relevance to the issues in the CDC proceedings, including landowner's consent, the land to which the CDC applied, the scope of works approved by the CDC, and the location of the mean high water mark." 'Whether compliance with the notices to produce would be oppressive.' 'Whether particular categories of documents should be produced, narrowed, or excluded because they were not pressed.']

Ratio Decidendi

The notices to produce should substantially stand because the disputed categories, as narrowed where applicable, had apparent relevance to the issues in the CDC proceedings, including landowner's consent, the scope of the works, the land to which the CDC applied, and the location of the mean high water mark. There was no evidence supporting improper purpose or oppression. The applicants did not press specified categories, and Category 5 for the first respondent was confined to documents relating to any application to change the mean high water mark shown in Schedule 3 to Crown licence RN 566152 dated 23 July 2019.

Court Disposition

The first respondent's motion to set aside the notices to produce was not granted; production was ordered subject to categories not pressed and a narrowing of Category 5 for the first respondent. Costs reserved.

Orders

  • ['The documents sought in the notice to produce issued to the first respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, except Categories 6, 8, 9 and 11, and in relation to Category 5 only documents relating to any application by the first respondent to change...