Anthony Damian v Suzana Hulak & Ors [2016] NSWLEC 1112

Anthony Damian v Suzana Hulak & Ors [2016] NSWLEC 1112

Paragraphs 2 and 3(a) of the Notices to Produce were set aside because they sought any and all communications about proposed development or purchase of the property, limited only by date; any possible assistance was speculative and did not show a legitimate forensic purpose, and their breadth was tantamount to discovery. Paragraph 3(b) of each notice and paragraph 4 of the notice to the First Respondent were not set aside because documents fitting those descriptions would be materially relevant to the active respondents' intentions and instructions concerning development of the land and preparation of the CDC plans.

Jurisdiction
Australia
Judgment Date
01 April 2016
Procedural Posture
Class 4 Proceedings to Review the Decision of a Private Certifier to Issue a Complying Development Certificate / Notice of Motion Filed 17 March 2016 by the First, Second, Third and Fourth Respondents to Set Aside Notices to Produce
Outcome
Paragraphs 2 and 3(a) of the Notices to Produce issued on 19 January 2016 to the First, Second, Third and Fourth Respondents were set aside; costs of the notice of motion filed 17 March 2016 were reserved.
Legal Topics
['notices to Produce' 'relevance' 'legitimate Forensic Purpose' 'substitute for Discovery' 'complying Development Certificate']
['planning and Environment' 'civil Procedure'] ['notices to Produce' 'relevance' 'legitimate Forensic Purpose' 'substitute for Discovery' 'complying Development Certificate']

Case Brief

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Procedural Posture

Class 4 Proceedings to Review the Decision of a Private Certifier to Issue a Complying Development Certificate / Notice of Motion Filed 17 March 2016 by the First, Second, Third and Fourth Respondents to Set Aside Notices to Produce

Legal Issues

  1. 1 ['Whether paragraphs 2, 3(a), 3(b) and 4 of the Notices to Produce had a legitimate forensic purpose in relation to an identified issue in the proceedings' 'Whether paragraphs of the Notices to Produce were so broad as to amount to a substitute for discovery and an abuse of process']

Ratio Decidendi

Paragraphs 2 and 3(a) of the Notices to Produce were set aside because they sought any and all communications about proposed development or purchase of the property, limited only by date; any possible assistance was speculative and did not show a legitimate forensic purpose, and their breadth was tantamount to discovery. Paragraph 3(b) of each notice and paragraph 4 of the notice to the First Respondent were not set aside because documents fitting those descriptions would be materially relevant to the active respondents' intentions and instructions concerning development of the land and preparation of the CDC plans.

Court Disposition

Paragraphs 2 and 3(a) of the Notices to Produce issued on 19 January 2016 to the First, Second, Third and Fourth Respondents were set aside; costs of the notice of motion filed 17 March 2016 were reserved.

Orders

  • ['Paragraphs 2 and 3(a) of the Notices to Produce issued on 19 January 2016 to the first, second, third and fourth respondent are set aside.' 'The costs of the notice of motion filed 17 March 2016 are reserved.']