Marshall Rural Pty Ltd v Basscave Pty Ltd (No 2) [2017] NSWLEC 137

Marshall Rural Pty Ltd v Basscave Pty Ltd (No 2) [2017] NSWLEC 137

The Applicant failed to establish a legitimate forensic purpose, or that it was on the cards that the documents would materially assist its case, for paragraphs 1, 2, 4, 5, 6, 7 and 12 of the amended Notice to Produce because those requests used broad classes of documents, lacked sufficient particularity, or related to matters not shown to assist the pleaded civil enforcement case; paragraphs 3 and 13 were not pressed. Paragraphs 8, 9, 10 and 11 were allowed because they concerned documents about delivery, payment, contracting, hire or supply of soil, fill and earthworks, which related directly to the alleged importation of material and alteration of the land pleaded in the proceedings,...

Jurisdiction
Australia
Judgment Date
28 September 2017
Procedural Posture
Class 4 Civil Enforcement Proceedings; Procedural Motion Concerning a Notice to Produce for Inspection / Notice of Motion Filed 25 September 2017 Seeking to Set Aside or Strike Out Parts of the Notice to Produce Filed 5 September 2017, as Amended in Court on 28 September 2017
Outcome
Notice of Motion substantially successful; specified paragraphs of the Notice to Produce struck out, remaining paragraphs amended as to end-date, and costs ordered against the Applicant.
Legal Topics
['notice to Produce for Inspection' 'legitimate Forensic Purpose' 'fishing Expedition' 'production of Documents' 'environmental Planning and Assessment Act 1979']
['practice and Procedure' 'planning and Environment' 'civil Enforcement'] ['notice to Produce for Inspection' 'legitimate Forensic Purpose' 'fishing Expedition' 'production of Documents' 'environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings; Procedural Motion Concerning a Notice to Produce for Inspection / Notice of Motion Filed 25 September 2017 Seeking to Set Aside or Strike Out Parts of the Notice to Produce Filed 5 September 2017, as Amended in Court on 28 September 2017

Legal Issues

  1. 1 ['Whether the Notice to Produce should be set aside or whether specified paragraphs should be struck out or amended.' 'Whether the Applicant identified a legitimate forensic purpose for the documents sought.' 'Whether it was "on the cards" that the documents sought would materially assist the Applicant\'s case.' 'Whether broad categories of documents in the Notice to Produce amounted to an impermissible fishing exercise.']

Ratio Decidendi

The Applicant failed to establish a legitimate forensic purpose, or that it was on the cards that the documents would materially assist its case, for paragraphs 1, 2, 4, 5, 6, 7 and 12 of the amended Notice to Produce because those requests used broad classes of documents, lacked sufficient particularity, or related to matters not shown to assist the pleaded civil enforcement case; paragraphs 3 and 13 were not pressed. Paragraphs 8, 9, 10 and 11 were allowed because they concerned documents about delivery, payment, contracting, hire or supply of soil, fill and earthworks, which related directly to the alleged importation of material and alteration of the land pleaded in the proceedings,...

Court Disposition

Notice of Motion substantially successful; specified paragraphs of the Notice to Produce struck out, remaining paragraphs amended as to end-date, and costs ordered against the Applicant.

Orders

  • ['Orders that the following paragraphs of the Notice to Produce filed 5 September 2017 (as amended in Court on 28 September 2017) are struck out: paragraphs 1, 2, 3, 4, 5, 6, 7, 12 and 13.' 'Orders that, with respect to paragraphs 8, 9, 10 and 11, the end-date be amended to 31 March 2017.' 'Orders that Marshall...