Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 6) [2021] NSWLEC 28

Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Greentree; Merrywinebone Pty Ltd; Harris (No 6) [2021] NSWLEC 28

The notice to produce sought documents in the hope that they might support an argument contrary to evidentiary certificates regarding Merrywinebone’s status as a landholder. The Harris Parties failed to demonstrate it was 'on the cards' the documents would materially assist their defence. The request constituted a fishing expedition and lacked a legitimate forensic purpose. The notice ought to be set aside.

Jurisdiction
Australia
Judgment Date
31 March 2021
Procedural Posture
Class 5 Criminal Proceedings / Interlocutory Motion to Set Aside Notice to Produce
Outcome
Notice to produce set aside
Legal Topics
['notices to Produce' 'legitimate Forensic Purpose' 'setting Aside Subpoenas']
['criminal Procedure'] ['notices to Produce' 'legitimate Forensic Purpose' 'setting Aside Subpoenas']

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings / Interlocutory Motion to Set Aside Notice to Produce

Legal Issues

  1. 1 ['Whether notice to produce served by Harris Parties had a legitimate forensic purpose' "Whether it was 'on the cards' that the documents sought in the notice would materially assist the defence"]

Ratio Decidendi

The notice to produce sought documents in the hope that they might support an argument contrary to evidentiary certificates regarding Merrywinebone’s status as a landholder. The Harris Parties failed to demonstrate it was 'on the cards' the documents would materially assist their defence. The request constituted a fishing expedition and lacked a legitimate forensic purpose. The notice ought to be set aside.

Court Disposition

Notice to produce set aside

Orders

  • ['The notice to produce dated 18 December 2020 addressed to the Secretary, Department of Planning, Industry and Environment issued by Kenneth Bruce Harris and Merrywinebone Pty Ltd be set aside.']