Joseph v Spencer [2021] NSWLEC 99

The Court granted the unopposed amendment and granted leave to issue subpoenas, including nunc pro tunc validation of two subpoenas, because the threshold for leave was low and objections could be dealt with by recipients or at the substantive hearing. Applying the apparent relevance test, the Notice to Produce was set aside only in part: categories concerning the bamboo, irrigation system, plant pots, planting investigations and planning, view impacts from 108 North Kiama Drive, specified emails allegedly relevant to credit, expert opinions about the proceedings or planting impacts, Bamboo South Coast communications, survey reports, specified expert reports, specified statements, and...

Jurisdiction: Australia
Judgment Date: 15 September 2021
Procedural Posture: Class 2 Tree Dispute Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Procedural Rulings on Leave to Amend Relief, Leave to Issue Subpoenas, and a Motion to Set Aside a Notice to Produce
Outcome: Leave to amend granted; leave to issue subpoenas granted by earlier orders; Second Respondent's motion to set aside the Notice to Produce granted in part; Notice to Produce confined to the revised Schedule A categories and return date extended.
Legal Topics: ['notice to Produce to the Court' 'subpoenas' 'apparent Relevance' 'fishing Expedition' 'cross Examination as to Credit' 'hedge View Obstruction' 'implied Undertaking' 'self Represented Parties']

['tree Disputes' 'civil Procedure' 'evidence' 'planning and Environment'] ['notice to Produce to the Court' 'subpoenas' 'apparent Relevance' 'fishing Expedition' 'cross Examination as to Credit' 'hedge View Obstruction' 'implied Undertaking' 'self Represented Parties']

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Procedural Posture

Class 2 Tree Dispute Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Procedural Rulings on Leave to Amend Relief, Leave to Issue Subpoenas, and a Motion to Set Aside a Notice to Produce

Legal Issues

1 ['Whether the Applicant should be granted leave to amend the relief sought in the tree dispute application.' 'Whether the Applicant should be granted leave to issue subpoenas and to regularise two subpoenas issued without leave nunc pro tunc.' "Whether the Second Respondent's motion to set aside the Applicant's Notice to Produce should be granted in whole or in part." 'Which categories of documents in the Notice to Produce met the threshold of apparent relevance to the Trees Act proceedings or to cross-examination as to credit.' "Whether documents concerning the Respondents' development applications and proposed deck were apparently relevant to the tree dispute proceedings." 'What time should be allowed for the Second Respondent to comply with the modified Notice to Produce in light of COVID-19 restrictions.']

Ratio Decidendi

Court Disposition

Leave to amend granted; leave to issue subpoenas granted by earlier orders; Second Respondent's motion to set aside the Notice to Produce granted in part; Notice to Produce confined to the revised Schedule A categories and return date extended.

Orders

['The Applicant is granted leave to amend proposed order 2 of the relief sought in the application pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 by deleting the words "no greater than 2.4 metres from ground level" and inserting the words "no greater than 1 metre from ground level" for them.'...