Inglis v Ku-ring-gai Municipal Council [2009] NSWLEC 189

Inglis v Ku-ring-gai Municipal Council [2009] NSWLEC 189

Because the council's later correspondence and r 21.11 notice showed that the relevant files could not be located and that destruction was only an inference, it was inappropriate to order an affidavit about the nature, extent and circumstances of destroyed files. However, given the nature of the proceedings and the council's statement that the documents probably once existed, the Court had power under s 61 of the Civil Procedure Act 2005 and r 2.1 of the Uniform Civil Procedure Rules 2005, and it was appropriate, to order an affidavit detailing the steps taken to locate the missing documents. The privilege prayer was unnecessary because the council had served a r 21.11 notice identifying...

Jurisdiction
Australia
Judgment Date
14 October 2009
Procedural Posture
Class 4 Proceedings / Ex Tempore Judgment on Applicant's Notice of Motion Seeking Pre Trial Disclosure of Information and Production of Documents
Outcome
Applicant's notice of motion filed on 2 October 2009 allowed in part and otherwise dismissed; costs reserved.
Legal Topics
['pre Trial Disclosure' 'notices to Produce' 'legal Professional Privilege' 'directions for the Speedy Determination of Real Issues' 'development Consent and Alleged Unlawful Use of Premises']
['practice and Procedure' 'environmental Planning and Assessment'] ['pre Trial Disclosure' 'notices to Produce' 'legal Professional Privilege' 'directions for the Speedy Determination of Real Issues' 'development Consent and Alleged Unlawful Use of Premises']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Proceedings / Ex Tempore Judgment on Applicant's Notice of Motion Seeking Pre Trial Disclosure of Information and Production of Documents

Legal Issues

  1. 1 ['Whether the respondent should be ordered to file and serve an affidavit setting out the nature and extent of property or other files for 2 Marian Street, Killara that had been destroyed and the circumstances of destruction.' 'Whether the respondent should be ordered to file and serve an affidavit detailing steps taken to locate documents that cannot be located.' 'Whether the respondent should be ordered to provide particulars of documents over which legal professional privilege was claimed.' "Whether the Court had power under s 61 of the Civil Procedure Act 2005 to order information about arrangements made to record the Ku-ring-gai Planning Panel's determination of Development Application 0185/09." 'Whether the respondent should be ordered to provide attachments to specified emails or other documents.']

Ratio Decidendi

Because the council's later correspondence and r 21.11 notice showed that the relevant files could not be located and that destruction was only an inference, it was inappropriate to order an affidavit about the nature, extent and circumstances of destroyed files. However, given the nature of the proceedings and the council's statement that the documents probably once existed, the Court had power under s 61 of the Civil Procedure Act 2005 and r 2.1 of the Uniform Civil Procedure Rules 2005, and it was appropriate, to order an affidavit detailing the steps taken to locate the missing documents. The privilege prayer was unnecessary because the council had served a r 21.11 notice identifying...

Court Disposition

Applicant's notice of motion filed on 2 October 2009 allowed in part and otherwise dismissed; costs reserved.

Orders

  • ['Order that the respondent by a proper officer file and serve an affidavit within five working days detailing the steps taken by the respondent to locate the documents referred to in its amended notice to be served later today, under r 21.11 of the Uniform Civil Procedure Rules 2005.' "The applicant's notice of...