McIlveen v Baiada Poultry Pty Ltd [2002] NSWLEC 137

McIlveen v Baiada Poultry Pty Ltd [2002] NSWLEC 137

The notice to produce should not be set aside in its entirety because paragraphs 1, 3, 4 and 5 sought documents likely to be relevant to determining the nature, lawfulness, intensification or enlargement of the respondent's use of the premises at critical dates, including for existing use rights and statutory continuation issues. However, paragraph 2 should be set aside because documents about compliance with various statutes were not shown to be relevant to planning lawfulness of the use, and paragraph 6 should be set aside because it was uncertain, lacked reasonable particularity, and appeared to seek information available under other paragraphs.

Jurisdiction
Australia
Judgment Date
09 August 2002
Procedural Posture
Class 4 Application Seeking Declaratory and Injunctive Relief Concerning Use of Land Under the Environmental Planning and Assessment Act 1979 / Notice of Motion by the Respondent to Set Aside a Notice to Produce
Outcome
Notice of motion allowed in part; paragraphs 2 and 6 of the notice to produce set aside, remaining paragraphs left in place with extended time for compliance.
Legal Topics
['notice to Produce' 'oppression' 'relevance' 'fishing Expedition' 'existing Use Rights' 'intensification of Land Use']
['practice and Procedure' 'planning and Environment Law'] ['notice to Produce' 'oppression' 'relevance' 'fishing Expedition' 'existing Use Rights' 'intensification of Land Use']

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Procedural Posture

Class 4 Application Seeking Declaratory and Injunctive Relief Concerning Use of Land Under the Environmental Planning and Assessment Act 1979 / Notice of Motion by the Respondent to Set Aside a Notice to Produce

Legal Issues

  1. 1 ['Whether the notice to produce dated 21 June 2002 should be set aside as oppressive, irrelevant or a fishing expedition.' 'Whether documents concerning bird slaughter numbers, processing quantities, employees, buildings, fit out and equipment were likely to be relevant to issues of existing use rights, lawfulness and intensification of use.' 'Whether documents created, received or retained for compliance with various statutes were relevant to the planning issues in dispute.' 'Whether paragraph 6 of the notice to produce lacked reasonable particularity.' 'What time should be allowed for compliance with the remaining paragraphs of the notice to produce.']

Ratio Decidendi

The notice to produce should not be set aside in its entirety because paragraphs 1, 3, 4 and 5 sought documents likely to be relevant to determining the nature, lawfulness, intensification or enlargement of the respondent's use of the premises at critical dates, including for existing use rights and statutory continuation issues. However, paragraph 2 should be set aside because documents about compliance with various statutes were not shown to be relevant to planning lawfulness of the use, and paragraph 6 should be set aside because it was uncertain, lacked reasonable particularity, and appeared to seek information available under other paragraphs.

Court Disposition

Notice of motion allowed in part; paragraphs 2 and 6 of the notice to produce set aside, remaining paragraphs left in place with extended time for compliance.

Orders

  • ['I set aside paragraphs 2 and 6 of the notice to produce dated 21 June 2002.' 'I extend the time for compliance with the remaining paragraphs of the notice to produce to 20 September 2002.' 'I stand the proceedings over to a callover before the Registrar on 24 September 2002 for further directions.' 'I reserve the...