Joseph v Spencer [2021] NSWLEC 99

Land and Environment Court New South Wales

Medium Neutral Citation: Joseph v Spencer [2021] NSWLEC 99 Hearing dates: 28 July and 17 August 2021 Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Class 2 Before: Moore J Decision: See orders at [273] Catchwords: TREE DISPUTE - application to amend relief sought - application not opposed - leave to amend granted TREE DISPUTE - application for leave to issue subpoenas - application to validate, nunc pro tunc, two subpoenas issued in error - low threshold for leave to issue subpoenas - leave granted - return date before Registrar set for all subpoenas TREE DISPUTE - Applicant serves Notice to Produce to the Court on Second Respondent - application to set aside Notice to Produce - legal principles requiring test of apparent relevance to be applied - consideration of categories of documents listed in Notice to Produce - some categories not opposed - some opposed categories permitted - some opposed categories permitted in part - some opposed categories rejected - modified list of documents to be produced determined - Second Respondent self-represented - Second Respondent presently located in Queensland - impact of COVID-19 travel restrictions on ability to comply with the Notice to Produce - appropriate to have regard to travel restrictions in setting date for compliance with Notice to Produce - matter set down for four‑day hearing commencing in mid-November 2021- appropriate to allow longer time for production - modified list of documents ordered to be produced to the Court by the end of October 2021 Legislation Cited: Australian Soldiers Repatriation Act 1920-1922, s 45W(2) Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979, s 4.15(1) Evidence Act 1995 (NSW), s 97 and Dictionary Kiama Development Control Plan 2011 Kiama Development Control Plan 2020 Kiama Local Environmental Plan 2011 Trees (Disputes Between Neighbours) Act 2006, ss 14E and 14F Trees (Disputes Between Neighbours) Regulation 2019 Uniform Civil Procedure Rules 2005 Cases Cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125; [2008] HCA 125 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Tenacity Consulting v Waringah [2004] NSWLEC 140 Category: Procedural rulings Parties: Michael Joseph (Applicant) Ricardo Spencer (First Respondent) Jennifer Spencer (Second Respondent) Representation: Counsel: Mr M Joseph (in person - Applicant) Ms J Spencer (Second Respondent in person and agent for the First Respondent) File Number(s): 174119 of 2021 Publication restriction: No