Land and Environment Court New South Wales Medium Neutral Citation: Joseph v Spencer (No 5) [2021] NSWLEC 139 Hearing dates: 25 November 2021 Date of orders: 30 November 2021 Decision date: 30 November 2021 Jurisdiction: Class 2 Before: Moore J Decision: See order at [43] Catchwords: NOTICE OF MOTION - Applicant serves Notice to Produce to the Court No 3 on Second Respondent - Second Respondent seeks to have Notice set aside - consideration of whether Notice discloses any legitimate forensic purpose apparently relevant to issues in dispute in the proceedings - does s 108A of the Evidence Act 1995 (NSW) justify requiring compliance with the Notice - evidence given at an earlier hearing, properly understood, does not disclose any "previous representation" to which s 108A could apply - documents sought by Notice have no apparent relevance to matters in dispute - Notice to Produce to the Court No 3 set aside Legislation Cited: Evidence Act 1995 (NSW), s 108A Trees (Disputes Between Neighbours) Act 2005, Pt 2A Cases Cited: Joseph v Spencer [2021] NSWLEC 99 Joseph v Spencer (No 2) [2021] NSWLEC 130 Joseph v Spencer (No 3) [2021] NSWLEC 137 Norris v Kandiah [2007] NSWSC 1296 Rinehart v Rinehart [2018] NSWSC 1102 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 TABLE OF CONTENTS Introduction Mr Joseph's further Notices to Produce to the Court Ms Spencer's Notice of Motion The terms of the Notice to Produce to Ms Spencer Representation Hearing of the Notice of Motion The statutory provision relied upon by Mr Joseph The evidence Evidence v submissions Ms Spencer's evidence on 11 November 2021 Mr Joseph's submissions on 12 November 2021 The oral submissions on 25 November 2021 Introduction Ms Spencer's submissions Mr Joseph's submissions Ms Spencer's reply submissions. Consideration Order Judgment Introduction 1. This is the second of two further interlocutory decisions in these proceedings arising from a hearing held on 25 November 2021. 2. On 7 June 2021, Mr Joseph lodged an application with the Court pursuant to Pt 2A of the Trees (Disputes Between Neighbours) Act 2005 (the Trees Act) concerning bamboo which had been planted on the southern boundary of his neighbours' property. The neighbouring property, located immediately to the north of Mr Joseph's property, is owned by Mr and Ms Spencer. Both properties are located on North Kiama Drive, Kiama Downs, a residential area located a little to the north of the seaside village of Kiama. Although each of the properties has a (western) frontage to North Kiama Drive, the primary outlook from each of the dwellings is to a waterfront reserve and, beyond it, to the ocean to their east. 3. Mr Joseph's application concerning the bamboo on the Spencers' southern boundary proposes that it constitutes a hedge to which Pt 2A of the Trees Act applies and that the various jurisdictional tests set by ss 14A and 14E(2)(a)(ii) of the Trees Act are satisfied with respect to the bamboo (it is unnecessary to set out all the tests, but Mr Joseph alleges that the bamboo is a hedge and that hedge severely obstructs a view from his dwelling, the relevant location being the playroom on the lower level of that house). 4. All jurisdictional and merit matters arising from Mr Joseph's application await determination in a hearing set down for five days, a hearing commencing with a site inspection on Monday 7 February 2022 and scheduled to run for the whole of that sitting week. 5. What engages me for the purposes of this interlocutory decision (and three earlier interlocutory decisions I have given in these proceeding - Joseph v Spencer [2021] NSWLEC 99 (Joseph No 1); Joseph v Spencer (No 2) [2021] NSWLEC 130 (Joseph No 2) and Joseph v Spencer (No 3) [2021] NSWLEC 137 (Joseph No 3)) arise from Mr Joseph's endeavours to obtain documents (defined in wide scope) which he considers will potentially constitute relevant evidence in support of his case at the merit hearing on his application. 6. For the purposes of this fifth interlocutory decision, familiarity is assumed with my decisions in Joseph No 1 and Joseph No 3 (Joseph No 2 relating to an inadequate response to a third-party subpoena to produce, an inadequate response which has no bearing on matters requiring consideration for the purposes of this decision). 7. In Joseph No 1, I dealt with a Notice of Motion filed by Ms Spencer seeking to have a Notice to Produce to the Court served on her by Mr Joseph set aside as oppressive and/or seeking material unrelated to any issue potentially arising out of or in connection with Mr Joseph's application under the Trees Act. In the 273‑paragraph decision it was necessary to deliver concerning that Notice of Motion, I explained why: 1. Some classes of document sought by Mr Joseph were appropriate to be permitted; 2. Some classes of document sought by Mr Joseph were not required to be produced, with the relevant nominating item to be deleted from the amended schedule to the Notice to Produce; and 3. The description of some classes of document were amended to narrow them in the scope of documents sought by Mr Joseph. 1. To reflect these outcomes, I produced, as Annexure A to my decision in Joseph No 1, a revised schedule of documents that Ms Spencer was required to produce to the Court. That schedule and the various orders arising from the proceedings giving rise to Joseph No 1 appear at [273] and Annexure A to that decision. Although the terms of Annexure A arise in the context of this decision, it is not necessary to set out its terms for the purposes of this decision. 2. Following Ms Spencer's production of documents pursuant to the orders which I made in Joseph No 1, Mr Joseph subsequently concluded that Ms Spencer's production had been incomplete. He applied to me for leave to issue a subpoena to Ms Spencer requiring her to give evidence concerning the extent to which she had satisfied the obligation to produce documents pursuant to the relevant order and Annexure A to Joseph No 1. I was satisfied that there was an appropriate basis upon which to require Ms Spencer to attend and answer questions concerning the extent of her production, so leave was granted to Mr Joseph to issue the subpoena sought. 3. At the return of that subpoena to Ms Spencer (a hearing which also addressed a number of claims for privilege pressed by Ms Spencer with respect to various classes of documents she had produced to the Court), I gave a further decision where the orders, inter alia, required Ms Spencer to rectify defects in her production of documents in response to the orders made in Joseph No 1. That decision is Joseph No 3. 4. The further orders requiring Ms Spencer to produce documents to the Court are set out at [16] of that decision. The obligation to provide those further documents was required to be satisfied by Friday 26 November 2021, with the Notice to Produce to the Court being set down before the Registrar on Monday 29 November 2021 for the purpose of addressing any claims of privilege, if arising, and dealing with the issue of access to such additional documents as were produced. All of the above history provides the appropriate contextual background to the matters subsequently requiring consideration in this interlocutory decision. Mr Joseph's further Notices to Produce to the Court 1. On 17 November 2021, Mr Joseph served a Notice to Produce to the Court on Mr Spencer and a further Notice to Produce to the Court (Notice to Produce to the Court No 3) on Ms Spencer. The terms of the Notice to Produce to Ms Spencer 1. Mr Joseph's Notice to Produce to the Court No 3 addressed to Ms Spencer proposed an obligation for her to produce documents in the following terms: All "documents" in relation to the obtaining and/or retaining by you of your accommodation which you occupied including shared accommodation in period April 2021 to date whilst residing in Queensland including receipts, invoices, bank statements in relation to the payment of the said occupation. Ms Spencer's Notice of Motion 1. On 17 November 2021, Ms Spencer filed a Notice of Motion (and supporting affidavit) seeking orders with respect to each of these new Notices to Produce to the Court. The terms of the orders sought in this Notice of Motion were: 1 I seek to have the Notice to Produce to Court 3 disallowed. 2 I seek to have the Notice to Produce to Court, received 17th November, disallowed. 1. This decision deals only with her proposed order 1 seeking to have the Notice to Produce to the Court addressed to her set aside. Representation 1. For the purposes of my consideration of the element of Ms Spencer's Notice of Motion seeking to have Mr Joseph's Notice to Produce to the Court No 3 addressed to Ms Spencer set aside, Mr Joseph and Ms Spencer each appeared representing themselves. Hearing of the Notice of Motion 1. Each of the elements of Ms Spencer's Notice of Motion were heard on 25 November 2021. They were heard separately, with me reserving my decision on the element dealt with at the conclusion of the relevant portion of the hearing. 2. The hearing on the orders sought by Ms Spencer's Notice of Motion took place by telephone (as a consequence of both COVID‑19 restrictions and of Ms Spencer's inability to attend court resulting from her location in Queensland at the present time). Her reasons for being located in Queensland and unable to attend an in-court hearing in Sydney were set out in my decision in Joseph No 1, at [264] and [265]. The statutory provision relied upon by Mr Joseph 1. During the course of his oral submissions, Mr Joseph indicated that he relied on s 108A of the Evidence Act 1995 (NSW) (the Evidence Act) as the appropriate statutory foundation for requiring Ms Spencer to produce the documents sought in Notice to Produce to the Court No 3. The terms of this statutory provision are set out below: 108A Admissibility of evidence of credibility of person who has made a previous representation (1) If— (a) evidence of a previous representation has been admitted in a proceeding, and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person's credibility. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to— (a) whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation. Evidence v submissions 1. In Joseph No 1, at [95], I set out how I had dealt with an affidavit that intermingled matters that were properly evidence with other matters which were appropriate to be regarded as submissions. I repeated on 25 November 2021 that I would adopt this approach. 2. In this instance, the affidavits of Ms Spencer dated 17 November 2021 and of Mr Joseph dated 22 November 2021 both contained limited matters that were evidence, but also contained much material appropriate to be regarded as submissions. Whilst it is, perhaps, surprising that a retired member of the Inner Bar had prepared a document inappropriately intermingling evidence and submissions in the fashion contained in Mr Joseph's affidavit, I nonetheless indicated during the course of the hearing that I proposed to treat material that was properly to be regarded as evidence as being such, whilst that which was properly to be regarded as submissions would be so treated. The evidence 1. The evidence relied upon by Ms Spencer for the purpose of this element of her Notice of Motion was contained in the affidavit dated 17 November 2021. This brief document was read for the purposes of this element of her Notice of Motion other than two sentences in paragraph 6 (which I rejected as irrelevant) and the whole of paragraph 7 (this being a paragraph relating to the Notice to Produce to the Court addressed to Mr Spencer). Paragraph 6 of her affidavit was in the following terms (as allowed): In Notice to Produce 3, Mr Joseph is asking for all documents from April in relation to my accommodation in Queensland. I strongly object to giving him this. This is an invasion of my privacy. … … My accommodation in Queensland has no bearing on this tree dispute. 1. Ms Spencer was not cross‑examined by Mr Joseph. 2. Mr Joseph relied on an affidavit deposed by him on 22 November 2021. This affidavit was one of 12 pages and had the following annexed to it: 1. 13 pages of the transcript of the hearing of 11 November 2021; and 2. A photograph of the rear of an AVIDA campervan, described in paragraph 30 of the affidavit as being a campervan owned by the Spencers and regularly (but not presently) parked outside the Spencers' home. 1. Mr Joseph relied on his affidavit, other than paragraphs 33 to 36 (being paragraphs specifically addressed to the Notice to Produce to the Court served on Mr Spencer) in support of his Notice to Produce to the Court No 3 addressed to Ms Spencer. Setting aside paragraphs 32 to 36 of this affidavit, virtually the entirety of this affidavit comprised submissions rather than evidence. Significant elements of these submissions were emotive, "embarrassing" and/or irrelevant. To the extent that material contained in it was discernibly relevant to Notice to Produce to the Court No 3 served by Mr Joseph on Ms Spencer, I have had regard to that material. 2. Mr Joseph was not cross‑examined by Ms Spencer. Ms Spencer's evidence on 11 November 2021 1. During the hearing which resulted in my judgment in Joseph No 3, Mr Joseph cross‑examined Ms Spencer. Amongst other topics touched upon during this cross-examination was the question of whether or not Ms Spencer intended to return to Sydney on 4 December 2021. This cross-examination by Mr Joseph was, as I then understood it, intended to explore whether or not Ms Spencer had been truthful in what she had said to me on the question of whether I should vacate the November 2021 hearing dates originally set for Mr Joseph's tree dispute application. 2. It is first appropriate to set out, in full, the relevant passage from the transcript of 11 November 2021 of Ms Spencer's cross‑examination on this point. The transcript first records this element of her cross‑examination in the following terms (Transcript 11 November 2021, page 31, line 38 to page 32, line 14): APPLICANT: Your Honour, Mrs Spencer's-- WITNESS: Your Honour-- APPLICANT: --coming back to Sydney on - coming back home on 4 December. HIS HONOUR: Yes? APPLICANT: That might be a convenient time. HIS HONOUR: Well, it might or might not. I will look at the Court's diary. The Court's diary is very full. I'm-- APPLICANT: Indeed. HIS HONOUR: --scheduled to start a ten-day matter next week. I will-- WITNESS: Mr, Mr Joseph, I don't know where you got that from. It was something APPLICANT Q. Your husband. A. --I did suggest, but-- Q. Your husband. A. --he's - he told you that? Q. Yes. Told, told the neighbour. HIS HONOUR: All right. WITNESS: He told the neighbour? HIS HONOUR: It doesn't matter. I'm-- WITNESS: Right. HIS HONOUR: --not dealing with that-- WITNESS: Well, it's, it's not definite. 1. After the luncheon adjournment, Mr Joseph returned to this topic (Transcript 11 November 2021, page 33, lines 3 to 27): Q. Now, the other matter I raised before was your husband is under the expectation that you'll be returning to Kiama on 4 December. Is that correct? A. He's trying to get me to because we actually - we have a few functions that day. My friend's 60th birthday is on that day. Our yoga centre is also opening on that day. Q. What's that, I'm sorry? A. Just a yoga centre that we attend and that's opening - we have an opening on that day as well so he's been trying to get me to come back by the 4th. Q. And you've indicated that you would, have you not? A. Possibly. Q. And yet you told his Honour that you couldn't come back for the court case. Is that right? A. Yes, I did. I don't know if I'm coming back to the court. I have to see what is happening with my grandson and my - my son and my soon-to-be-ex-daughter-in-law. They're having mediation at the moment. I don't know what's going to happen. I presume-- Q. It's a remarkable - remarkable - remarkable change of circumstances that when you gave evidence on 29 October to his Honour you indicated that it was totally unreasonable for you to be required to return to hear the Court. A. I told you I'm not definitely coming back on the 4th. He's trying to make me to come back on the 4th. Are you listening? Mr Joseph's submissions on 12 November 2021 1. On 12 November 2021, Mr Joseph made submissions in support of the orders he proposed be made to ensure that Ms Spencer complied fully with her obligations to produce documents as ordered by my judgment of 15 September 2021 in Joseph No 1. During the course of these submissions, he addressed the question of whether or not Ms Spencer had had an intention to return to Sydney on 4 December 2021. His submission, in this regard, was in the following terms (Transcript 12 November 2021, page 10, lines 21 to 36): There has been now further evidence before your Honour that there has been further trifling with this Court by Mrs Spencer indicating that she would be intending to return to New South Wales on 4 December in the light of affidavits to - which your Honour kept at the time. It suggested that there was a need for her at all times to remain in Queensland with the borders, the way - the COVID controls as they were at the borders. Now, your Honour, the Court can't allow, in my submission, for its own integrity, let alone my integrity for this conduct to remain unaddressed by simply ignoring what is clearly, in my view, a trifling of the Court's order. Now as to the particular - and the evasion that your Honour heard in the witness box was staggering, not just in respect of times and dates, but also the attempt to shove responsibility from her onto her husband in a rather undignified fashion and more - remarkable all the more because of her belief that her husband is not fit or able to conduct a hearing in respect of matters to which they have a common interest. The oral submissions on 25 November 2021 Introduction 1. As I have noted, I dealt separately with the two elements of Ms Spencer's Notice of Motion of 17 November 2021. As a consequence, the transcript of that hearing records that which was said in submissions to me in such a separated fashion. This separation enables me to set out the oral submissions concerning the element of Ms Spencer's Notice of Motion addressed by this judgment. These appear below. Ms Spencer's submissions 1. Ms Spencer's oral submissions are recorded at Transcript 25 November 2021 at page 7, line 50 to page 8, line 6 in the following terms: Well, I've just stated that it's an invasion of my privacy, Mr Joseph also in his affidavit put a picture of my campervan. Like what? What has this got - it's nothing to do with the tree dispute. I don't see what a photograph of my campervan has to do with the tree dispute, I don't see what my accommodation in Queensland has to do with the tree dispute. This is all just waffle. And my whereabouts I think are private, my address is private. I think that's all there is. Mr Joseph's submissions 1. Mr Joseph's oral submissions were in the following terms (Transcript 25 November 2021 at page 8, line 10 to page 9, line 17): APPLICANT: Just addressing Mrs Spencer just then, paragraph 30 I deal with the issue of the campervan and say that it's clear that Mr Spencer has driven that van to Queensland and it has not been credited outside her home since about April of this year, and that there is a clear issue as to whether it is the campervan that is her accommodation in Queensland as opposed to an apartment to which she has referred to in her evidence. Now, it's clearly a credibility issue, I agree with Mrs Spencer, it doesn't prove whether or not the view is severely obstructed or not. I have struggled to try and convince this Court that credibility issues are not simply those issues raised by a - raised to a witness in a witness box but are issues that can extend beyond a relevant issue as defined by section 56 of the Evidence Act, or indeed by the act itself. I have tried in my affidavit to set out those matters that have been ongoing about credibility issues, and that this issue was a new issue raised by Mrs Spencer as to two things. One was her need to have an apartment which she could not share in quarantine with her son, and the other is whether or not she is in fact able to return to New South Wales as indeed she has said she's ..(not transcribable).. that possibility for a social event on 4 December. Now, your Honour I have tried ..(not transcribable).. to convince this Court that proof at the way in which the Court dealt with the first Notice to Produce was wrong. That however does not bind your Honour from reconsidering your position in the light of the evidence I have now produced in respect of a Notice to Produce that has not previously been determined by your Honour as to whether it's an abuse of process or not. I submit that the accommodation issue is an issue as to whether or not Mrs Spencer is prepared to tell the truth to Court, and to which she's given evidence about. Proof to a court I would have thought raises real credibility issues in a case ..(not transcribable).. in the not too distance future regardless as to whether or not she goes in the witness box. However it's been quite clear that she is prepared to go into the witness box which might convince your Honour a little more that therefore the likelihood of her being in the witness box has increased since your Honour gave your first judgment to now permit a wider view as to what credibility issues might arise if she is indeed in the witness box being on the cards so to speak, and alternatively whether as a credibility issue it's entitled to be raised. Your Honour one matter your Honour did not address and that was the section 108A of the Evidence Act which allows credibility issues to be raised even when a person has not been in the witness box. That concerns ..(not transcribable).. submission the wider view as to what is and is not permitted in respect of a subpoena or Notice to Produce, and therefore your Honour I would ask your Honour to uphold the notice, there being firstly that the issue of privacy which Mrs Spencer raises is an issue Mrs Spencer raised. I mean she has put her privacy before the Court, I didn't, and once she puts it before the Court she can't then claim that it's being investigated. You can't approbate and reprobate at the same time in my submission, and it's not a matter of me stalking or intimidating or privacy, Mrs Spencer has raised it and she's raised it in various guises which doesn't discharge the onus she has to satisfy your Honour that it should be set aside. The mere statement that it has no bearing as your Honour says is a submission. But your Honour when your Honour reviews the evidence including the transcript of evidence which I have obtained and which I have annexed to my affidavit raises real substantive issues that I should be entitled to explore in preparation of the final hearing. Ms Spencer's reply submissions. 1. Ms Spencer's oral reply submissions are recorded at Transcript 25 November 2021, at page 9, lines 37 to 42, in the following terms: I do not understand how whether I'm in a campervan or in my own unit, which we own, I do not understand how this has any relevance to the tree dispute. But obviously I'm staying in my own unit. Why would I stay in my campervan when I own a unit in Queensland? This is just ridiculous, I can't believe how ridiculous this case is. No bearing at all on the tree, on the tree, nothing at all to do with ..(not transcribable).. Consideration 1. In Rinehart v Rinehart [2018] NSWSC 1102, at [43] to [54], Ward CJ in Eq summarised, in a comprehensive fashion, all the potentially relevant tests to be considered in determining whether a subpoena should be permitted to stand. It is not necessary to set out the entirety of this passage. Those tests are equally applicable to a Notice to Produce to the Court as is here the subject of this decision (Norris v Kandiah [2007] NSWSC 1296). 2. Although it is clear that satisfaction of both "adjectival relevance" and that it is "on the cards" that the material sought to be required to be produced will assist a party's case, is a comparatively low one, it is still necessary that there be demonstrated some legitimate forensic purpose connected with, or of apparent relevance to, the issues in dispute in the proceedings for me to conclude that this Notice to Produce to the Court served on Ms Spencer should be permitted to stand. I am unable to discern any proper basis as to how I could conclude that this was the position here. 3. I have earlier set out Mr Joseph's submissions during the hearing on 25 November 2021 in support of sustaining this Notice to Produce to the Court served on Ms Spencer. I have also earlier set out the relevant extract from Ms Spencer's evidence given during her cross‑examination on 11 November 2021, together with Mr Joseph's submissions the following day, concerning this element of her evidence. 4. For present purposes, Mr Joseph's citation of s 108A of the Evidence Act in support of this Notice to Produce demonstrates, I am satisfied, a misunderstanding of Ms Spencer's evidence of 11 November 2021. Her evidence clearly demonstrated that she had not made any firm decision to return to Sydney on 4 December 2021. To the contrary, it is clear that she was merely considering a request from her husband that she do so. 5. As a consequence, Mr Joseph's submission made the following day does not accurately or adequately reflect the nature of her evidence. 6. For present purposes, I am satisfied that there is no "previous representation" of the nature asserted by Mr Joseph as would be necessary to engage s 108A of the Evidence Act, even in circumstances should Ms Spencer elect not to give evidence at the substantive hearing in February 2022. 7. As a consequence, I am satisfied that there is no legitimate forensic purpose demonstrated by Mr Joseph as providing a proper foundation for permitting this Notice to Produce to the Court No 3 addressed to Ms Spencer to stand. 8. The relief she proposes in her Notice of Motion in this regard is appropriate to be granted and this Notice to Produce to the Court is to be set aside. Order 1. It follows from the foregoing that the appropriate order with respect to Mr Joseph's Notice to Produce to the Court No 3 served on Ms Spencer is: 1. The Notice to Produce to the Court served by the Applicant on the Second Respondent and entitled Notice to Produce to the Court No 3 is set aside. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2021