Joseph v Spencer (No 6) [2022] NSWLEC 5

Land and Environment Court New South Wales

Medium Neutral Citation: Joseph v Spencer (No 6) [2022] NSWLEC 5 Hearing dates: 12 and 13 January 2022 Date of orders: 14 January 2022 Decision date: 18 January 2022 Jurisdiction: Class 2 Before: Moore J Decision: See orders at [154] Catchwords: NOTICE OF MOTION - Applicant files Further Amended Notice of Motion seeking imposition of extensive additional pre-trial production of documents from the Second Respondent - Applicant also seeks orders for verification by the First and Second Respondents of the completeness of past satisfaction of requirements to produce documents - Applicant seeks leave pursuant to r 7.3 of the Uniform Civil Procedure Rules 2005 to issue subpoena to potential witness for the Respondents - Applicant seeks leave to issue subpoenaed to NSW Police concerning complaint made by the Second Respondent about a witness proposed to be called in the Applicant's case - extensive prior interlocutory hearings requiring preparation and publication of five judgements and consideration of claims of privilege over more than a thousand pages of material produced by the Second Respondent - objections from the Second Respondent to compliance with the terms of Notice to Produce to the Court No 4 served on her by the Applicant - matter set down for five day hearing in early February 2022 - pre-trial obligation on the Respondents to file and serve their evidence for the substantive hearing by 21 January - consideration of new matters pressed by the Applicant having regard to the provisions of Div 1 of Pt 6 of the Civil Procedure Act 2005 (the Civil Procedure Act) - imposition of extensive further requirements proposed to be imposed on the Second Respondent and proposed subpoenas all contrary to the overriding objective for civil litigation contained in Div 1 of Pt 6 of the Civil Procedure Act - separately, proposed subpoena to the Respondents' witness involved matters appropriate to be addressed at the substantive hearing rather than on a late interlocutory basis - proposed subpoena to NSW Police contrary to the public interest during COVID-19 pandemic - proposed subpoena to NSW Police also inappropriate as an abuse of process - rulings on limited matters appropriate for pre-trial disposition - orders made on 14 January with reasons to be provided subsequently - this decision constitutes the reasons for those orders - costs reserved Legislation Cited: Civil Procedure Act 2005, ss 56 to 60 Evidence Act 1995, ss 38, 118 and 120 Land and Environment Court Act 1979, s 63 Land and Environment Court Rules 2007, r 7.7 Trees (Disputes Between Neighbours) Act 2006, s 10 and Pt 2A Trees (Disputes Between Neighbours) Regulation 2019, cl 4 Uniform Civil Procedure Rules 2005, r 7.3 Cases Cited: Cachia v Hanes (1994) 179 CLR 403 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Joseph v Spencer [2021] NSWLEC 99 Joseph v Spencer (No 2) [2021] NSWLEC 130 Joseph v Spencer (No 3) [2021] NSWLEC 137 Joseph v Spencer (No 4) [2021] NSWLEC 138 Joseph v Spencer (No 5) [2021] NSWLEC 139 Rinehart v Rinehart [2018] NSWSC 1102 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Texts Cited: COVID-19 Pandemic Arrangements Policy December 2021 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 as agent for the First Respondent) File Number(s): 174119 of 2021 Publication restriction: No