NSW Caselaw
Land and Environment Court of New South Wales
CITATION : Darcy Peter Smith and D.P. Smith (Homes) Pty Ltd v Wyong Shire Council [2007] NSWLEC 395
FIRST APPLICANT Darcy Peter Smith
PARTIES : SECOND APPLICANT D.P. Smith (Homes) Pty Ltd
RESPONDENT Wyong Shire Council
FILE NUMBER(S) : 40381 of 2007
CORAM: Talbot J
KEY ISSUES: Costs :- Subpoena withdrawn pursuant to agreement. Whether too broad abuse of process; no legitimate forensic purpose.
Commissioner of Railways v Small (1930) 38 SR(NSW) 564; CASES CITED: Commonwealth of Australia v Randwick City Council [2000] NSWLEC 171; Re The Minister For Immigration and Ethnic Affairs Of The Commonwealth Of Australia; Ex Parte Lai Qin (1997) 186 CLR 622
DATES OF HEARING: 13/06/07
DATE OF JUDGMENT: 29 June 2007
APPLICANT Mr Eastman (Barrister) SOLICITORS D.C. Balog & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr Robertson SC SOLICITORS Home Wilkinson Lowry
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
Talbot J
29 June 2007
40381 of 2007 Smith Darcy Peter and DP Smith (Homes) Pty Ltd v Wyong Shire Council
JUDGMENT 1 Talbot J: In these interlocutory proceedings the respondent council challenged a subpoena issued by the applicant seeking production of a wide range of documents relating to the Bateau Bay Landfill and its rehabilitation and associated activities. After preliminary argument and an adjournment the subpoena was withdrawn pursuant to an agreement. The question of costs is not resolved and the council seeks its costs in relation to the subpoena. 2 The subpoena was issued on 11 May 2007. Despite the respondent producing 8 boxes of documents subject to resolution of questions of privilege some documents were made available for inspection by the applicant. However at all times the council's solicitor maintained an objection that the terms of the subpoena were too broad and oppressive. 3 By Notice of Motion dated 31 May 2007 the council sought orders setting aside certain paragraphs of the subpoena on the following grounds: (a) the subpoena is an abuse of process; (b) the subpoena does not describe the documents sought with reasonable particularity; (c ) many of the documents sought can have no conceivable relevance to the proceedings, and the subpoena lacks any legitimate forensic purpose; and
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