Gretchen Helen Hart v Hallmark Retirement Pty Limited [2020] NSWLEC 46

Land and Environment Court New South Wales

Medium Neutral Citation: Gretchen Helen Hart v Hallmark Retirement Pty Limited [2020] NSWLEC 46 Hearing dates: 24 April 2020 Date of orders: 01 May 2020 Decision date: 01 May 2020 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraph 23 Catchwords: CIVIL PROCEDURE – notice of motion – application to set aside subpoena – whether a legitimate forensic purpose – proceedings relate to amenity impacts of adjoining properties – orders sought rely on assessment of amenity impact – respondent entitled to test applicant's amenity impact evidence – notice of motion dismissed – access granted Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 Elanor Investors Limited v Sydney Zoo Pty Limited (No 4) [2019] NSWLEC 191 Rinehart v Rinehart [2018] NSWSC 1102 Category: Procedural and other rulings Parties: Gretchen Helen Hart (Applicant) Hallmark Retirement Pty Limited (Respondent) Representation: Counsel: I Hemmings SC and A Hemmings (Applicant) N Eastman (Respondent)

Solicitors: Hones Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2019/206386 Publication restriction: No

EX TEMPORE Judgment

Nature of Proceedings and Background 1. HER HONOUR: These proceedings are civil enforcement proceedings brought by the Applicant alleging that development has been carried out by the Respondent either: not in accordance with a number of development consents; or that it is development properly characterised as prohibited on the Respondent's land. The Applicant's land adjoins the Respondent's land. 2. The Respondent has issued a subpoena to the Snowy Monaro Regional Council (the Council) requiring it to produce certain specified documents (the Subpoena). The Applicant has filed a notice of motion seeking an order pursuant to UCPR rule 33.4 that the Subpoena be set aside (the Notice of Motion). The scope of the dispute, I am now informed, is limited to [3] of the Subpoena, which requires the Council to produce: (3) All correspondence, submissions and reports received by Snowy Monaro Regional Council on behalf of the owner of the Land in relation to the following applications: a. DA4030/2020; b. MOD4013/2020; and c. BDC4002/2020. 1. In support of the Notice of Motion, the Applicant read two affidavits of Ms Serafina Carrington. The correspondence annexed to that affidavit identified that there were a number of events that have occurred since the Summons and Points of Claim were filed in these proceedings. Such altered circumstances warranted an amendment to the Summons and Points of Claim, and consequential amendments to the Respondent's Points of Defence. I made directions that such amended pleadings be filed. 2. Contrary to the directions made, the Applicant did not file its amended pleadings by the time and date directed. When received, the Amended Points of Claim made further amendments beyond that anticipated at the hearing of the Notice of Motion. The issue of whether leave should be granted to such amendments is contested, and a Notice of Motion has been filed and determined today granting such leave. 3. However, for the purposes of determining this matter, I have been asked to assume that the order proposed in [7] of the Applicant's Summons is no longer pressed, and that the Respondent proposes to raise discretion in the matters set out in their Points of Defence at [21], except that the anticipated applications referred to therein have been made and approved. I will determine this Notice of Motion having regard to the unamended pleadings on those assumptions.