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. Principles for determination as to whether to set aside Subpoena 1. The common position of the parties to the determination of the Notice of Motion is: 1. The Respondent, as the party that issued the Subpoena, bears the onus of establishing that the Subpoena has been issued for a legitimate forensic purpose. 2. The determination of whether there is a legitimate forensic purpose should be undertaken in the matter, and having regard to the factors as have been identified by Ward CJ in Eq in Rinehart v Rinehart [2018] NSWSC 1102 at [43]-[48] and [51]. I note that I have previously summarised these principles in Elanor Investors Limited v Sydney Zoo Pty Limited (No 4) [2019] NSWLEC 191 at [11], and I adopt but do not repeat those principles here. These principles have been adopted by this Court on a number of occasions. 1. The Applicant also highlighted that a legitimate forensic purpose is insufficient if it is formulated as merely a claim that "I wish to see the document to see if it may assist my case": citing Beazley P, as she then was, in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65 at [60]. 2. I observe that the Applicant contended, in its written submissions at [5], that it intended to adduce at the hearing that the use of the Respondent's land had included the accommodation of up to 28 persons, and "the unacceptable amenity impacts of the unauthorised use on the Applicant's land". The Respondent's submissions 1. The Respondent contends that the legitimate forensic purpose for the documents sought goes to the exercise of the Court's discretion in determining whether to make the orders sought in the Summons. The Respondent submits that the consistency (or otherwise) of the characterisation by the Applicant of the impacts upon her in dealings with the Council in relation to the specified applications made by the Respondent has the potential to inform the Court as to whether the Applicant is overstating, exaggerating an otherwise minimal impact from the use on the Applicant's land. 2. This understanding, it is said, will assist the Court in the performance of the balancing exercise the Court must undertake between the environmental harm caused by any breach, and the appropriateness of making any orders sought. 3. The Respondent also identifies the question of whether the Applicant's characterisation of the nature of the use of the Respondent's land and the impact on amenity upon uses of her land are accurate. The Applicant's evidence is relied upon both to establish breach, and is relevant also to the exercise of the Court's discretion. The Applicant's submissions 1. The Applicant disputes that such a formulation discloses a legitimate forensic purpose, and submits that the request for production of the documents is merely fishing. Further, the Applicant contends that the Respondent's discretionary argument was pleaded so narrowly and specifically that it would not include the notion of the extent of the impact and the response of the Applicant to it in connection with the consideration by Council of the nominated applications. Determination 1. The Applicant's submissions in identifying the issues that relate to the Respondent's case by reference only to the Respondent's Points of Defence is too narrow an approach. In determining whether there is a legitimate forensic purpose, the whole of the scope of the subject matter of the proceedings is to be considered. This must include, in a case such as this, testing the Applicant's own case where she bears the onus of establishing breach of the conditions as pleaded. 2. In these proceedings, at least one of the conditions which are said to be breached relies upon the Court being satisfied that the use of the Respondent's land is causing a nuisance. The Respondent has, in its Points of Defence, denied the breach of the condition contending nuisance at [7]. 3. In the event that breach is established, the Court must then determine whether, in the exercise of its discretion, consequential orders should be made. The pleading by the Respondent of the existence of certain approvals, insofar as those approvals include the use of the land, may be relevant to the exercise of that discretion. 4. Of particular relevance may be whether the amenity issues as raised in this case were raised before the Council, and thereafter considered by the consent authority in the determination to grant consent. Alternatively, where there was no submission made, whether the consent authority took into account such matters in the grant of consent may also assist the Court in the balancing exercise required by the exercise of that discretion. 5. These proceedings relate in significant part to the interaction of the land uses on adjoining properties and the amenity impacts from those uses. The orders sought rely in large part on an assessment of that amenity impact. To address these issues, the Applicant relies upon impacts experienced by her and her assessment of the consequences on her amenity. 6. The Respondent is entitled to test that evidence, and submissions made or not made in relation to those impacts in the context of the grant of those consents may be of assistance in that regard. Further, the Respondent has pleaded discretion in relation to the grant of subsequent approvals that impact upon the use of its land. 7. The issue of the exercise of the Court's discretion will potentially require a consideration of the nature and extent of any amenity impact upon the Applicant's property, having regard to the evidence adduced at the hearing. 8. For the reasons outlined, I find that the Respondent has adequately identified the issue in the proceedings relating to the discretion, and the characterisation of the amenity impact by the Applicant as being raised in the proceedings, and it is on the cards that the documents requested in [3] of the Subpoena could materially assist on that identified issue. 9. Accordingly, I dismiss the Applicant's Notice of Motion to strike out [3] of the Subpoena. 10. This is not a determination as to whether the documents, if produced, are admissible or relevant. Such determinations will be a matter to be determined in the event the material sought is to be tendered at the hearing in the substantive proceedings. Orders and Directions 1. Accordingly, the Court orders that: 1. The Notice of Motion filed by the Applicant on 8 April 2020 is dismissed; 2. Costs of the Notion of Motion are reserved; and 3. The parties are granted access to the documents produced by the Snowy Monaro Council in subpoena packet number S-10. ********** 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: 06 May 2020