El-Saeidy v NSW Land and Housing Corporation

Hearing dates: 28 July 2026

Date of orders: 31 July 2026

Decision date: 31 July 2026

Jurisdiction: Appeal Panel

Before: G Sarginson, Deputy President

Decision: (1) Leave to appeal refused.
(2) Appeal dismissed.

Catchwords: APPEALS – civil procedure – appeal from interlocutory decision – refusal to issue Summons to produce documents – no grounds for leave to appeal established

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Residential Tenancies Act 2010 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177; [1981] HCA 7
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Boreland v Brewis [2024] NSWCATAP 140
Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54
Collins v Urban [2014] NSWCATAP 17
Colombini v De Berigny [2021] NSWSC 374
House v The King [1936] HCA 40; (1936) 55 CLR 499
Maclean v Brylweski [2023] NSWCA 173
Neil Street Co Pty Ltd v Ibrahim [2024] NSWSC 1382
O’Brien v Women’s Housing Company Limited [2026] NSWCATAP 3
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Re: Force Corp Pty Ltd (in liq) [2018] NSWSC 896
Rogers v R (1994) 181 CLR 251;[1984] HCA 42
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336; [2021] NSWCA 145
Thandi Construction Solutions Pty Ltd v Singh [2026] NSWCATAP 7.
Villawood Management Pty Ltd v Marlton Group Pty Ltd [2025] FCA 980
Zonnevylle v Secretary, Department of Communities and Justice (No 2) [2025] NSWCATAP 161

Texts Cited: None cited

Category: Principal judgment

Parties: Fawzi El-Saeidy (Appellant)
NSW Land and Housing Corporation (Respondent)

Representation: Solicitors:
Bechara Slattery & Associates (Appellant)
NSW Land and Housing Corporation (Respondent)

File Number(s): 2026/00229265

Publication restriction: Nil

REASONS FOR DECISION

1. This is an appeal from an interlocutory decision of the Consumer and Commercial Division of the Tribunal dated 1 June 2026 to refuse the appellant leave to issue two Summonses to produce documents.

2. The substantive proceedings, which involve a social housing landlord seeking access to residential premises, are listed for hearing at the Tribunal on 7 August 2026. Accordingly, this decision has been prepared with alacrity, so that the parties have knowledge of the outcome prior to the Tribunal hearing.

Background

3. In this decision, the appellant is referred to as “the tenant” and the respondent is referred to as “the landlord.”

4. At the Appeal Panel hearing on 28 July 2026, Mr Livers, Solicitor, appeared for the tenant, having previously been granted leave under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The tenant also appeared with Mr Livers.

5. There was no appearance by the landlord.

6. At the commencement of the appeal hearing, the tenant’s representative handed up further documents and submissions. Most of the documents were contained in previous documents lodged with the Appeal Panel pursuant to procedural directions made in the appeal. To the extent that there were fresh documents, consideration of those documents did not prejudice the respondent.

7. The further submissions involve the Tribunal’s power to hear and determine the proceedings at first instance. In essence, it is submitted that the Tribunal has no jurisdiction in this matter, because it involves a dispute about removal or pruning of a tree. Mr Livers sought to either (a) make an application that the Tribunal proceedings be dismissed, or (b) have granted a permanent stay of the Tribunal proceedings.

8. The Appeal Panel pointed out that the matter that was listed before the Appeal Panel was the hearing of the appeal from the interlocutory decision to refuse the issue of Summonses to produce documents. Any power to grant a Stay of Tribunal proceedings by the Appeal Panel is limited under s 43(3) of the NCAT Act to “…staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal”. Even if it were appropriate to consider the application instanter without the landlord having the opportunity to be heard (which it is not), there is no basis to grant a Stay of Tribunal proceedings to “secure the effectiveness…(of) the appeal” in circumstances where the appeal was listed for hearing on 28 July 2026.

9. The Appeal Panel pointed out to Mr Livers that, if an adjournment was sought of the Tribunal hearing on 7 August 2026, that was an application to be made to the Tribunal at first instance, not the Appeal Panel. Needless to say, any adjournment application would involve the landlord having the opportunity to be heard, and the Tribunal considering the adjournment principles referred to in Thandi Construction Solutions Pty Ltd v Singh [2026] NSWCATAP 7.

10. Further, if the tenant seeks the Tribunal proceedings be dismissed due to absence of jurisdiction, or for some other reason, the appropriate time and place to make that application is at the Tribunal hearing on 7 August 2026.

11. The appeal hearing proceeded.

12. The tenant is a long standing social housing tenant who resides in a freestanding house located in a suburb of south-west Sydney.

13. From the extensive documentation provided by the tenant in the appeal, it is clear the tenant has been involved in disputation with a neighbour who lives at the property parallel to the tenant over a long period of time. That neighbour is not the subject of a social housing tenancy.

14. The documentation provided by the tenant in the appeal contains a litany of illegal conduct allegations directed towards the neighbour; the landlord; and the local Member of NSW Parliament. There is also correspondence to the NSW Minister for Housing seeking that the Minister provide certain information to the tenant.

15. For the purpose of this decision, it is unnecessary to detail those allegations or the content of the extensive correspondence issued by, or on behalf of, the tenant. However, it is salient to point out they are allegations and demands from the perspective of the tenant. In this decision the Appeal Panel makes no findings regarding their veracity.

16. The gravamen of the allegations are that the neighbour and the family of the neighbour have engaged in illegal and harassing conduct affecting the tenant; the landlord has supported the neighbour; and the local State MP has also supported the neighbour and the landlord.

17. The documentation provided by the tenant in the appeal also refers to the landlord seeking to terminate the tenancy, which the tenant asserts is motivated by the relationship between the neighbour and the landlord.

18. On 3 March 2026, the landlord commenced Tribunal proceedings. One of the orders sought was access to the premises under s 60 of the Residential Tenancies Act 2010 (NSW) (RT Act).

19. The landlord’s application to the Tribunal also sought an order terminating the tenancy. According to Mr Livers, the landlord had written to the tenant stating that the landlord was not currently pressing for a termination order and the only order sought in the Tribunal proceedings that are the subject to this appeal from an interlocutory order is for an access order under s 60 of the RT Act. Mr Livers submits that the landlord has never amended the application or formally withdrawn the order sought for a termination. The Appeal Panel pointed out that if, at the Tribunal hearing, the landlord suddenly sought a termination order, the tenant would undoubtedly oppose the application and raise the correspondence to which Mr Livers was referring to. However, they are matters of speculation in respect of what may, or may not, occur on 7 August 2026.

20. The landlord’s proceedings were listed before the Tribunal at a group list and conciliation hearing on 6 May 2026. The Presiding Member made procedural directions for the lodging and serving of documentary evidence. The Presiding Member granted leave for the tenant to be represented by Mr Livers, Solicitor. The Presiding Member noted that the landlord sought access to the property to inspect an “overhanging tree” proximate to the back fence.

21. That tree is situated on land at a property located immediately behind the property that is the subject of the residential tenancy agreement between the tenant and the landlord (i.e. the rear neighbouring property). The Member noted the property on which the tree is situated is also a social housing property.

22. According to the submission of Mr Livers at the appeal hearing, the social housing property that is at the rear of the tenant’s social housing property where the tree is situated also has NSW Land and Housing Corporation as the landlord.

23. From the notation made by the presiding Member and the information contained in the application to the Tribunal, it appears the landlord seeks to inspect the rear yard of the premises that the tenant resides in to determine if, for safety reasons and for the purpose of keeping and maintaining the premises in a state of good repair (ss 63 and 65 of the RT Act), the branches of the tree need to be pruned or other action taken.

24. The tenant, in documents provided to the Tribunal and the Appeal Panel, asserts the true intention of the landlord is to remove the tree, and it needs access to the premises in which the tenant resides to do this. The tenant submits that the landlord has never clearly identified why it seeks access to the residential premises in which he resides, but he also suspects it is to obtain information that will be used to seek termination of his tenancy.

25. There is no material before the Appeal Panel from the landlord to ascertain whether the landlord seeks to inspect the tree and possibly prune it, or possibly remove the tree, or simply inspect and take no immediate action. Section 60(1)(a) of the RT Act gives the Tribunal power to make an access order in appropriate circumstances where a landlord seeks to inspect residential premises (including the yard of the residential premises) for the purpose of identifying whether or not repairs or maintenance needs to be performed. Section 60(1)(c) of the RT Act gives the Tribunal the power to make an access order for the purpose of determining whether a tenant has breached a term of the residential tenancy agreement.

26. The tenant opposes access. The tenant asserts that the landlord seeks to remove the tree and has no legal right to do so, nor does the landlord have the legal right to prune the branches of the tree. The tenant also asserts the Tribunal has no power to determine the application for access, and that only the Land and Environment Court has jurisdiction in a dispute involving removal of a tree under the Trees (Disputes Between Neighbours) Act 2006 (NSW).

27. On 12 March 2026, the tenant sought that the Tribunal issue two Summonses to produce documents under s 48 of the NCAT Act and r 34 of the Civil and Administrative Rules 2014 (NSW) (NCAT Rules).

28. One Summons was directed to the landlord. It sought all documents in the landlord’s possession “relating to the removal and or pruning” of the tree. The reasons identified for the issue of the Summons was that it would assist to show the tenant of the social housing property where the tree was situated had not sought removal or pruning of the tree, and support the tenant’s belief that there was a nefarious motive for the landlord seeking access.

29. The second Summons was directed to the Canterbury-Bankstown City Council. It sought “the Council’s file, including emails, letters, notes and correspondence relating to the pruning or removal of the gum tree…” The reasons for issuing the Summons state the tenant had sought information from the local Council, but had been provided “inconsistent replies.”

30. It is not clear from the tenant’s documents as to whether there was any initial decision by a Registrar not to issue the Summonses; or the procedure leading to the Tribunal Member making the decision to refuse the issue of the Summonses that is the subject of this appeal. The relevant procedure is discussed in Zonnevylle v Secretary, Department of Communities and Justice (No 2) [2025] NSWCATAP 161 (Zonn**evylle No 2). However, it is clear that a Tribunal Member has the power under s 48 of the NCAT Act to determine whether or not a Summons to produce documents should be issued.

31. On 1 June 2026, the Tribunal (Ruschen GM) refused permission to issue the Summonses. Written reasons were provided of approximately 2 pages in length.

32. The Tribunal found that the Summonses lacked a legitimate forensic purpose; were an impermissible “fishing expedition;” and were excessively broad. The Tribunal pointed out that the issue in dispute in the proceedings was an application by a landlord to inspect its property to ascertain whether the residential premises (including the backyard area) required maintenance or repair. Whether the tenant of the property where the tree was situated gave consent to its removal was not relevant to the issue of the landlord seeking to access the tenant’s property; nor was the issue of whether the landlord was seeking, as the tenant asserted, to trespass on the land of another.

33. The Tribunal stated that if the tree required removal that may involve a separate application by the landlord to the local Council, and the tenant may possibly be able to make an objection to the local Council, but that was an entirely separate issue to the issue of the landlord being able to access the residential premises for the purpose of inspection, and, if appropriate, maintenance or repairs.

34. The Tribunal pointed out that the tenant where the tree was situated was not a party to the proceedings. The tenant and the landlord were parties, and the landlord was seeking to exercise its rights as a landlord under the RT Act.

35. The Tribunal stated:

“…

The core issue in these proceedings is whether the applicant landlord is entitled to an access order under the Residential Tenancies Act 2010 (NSW) to enter the subject premises…The question of whether the local council has granted regulatory permission to remove the tree does not alter the Tribunal’s jurisdiction or the statutory test required to determine whether access should be granted to the premises.

The question of whether a separate, third-party adjoining neighbour has granted access to their private property is a separate legal matter and entirely irrelevant to the rights and obligations existing between this landlord and this tenant.

The respondent’s stated purpose for the summons is exploratory namely, to identify if council permission exists and to identify if access has been granted by another neighbour.

A summons cannot be issued as an investigative tool to ascertain whether documents exist that might assist a party’s case. The summons request fails to identify with any certainty that any such documents exist or how they would impact the legal issues before the Tribunal.

The requests for the council’s entire file and the applicant’s entire file lack reasonable particularity. Compelling a third-party public authority or a social housing provider to search, review , and produce its entire administrative and historical file regarding a tree creates an unreasonable and oppressive burden. It might inevitably result in the production of substantial volumes of irrelevant internal correspondence and administrative documents.

The documents sought in each summons request do not have an apparent relevance to the determination of the access orders application. The summonses lack a legitimate forensic purpose and are overly broad.

Accordingly, the application for the issuance of the two summonses is refused.”

36. On 3 June 2026, the tenant lodged a Notice of Appeal and application for a Stay. The appeal has been lodged within the requisite time period under r 25(4)(b) of the NCAT Rules.

37. On 1 July 2026, the Appeal Panel (Lucy PM) made procedural directions setting the appeal down for hearing. The Stay application was dismissed with oral reasons. The timetable for parties to lodge and serve submissions in the appeal has been extended at various times during the procedural history of the appeal.

Grounds of Appeal

38. The grounds of appeal do not appear to have been drafted with legal assistance. The grounds of appeal identify that the tenant disputes the reasons given by the Member for rejecting the application to lodge the Summonses; the Tribunal “wrongly applied the law;” and the tenant was denied procedural fairness.

Scope and Nature of Appeals

39. The decision of the Member dated 1 June 2026 is an internally reviewable decision under s 32(1)(a) and (4) of the NCAT Act. A decision concerning the issue of a Summons is an interlocutory decision under s 4 of the NCAT Act.

40. The Appeal Panel has jurisdiction to determine the appeal under s 80 of the NCAT Act. Section 80(2) of the NCAT Act states:

80 Making of internal appeals

…

(2) Any internal appeal may be made—

(a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds

…

41. The decision to refuse the issue of the Summonses is an interlocutory decision. The appellant can only appeal with leave of the Tribunal. Cl 12 of Sch 4 of the NCAT Act does not apply to this type of appeal (Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 (Guirgis) at [31]-[34]). In Guirgis, at [35], the Appeal Panel summarised the principles for leave to appeal from an interlocutory decision as follows:

“[35] …

(1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39;

(2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ;

(3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564;

(4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative;

(5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323;

(6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6;

(7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec);

(8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9;

(9) Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave."

42. The reference to “Collins” is a reference to Collins v Urban [2014] NSWCATAP 17, where the Appeal Panel stated at [84](1)-(2)}:

“[84] The general principles derived from these cases can be summarised as follows:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]

…”

43. In Maclean v Brylweski [2023] NSWCA 173 the NSW Court of Appeal stated as follows at [24]:

“[24] It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge’s decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[34]). Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense.”

44. The House v The King principles to which the Court of Appeal was referring to is the following passage from House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505:

“[i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

Refusal of Summons-Applicable Principles

45. A decision to refuse the issue of Summons is a discretionary decision that involves a matter of practice and procedure. Particular caution is involved in reviewing such decisions (Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177; [1981] HCA 7). In PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 the NSW Court of Appeal (Bell P and Simpson AJA) stated at [5]-[6]:

“[5] Discretionary decisions, whether in the context of substantive or procedural relief, also engage the strictures against over-ready appellate interference and the correlative need for “added restraint” associated with House v R (1936) 55 CLR 499 with the consequence that a “heavy burden” lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure: see, for example, Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) [2011] FCAFC 117 at [8] and [11]; see also Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174 at [6] where the task of an applicant seeking leave to challenge such a decision was described as a “difficult” one; see also Cicek v The Estate of the Late Mark Solomon [2014] NSWCA 278 at [69]-[70]; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [73]-[75]; Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; 117 ACSR 176 at [29]; Mei Zhang v Ye Cheng [2018] NSWCA 299 at [12].

[6] Leave applications in this Court attract a general obligation on the applicant for leave to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; BE Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].”

46. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336; [2021] NSWCA 145 (Blacktown City Council), Bell P stated at [6]:

“[6] An application for leave to appeal from an interlocutory decision on a matter of practice and procedure faces the high hurdles which have been referred to consistently by this Court: see, for example, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]-[6], where the authorities were relevantly collected. Those high hurdles exist for the reasons stated by Sir Frederick Jordan in In re the Will of F. B. Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323; (1946) 63 WN (NSW) 176, who said that:

“...if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

47. On the analogous issue of whether a Court should set aside a subpoena to produce documents, Anderson J stated in Villawood Management Pty Ltd v Marlton Group Pty Ltd [2025] FCA 980 at [49]-[51]:

“[49] The party who requests the issue of a subpoena bears the onus of establishing that the subpoena has a legitimate forensic purpose. A subpoena may be set aside if it is cast in terms which require the production of documents which do not have apparent relevance to the issues in the case: Seven Network (Operations) Ltd v Fairfax Media Publication Pty Ltd (2023) 418 ALR 284; [2023] FCAFC 185 (Wheelahan, Anderson, and Jackman JJ) [37]–[38] citing Secretary of the Department of Planning Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Bell P at [57]–[58], [60]–[61] and [65]; Brereton JA at [86] and [96]; McCallum JA at [98] and [100]).

[50] The Full Court, at [38] of Seven Network , identified the following principles which Blacktown provided authority for:

(a) the language of “tests” should be eschewed; whether a subpoena should be set aside depends on whether it involves an abuse of process, and it will be an abuse of process if it is not issued for a legitimate forensic purpose:

(b) it is not necessary to show that the documents subpoenaed will or will be likely to assist the case of the party that has issued the subpoena:

(c) it is sufficient to show that the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive:

(d) put differently, it is sufficient to show that there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case:

(e) it is sufficient to show that the documents sought are apparently relevant in the sense that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist:

(Citations omitted.)

[51] It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an “apparent relevance” to the issues in the case and/or bear upon the cross examination of witnesses expected to be called in the proceedings: Blacktown at [80] (Bell P).”

48. A subpoena to produce documents is an abuse of process if it lacks a legitimate forensic purpose (Blacktown City Council at [45]). However, what constitutes an abuse of process is not confined to a Summons that lacks a legitimate forensic purpose. As Kunc J observed in Neil Street Co Pty Ltd v Ibrahim [2024] NSWSC 1382 at [1]:

“[1] While there may be some doubt about who first said it, there can be no doubt about the truth of the proposition that just because something can be done does not mean that it should be done. The present application, concerning the issue of nine subpoenas and obtaining access to the documents produced, is an example of that truth, demonstrating an abuse of process in the sense of “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”: Attorney General v Barker [2000] 1 Fam Law R 759 at 764 per Lord Bingham of Cornhill CJ (Klevan J agreeing).”

49. In Rogers v R (1994) 181 CLR 251 at 286; [1984] HCA 42, McHugh J stated that although the categories of abuse of process are not closed, there are three established categories that involve:

“(1) the court’s procedures are invoked for an illegitimate purpose, (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute”.

50. The inability to demonstrate that the documents sought to be produced are likely to assist its case will, depending on the circumstances of the case, make it more difficult to establish a legitimate forensic purpose for the Summons (Blacktown City Council at [64]).

51. The failure to establish that the documents sought would have apparent relevance makes it more likely the Summons lacks legitimate forensic purpose and is a “fishing expedition.” In Colombini v De Berigny [2021] NSWSC 374 Ward CJ in Eq stated at [129]-[130]:

“[129] Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena or notice to produce, then it may readily be seen to be a fishing expedition. As to what is meant by a “fishing expedition,” see Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 where, at 254, it was said that:

A “fishing expedition,” in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere “fishing expedition.”

[130] Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena constitutes a “fishing expedition”.

52. A Summons to produce documents will also lack legitimate forensic purpose if it is oppressively wide (Re: Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [43]-[45]); is vague or uncertain; calls for the creation of documents (rather than production of existing documents); or imposes upon a third party the task of forming a judgment as to whether a document relates to issues between the litigants (Universal Press Pty Limited v Provest Limited [1989] FCA 402 at [9]-[10]).

Consideration

53. There is nothing in the reasons of the Tribunal that demonstrate the Member failed to apply the correct legal test when considering whether the proposed Summonses lacked a legitimate forensic purpose. Mere disagreement with the outcome or decision dissatisfaction is insufficient to establish that leave to appeal should be granted.

54. The decision of the Tribunal was open to it, and the appellant has failed to establish that the exercise of discretion by the Member in refusing the issue of the Summonses contained an error of the type identified in House v The King*.* The Tribunal’s reasons are logical and consistent with the orthodox application of established legal principles. The refusal to issue the Summons does not determine the substantive rights of the parties.

55. Contrary to the submission of the tenant, the refusal to issue the Summons does not prejudice the tenant in the substantive proceedings. The onus is upon the landlord to establish an appropriate basis for access under s 60 of the RT Act. The tenant can still put forward his arguments about jurisdiction irrespective of the documents he sought to obtain under Summons.

56. Considering the landlord’s obligations regarding the state of repair of the premises (including the rear yard) under ss 63 and 65 of the RT Act, as well as the power of the landlord to obtain an access order to determine whether the tenant is complying with his obligations under the RT agreement, the tenant’s arguments regarding “trespass” and the operation of the Trees (Disputes Between Neighbours) Act 2006 (NSW) do not appear compelling. Section 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) allows the owner of land to make an application to the Land and Environment Court for an order under s 9 of that Act. The tenant is not the owner of the land.

57. It is a matter for the Tribunal in the substantive proceedings to determine whether an access order should be made. However, the tenant has failed to establish a substantial injustice would result from the Tribunal’s decision to refuse to allow the Summonses to be issued.

58. The appellant makes reference in the grounds of appeal to denial of procedural fairness. The principles pertaining to procedural fairness have been discussed by the Appeal Panel of the Tribunal on many occasions (e.g. Boreland v Brewis [2024] NSWCATAP 140 at [60]-[62]; O*’Brien v Women’*s Housing Company Limited [2026] NSWCATAP 3 at [136]-[147]). It is unnecessary to repeat those principles. The tenant has failed to establish that he was not given a reasonable opportunity to be heard on whether the Summonses should be issued. That opportunity has been afforded to the tenant. The tenant’s disagreement with the result is not a basis for concluding there was a denial of procedural fairness.

59. The Appeal Panel notes that at the conclusion of the appeal hearing, Mr Livers indicated that, if unsuccessful in the appeal, the tenant may seek the Tribunal issue further Summonses to produce documents on the landlord and Canterbury-Bankstown City Council with a different schedule. It is sufficient to make the following observation. The Appeal Panel has referred previously to the relevant authorities dealing with abuse of process. A party seeking the issue of Summonses on a repetitive basis that have no legitimate forensic purpose and that may cause the unnecessary delay of proceedings may be the type of conduct that constitutes an abuse of process.

Conclusion

60. The tenant has failed to discharge the “high hurdles” and “heavy burden” for obtaining leave to appeal from an interlocutory decision, pursuant to the principles that have been referred to earlier in these reasons.

ORDERS

1. Leave to appeal refused.
2. Appeal dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar