Gretchen Helen Hart v Hallmark Retirement Pty Limited

Judgment (4 paragraphs)

[1]

The Applicant's submissions

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.

[2]

Determination

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.
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].
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.

Principles for determination as to whether to set aside Subpoena

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.
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].
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".

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