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.
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.
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.
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.
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.
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.
Accordingly, I dismiss the Applicant's Notice of Motion to strike out [3] of the Subpoena.
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.
[3]
Orders and Directions
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.
[4]
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
Parties
Applicant/Plaintiff:
Gretchen Helen Hart
Respondent/Defendant:
Hallmark Retirement Pty Limited
Cases Cited (3)
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".