Joseph v Spencer

Mr Joseph's further Notices to Produce to the Court

1. On 17 November 2021, Mr Joseph served a Notice to Produce to the Court on Mr Spencer and a further Notice to Produce to the Court (Notice to Produce to the Court No 3) on Ms Spencer.

The terms of the Notice to Produce to the Court addressed to Mr Spencer

1. The operative terms of the terms of Mr Joseph's Notice to Produce to the Court addressed to Mr Spencer proposed an obligation on him to produce documents in the following terms: 2 All "documents" received by you or sent by you to the Land and Environment Court of NSW in relation to and/or arising out of the "Notice to Produce" as amended by the Judgement of Moore J being Joseph v Spencer [2021] NSWLEC 99 ordering the Second Respondent to produce to the court documents, the notice being in the following terms; (it is not necessary to reproduce the terms of the notice referred to - see Annexure A to Joseph No 1) 3 Any photographs or photomontages or documents indicative of any views to 108 North Kiama Drive from your property and to 112 North Kiama Drive from your property, 4 Any document in relation to; a. the planting of bamboo on the southern boundary of your property in about 2020 b. The purchase, installation, and maintenance of any security cameras on your property. c. the acquiring of and/or the installation of "pots" on your southern boundary pathway in period 1 January 2020 to date including any documents in relation to the payment of the same or assistance to undertaken this task. d. The planting and maintenance of bamboo on your southern boundary including its watering system. 5 Any document in relation to any communication between you and the Second Respondent as to her returning to NSW from Queensland sometime in December 2021. 6 Any document being a communication/text from you or to Mr s Watts in relation to the bamboo planted on the southern border of your property at 110 North Kiama Drive and/or these proceedings including any emails sent to you concerning the same.

Ms Spencer's Notice of Motion

1. On 17 November 2021, Ms Spencer filed a Notice of Motion (and supporting affidavit) seeking orders with respect to each of these new Notices to Produce to the Court. The terms of the orders sought in this Notice of Motion were: 1 I seek to have the Notice to Produce to Court 3 disallowed. 2 I seek to have the Notice to Produce to Court, received 17th November, disallowed.
2. This decision deals only with her proposed order 2 seeking to have the Notice to Produce to the Court addressed to Mr Spencer set aside.

Representation

1. For the purposes of the element of Ms Spencer's Notice of Motion seeking to have the Notice to Produce to the Court served by Mr Joseph on Mr Spencer, Mr Joseph appeared for himself and Ms Spencer appeared as agent for Mr Spencer by leave granted pursuant to s 63(2) of the Land and Environment Court Act 1979 and r 7.7 of the Land and Environment Court Rules 2007.

Hearing of the Notice of Motion

1. Each of the elements of Ms Spencer's Notice of Motion were heard on 25 November 2021. They were heard separately with me reserving my decision at the conclusion of the relevant portion of the hearing.
2. The hearing took place by telephone (as a consequence of both COVID‑19 restrictions and of Ms Spencer's inability to attend court resulting from her location in Queensland at the present time). Her reasons for being located in Queensland and being unable to attend an in-court hearing in Sydney were set out in my decision in Joseph No 1 at [264] and [265].

Evidence v submissions

1. In Joseph No 1, at [95], I set out how I had dealt with an affidavit that intermingled matters that were properly evidence with other matters which were appropriate to be regarded as submissions. I repeated on 25 November 2021 that I would adopt this approach.
2. In this instance, the affidavits of Ms Spencer dated 17 November 2021 and of Mr Joseph dated 22 November 2021 both contained limited matters that were evidence, but also contained much material appropriate to be regarded as submissions. Whilst it is surprising that a retired member of the Inner Bar had prepared a document inappropriately intermingling evidence and submissions in the fashion contained in Mr Joseph's affidavit, I nonetheless indicated, during the course of the hearing, that I proposed to treat material that was properly to be regarded as evidence as being such, whilst that which was properly to be regarded as submissions would be so treated.

The evidence

1. The evidence relied upon by Ms Spencer for the purpose of this element of her Notice of Motion was contained in the affidavit dated 17 November 2021. This brief document was read for the purposes of this element of her Notice of Motion as to its formal elements and the whole of paragraph 7 (this being a paragraph relating to the Notice to Produce to the Court addressed to Mr Spencer).
2. Paragraph 7 of her affidavit was in the following terms: 7 In the Notice to Produce of 17th November, he asks for (a) in 2, 3 and 4, all the documents again from the Notice to Produce as revised by Justice Moore on 15th September. I have already produced these. I have also produced documents for Justice Moore's further revised version of this - Order 15th September Notice to Produce to the Court. 4(b) was removed by Justice Moore in his revision of the original Notice to Produce. (b) In 5, his request for any communication with my husband about my date of return from Queensland is an invasion of my privacy and I feel that he is stalking me. And this has no relevance to blockage of views by the bamboo. (c) No such emails exist.
3. Ms Spencer was not cross-examined by Mr Joseph.
4. Mr Joseph relied on an affidavit deposed by him on 22 November 2021. This affidavit was one of 12 pages and had the following annexed to it: 1. 13 pages of the transcript of the hearing of 11 November 2021; and 2. A photograph of the rear of an AVIDA campervan, described in paragraph 30 of the affidavit as being a campervan owned by the Spencers and regularly (but not presently) parked outside the Spencers' home.
5. Mr Joseph relevantly relied on his affidavit's paragraphs 33 to 36 - being paragraphs specifically addressed to the Notice to Produce to the Court served on Mr Spencer. These paragraphs were in the following terms: Notice to Produce on Mr Spencer 33 It is surprising that Mrs Spencer is the moving party in respect to this Notice to Produced given the court though before the court and acting for Mr Spencer, it could not consistent with the principles of procedural fairness make any order against Mr Spencer. Mrs Spencer did not have insufficient interest to avoid procedural unfairness on Mr Spencer. Again, I wished the Court had the same concerns when it proceeded on a number of times in my "absence" by a few minutes the delay having been caused by telephonic imperfections. 34 Regardless, the court must now be satisfied Mrs Spencer has standing and interest to address this Notice in these circumstances. There is a clear potential conflict of interest in the claims of "abuse of process" in the maintenance of the notice against Mr Spencer, which could produce documents against Mrs Spencer's interests in order to reduce the assertion of her non-compliance of her Notice to Produce and the subject of current orders by this court made in November. 35 Recourse to the judgement of his Court is not bound, nor should follow, its interlocutory decision on a different Notice to Produce with new "evidence" not previously considered. The court is not prevented from re-considering an interlocutory judgement . Here the Court should have regard to the content of my affidavit of 6 October 2021 at [2]-[1O] (Nominal Defendant v Manning [2000] NSWCA80) 36 I respond to Mrs Spencer's filed affidavit; a. Paragraph 2 is directed to correspondence between Mr and Mrs Spencer, and between Mr Spencer and the court. This is not a repeat of the Notice to Produce on Mrs Spencer. b. Paragraph 3 and 4 are directed to Mr Spencer, not Mrs Spencer. c. Paragraph 4(b) I press as the installation of the cameras when the fresh evidence is reviewed has "apparent relevance". As is accepted their installation follow in point of time (see Notice of Coincidence evidence filed) immediately following the installation of the bamboo and "reports to police" of damage to the bamboo. (T5.15 11/11) New evidence at p282-284 of Annexure "A" to my affidavit of 20 October, are communications, involving false assertions by Mrs Spencer as to how the bamboo was damaged soon after it was planted on her northern border. This is denied by Mr Leftwich (of 112 North Kiama) which lead to yet again more false reports to the police. Given that Mrs Spencer asserts the cameras were installed as protection from this behaviour, as recommended by police, this evidence raises new and further issues of credibility; this sub-paragraph should stand. d. Paragraph 5 Mrs Spencer raises privacy concerns yet again. As observed above, Mrs Spencer has put, with the court's consent, to place her private need to remain in Queensland over the public performance of this court. These facts gave now in the public arena on Mrs Spencers choosing. Her now claimed "need" has more to do with seeking to shut down a challenge to her claim now she has admitted at least to a possibility of her return to NSW as soon as 4th December to attend social events of course at the insistence of her husband.(T20 11/11) . Paragraph 5 simply seeks to establish whether there are any documents to this effect. e. Mrs Spencer determines no such emails exist. I don't know what paragraph she is referring to. In any event, this Notice is upon Mr Spencer, and it is for him to determine compliance, not Mrs Spencer's mere assertions although the court might be forgiven to think otherwise.
6. Mr Joseph was not cross-examined by Ms Spencer.

Introduction

1. As I have noted, I dealt separately with the two elements of Ms Spencer's Notice of Motion of 17 November 2021. As a consequence, the transcript of that hearing records that which was said in submissions to me in such a separated fashion. This separation enables me to set out the oral submissions concerning the element of Ms Spencer's Notice of Motion addressed by this judgment. These submissions appear below.

Ms Spencer's submissions

1. As to photomontages, she said (Transcript 25 November 2021, page 13, lines 34 to 36): RESPONDENT J SPENCER: Okay originally when you first reviewed the first Notice to Produce you crossed out photo montages. You deleted that. You said just photographs and now he's asking for photo montages. That's number 3.
2. As to the planting of the bamboo and security cameras, she said (Transcript 25 November 2021, page 13, lines 41 to 44): RESPONDENT J SPENCER: Well 4A doesn't exist and you also deleted security cameras as not having any relevance and now he wants the purchase installation maintenance of any security cameras which is 4B. You already considered that and deleted it on the previous Notice to Produce.
3. As to the purchase of pots, she said (Transcript 25 November 2021, page 13, lines 48 and 49): RESPONDENT J SPENCER: Okay and then, we don't have a receipt for the pots, I could have bought it in Woollies or Bunnings I don't know.
4. As to her return from Queensland, the following exchange took place (Transcript 25 November 2021, page 13, line 50 to page 14, line 23): Here we go again number 5 is with communication between my husband and I about when I'm returning to New South Wales. APPLICANT: When are you returning? HIS HONOUR: Now Mr Joseph let RESPONDENT J SPENCER: That's none of your business Mr Joseph that private. HIS HONOUR: Hang on, hang on, both of you, both of you. Mr Joseph let Ms Spencer finish her submissions APPLICANT: Sorry your Honour. HIS HONOUR: And Ms Spencer don't get distracted by any interjections from Mr Joseph. Continue. RESPONDENT J SPENCER: I don't, yes I feel it's an invasion of my privacy Mr Joseph tracking my whereabouts, taking photographs of my camper van, I will return to New South Wales when I want to return and it has nothing to do with him and nothing to do with this tree dispute, I can't understand how it has any relevance with the three [tree] dispute.

Mr Joseph's submissions

1. Mr Joseph's oral submissions were (Transcript 25 November 2021, page 14, line 38 to page 15, line 5 and page 15, lines 20 to 35): APPLICANT: Your Honour things have changed slightly from when, or maybe in a significant way since when your Honour gave your initial judgment on the initial Notice to Produce in that Mrs Spencer has put on before your Honour her written submissions with assertions of fact which she accepted in her evidence before your Honour on 11 November as being the truth. And she's given further evidence since then in respect of the watering system about a complaint she made to the police which, the day after the bamboo was planted that the watering system was being damaged. Your Honour these are matters, facts that again raises credibility issues and indeed issues of motivation. It seems to be that the fact that the coincidence of the planting of the bamboo and the near immediate installation of the cameras are seen to be figments of my imagination as opposed to coincidence evidence that proves a connection by way on inference between those two events. Your Honour I submit that 4 is ruled by relevant evidence. As for 5, your Honour, this is a matter which has already been raised in evidence by Mrs Spencer that she is intending to return on ..(not transcribable).. December. Now that raises … [irrelevant interjection exchange omitted] APPLICANT: Your Honour so it raises the whilst it was certainly diluted in, certainly by Mrs Spencer in terms of her evidence there were some quite specific references that give support to the very day because it involved two social events in Kiama. So the question is whether or not she has misled this Court as to her need to vacate the hearing date to remain in Queensland to look after her child and grandson, or son, whether she has misled the Court. Now I wouldn't have thought there was a greater credibility issue than that that the Courts would permit exploration of in respect of litigation, whether or not it would be under the Trees Act or under the Crimes Act. It's of no it's a credibility issue as I say, your Honour, under s 108A of the Evidence Act and, that permits evidence to be called on credibility even if the person doesn't enter the witness box. So, your Honour, that's my response to 5.

Introduction

1. In his affidavit, at paragraph 35, as an element of the submissions contained in it, Mr Joseph cited Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 (Manning). He did not make reference to this decision during the course of his oral submissions. As a consequence, I am simply left with this element of his affidavit (to be treated as a submission rather than as evidence).
2. I have obtained a copy of the decision cited by Mr Joseph in the above paragraph. I have read the decision and I am satisfied that it provides me with no assistance in my consideration of whether or not the Notice to Produce to the Court served on Mr Spencer should be permitted.
3. I have reached this conclusion because I have not merely applied the relevant rulings made by me in Joseph No 1 but have considered them in the context of Mr Joseph's fresh submissions in support of seeking material from Mr Spencer, as explained below. Hence, the approach I have taken here is entirely consistent with the decision of the majority in Manning.

Material concerning Ms Spencer's production

1. During the course of the hearing on 25 November 2021, I raised with Mr Joseph what I considered to be a potential lack of clarity in the terms of the obligation to produce documents he sought to impose on Mr Spencer by virtue of his reference to, and insertion of, the full terms of Annexure A to my decision in Joseph No 1. I proposed to him that this item in the Notice to Produce to the Court served on Mr Spencer might be amended. I proposed that it read to the following effect: All "documents" received by you from the Second Respondent or sent by you on behalf of the Second Respondent to the Land and Environment Court of NSW in relation to and/or arising out of the "Notice to Produce" as amended by the Judgement of Moore J being Joseph v Spencer [2021] NSWLEC 99 ordering the Second Respondent to produce to the court documents.
2. Mr Joseph accepted the appropriateness of this reformulation (Transcript 25 November 2021, page 12, lines 35 to 39), as did Ms Spencer (Transcript 25 November 2021, page 13, lines 26 to 29).
3. Given that, for the reasons explained in Joseph No 3, there had been incomplete production by Ms Spencer in response to the scope of the Notice to Produce addressed to her as discussed in Joseph No 1, I am satisfied that the above amended wording of this element of the Notice to Produce to the Court addressed to Mr Spencer should be permitted, and that it is unnecessary, for these purposes, for the whole of Annexure A to my decision in Joseph No 1 to be reproduced. Its incorporation by reference is sufficient.
4. As a consequence, this element, in its modified form, is incorporated in order (1) of my orders at the conclusion of this decision.

Introduction

1. The terms of paragraph 3 of the Notice to Produce to the Court served by Mr Joseph on Mr Spencer are earlier set out. I dealt with the question of photomontages and matters relating to the property at 112 North Kiama Drive in Joseph No 1 at [159] to [162].
2. Although the terms set out in the element of the Notice to Produce to the Court originally addressed to Ms Spencer, and the subject of my decision in Joseph No 1, were not identical to what is here engaged, matters arising in that consideration are equally potentially here relevant. There are three elements to what is proposed to be requested to be produced by Mr Spencer. Before turning to address each of them, it is appropriate to set out the terms of my ruling in Joseph No 1. These paragraphs are reproduced below: Ruling 159 The extent of the jurisdiction created by the Trees Act requiring the assessment of the severity of the obstruction of a view by a hedge is contained in s 14E(2)(a)(ii). This requires consideration in these proceedings of whether or not the bamboo might be severely obstructing a view from Mr Joseph's dwelling. To the extent that Mr Joseph has foreshadowed that he proposes to submit that the Spencers have deliberately planted the bamboo to form a hedge obstructing his views to the north in a fashion that will prevent him having a proper understanding of the nature of the deck structure to the east of the Spencers' dwelling for which consent is currently sought from the Council, that question of imputed motive is, at an appropriate level of generality, apparently relevant as a matter of potential consideration pursuant to s 14F(s) of the Trees Act. 160 However, the actual potential extent of obstruction of Mr Joseph's views to the north from his property, if the Council was to grant consent for the Spencers' proposed deck (as might be shown in any photomontage of the proposed deck when potentially viewed from Mr Joseph's property), has no apparent relevance (even at the low threshold involved as discussed in Blacktown) to matters in dispute pursuant to the Trees Act. Whilst undoubtedly potentially relevant to an assessment of what might be the impact on Mr Joseph's views, when the Council considers the Spencers' development application (and Mr Joseph's objections to it) pursuant to s 4.15 of the EPA Act, those potential impacts have no relevance (let alone any apparent relevance) for the purposes of the provisions of the Trees Act engaged by Mr Joseph's application pursuant to this legislation. It is not appropriate to require Ms Spencer to produce any photomontages of the proposed deck. 161 This item also seeks production of photographs or photomontages concerning views from 112 North Kiama Drive, the property immediately to the north of the Spencers' property and second to the north from Mr Joseph's property. Views from this property can play no part in any consideration of matters arising pursuant to the Trees Act concerning views from Mr Joseph's property. 162 As consequence, item 10 in Mr Joseph's Notice to Produce is to be amended by deleting the words "or photomontages", and the words "and from 112 North Kiama Drive". In that amended form, the item can remain. In its amended form, it is not objected to by Ms Spencer.
3. The matters concerning photomontages which I dealt with in Joseph No 1 at [160], concerning photomontages, do not here apply as what is sought from Mr Spencer relates to views from his property to Mr Joseph's property (unlike the reverse position which I dealt with in [160] of Joseph No 1). Because privacy issues are potentially engaged by the Spencers in these tree dispute proceedings, this element of paragraph 3 is permitted.

Photomontages toward 112 North Kiama Drive

1. Although [161] in Joseph No 1 dealt with views from 112 Kiama Drive and what is here sought relates to views to 112 North Kiama Drive, the reasoning concerning the irrelevance of 112 North Kiama Drive, as set out in [161], is equally here applicable. This element of paragraph 3 is rejected.
2. An amended requirement concerning photomontages is incorporated in my orders at the conclusion of this judgment.

Security cameras

1. In Joseph No 1, I addressed the element of Mr Joseph's Notice to Produce to the Court to Ms Spencer where Mr Joseph had proposed that I permit a similarly worded element to remain in the requirements for Ms Spencer's compliance that were set out in Annexure A to that decision. In Joseph No 1, at [122] to [125], I said on this point: Ruling 122 As earlier set out in my outline of general legal principles to be applied in addressing the various items in Mr Joseph's Notice to Produce, it is necessary for him to demonstrate at least an apparent relevance to the issues in the case (Blacktown at [80] and [89]). 123 Such apparent relevance can, as was observed in Blacktown, engage matters going to the credit of a witness. However, even at the comparatively low threshold of apparent relevance as discussed in Blacktown, there must, nonetheless, be established some basis why that threshold is surmounted. In his submissions concerning why Ms Spencer should be required to produce documents concerning the purchase and supply of security cameras, Mr Joseph has merely asserted that they have such apparent relevance. He provided no explanation as to why this would be the case. 124 The mere assertion that they might be relevant for the purposes of cross‑examining either of the Spencers (if either or both of them choose to give evidence - a matter about which I have no indication) as to credit does not establish that there is any apparent relevance of this information for that purpose. 125 In addition, as Ms Spencer pointed out, there is no apparent relevance to any issues in dispute that might otherwise be engaged for the purposes of s 14F of the Trees Act. The requirement that Ms Spencer produce documents concerning the purchase and supply of security cameras at 110 North Kiama Drive, Kiama Downs is rejected. The elements relating to the purchase and supply of bamboo plants and/or any irrigation system are to remain.
2. My determination concerning why an item dealing with security cameras was disallowed in the Notice to Produce to the Court served on Ms Spencer are equally applicable to this Notice to Produce to the Court served by Mr Joseph on Mr Spencer.
3. Mr Joseph has demonstrated no forensic relevance, even at the lower threshold of "adjectival relevance" (Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115) for such a requirement to produce to be imposed on Mr Spencer.
4. As confirmed in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, at [22]: … it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.
5. This has not been demonstrated by Mr Joseph.
6. This element of Mr Joseph's Notice to Produce to the Court served on Mr Spencer is rejected.

Ms Spencer's possibility of return to New South Wales

1. I have dealt with the question of the Notice to Produce addressed to Ms Spencer concerning her stay in Queensland and matters pressed by Mr Joseph concerning the possibility of her return to New South Wales in December 2021 in Joseph v Spencer (No 5) [2021] NSWLEC 139 published at the same time as this decision. For the reasons there explained, matters concerning Ms Spencer's potential return to New South Wales in December 2021 had no legitimate forensic purpose arising in these proceedings. As a consequence, item (5) in Mr Joseph's Notice to Produce to the Court served on Mr Spencer is rejected.

Correspondence with Mr Watts

1. This requirement to produce is appropriate to be permitted but confined to any communication concerning the bamboo. The extension to "and/or these proceedings" has no legitimate forensic purpose and is rejected.

Orders

1. It follows from the foregoing that the orders with respect to the Notice to Produce to the Court served by Mr Joseph on Mr Spencer are: 1. The First Respondent is ordered to produce to the Court, by 14 December 2021, the following: 1. All "documents" received by you from the Second Respondent or sent by you on behalf of the Second Respondent to the Land and Environment Court of New South Wales in relation to and/or arising out of the "Notice to Produce" as amended by the Judgment of Moore J being Joseph v Spencer [2021] NSWLEC 99 ordering the Second Respondent to produce to the Court documents; 2. Any photographs or photomontages or documents indicative of any views to 108 North Kiama Drive from your property; 3. Any document in relation to; 1. the planting of bamboo on the southern boundary of your property in about 2020 2. the acquiring of and/or the installation of "pots" on your southern boundary pathway in the period 1 January 2020 to date including any documents in relation to the payment of the same or assistance to undertake this task. 3. the planting and maintenance of bamboo on your southern boundary including its watering system; and 1. Any document being a communication/text from you or to Mr S Watts in relation to the bamboo planted on the southern border of your property at 110 North Kiama Drive including any e‑mails sent to you concerning the same. 1. This Notice to Produce to the Court is returnable before the Registrar on Thursday 16 December 2021; and 2. Any further application with respect to this Notice to Produce to the Court is to be filed and served by no later than Friday 7 January 2022 and made returnable before Moore J at 10.00 am on Wednesday 12 January 2022.

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: 30 November 2021