Joseph v Spencer - [2021] NSWLEC 99 - NSWLEC 2021 case summary — Zoe

NSWNSWLEC

Joseph v Spencer

[2021] NSWLEC 99

Land and Environment Court (NSW)|2021-08-17|Before: Moore J, Ms J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-08-17

Before

Moore J, Ms J

Catchwords

[2008] HCA 125 R v War Pensions Entitlement Appeal Tribunal
Ex parte Bott (1933) 50 CLR 228

Source

Original judgment source is linked above.

Catchwords

[2008] HCA 125 R v War Pensions Entitlement Appeal TribunalEx parte Bott (1933) 50 CLR 228

Judgment (95 paragraphs)

[1]

TABLE OF CONTENTS Introduction Mr Joseph's Trees Act Application Mr Joseph's Notice to Produce The relevant statutory provisions Introduction Rule 34.1 of the UCPR The Trees Act provisions The Trees Act legislation structure The Trees Act provisions The Court Act The Evidence Act Legislative provisions concerning development approvals Mr Joseph's Class 4 proceedings The 2018 proceedings The 2021 proceedings Chronology The hearing processes The hearing before the Registrar The 28 July 2021 hearing The 17 August 2021 hearing The issues arising at the hearing on 17 August 2021 The evidence Mr Joseph's application for leave to amend Mr Joseph's application for leave to issue subpoenas General legal principles Cross‑examination as to credit Jurisdictional differences - the Trees Act and the EPA Act Ms Spencer's Notice of Motion Introduction Procedural assistance to self-represented parties Evidence v Submissions The powers of the Court on Ms Spencer's motion Ms Spencer's affidavit The implied undertaking not to use produced material Consideration of the items listed in Mr Joseph's Notice to Produce Introduction Mr Joseph's general submissions Item 1 Item 2 Ms Spencer's response Mr Joseph's submissions Item 3 Ms Spencer's response Mr Joseph's submissions Ruling Generally as to items 4, 5 and 6 Item 4 Ruling Item 5 Ruling Item 6 Ms Spencer's response Ruling Item 7 Ms Spencer's response Ruling Item 8 Ms Spencer's response Item 9 Ms Spencer's response Item 10 Ms Spencer's response Mr Joseph's submissions and Ms Spencer's responses Ruling Items 11, 12 and 13 Mr Joseph's submissions and my ruling combined Item 14 Ms Spencer's written response Mr Joseph's submissions Ruling Note Item 15 Ms Spencer's response Item 16 Ms Spencer's response Mr Joseph's submissions Ruling Item 17 Ms Spencer's response Ruling Item 18 Ms Spencer's response Item 19 Ms Spencer's response Item 20 Ms Spencer's response Item 21 Ms Spencer's response Item 22 Ms Spencer's response Mr Joseph's submissions Item 23 The text messages with Mr Leftwich The e-mails in the schedule to item 23 Time for compliance with modified Notice to Produce Conclusion Orders Annexure A Annexure B

[2]

Introduction

In February 2007, the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) came into effect. The Trees Act was initially confined to establishing a jurisdiction for this Court to hear and determine disputes in, here relevantly, residential areas where an Applicant was concerned that a tree located on a neighbouring property had caused, was causing, or was likely in the near future to cause damage to the Applicant's property or was a risk of injury to a person (s 10 of the Trees Act).
Following a review of the Trees Act, in 2010 amendments inserting a new Pt 2A of the Trees Act came into effect. The new Part enabled an application to be made to the Court when a person considered that a hedge (as defined in the Trees Act by the amendments) was, relevant to these proceedings, "severely obstructing a view from a dwelling situated on the Applicant's land" (s 14E(2)(a)(ii) of the Trees Act). It will later be necessary to set out a number of the provisions in Pt 2A of the Trees Act for the purposes of understanding submissions made in these interlocutory proceedings.
It is to be observed, additionally here relevant, that the Trees (Disputes Between Neighbours) Regulation 2019 declares bamboo to be a tree for the purposes of the Trees Act.
It was expected, when the Trees Act first came into effect, that applications would be made, predominantly, without the involvement of legal representatives for the parties. The application form was drafted in plain English and extensive plain English explanatory materials were made available on the Court's website. When the provisions concerning hedge disputes came into effect in 2010, the plain English application forms and the explanatory materials on the Court's website were updated to reflect the new hedge jurisdiction.
Importantly (and relevant to the matters dealt with in this judgment), a set of Standard Directions was developed to be considered at the first, preliminary hearing before the Registrar. These pre‑trial directions were also drafted in plain English and facilitate pre-trial timetabling leading up to a hearing of any application made pursuant to Pt 2 and/or Pt 2A of the Trees Act.
Standard Direction 5 permits the granting of leave to issue subpoenas to third parties, including subpoenas to produce documents as provided for in Pt 33 of the Uniform Civil Procedure Rules 2005 (the UCPR).
Also here relevantly, rr 21.1 and 34.1 of the UCPR concerning Notices to Produce are also applicable to applications made pursuant to the Trees Act. As will later become apparent, an element requiring consideration in this judgment is the list of documents in a Notice to Produce issued pursuant to r 34.1 of the UCPR by Mr Joseph, the Applicant, to Ms Spencer, one of the Respondents in these proceedings.

[4]

Mr Joseph's Notice to Produce

Mr Joseph has served a Notice to Produce to the Court (the Notice to Produce) dated 29 July 2021 on Ms Spencer. Ms Spencer has filed a Notice of Motion seeking to have the Notice to Produce set aside. The Notice to Produce contained four elements relevant to consideration of Ms Spencer's Notice of Motion. Those elements comprise: 1. Definitions of a number of terms relevant to understanding of that which was required for Ms Spencer to comply with the Notice to Produce. These definitions are ones which have been taken from the dictionary to the Evidence Act 1995 (NSW) (the Evidence Act). Amongst those definitions was that of the term "documents". It is appropriate, for the purposes of this decision, to set out that definition, one in the following terms: document means any record of information, and includes - (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or (d) a map, plan, drawing or photograph. I set out this definition as, during the course of the submissions to me by Ms Spencer concerning the various items listed in the Notice to Produce, it was clear she was unaware of the definition. In response to a question from her as to the scope of that term, her attention was drawn to the definitions in the Notice to Produce. 1. A list, with 23 entries on it, setting out that which Mr Joseph sought be produced to the Court by Ms Spencer. 2. Finally, it is to be noted that item 23 on the abovementioned list was in the following terms: All emails identified on annexed document marked "A" and headed "List as given to me by Jennifer of what she holds-attachments where mention" The document annexed to the Notice to Produce, to which reference is made immediately above, itself comprised a document of eight pages comprising, primarily, a list of e-mails to or from nominated individuals or entities. Some more‑than‑300 e-mails were nominated in this annexure.

[7]

The Trees Act legislation structure

There are a number of jurisdictional prerequisites that need to be established by an applicant seeking intervention concerning a hedge on a neighbour's property before discretionary factors require to be considered as to whether or what intervention orders might be appropriate to be made concerning the hedge. These jurisdictional questions are: 1. Are the plants the subject of the application "trees" for the purposes of the Trees Act [there are any definitional extensions of the term "tree" contained in the Trees (Disputes Between Neighbours) Regulation 2007]? 2. If the plants are trees, are there two or more trees? 3. Were the trees planted (as opposed to being self-sown or remnants of original native vegetation)? 4. If the trees were planted, were they planted so as to form a hedge? 5. Is there a view from the applicant's dwelling from the points concerning which the application is made and, by necessary inference, what comprises the view from each such point? 6. If there are views, are any of those views obstructed by the hedge? and 7. If there is a view (or there are views) which the hedge obstructs, is the obstruction of that view severe?
Only if each of these has been satisfied, does balancing the factors in s 14F of the Trees Act come into consideration as to whether or not some intervention should be ordered by virtue of s 14E(2)(b) of the Trees Act.
For the purpose of assessing whether or not any or all of the documents sought by Mr Joseph in the list set out in the Notice to Produce he has served on Ms Spencer, it is appropriate that I assume that the jurisdictional prerequisites set out above are satisfied (although whether or not they have actually been so satisfied will be a matter for the decision-makers in the substantive hearing when it takes place in November 2021).
For present purposes, Mr Joseph submits that the documents he seeks will potentially provide evidence of two intertwined matters. These are: 1. Whether the bamboo was planted on the Spencers' property for the purposes of providing them with privacy protection (as is the position advanced by Ms Spencer); or 2. Whether it was planted deliberately to obstruct Mr Joseph's view, in order to remove or diminish the bases upon which Mr Joseph could legitimately object to the Spencers' proposed deck structure (that which is subject of a presently undetermined development application to the Council).

[8]

The Trees Act provisions

The Trees Act provisions referenced by Mr Joseph are ss 14E and 14F (although he only referenced s 14F(s), it is appropriate to set out the whole of the provision for a proper contextual understanding of the Pt 2A Trees Act process): 14E Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the Applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the Applicant has given notice of the application in accordance with section 14C. (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the Applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the Applicant's land, and (b) the severity and nature of the obstruction is such that the Applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. and 14F Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application, (b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to), (c) whether the trees grew to a height of 2.5 metres or more during the period that the Applicant has owned (or occupied) the relevant land, (d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (e) any other relevant development consent requirements or conditions relating to the Applicant's land or the land on which the trees are situated, (f) whether the trees have any historical, cultural, social or scientific value, (g) any contribution of the trees to the local ecosystem and biodiversity, (h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned, (i) the intrinsic value of the trees to public amenity, (j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned, (k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees, (l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated, (m) anything, other than the trees, that has contributed, or is contributing, to the obstruction, (n) any steps taken by the Applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction, (o) the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost, (p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves, (q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view, (r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed, (s) such other matters as the Court considers relevant in the circumstances of the case.

[11]

Legislative provisions concerning development approvals

As is noted below, the Spencers have lodged two applications with the Council seeking development consent pursuant to the Environmental Planning and Assessment Act 1979 (the EPA Act) seeking approval to construct a deck structure on the eastern side of their dwelling.
It is not necessary to reproduce any of the provisions of the EPA Act. It is sufficient, at this point, to note that: 1. The first of these development applications was made in 2017. The Council granted development consent for the construction of a deck on the eastern side of the Spencers' dwelling in 2018. Mr Joseph commenced Class 4 proceedings seeking to have the consent set aside. In March 2019, consent orders were made setting aside this development consent; 2. The second of these development applications was made earlier in 2021 and has not been determined by the Council. As discussed briefly, later, Mr Joseph has commenced Class 4 proceedings concerning this development application; and 3. Mr Joseph objects to the construction of any such deck to the extent that it interferes with the views he has enjoyed from his property to the north across the Spencers' property (setting aside, for present purposes, the impact of the bamboo which is the subject of these proceedings).
As will later be seen, the foreshore building line set by the Kiama Local Environmental Plan 2011 (the LEP) was referred to during the course of Mr Joseph's submissions concerning Ms Spencer's Notice of Motion. This foreshore building line is referred to as the FBL in the list of documents annexed to the Notice to Produce and incorporated by reference via item 23 on the list in the body of the Notice to Produce.
It is to be noted that a foreshore building line is established for both properties, relevantly, pursuant to Sheet FBL_011 of the LEP's maps by virtue of the joint operation of the definitions of "foreshore building line" and "Foreshore Building Line Map" in the Dictionary to the LEP.
Mr Joseph also referred to the Kiama Development Control Plan (the DCP) during the course of his submissions concerning Ms Spencer's Notice of Motion. Although the Council's 2011 DCP was replaced in 2020 by a new DCP, nothing turns on that for present purposes and these two documents can be regarded as encompassed, collectively, by the term "the DCP".

[14]

Chronology

I set out below a chronology of relevant events in Mr Joseph's current tree dispute proceedings leading up to this judgment concerning Mr Joseph's Notice to Produce. 7 June 2021 ● Tree dispute application and claim details filed by Mr Joseph. 19 July 2021 ● First return date before the Registrar for making pre-trial timetabling and other procedural directions. Leave not granted to Mr Joseph to issue subpoenas. ● Affidavit of Mr Joseph filed - 38 pages and annexures of 230 pages. 22 July 2021 ● Subpoena to Produce with Subpoena Notice and Declaration for the Proper Officer, Bamboo South Coast Pty Ltd; filed by Mr Joseph and issued without leave. ● Subpoena to Produce with Subpoena Notice and Declaration for the Proper Officer, Rabebi Pty Ltd trading as PRD Architects filed by Mr Joseph and issued without leave. 23 July 2021 ● Affidavit in support of issue of Subpoenas filed - 8 pages. ● Further affidavit of Mr Joseph filed - 43 pages. 26 July 2021 ● Notice of Motion filed by Mr Joseph (leave to issue subpoenas). The proposed subpoenas were: - The Proper Officer, EPlanning Pty Ltd - Dr Richard Lamb - Mr Stafford Watts - The General Manager, Kiama Municipal Council - Mr G de Chalain (Haskew Planning & Partnership). 27 July 2021 ● Further Affidavit in Support of Issue of Subpoenas and annexures in support - 20 pages. ● Written submissions of Ms Spencer (opposing leave to issue subpoenas) - 3 pages. ● E-mail containing photos of signed tree dispute form from Ms Spencer 28 July 2021 ● Mr Joseph's application to issue subpoenas and regularise subpoenas issued without authority was listed before me. Mr Joseph's application for leave to issue subpoenas was adjourned for hearing on 17 August 2021. Directions were made which included, inter-alia, provision for submissions from Ms Spencer concerning Mr Joseph's application. A copy of those directions is at Annexure A to this judgment. 29 July 2021 ● Notice to Produce to Court and eight page annexure served on Ms Spencer by Mr Joseph. 6 August 2021 ● Amended Notice of Motion filed by Mr Joseph (leave to issue subpoenas and to amend his tree dispute application). ● Mr Joseph files proposed subpoenas to Produce to: - The Proper Officer, Eplanning Pty Ltd - Mr G de Chalain (Haskew Planning & Partnership) - Dr Richard Lamb - The Proper Officer, Bamboo South Coast Pty Ltd - Mrs Jennifer Spencer - The Proper Officer, Rabebi Pty Ltd trading as PRD Architects - Mr Stafford Watts - The General Manager, Kiama Municipal Council. 12 August 2021 ● Written submissions 1 filed by Mr Joseph. ● Written submissions 2 filed by Mr Joseph: - includes Statutory Declaration - 3 pages. - includes proposed Short Minutes of Order - 2 pages. 16 August 2021 ● Notice of Motion filed by Ms Spencer (to set aside Mr Joseph's Notice to Produce). ● Affidavit of Ms Spencer in support of Notice of Motion. 17 August 2021 ● Hearing of Mr Joseph's Notice of Motion and Ms Spencer's Notice of Motion - judgment reserved 26 August 2021 Orders made authorising Mr Joseph to issue subpoenas and to regularise those already issued.

[18]

The issues arising at the hearing on 17 August 2021

On 16 August, Mr Joseph filed written submissions addressing, primarily, matters which were to be expected, reasonably, to be dealt with at this hearing. However, in addition to those matters so addressed, paragraphs 1 to 7 of his submissions comprised an informal application for leave to amend the relief for which he had originally contended in his Tree Dispute Application initiating these proceedings.
Under the circumstances, although Mr Joseph's application was made informally, I considered that it was appropriate, consistent with the objectives set out in s 56 of the Civil Procedure Act 2005, to deal with this informal application at this hearing.
On 16 August 2021, Ms Spencer filed a Notice of Motion to set aside Mr Joseph's Notice to Produce. An affidavit from her was also filed explaining the basis of her objections to that Notice to Produce. It was also appropriate to deal with this at this hearing. Mr Joseph did not oppose this course being adopted.
As a consequence, this meant that three matters needed to be dealt with at this hearing. I indicated to Mr Joseph and Ms Spencer that the order in which I propose to deal with these matters was: 1. Mr Joseph's application for leave to amend the relief sought in his application; 2. Mr Joseph's applications for leave to issue subpoenas (including his application to regularise, retrospectively, two subpoenas which had been issued by the Court's Registry inadvertently); and 3. Ms Spencer's Notice of Motion seeking to have set aside Mr Joseph's Notice to Produce.
As will become obvious, in my preparation of this decision I have had the advantage of a transcript of the hearing on 17 August 2021 (although that transcript, for the period of the hearing until it was converted to an entirely audio hearing using a telephone conference call facility, is based on audio recording which was evidently of poor quality in some respects). Where appropriate (as I consider is extensively the case), I have either quoted from the transcript (providing the appropriate reference to it) or otherwise referenced a particular element of the transcript where I am satisfied that it was not necessary to quote its terms, but simply to signal the source of that which I have written.
I also determined that it is appropriate to provide a copy of the transcript to the parties and that will be provided as a Word document at the same time as the parties are notified of the publication of this decision on the Caselaw website.
I have also had regard to the documents to which reference was made during the course of the submissions, together with the notes which I took during the course of the hearing.

[21]

Mr Joseph's application for leave to issue subpoenas

As earlier noted, at her hearing on 19 July 2021, the Registrar had not granted leave to Mr Joseph to issue subpoenas as part of the pre-trial directions and orders she made on that occasion. Mr Joseph's subsequent application to issue subpoenas (and to regularise, nunc pro tunc, the two subpoenas which he had inadvertently been permitted to issue by the Court's Registry) was referred to me to be dealt with. I did this as the second of the matters, earlier noted, requiring consideration during the hearing on 17 August 2021.
When I turned to the question of whether Mr Joseph should be permitted to issue the subpoenas for which he sought leave and approve the two for which he sought retrospective regularisation, Ms Spencer raised concerns about documents which she considered Mr Joseph appeared to be relying upon which had, she said, been obtained from Port Kembla Local Court in an earlier case. I indicated to her that questions relating to the subpoenas proposed to be issued or regularised were able to be raised by the person or entity to which a subpoena was issued should the recipient wish to seek to have the subpoena set aside. I noted that this did not require consideration by me at that point.
In her submissions of 27 July 2021 earlier noted, Ms Spencer addressed, at paragraphs 9 through to 12, why she opposed Mr Joseph being granted leave to issue his proposed subpoenas. These paragraphs in her submissions were in the following terms: 9. If the Court decides to proceed to hear Mr Joseph's application, my submission is to oppose the granting of leave. My principal ground for opposing leave is that the issuing of the proposed subpoenas is oppressive to the recipients who I have engaged in good faith to prepare a development application for work at my property and who have nothing to do with Mr Joseph's claim about the impact of the bamboo hedge on his property. There may be some documents, such as the survey plan at item 18 of the subpoena to me that might be relevant to a fact in issue, but my initial view is that the subpoenas are largely not necessary for the Court to properly determine the Tree Dispute under the Trees (Disputes Between Neighbours) Act. 10. Among other things: a. There is probably little mention of the bamboo hedge in the documents requested from my architect. b. I have not been given a list of the documents requested in the proposed subpoenas to the consultants. There is probably little mention of the bamboo hedge in most of those documents. c. Documents created the time of planting of the bamboo are irrelevant to the matters the Court must take into account when determining an application under the Trees (Disputes Between Neighbours) Act. 11. I am aware that the Court must be satisfied that the documents in the subpoena could possibly throw light on the issues in the main case, and that a subpoena cannot be used as a fishing expedition. I have not had an opportunity to thoroughly read Mr Joseph's affidavit, but I suspect it does not point to a probability that any of the documents will throw light on the matters that the Court is required to consider when determining an application under the Trees (Disputes Between Neighbours) Act. 12. I suspect that Mr Joseph is using the Tree Dispute to access my architect's plans and other records of discussions with him and my planning consultants and Kiama Council's documents and emails and all of my documents, emails and discussions about both my current and previous development applications, which Mr Joseph will use in the summons case.
With respect to granting Mr Joseph leave to issue the subpoenas (or regularise the two already issued), I said (Transcript 17 August 2021, page 4, lines 5 to 28): The bar for issuing the subpoenas is an extraordinarily low one and it is up to the persons who are the recipients of those subpoenas to consider whether they wish to comply with the subpoenas in whole or in part or to seek to apply to the Court to have the subpoenas set aside in whole or in part on various grounds that are available for that purpose. it is not a matter that it is appropriate for me to deal with at this stage. A person or an entity to whom subpoenas are issued will have exactly the same rights as you do with respect to the notice to provide that has been issued to you to seek to have then set aside in whole or in part, and then if material is produced pursuant to those subpoenas if they are not set aside in whole or in part, it will be open to you, who will also have access to such material after or at the same time as Mr Joseph does to object subsequently at the hearing of the matter to the tendering of any material produced pursuant to that subpoena and that will include objections on the grounds that there is an illegal foundation and the like that can be pressed by a person who seeks to have the subpoena set aside in whole or in part. It's not a matter for me this morning. Do you understand all of that? SPENCER: Yes. Yes, thank you. HIS HONOUR: I therefore propose, and the orders will set out, to grant Mr Joseph leave to issue the subpoenas for which he has sought leave and with respect to the two subpoenas that have already been issued, to grant that leave nunc pro tunc from the date that the subpoenas were in fact issued.
Mr Joseph also sought leave to serve the subpoenas electronically because of the COVID-19 situation. I granted Mr Joseph leave to effect service electronically and by express post (a dual requirement).
I subsequently made orders for the issuing of the proposed subpoenas and regularisation of those which had already been issued. Those orders were made on 26 August 2021 and provided to the parties. In addition, I set the return date of all the subpoenas as being before the Registrar for 29 September 2021. A copy of those orders is Annexure B to this judgment.

[22]

General legal principles

During the course of his submissions concerning items in the list set out in his Notice to Produce, Mr Joseph made reference to several judicial decisions which he submitted contained relevant principles binding on me when considering Ms Spencer's complaints concerning any of the items set out in the list. The decisions cited by Mr Joseph were Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown); R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 (Bott) and Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (Commissioner for Railways).
It is appropriate, before turning to the detailed submissions made by Ms Spencer and Mr Joseph with respect to the various items on the list, that I set out the general legal principles I am satisfied are here applicable. As will be seen, they are not confined to those to be discerned from the authorities cited by Mr Joseph.
Mr Joseph cites the recent decision of the Court of Appeal in Blacktown as to the test to be applied in considering whether or not the various classes of document which he seeks in his Notice to Produce should be permitted to stand, rather than being rejecte as submitted by Ms Spencer where she proposes that outcome through her Notice of Motion.
It is to be noted that the leading judgment in Blacktown was given by Bell P (Brereton and McCallum JJA agreeing). On the issue of the threshold test to be applied to subpoenas (also relevant to be applied in these circumstances), the President said, at [68] to [71] and [80]: 68 There is a plain difference between "apparent relevance" and "fishing", the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215. The word "apparent" admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena. 69 If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is "not sufficient", and a similar statement in Carroll at 182 that "mere relevance is not enough" may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: "must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." 70 There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross‑examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a "bearing on the issues in the case and may well have evidentiary value", a subpoena seeking such a document or documents will not amount to fishing. 71 Of course it will remain the case that, if it can be demonstrated that the party issuing the subpoena has done so for some improper, illegitimate or ulterior purpose foreign to the litigation, the Court in the exercise of its discretion may set aside the subpoena as an abuse of process or refuse access to the subpoenaed documents in spite of their apparent relevance. Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross‑examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed. … 80 The converse of this, namely the absence of any apparent relevance (in the broad sense of that term) of the documents sought to be subpoenaed to the issues in the case, may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party's motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate. My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can: "(i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case", at least in civil matters, an inability to demonstrate that it is "on the cards" that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. 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.
Mr Joseph specifically relied upon [89] of the judgment of Brereton JA (McCallum JA agreeing). This paragraph (footnotes omitted) is in the following terms: 89 I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is "likely" (or "on the cards") that the documents sought will materially assist its case, as distinct from that it is "likely" (or "on the cards") that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross‑examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they "appear relevant in the sense that they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case. Moreover, documents will add "in some way" to the relevant evidence in the case if they are capable of assisting in cross‑examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence.
To the extent that Blacktown might be regarded as providing a softening of the position concerning that which has historically been encompassed by requirements to produce documents in civil litigation (as is what I understand Mr Joseph proposes), I will approach my consideration of Mr Joseph's submissions concerning the various classes of documents in the list in his Notice to Produce on that basis.
As can be observed from the concluding sentences of [71] of the judgment of Bell P and of [89] of Brereton JA in Blacktown, seeking production of documents for the potential purpose of cross‑examining a witness as to credit (and thus the reliability of their evidence) is permissible.
In this context, as can also be observed from what I have quoted from the judgments in Blacktown, documents that are produced may not eventually be admitted as evidence. Two reasons may potentially arise at the substantive hearing of Mr Joseph's Tree Dispute Application why this is the position.
First, documents which have been sought on the basis of potentially providing a foundation to cross‑examine either Ms Spencer or Mr Spencer as to credit will only arise (if capable of being deployed for that purpose) if either Ms Spencer and/or Mr Spencer enters the witness box at the substantive hearing. If they do not give evidence, questions of credit, self-evidently, will not arise.
The second obvious matter will be, with respect to any documents required to be produced, whether actual relevance is demonstrated at the substantive hearing, should Mr Joseph seek to tender documents which have been produced (either pursuant to his here being challenged Notice to Produce or pursuant to any of the subpoenas for the issuing of which leave has been granted).
However, it is to be noted that, as can be seen in Blacktown at [69], the Court of Appeal has not stepped back from the decision in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 and the use of a Notice to Produce for the purpose of "fishing" - "endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all" - is still impermissible.
As these proceedings are in Class 2, s 38(2) of the Court Act applies to them. That provision has earlier been set out.
Mr Joseph submits that s 38(2) does not set aside the necessity for those hearing and determining his Trees Act Application to give appropriate regard to the rules of evidence in the circumstances of this case.
In support of this proposition, Mr Joseph cites the judgment of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 considering s 45W(2) of the Australian Soldiers Repatriation Act 1920-1922. The terms of that provision were set out by his Honour at page 252. His Honour explains, at page 256, how consideration of the rules of evidence is to be engaged in the processes of the Tribunal. His Honour said: Some stress has been laid by the present Respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."
The provision considered by his Honour is, relevantly, to the same effect as s 38(2) of the Court Act.
Although Mr Joseph observed that there was potential for him to seek to use tendency evidence (this being provided for in s 97 of the Evidence Act earlier set out), that potentiality is a matter which must necessarily await the substantive hearing of Mr Joseph's Tree Dispute Application. For present purposes, that which is here engaged from the rules of evidence is that of relevance (at the lower threshold discussed in Blacktown - of "apparent relevance") to a fact in issue in the proceedings.
As earlier noted, Mr Joseph identified the provisions of the Trees Act to which he said that the material sought in his Notice to Produce were engaged for the test of apparent relevance. These provisions were ss 14E(2)(b) and 14F(s). These provisions have earlier been set out.
Mr Joseph described the nature of what he submitted were the competing interests requiring to be balanced in the process of determining his Trees Act Application. He said (Transcript 17 August 2021, page 45, lines 10 to 26): APPLICANT: Well, I made the submissions recently and again I'll make it, the consideration the Court has to do in the 14E(2)(b) and in 14F(s) is to weigh up the competing interests - the planning interest, I'll put it that way, or interests - actually the word is interests and, you know, it doesn't limit - it's not limited to planning interest under 14E(2)(b), balance my interest with those of the respondent. Now, the question will be, I assume at some stage Mrs Spencer or Mr Spencer will be making a submission that there is an interest, they have an interest in blocking my views that is better than my concern of - my - better than my claim to have the bamboo cut and my view restored. The interest that, I assume, that I'm not trying to make their case, the value that the provision provides is a balancing of what interests are the Spencers seeking to protect. And how have they gone and do they have a balancing, have they got a balanced view between their interests and my interests and have they ever had a balanced view between their interests and my interests and do they presently have a balanced view between their interests and my interests and what are those interests, how have they played out in the past and how are they playing out now.
As I have observed earlier, there are a range of factual, jurisdictional tests that require to be satisfied before consideration of the discretionary balancing provisions for the purposes of which Mr Joseph submits he is entitled to require production of documents from Ms Spencer. Those jurisdictional issues await determination at the substantive hearing.
However, it is appropriate that I address each of the items in the list in Mr Joseph's Notice to Produce by considering the basis upon which Mr Joseph proposes that they are apparently relevant to those discretionary issues in instances where Ms Spencer raises objection to being required to produce documents.
As will subsequently be seen, there are elements of that which is encompassed by Mr Joseph's Notice to Produce where Ms Spencer does not object to it, either in whole or in part. As a consequence, at the very least, Mr Joseph's Notice to Produce will stand to the extent of those areas to which Ms Spencer raises no objection. The nature of the obligation remaining on Ms Spencer to provide documents after I have ruled on all the categories of documents listed by Mr Joseph in his Notice to Produce will be set out in a schedule to the orders at the conclusion of this judgment.

[24]

Jurisdictional differences - the Trees Act and the EPA Act

As earlier indicated, Mr Joseph is also an objector to the Spencers' currently undetermined development application to the Council for the construction of a deck on the eastern side of their dwelling. The factors that will be taken into account in determination of that development application will include relevant matters arising under the LEP (s 4.15(1)(a)(i) of the EPA Act) and the 2020 DCP (s 4.15(1)(a)(iii) of the EPA Act). Mr Joseph's objections to the Spencers' proposed development are also required to be considered (s 4.15(1)(d) of the EPA Act). To the extent that there may be any interference which would be occasion to views from Mr Joseph's dwelling if the Spencers' proposed development was approved in the terms for which consent has been sought, that issue will be assessed in the context of such controls relevant to that issue established by either the LEP or the 2020 DCP. It is unnecessary, for present purposes, to set out the nature of those controls. It is sufficient to note that they are likely to include (but not be confined to) consideration of the planning principle established by the Court in Tenacity Consulting v Waringah [2004] NSWLEC 140 (Tenacity).
For the purposes of consideration of Mr Joseph's Tree Dispute Application concerning any impact on views from his dwelling caused by the bamboo planted by the Spencers, the Trees Act sets a number of jurisdictional prerequisites which must be satisfied before consideration of factors to be weighed on whether or not or to what extent, as a matter of discretion, orders should be made mandating removal of or interference with the bamboo. The jurisdictional prerequisites mandated to be satisfied for the purposes of Mr Joseph's Trees Act Application are as earlier set out. Should Mr Joseph establish that these jurisdictional prerequisites are satisfied, then and only then are the factors weighing on the issue of discretion engaged for consideration (s 14F of the Trees Act).
The planning principle in Tenacity has been applied (by analogy) by Commissioners in determination of both the jurisdictional prerequisite set by s 14E(2)(b) of the Trees Act and matters going to discretion as to whether or not intervention orders should be made with respect to a hedge where the jurisdictional prerequisites have been satisfied.
Although the EPA Act processes concerning the Spencers' development application and Mr Joseph's Pt 2A Tree Dispute Application will both engage the planning principle in Tenacity, that planning principle will be engaged in a different context. In particular, the existence of an undetermined development application for a structure which, if approved, may or may not impact on the views from Mr Joseph's dwelling cannot mandate, for the purposes of the determination of his Tree Dispute Application, the engagement of some hypothetical assessment of that undetermined development application to establish to what extent, if any, that hypothetical outcome might be taken into account for the purpose of Mr Joseph's Tree Dispute Application.

[29]

Ms Spencer's affidavit

As I have earlier noted, I had explained to Ms Spencer the difference between evidence and submissions. I did this because, in my pre‑hearing examination of the affidavit which she had filed in support of her Notice of Motion, it was obvious to me that the document was appropriate to be regarded as containing material falling into three distinct parts. These parts were:

matters advanced as facts which, subject to questions of relevance as discussed later with respect to one paragraph, were evidence;
matters which could be constituted as general submissions and which were clearly not evidence; and
comments which were specific responses to the various elements contained in the list of materials set out by Mr Joseph as that which he sought to have produced in response to his Notice to Produce and which comments were also clearly submissions.

When Ms Spencer indicated that she wished to move on her motion, I dealt with her affidavit in support by indicating that paragraphs 1, 2, 3, 4, 5 and 19 all set out factual matters potentially capable of being evidence in support of her Notice of Motion. These paragraphs (with the exception of paragraph 4 to which I turn below) were uncontroversial ones, and Mr Joseph raised no objection to them.
Paragraph 4 was headed "The history before this tree dispute commenced" and set out a chronology. The chronology set out a series of assertions by Ms Spencer concerning past interactions between Mr Joseph, on one hand, and Ms Spencer and/or her husband on the other. Whatever might be the veracity or otherwise of those assertions, they were clearly irrelevant to any issue potentially arising in my consideration of whether any or all of the individual items listed by Mr Joseph in his Notice to Produce should be set aside, in whole or in part, in any fashion. I therefore rejected paragraph 4 in Ms Spencer's affidavit, and I marked the filed copy of her affidavit to that effect. I have had no regard to its contents.
Paragraphs 6 to 18 were clearly submissions of a general nature. I indicated to Ms Spencer that I proposed to treat them as such. Ms Spencer and Mr Joseph raised no objection to me treating these paragraphs in that fashion.
Under the circumstances of this interlocutory hearing, it is unnecessary to reproduce all those paragraphs now. However, it is appropriate to set out paragraphs 9 to 15 as they can be regarded as providing detail to some of Ms Spencer's comments concerning elements of the list of documents sought to be required to be produced by her. The paragraphs are in the following terms: 9. The Notice To Produce to myself contains a massive amount of documents, relating to both of our development applications and other subjects, which are irrelevant to this tree dispute. 10. Much of the subpoenas and Notice To Produce relates to old documents from 2017. 11. The sheer bulk and age of this material means that the Notice to Produce [is] oppressive. 12. Mr Joseph is "fishing" for our Development Application documents, which he has not been able to obtain through a GIPA [application] to Kiama Council, nor through Port Kembla Local Court and neither through the other current Land and Environment Court case against Kiama Council and myself. (Case Number: 21/174143). 13. We believe Mr Joseph needs our DA documents to fight Kiama Council and myself in the current Land and Environment Court case and also for general use for objections to the DA and harassment of Kiama Council as they assess the DA. 14. We believe Mr Joseph is also "fishing" for something he can use to bring further Criminal Cases and alleged crimes against us. 15. This use of the tree dispute to obtain documents for other cases and other purposes is an abuse of process of the court.
Paragraph 20 of Ms Spencer's affidavit is headed "Discussion Of Notice To Produce to Jennifer Spencer". It sets out each of the items in the list of documents sought by Mr Joseph and, in each instance, makes a comment concerning that item. Those comments were clearly submissions and are set out at the appropriate point later in this decision following the detail of the documents sought in that item.

[33]

Mr Joseph's general submissions

After the issues of connection with the parties had been resolved by transferring to a telephone conference format rather than persisting with the serious difficulties which had arisen from bandwidth issues in attempting to utilise an audio-visual link, I invited Mr Joseph to repeat, for the record, what he had been saying concerning general jurisdictional issues arising, in his submission, concerning the matters he sought to have made available to him pursuant to his Notice to Produce. Mr Joseph's submissions were set out in the transcript, relevant to these general propositions, from page 19, line 5 to page 21, line 7. It is not necessary to quote the entirety of Mr Joseph's submissions on this point. They can be summarised as follows: 1. He relied on the judgment of Evatt J in Bott as to the appropriateness of the decision-makers in these proceedings to have regard to the rules of evidence, even if not bound by them; 2. A more generous permissions‑to‑produce approach is to be taken when obligations to produce documents are sought to be created between parties (as opposed to a subpoena to a third party) "perhaps because admissions would come from the party"; 3. Events prior to the planting of the bamboo were potentially relevant to matters engaged by ss 14E and 14F of the Trees Act because Mr Joseph is entitled to adduce evidence as a consequence of those provisions that goes way beyond simply the tree and the obstruction of view. In this regard, he submitted that potential outcomes in 12 months from the date of hearing would also be relevant, as would be the purpose or the reasons for the planting of the bamboo in the first place and the maintenance of the bamboo to a height that interferes with the views; 4. Other conduct that predates and postdates the planting of the tree is also apparently relevant in this context; 5. He cited the decisions of Bell P and Brereton JA in Blacktown in support of the proposition that it was a comparatively low threshold for requiring the production of documents; and 6. He proposed that (Transcript 17 August 2021, page 20, lines 41 to 44): Documents will add in some way to the relevant evidence in the case if they are capable of assisting in cross‑examination or go to credit and notwithstanding that they are not admissible according to the rules of evidence.
Ms Spencer's general response to these submissions was succinct. It was in the following terms (Transcript 17 August 2021, page 21, lines 17 to 20): SPENCER: …. The evidence, it still has to be relevant to the Trees Act. He just can't take any documents and say that that could possibly be relevant. There'd have to be some connection. Surely?
It is to be noted that these general submissions, occurring as they did when we had established a much higher quality audio link between the parties, were made after the parties had addressed me on item 7 of the list in Mr Joseph's Notice to Produce and prior to me turning to address items 8 and 9 in that list.

[37]

Mr Joseph's submissions

In light of Ms Spencer's concession of partial relevance, I said to Mr Joseph (Transcript 17 August 2021, page 10 lines 7 to 11): … in light of Ms Spencer's concession that material concerning the bamboo and the irrigation system might be relevant, tell me why matters concerning the security cameras installed on her premises aren't potentially relevant in the dispute pursuant to Pt 2A of the Trees (Disputes Between Neighbours) Act.
Mr Joseph's submission as to why matters concerning the Spencers' installation of security cameras was potentially relevant was to propose that this was potentially an element requiring consideration in the balancing of Mr Joseph's interests with those of the Spencers as required by s 14E(2)(b) of the Trees Act. The question of the security cameras, as I understood his submissions from my notes (the transcript not being able to record elements of his submissions on this point), was also relevant to Ms Spencer's motives, going to issues of credit in this regard. Mr Joseph relied on the broad ambit of what is potentially able to be taken into account by the decision-makers at the substantive hearing by virtue of the catchall provision contained in s 14F(s) of the Trees Act.
Mr Joseph submitted that it would be premature for me to prevent him being provided with information concerning the security cameras, as this is a matter which, as I understood him, should be left to the final decision-makers. Ms Spencer's reply submission
Ms Spencer's response (Transcript 17 August 2021, page 10, lines 44 to 49) was: SPENCER: Yes. So it's too early to predict the facts in issue and that will be determined later on when we get the evidence from Mr Joseph, but the only evidence that is relevant to the Trees Act is a fact in issue which we'll get later. It has to be relevant to the Trees Act. We can't just ask for security cameras and receipts for dining tables and God knows what, it has to be relevant to the Trees Act to the known facts in issue. Ruling
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]).
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.
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.
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.

[40]

Mr Joseph's submissions

Mr Joseph submitted (Transcript 17 August 2021, page 11) that evidence of prior acts could be relevant for the purposes of establishing a tendency pursuant to s 97 of the Evidence Act. Mr Joseph pointed to the fact that the pots were placed prior to the bamboo being planted and therefore could form part of a course of conduct. He proposed that there was no timeline limitation on matters of relevance and that questions of inferences that might be able to be drawn from acts before and acts after the planting of the bamboo might be relevant. He submitted that the planting of the bamboo was only the first act which triggered the jurisdiction of the Court pursuant to this legislation. On that basis, as I understood him, Mr Joseph proposed that he should have access to the documents in this category as having apparent relevance, at this point in my consideration of matters, at the lower threshold of permissibility in Blacktown upon which he relied. Ms Spencer's reply submission
In response to Mr Joseph's submissions on this item, Ms Spencer submitted (Transcript 17 August 2021, page 12, lines 25 to 32): SPENCER: Yes, but well the pot plant was near the front of the house, a long way from the bamboo, but also Mr Joseph is talking about tendency and coincidence arguments and credibility evidence and so on, they're all part of the Evidence Act, but the rules of evidence don't apply to a trees dispute. When you look at the Land and Environment Court Act at 38(2), the Court is not bound by the rules of evidence at a tree dispute hearing. So, that - what he's saying he can't use tendency/coincidence arguments and credibility evidence in a tree dispute. Mr Joseph's response
Mr Joseph responded to the Ms Spencer's submission that s 38 (2) of the Court Act precluded his use of tendency/coincidence arguments or credibility arguments in a tree dispute by submitting - relying on Bott as set out above at [76] (Transcript 17 August 2021, page 12, lines 37 to 39): I made that quite clear that just because tribunals are not bound by the rules of evidence doesn't mean the rules of evidence don't have persuasive value in what should be admitted and what should not be admitted.

[42]

Generally as to items 4, 5 and 6

Before turning to the next three items individually, it is appropriate to record the nature of a transcript extract concerning these three items. First, as noted in lines 1 to 8 of page 14, I asked Ms Spencer whether her objections to these three paragraphs were the same as her objections to paragraph 3 discussed above. She indicated that this was the case. I then asked Mr Joseph whether his response to Ms Spencer's objections to these three paragraphs was the same as that to her objections to paragraph 3. He indicated that this was the case but added some further comment concerning it.
Unfortunately, Mr Joseph's additional comments are noted on page 14 as extensively being "not transcribable". In addition, as the transcript records and I had noted, his connection at this time was such that he was only intermittently able to be heard. I noted, at lines 42 and 43, that I was concerned that he was not going to be able to be heard and transcribed accurately. Mr Joseph briefly recapitulated the nature of his additional submission on these items. It is recorded in the transcript at page 14, line 45 to page 15, line 10: APPLICANT: ... My submission as to in response to Mrs Spencer's reference to this Act that relates to the rules of evidence does not exclude that the evidence as being a relevant consideration in considering what it could be admitted and what either not be admitted. I should add that the fifth day, given that we are talking about the use of - it is clear that the Court of Appeal has reached ..(not transcribable).. that admissibility in any event is not a test of what is ..(not transcribable).. and what document did not ..(not transcribable).. SPENCER: I didn't catch that last part. I couldn't understand it, sorry. APPLICANT: As I've said in my submission, Mrs Spencer, that the Court of Appeal's decision in Blacktown City Council makes it quite clear that admissibility, that is what evidence can go into evidence, what evidence cannot go in - ..(not transcribable).. not to in, is not the test of what is a proper subpoena.
At this point, being concerned that Ms Spencer was still unable to hear Mr Joseph's additional submission, I paraphrased what he was submitting (without objection from him). I said (Transcript 17 August 2021, page 15, lines 16 to 21): HIS HONOUR: ….. What Mr Joseph is saying is that whatever material is produced and is made available to him, whether it is available to be admitted as evidence at the trial will be something that is subsequently determined by those who are conducting the trial, not by me at this stage. That is what Mr Joseph's submission in essence is.
Ms Spencer's response to this was recorded at lines 23 to 30 on that page in the following terms: SPENCER: I see. That's not what I was talking about. I meant something a bit different. I meant that he is tending to use the plantings and camera and so on as a motive, and a tendency to - bad acts or lie or whatever else he wants to say about me in tendency and coincidence arguments and the pot plant argument was that I put a pot plant on my path so that he couldn't use my path, and then we put up a side gate for security and that's another argument of his that we're terrible people because we're blocking his access to our property along our path.
I responded to her comments at lines 32 to 36 in the following terms: HIS HONOUR: That's a matter, if I permit those elements in the Notice to Produce that, first can get canvassed again before the registrar, and secondly and more importantly will be questions as to whether they are admissible and relevant in any matters to the Trees Act that will be dealt with by the decision maker or decision makers in the proceedings at the hearing.
I now turn to consider these three items individually and give rulings with respect to them in light of the above discussion.

[60]

Ruling

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.
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.
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.
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.

[62]

Mr Joseph's submissions and my ruling combined

The person and company encompassed by item 13 are the proprietor and the corporate entity who had been commissioned by the Spencers to prepare photomontages relevant to the Spencers' 2021 development application. Mr Joseph's submissions concerning this item proposed that the potential view impact to the north from Mr Joseph's property, as might arise from the Spencers' development application, was a matter of relevance in these Trees Act proceedings. As I have explained in my ruling concerning item 10, matters arising to be assessed pursuant to the EPA Act have no relevance to assessment of the severity of view impacts caused by the bamboo as required by s 14E(2)(a)(ii) of the Trees Act. Similar issues are engaged for this item and the subsequent three items.
It is appropriate, in the context of these various items, to reproduce an exchange between me and Mr Joseph which encapsulates Mr Joseph's submissions as to why matters relating to the Spencers' development applications should be able to be addressed in these Trees Act proceedings and why he should be entitled to require Ms Spencer to produce documents which he submits have an apparent relevance to disputes under Pt 2A of the Trees Act. The exchange commenced at page 27, line 25 of the transcript and, relevantly in my assessment, concluded at page 28, line 35. The relevant portion of the transcript is in the following terms: HIS HONOUR: On what basis do you say that any report addressing any proposed structure on Ms Spencer's site could conceivably relate to the obstruction of the view that you alleged is caused by the bamboo? APPLICANT: Because, your Honour, the structures cover the same view as does the bamboo. … APPLICANT: We are dealing with, in short, the northeasterly views from my property. HIS HONOUR: I understand that and I understand that your tree dispute application is based on what you say is the impact of the bamboo on that. How does any impact on that view which might or might not be occasioned by any development proposal lodged with Kiama Council by Ms Spencer or her husband impact on matters requiring consideration under the Trees Act? APPLICANT: So what we say, your Honour, is there is and has been a disregard for my views. That can take more than one form. One form is the planning of the bamboo, the other form is the construction of a deck which would have the same impact on my views, or similar impacts on my views. HIS HONOUR: That's a matter to be dealt with under the Environmental Planning and Assessment Act. APPLICANT: No, with respect, your Honour, my submission is that the impacts that a plan, a proposed plan at this stage, or it even there are in fact being two plans, one 2017 and one 2021. The impacts that - I'm not saying as a matter of law that the impact on the view which the Trees Act deals with is a view that is controlled by anything other than the Trees Act, I agree with that, but the disregard which I submit has been occasioned by the bamboo is the same disregard that has been occasioned by the plan and that it has been persisted upon despite advice to the contrary from her experts, and continues to be persisted upon by the engaging of either new experts or by the refining, getting those experts to refine their advices to ensure that the issue of my views is not considered. Now, I wish to explore that because there is a pattern of conduct here that is not divisible by acts of parliament but is able to be explored by reason of the outcomes that the two acts occasioned which are similar in time - sorry, similar in point of view. Further, that I wish to explore the fact that there is a relationship between the development of the plans, the new plans, and the delay in bringing those new plans to fruition awaiting the bamboo growing in size. I've said that in my written submissions, your Honour, I refer to it as slow walking the DA to await the bamboo growing to a height where my views, which would otherwise be protected by the development control plan are no longer available because of the bamboo. So, there is this factual interrelationship between if one can block my view by bamboo then I cannot address my remedies, rights, interests, in respect of the DA because I no longer have that view. Now, that interrelationship is something which I submit would be - I'd be entitled to in considering what my interests are under 14F(2)(b) and also include in the concept of the circumstances under the case. The case is not simply are your views obstructed or not.
For the reasons I earlier explained, I am satisfied that the issue of potential impacts on Mr Joseph's views from the 2021 development application can play no role in the determination of his present Tree Dispute Application. Such matters, as I earlier outlined, do not reach the threshold of apparent relevance to any issue in dispute in these present Trees Act proceedings.
That is sufficient to dispose of any proposal by Mr Joseph that Ms Spencer should produce any documents relating to her current development application as lodged with the Council.
In addition, the Spencers' 2017 development application, although approved by the Council, was subsequently set aside by consent by this Court in March 2019. As a consequence, it can also have no relevance to matters requiring consideration for the purposes of Mr Joseph's current Tree Dispute Application.
It follows that items 11, 12 and 13 are rejected.

[65]

Mr Joseph's submissions

Mr Joseph's submissions concerning why this item should be permitted to stand were (Transcript 17 August 2021, page 29, line 26 to page 30, line 35): APPLICANT: ... Because, your Honour, throughout that period, throughout that time, that is whilst those persons were engaged, Mrs Spencer was seeking a very large extension of her upper and lower decks. Critical to those assessments - sorry, critical to the assessments by those three persons, A, B and C, was the fact that they - the extensions were in their opinion excessive and would create that significant impacts on my privacy and views. And they advised Mrs Spencer of that in about April of 2020. Now, again I suppose, I'm going back to what I said previously, that is that in my submission it is relevant to know what was the state of mind of Mrs Spencer in planting the bamboo in circumstance in - at - where it was - where, sorry - planting the bamboo on the border when she knew that this - or ought to have known from the dealings she had with these three people, that that would only aggravate and obstruct views that those persons had told her were valuable and should not be interfered with. So that's the first three. The D and F, sorry, D is the - sorry, D is two people, sorry, one person, that is her present planners, Eplanning. They gave - prepared a report which was - reports I should say, because I said there are multiple reports, one of which only I have, which reveal a view of the new extended deck which went even further than the 2017 deck as to the impacts that would have on my views. It was - as I say, this involved a number of reports which - and as to the manner by which they developed that could reveal the knowledge of Mrs Spencer and has then and now of the impacts of her bamboo on my views. Mr Watts is, as you know a former Commissioner of the Court, has been a personal advisor to Mrs Spencer who has given similar advice to her as have those other persons I've mentioned, that is her desires are excessive and unreasonably harmful to my views and privacy. So what that collection of people do in my submission, and although your Honour will note that the documents are only from 1 April, the reason why it's 1 April is that I have had access, and indeed just for the record tendered in court, in a courtroom, documents previously provided which that I don't need to retender those documents or seek those documents because I have already accessed and can be relieved of the implied undertaking by the tender in the Local Court. The further information that might have come Mrs Spencer's way since then in respect of her state of knowledge then and now as to the impacts that such a - the planting of the bamboo will have and continues to have despite her - assertions that they have had - it has no impact on my views. So it's a credit issue as well as a factual issue as to what is the state of knowledge of Mrs Spencer of my - of the views which I seek protection and why it is that she still maintains that the bamboo has had no impact on my - views in circumstances, I should say your Honour, where Mrs Spencer says that she has no intention, and this is in her written submissions, she has no intention to compromise because she says there is no impact involved. So, I'll just show you that - that's in her - excuse me a moment, I'll just find that pardon, because that is of course of some significance as to what the Court has to consider. Just excuse me a moment, your Honour, I'll try and find that bit. HIS HONOUR: Yes. APPLICANT: "I refuse to" - this is on the page prior to the one I just too your Honour to - "I refuse to remove or reduce the height of bamboo because there is no view loss to Mr Joseph's property and we want some privacy". Now, that affirmative statement which she made only a couple of weeks ago when she lodged these submissions with the Court is one of the issues that I wish to explore. Is that a credible position, is that informed by what information she has had and does have, and is that simply an affirmation of her desire to do harm to my interests regardless of any need she might have. Ms Spencers' response
Ms Spencers' response was in the following terms (Transcript 17 August 2021, page 30, line 45 to page 31, line 6): SPENCER: Okay. The plan, Mr Dunbar and Mr de Chalain and Dr Lamb, about the design of the deck. They're not talking at all about the bamboo. I think that Dr Lamb in one email discussed the bamboo, that the other planners did not. As they were just dealing with the design of the deck and that's a completely different issue to this - bamboo, not the bamboo. And Eplanning and Mr Cotton of course came afterwards, after the planting, and also the other thing I'm very confused about, you say or Mr Joseph said that he has all of this information up until 1 April, that these people were previously - in a Local Court. So in the subpoenas that you have just agreed to allow to be issued there are no dates on those. They're not - he's not asking for information after 1 April 2020, he's asking for everything again. I don't see the need for that and I think that that's a lot of work ..(not transcribable)..--
It is to be observed that 1 April 2020 is the date selected by Mr Joseph as he already has, as noted in the transcript extract at [175] above, documents falling within this category that precede this date. Mr Joseph's reply submissions
Mr Joseph's reply submissions (Transcript 17 August 2021, page 31, lines 18 to 34) when the following terms: APPLICANT: Your Honour, the question of information coming from these other bodies is in part covered in my submission about proving business records. I'm at this stage - this is on page 14 of my submissions - I'm at this stage uncertain as to what concessions will be made by Mrs Spencer as to the authenticity and the accuracy of the documents I am tendering. I don't want to be in a position where I have to try and work - it's one thing for me to have certain documents in my possession, but it's another thing to have all the business records in my possession, which I do not. I have been selective as to what I tendered in the Court below and I don't have any other information other than those tendered. So, I don't - I seek to have those business records to be able to prove them - sorry, those records be other than those in my possession so I can prove in a court if necessary the authenticity and the accuracy of the documents I'm wishing to tender. I say that - I've said that at paragraph 62, "I have in my possession some documentation from contemporaneous sources tendered in the Local Court, but will I need to strictly prove their admissibility", et cetera, at paragraph 62. So I'm only repeating what I've said already in written submissions.
It is to be observed that paragraph 62 of Mr Joseph's written submissions was in the following terms: 62. Another example relates to Annexure "A" documents which demonstrates I already have in my possession "some" documentation from contemporaneous sources tendered in the Local Court. However, will I need to "strictly" prove their admissibility? If so, I would seek to rely on s69 of Evidence Act as "business" records. It denies hearsay rule in respect to "representations" contained in the records. (s69(2)). I will need to prove the "provenance" of the documents. The best way to do this is to prove production from a given source produce to this Court under subpoena.

[69]

Ms Spencer's response

In her affidavit of 16 August 2021, Ms Spencer made the following written submission concerning this item in the list of documents sought by Mr Joseph: No legitimate forensic purpose. Does not relate to the tree dispute.
Ms Spencer's oral submissions concerning the documents sought in item 15 were in the following terms (Transcript 17 August 2021, page 32, line 44 to page 33, line 7): SPENCER: Yes. Number (a) is asking for my email to my husband. Now my husband is also a respondent, so I don't think that emails between Respondents should be accessed. I am not sure, the other emails are all very, very old, more than two years before the bamboo was planted, and almost two years before we even thought of planting the bamboo, so we really don't have any relevance. … APPLICANT: The D - E, Mrs Spencer, is another one. SPENCER: E. E as well. Natalie Allen was my original planner, so she did the plans in 2017. Since just that's two years as well before the planting and of no relevance at all. Mr Joseph's submissions
Mr Joseph's submissions were that the e-mails sought by this item were ones which had been omitted from the list of documents in Annexure A to item 23 of Mr Joseph's Notice to Produce. Failure to reveal these e-mails was a deliberate omission, he proposed. He submitted that he wished to use them as a basis for attacking Ms Spencer's credit should she enter the witness box (proposing to do so on the basis that she is not prepared to obey the law and that she is not prepared to provide, to a court, a proper list of the documents in her possession and, thus, would be, if giving evidence, a discredited witness). Ruling
Whilst a deal of the material sought by Mr Joseph has been referenced as being sought for the purposes of attacking the credit of Ms Spencer should she elect to give evidence in these proceedings, the ability of material produced for that potential purpose is, as earlier noted, entirely contingent on whether or not Ms Spencer chooses to enter the witness box at the substantive hearing.
However, consistent with my earlier ruling based on the relevant passages from the judgment in Blacktown, seeking material for this purpose is something capable of being regarded as apparently relevant for the purposes of the proceedings. This item in Mr Joseph's list of documents is to stand.

[72]

Mr Joseph's submissions

Mr Joseph's initial submissions on this item were in the following terms (Transcript 17 August 2021, page 34, line 49 to page 35, line 5): APPLICANT: Your Honour, this is both a credit issue and an issue as to the motive behind the planting and the matters that are considered in my case and 14F(s) and 14E(2)(b) which are amplified in Mrs Spencer's written submissions as to why she says on page 4 I think why she withdrew here DA was because of certain acts of Dr Lamb and that that I now have evidence to that is an incorrect statement which she said, that is he would not travel to my property.
There then followed an exchange between Ms Spencer and Mr Joseph which does not give rise to matters here requiring consideration. Mr Joseph's further submissions
Mr Joseph then made the following further submission (Transcript 17 August 2021, page 35, lines 21 to 47): APPLICANT: So, your Honour, the core of both Mr Woods [Watts] and Dr Lamb's - that paragraph relates to Mrs Spencer's total unwillingness to compromise and see an alternative point of view. … … … This is - so when it comes to the weighing up of the needs of Mrs Spencer, the weight of those two - that that paragraph will produce evidence in as I believe will show that even when reasonable alternatives are provided by a personal friend and/or expert, she will not - she will reject it regardless of the interests or desires that I have to protect my views and Mrs Spencer in her most recent submission seeks to suggest that they - that her new, sorry, I'll - whether that - this is the not so much relevant to this one but that the new advisors were a lot better and a lot more willing to engage in better design and a better planning report, but that's - but it's that connection which I seek to make in that paragraph.
A further exchange took place between Ms Spencer and Mr Joseph which, again, does not bear on matters now requiring consideration. Ms Spencer's further response
Ms Spencer's further response was in the following terms (Transcript 17 August 2021, page 37, lines 5 to 14): SPENCER: Yes. So Mr Watts had retired and he didn't want to do any designs for us because he didn't have insurance anymore and he was just, you know, just wasn't - been a long time before he'd actually worked as an architect and beforehand, and then with Dr Lamb he was a digital architect so he was separate to the design, he was just employed to write a report on the photo montages, which is what the - and the photo montages came about because the council required them. They - I got a letter for additional information, the council required photo montages and a report by an expert on the photo montages, and that's why I employed Dr Lamb. He didn't actually design the deck.
Mr Joseph's concluding submission in reply on this point was (Transcript 17 August 2021, page 37, lines 16 to 22): APPLICANT: Just briefly, your Honour, Dr Watts, sorry Mr Watts provided a design on Natalie Allen's letterhead to Mrs Spencer in June 2019. In April 2020 Dr Lamb provided to Mrs Spencer plans which - a set of plans and design recommendations. It's not true that either of these two persons did not provide alternative plans to Mrs Spencer and that each of those plans required compromise on what was previously the situation, and rather than deal with the compromise she sought out new planners and designers.

[80]

Ms Spencer's response

In her affidavit of 16 August 2021, Ms Spencer made the following written submission concerning this item in the list of documents sought by Mr Joseph: No legitimate forensic purpose. Does not relate to the tree dispute. My first communication with them was after the bamboo was planted.
Ms Spencer's comment on this item during the hearing was in the following terms (Transcript 17 August 2021, page 38, lines 20 to 23): SPENCER: … 19, yes, this is very repetitive. He's already asked for some documents for PRD Architects and Eplanning. Is there any difference in 19 between it says against as opposed to previous numbers asking for documents from Eplanning and PRD Architects. Mr Joseph's submissions
In response to a question from me about PRD Architects (a firm which had not previously been mentioned), Mr Joseph responded as part of his broader submissions concerning this item. He said (Transcript 17 August 2021, page 38, line 34 to page 39, line 12): APPLICANT: I don't know about PRD. I don't see PRD, your Honour, but of course I mean it's already been produced, it doesn't matter. On the other hand, this paragraph is not limited in terms of a DA, it is at large, and as to its relevance, your Honour, as I - I know I'm repeating myself - the behaviour leading to the instigation of new planners and experts after the advice from Dr Lamb and HDC is part of a chain of behaviour that, well tendency evidence if you would - will, or coincidence evidence as to the engaging of these people appears to be immediately after Dr Lamb gave his expert opinions on about 20 April. And in the context - yes, sorry, in terms that I want to get on with this immediately. As I've said in my written submissions, your Honour, that didn't occur. What did occur was some planning - so that is that there was no immediacy at all involved in the progress of these expert opinions and reports. It took about 12 months for them to see the light of day. Now, my submission will be that the slow walking as I've called it in my written submissions of the progress of these two experts' opinions is irretrievably mixed with the slow growth of the bamboo. That is, Mrs - that there was an intentional slow walking to ensure that the bamboo achieved its purpose, namely to obstruct my severe views which meant that when it came to lodging the DA 12 months later, I would not have that access to that view as a basis for my objection. Now, in other words, there was - sorry, so that's the tendency, that's the coincidence evidence which I've identified in my written submissions and that's the connection I will seek to make. Now, that's why I will be submitting that the need of the Spencers or the respondent was one of delay and growth so that my views were blocked and therefore it was - and obstructed and therefore denying me the capacity to make such an objection to those interruptions on the lodging of the DA. Now I know your Honour said something previously about the different acts, but with respect I don't accept that. Ruling
As can be seen from the above transcript extract, Mr Joseph foreshadows relying on evidence of what he regards as a tendency concerning the timing of the actions undertaken by the Spencers in pursuing their 2021 development application and the rate of growth of the bamboo which causes the obstruction of his views about which he makes complaint.
I have earlier set out the terms of s 97 of the Evidence Act (the provision dealing with tendency evidence) and addressed, at [75] to [77], Mr Joseph's submissions as to the regard to which the rules of evidence should be given in proceedings where the relevant decision-maker is not bound by those rules. It is not necessary for me, in the context of these interlocutory proceedings, to consider what might be the appropriate role, if any, of submissions as to tendency and the provisions of the rules of evidence to which the decision in Bott referred. All those matters will arise for consideration, to the extent that Mr Joseph may seek to pursue them, at the substantive hearing of his Tree Dispute Application.
For present purposes, it is sufficient to note that matters of timing arising with respect to the 2021 development application evolution process prior to the lodgement of the Spencers' current, undetermined development application with the Council can have no relevance to matters engaged by Mr Joseph's Tree Dispute Application.
Whilst I have earlier permitted Mr Joseph to require Ms Spencer to produce material that may go to her motive for planting the bamboo (as potentially engaged, in Mr Joseph's submission, by s 14F(s) of the Trees Act), any hypothesised relationship between the rate of growth of the bamboo and the preparation and progressing of the Spencers' development application has no apparent relevance for the purposes of Mr Joseph's Tree Dispute Application. This item is rejected.

[84]

Ms Spencer's response

In her affidavit of 16 August 2021, Ms Spencer made the following written submission concerning this item in the list of documents sought by Mr Joseph: No legitimate forensic purpose. Does not relate to the tree dispute. Dr Lamb did not write a report. I think Mr Mead is Mr Joseph's expert.
At the commencement of consideration of this item, I asked Mr Joseph why Ms Spencer should provide him with such reports of his own expert that were in her possession. The relevant portion setting out the basis upon which Mr Joseph sought these documents is recorded in the transcript at page 40, lines 4 to 23 in the following terms: APPLICANT: Your Honour, with respect, I - the issue is what is in Mrs Spencer's knowledge and possession as to what views are in issue and how have they been assessed by my experts and her experts. So, the - I mean I know exactly what Dr Meade - Mr Meade has said, but the point is, will be that Mrs Spencer had in her possession and indeed continues to have in her possession significant expert material that tells her what are primary views - what primary views I have, what secondary views I have, how and in what direction they are. Now, despite all of that she says in her submission no - although she changes a little from time to time, there is one reference to the fact there are no primary views affected and in other cases there are no views are affected. Now, what I will be seeking to do is by telling - by asking Mrs Spencer if she goes into the witness box what - whether she read these reports and if so did she have regard to them when she planted the bamboo, and does she still have regard to them when she makes statements to a court that there's no views affected. All of these matters are relevant in our submission to whether or not the Court at the end of the day, when they're balancing the pros and cons of making an order and the circumstances of the case whether they will make an order, or what order they will make once all that evidence is revealed.
Although there was some limited, further exchange concerning this item, it does not assist further in understanding the basis upon which Mr Joseph seeks production of these documents.
It can be seen from the second paragraph of the above extract that, should Ms Spencer choose to give evidence in the substantive proceedings, Mr Joseph proposes to cross‑examine her as to her knowledge of potential view impacts from the hedge and her motives for planting the bamboo in light of such knowledge she had at that time as may be revealed by these documents. I have earlier explained that Mr Joseph relies on a proposed submission that such matters are engaged for consideration by s 14F(s) of the Trees Act.
I have also earlier ruled that, to the extent that Mr Joseph seeks production of documents to enable him to explore matters of motive and credit should Ms Spencer give evidence at the substantive hearing, that provides a sufficient basis of apparent relevance to require production of these documents.
Whether or not Ms Spencer does in fact elect to give evidence at the substantive hearing is entirely a matter for her to determine.
The requirement to produce these documents is to remain.

[87]

Mr Joseph's submissions

Mr Joseph commenced his submissions on this item by addressing what was set out in (c) of the list of items sought under this heading. He raised issues of potential self‑incrimination by Ms Spencer, saying (Transcript 17 August 2021, page 42, lines 8 to 15): APPLICANT: Well I should out of seeing and simply say this, your Honour, that persons, and I'm not wishing to say - first of all she might have rights to self-incrimination but, having said that, as your Honour knows, the Acts of the Civil Procedure Act and the Evidence Act requires the production but that a certificate be given to any such person who produces the document whilst they have a reasonable prospect of a police charge having been brought. Now I have no - I don't know of any evidence of that latter matter but I just raise that because of the terms of C.
After a short exchange, during which I indicated that I was of the view that Commissioners of the Court did not have the power to issue certificates pursuant to s 128 of the Evidence Act as Mr Joseph appeared to be proposing, Mr Joseph continued his submissions concerning (c) saying (Transcript 17 August 2021, page 42, line 37 to page 43, line 17): APPLICANT: All right. Yes. Well, I mean I've raised it because I don't - I've never sought to prevent Mrs Spencer exercising her rights to, but there needs to be evidence of a likelihood of a prosecution to trigger the sections and that is a matter that would need to be put in some form of evidence. I certainly, I think I've said it in my affidavit, I have no present intention to do that and I don't think the police have any intention to do that as from what I have received, but I just raise it out of fairness because I don't wish to take advantage of an unrepresented litigant. HIS HONOUR: Well, you will also need to address me on why that might be relevant to anything in issue in these proceedings. APPLICANT: Well, your Honour, one of the - I'm not - of course I have not - I have seen certain statements from the police concerning interviews they'd had with Mr and Mrs Spencer and I have had access to those and they have been part of a tender in the Local Court. So insofar as - so I know there is - and in those documents, for what it's - from my perspective, there are inconsistent statements between what is stated to the police and what is stated in various emails concerning certain issues. Now, inconsistent statements of course is a credit issue. It doesn't go to a fact, and but I - I've said it often enough that I think there will be credit issues in this case, but I don't know, I don't know what evidence the respondent will be putting up and no matter what evidence will be - of mine will be challenged. But that's all I can say as to what I - what I would - I don't know - and that information I have relates to interviews that took place in about, let me think, just try to get my years right, 2019, about March/April 2019, or maybe February, January/February 2019 concerning statements that are in a statutory declaration which are plainly wrong in my - it will be my evidence. Now, that's all I can say, your Honour, as to its - I don't want to use the word relevance - as to its forensic legitimacy. It cannot be that it's not forensically legitimate to make - to seek out inconsistent statements of a party.
The transcript then records a short statement from Ms Spencer. The contents of it are not recorded clearly in the transcript (in part being marked "not transcribable").
This prompted the following short passage in the transcript in which Ms Spencer confirmed that, with respect to (b) and (c) of this item, she had no documents to produce. The relevant passage is shown at Transcript 17 August 2021, page 43, lines 27 to 38. This passage is in the following terms: APPLICANT: I see. You don't have any. HIS HONOUR: So, you are saying to me and Mr Joseph that with respect to is it B and C that there is nothing to produce, is that correct? SPENCER: Yes, that's correct. HIS HONOUR: All right, well you can simply note that on the document that you have to provide in response to the Notice to Produce provided I permit those paragraphs to stand. Do you understand that? SPENCER: Yes. Yes. Ruling
Although Ms Spencer, as noted immediately above, indicated that nothing would be produced against any of the three elements set out in this item, I am nonetheless obliged to rule on whether or not each of the three items should be permitted to remain.
With respect to (a), its apparent relevance is self-evident, and it is to remain.
With respect to (b), I have already ruled with respect to items 2 and 5 on the list in Mr Joseph's Notice to Produce, as dealt with earlier, that matters relating to the installation and operation of security cameras on the Spencers' property is not a matter where Mr Joseph has established that there is any apparent relevance to any issue in dispute arising from, or in connection with, his Tree Dispute Application. Paragraph (b) is rejected.
With respect to (c), Mr Joseph asserts that any such statement, if produced, would have apparent relevance on the question of credit should Ms Spencer elect to give evidence at the substantive hearing. Whilst I have significant reservations about the breadth of the apparent underlying assertions giving rise to this request, nonetheless, as noted earlier several times, issues of credit have apparent relevance as shown in Blacktown as earlier set out. Paragraph (c) is to remain.

[88]

Item 23

Item 23 in Mr Joseph's Notice to Produce is in the following terms: 23 All emails identified on annexed document marked "A" and headed "List as given to me by Jennifer of what she holds-attachments where mention"
Before turning to address the scope of item 23, it is appropriate to describe, in relevant general detail, what is encompassed by the reference in this item to the scope of the documents set out on the eight‑page schedule annexed to Mr Joseph's Notice to Produce. It is unnecessary to reproduce, as an annexure to this judgment, the entirety of that schedule. It is sufficient, for present purposes, to note that it is a list of documents by date, with there being over 300 dates identified on the list. The earliest identified date is 23 March 2016, whilst the most recent date is 9 December 2019.
Although some documents identified are not e-mails, the vast bulk of the individual documents identified are e-mails (including, from the date‑sequencing involved, e‑mail chains). The e-mails are ones to or from Mr and/or Ms Spencer with a wide range of other parties. The list in this schedule is not one which has been developed by Mr Joseph but is one which had been appended by Mr Spencer to a statutory declaration made by him for earlier, unrelated proceedings (apparently arising in the context of the Spencers' 2017 development application).
Although Mr Joseph described, at a level of generality, the reasons why he was seeking the production of this vast body of material as being (Transcript 17 August 2021, page 45, lines 4 to 43): HIS HONOUR: Why do you say, Mr Joseph, that these documents are potentially relevant to matters under the Trees Act other than, as you say, going to credit? APPLICANT: Well, I made the submissions recently and again I'll make it, the consideration the Court has to do in the 14E(2)(b) and in 14F(s) is to weigh up the competing interests - the planning interest, I'll put it that way, or interests - actually the word is interests and, you know, it doesn't limit - it's not limited to planning interest under 14E(2)(b), balance my interest with those of the respondent. Now, the question will be, I assume at some stage Mrs Spencer or Mr Spencer will be making a submission that there is an interest, they have an interest in blocking my views that is better than my concern of - my - better than my claim to have the bamboo cut and my view restored. The interest that, I assume, that I'm not trying to make their case, the value that the provision provides is a balancing of what interests are the Spencers seeking to protect. And how have they gone and do they have a balancing, have they got a balanced view between their interests and my interests and have they ever had a balanced view between their interests and my interests and do they presently have a balanced view between their interests and my interests and what are those interests, how have they played out in the past and how are they playing out now. I have taken the Court before to the recent assertions by Mrs Spencer in her submissions that essentially I have - she's not going to compromise, she has no belief that there is any need to cut the tree or limit the tree, that I have my views and she wants her privacy, or a little privacy that she seeks to assert. Now, all of that with respect has a history and all of it has a history of not being considered - that not being a considered view at all, and what I would be seeking to do is to show that through these documents evidence of that. Now, your Honour, that evidence, it's important to understand, would be admissions. There's not just credit. The documents is that being the author of the documents Mrs Spencer or Mr Spencer, whoever they are, whosever documents they are, are making admissions against interest, and whether such admissions are clear or reliable or informed, all of that can be dealt with at the trial, but at this stage the information should be made available so I can assess whether or not those documents reveal the sort of interest and needs that Mrs Spencer might wish to rely on under 14E or whether I would wish to rely on under 14E or under 14F(s).
The hearing, then progressed to a consideration of the various groupings of documents listed in the annexure to the Notice to Produce.
It was apparent from the process of doing this that Ms Spencer's responses to these various groupings, as set out in her affidavit, only addressed the first 11 groupings of the 18 groupings listed in the schedule providing the foundation for Mr Joseph's item 23.
It transpired that Ms Spencer had inadvertently overlooked addressing those additional groupings. Mr Joseph did not object to her doing so during this hearing. I adjourned for approximately 20 minutes to enable Ms Spencer to consider her response to the pages she had inadvertently overlooked. After this adjournment, the hearing progressed with Ms Spencer and Mr Joseph also addressing these additional groupings of documents sought.
Before turning to consider the question of the multitude of e-mails which Mr Joseph seeks as being listed in the schedule arising from item 23, it is appropriate to consider, separately, the first two items in Mr Joseph's annexure. The first of these pertained to documents of a contractual nature relating to work done by a builder for the Spencers during 2018. The work undertaken encompassed demolition of a structure that had been erected, at some earlier time, on an existing deck on the Spencers' property (Transcript 17 August 2021, page 46, lines 42 to 44).
The specific descriptor and identifiers of the documents concerning this demolition sought by Mr Joseph to be produced is set out in the schedule in the following terms: 3, 4, 5, 6, No receipts or quotes given, except for two estimates of the cost of the deck and a vanity drawing from Ian McGee. Work based on hourly rate. Cook Building Deck Estimated Cost 1/5/18 19/6/18 Vanity drawing Invoices from Cook Building: 22/1/18 (Incorrectly dated 20/12/18). 28/1/18 (Incorrectly dated 20/12/18) 14/2/18 22/3/18 23/4/18 Bank statements for above. Rick has supplied these.
Mr Joseph submitted that these documents would demonstrate that, for the purposes of at least the 2017 development application to the Council, the Spencers had knowingly misrepresented relevant factual matters concerning (as I understood Mr Joseph) the location of the structures relative to the FBL and the continuing existence of the structure as at the date of the Spencers' first development application to the Council.
Although Mr Joseph made reference in his submissions to what he said was the potential necessity for one or both of the Spencers to seek protection from self‑incrimination at the substantive hearing, that is not a matter of relevance for these interlocutory proceedings. It is sufficient, for present purposes, that Mr Joseph has submitted that the basis upon which he seeks production of these documents is to permit them, potentially, to provide a basis for cross‑examination of one or both of the Spencers on credit (if either or both of them chooses to give evidence of the substantive hearing).
It is to be observed that Ms Spencer's response to the submissions made by Mr Joseph concerning this limited range of documents was in the following terms: No legitimate forensic purpose. Does not relate to the tree dispute.
That the documents sought under this heading may, in fact, have no utility for the purpose for which they are sought (to attack either or both of the Spencers) is not a matter relevant at this interlocutory stage. It is enough, now, to address whether they have some apparent relevance, and this is sufficient to permit retention of the requirement that Ms Spencer produce them to the Court.
Mr Joseph submitted that the reason why the content of these documents potentially provided information concerning where the demolished structure had been located, with respect to the FBL, and when it had been demolished were matters going to credit should either and/or both the Spencers elect to enter the witness box. His explanation was lengthy and it is not necessary to set it out. It appears in the transcript at pages 46 to 48.
Although Ms Spencer said that the documents did not contain any such information (Transcript 17 August 2021, page 49, lines 9 to 13), nonetheless, there is apparent relevance for the contingent purpose of cross‑examination as to credit (as discussed in Blacktown). It is thus appropriate to permit Mr Joseph to require Ms Spencer to produce these documents.
However, the bank statements referred to in this element of the list in the annexure to item 23 of Mr Joseph's Notice to Produce can have no apparent relevance to any issues potentially engaged for the determination of Mr Joseph's Tree Dispute Application.

[90]

The e-mails in the schedule to item 23

Although, during the course of the hearing, a considerable portion of the afternoon session was devoted to each of the groups of e-mails in the remainder of the further seven‑plus pages of the list in Annexure A imported by item 23 of Mr Joseph's Notice to Produce, Mr Joseph was unable to explain, with any specificity, why any or all of these e-mails to or from the Spencers involving their advisers concerning (primarily the first) of the Spencers' development applications would have apparent relevance to any matters in dispute in Mr Joseph's Tree Dispute Application.
First, it is appropriate to observe that the passage from the transcript earlier set out, at [243], discloses three possible bases advanced by Mr Joseph as to why these e‑mails should be required to be produced by Ms Spencer. The first of them is that speculating on what might be the nature of the response advanced by the Spencers to Mr Joseph's view obstruction complaints. Second, that the unwillingness of the Spencers to compromise on their development proposal would constitute admissions going beyond the question of credit. The third reason, to the extent that it is able to be understood from Mr Joseph's submissions, is the inference that these e‑mails, to some extent, might provide a foundation to cross‑examine Ms and/or Mr Spencer as to credit (if either or both of them choose to give evidence at the substantive hearing). Although Mr Joseph made submissions concerning various of the individual groups of e‑mails sought, I am satisfied it is not necessary to address these in detail.
In particular, as earlier observed, a refusal by the Spencer's to compromise on the proposed design of the deck they wish to erect on the eastern side of the dwelling is not a matter relevant for the purposes of balancing factors requiring consideration on discretion arising from s 14 F of the Trees Act (a question which will only arise if the earlier set out jurisdictional prerequisites for getting to that point are established in Mr Joseph's case.
Mere general suspicion, without any demonstrable basis for it, cannot provide a reason to cause me to conclude that there was some apparent relevance of any of this multitude of e-mails. To the extent that Mr Joseph suspects that some or all of the e-mails in this extensive list might, speculatively, be of assistance to him in establishing that he had a basis to attack Ms and/or Mr Spencer as to their credit, if either or both of them chose to enter the witness box at the substantive hearing, in my assessment is a classic example of fishing of the nature described by Jordan CJ in Commissioner for Railways (see [73] earlier). This is a sufficient and appropriate basis to refuse to require Ms Spencer to produce any of these e‑mail chains.
In particular, it is appropriate to observe that the e-mails to or from HDC and Scott Keatley, although mentioning surveys and the FBL, all postdate the dates of the documents required to be produced from the builder who demolished the structure which had earlier existed in association with the Spencers' dwelling. As the location of this demolished structure, relative to the location of the FBL, could not be demonstrated by any post demolition survey, any such post demolition survey could not have apparent relevance for the purposes of some credit attack on Ms and/or Mr Spencer arising from statements made about the existence (or not) of that structure should they elect to enter the witness box at the substantive hearing.
As a result, the remainder of Annexure A as imported by virtue of item 23 is rejected.

[91]

Time for compliance with modified Notice to Produce

During the course of the hearing, Ms Spencer sought a longer period for compliance with the modified Notice to Produce that will result from the combination of her non‑opposition to some elements of Mr Joseph's categories of documents and my acceptance of others (whether modified for reasons earlier explained or allowed to stand unaltered). Ms Spencer explained that she was in Queensland, assisting in looking after a grandchild, and that COVID‑19 restrictions, as at the date of this hearing, would make it difficult for her to comply with a modified Notice to Produce by what I had indicated was to be the time allowed for satisfaction of the subpoenas for which Mr Joseph was to be granted leave. Mr Joseph opposed the granting of such a longer period for compliance.
Although the range of documents which Ms Spencer will be required to produce to the Court has been narrowed considerably as a result of the rulings I have earlier made, I am satisfied that it is appropriate to have regard to the state of COVID‑19 restrictions applying in both New South Wales and Queensland, as at the date of this decision (particularly the current New South Wales travel restrictions on entry to and egress from the Greater Sydney Region) and from what can be gleaned from New South Wales Government statements concerning potential timetables for possible relaxation of such restrictions, that it would be appropriate to permit a significantly longer period of time for Ms Spencer to comply with the modified Notice to Produce.
Given that the matter has been set down for a four‑day hearing commencing on 17 November 2021, setting a return date before the Registrar for the amended Notice to Produce of Friday 29 October 2021 will still permit sufficient time for resolution of any disputes concerning access to documents produced (such as claims for legal privilege), whilst still allowing Mr Joseph sufficient pre‑hearing time to examine the contents of any produced documents to which he will be granted access.

[93]

Orders

It therefore follows that the orders of the Court are: 1. The Applicant is granted leave to amend proposed order 2 of the relief sought in the application pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 by deleting the words "no greater than 2.4 metres from ground level" and inserting the words "no greater than 1 metre from ground level" for them; and 2. The Applicant's Notice to Produce to the Court, issued pursuant to r 34.1 of the Uniform Civil Procedure Rules 2005 to the Second Respondent, is set aside in part so that the Notice to Produce to the Court is confined to those documents for which production is required as set out in Schedule A to these orders; and 3. The return date before the Registrar of the Notice to Produce to the Court in (2) is amended by deleting "17 August 2021" and substituting instead "29 October 2021" as the date when its return is to be listed before the Registrar. Schedule A Revised schedule of items to be produced by Second Respondent pursuant to Notice to Produce to the Court dated 29 July 2021 served by the Applicant. 1 Production required of "This Notice to Produce" 2 Amended. Production only required only of "All "documents" in relation to and arising out of the purchase and supply of bamboo plants and/or irrigation system to 110 North Kiama Drive, Kiama Downs in about April 2020 including all emails, invoices and receipts and any other documentation in relation to any maintenance or service(s) of the same irrigation system" 3 Production required of "Any "documents" in relation to the plant pots place on or southern footpath of the property in period 1 January 2019 to date" 4 Rejected. Production not required. 5 Rejected. Production not required. 6 Production required of "All "documents" which arose from any investigation by you as to the type of plantings you intended to plant in about April 2020 on the southern boundary of your property" 7 Production required of "All "documents" being any planning you undertook in relation as to the appropriate plantings on the southern boundary of your property which took place in April 2020" 8 Production required of "All "documents" you have considered in relation to any impacts your intended plantings might have to the views from 108 North Kiama Drive before the plantings took place and since" 9 Production required of "Any 'documents' including reports in relation to any impacts which could have been caused by the planting of the bamboo on the southern border" 10 Amended. Production only required of "Any photographs in relation to any 'views' from 108 North Kiama Drive" 11 Rejected. Production not required. 12 Rejected. Production not required. 13 Rejected. Production not required. 14 Rejected. Production not required. 15 Production required of "The following emails together with the attachments sent by you on: a. 3 March 2019 to R Spencer "subject" for Stafford and attached files b. x(2) 28 January 2018 to Stafford Watts at 11.09 and 11.41 c. 26 January 2018 to Stafford Watts d. 28 March 2018 to Stafford Watts e. x(2) to Natalie Allan 12 April 2018 11.58; 12.42 16 Rejected. Production not required. 17 Production required of "All documents in relation to any expert opinions you have sought in relation to these proceedings, or more generally in relation to the impacts your plantings on the southern boundary of your property has had, or may have in the future" Note: Any legal advice for which privilege is claimed is to be placed in a sealed envelope with the envelope to be marked "legal privilege claimed". 18 Production required of "All documents in relation to any communications between you and "Bamboo South Coast pty/ltd" or associated business in relation to or arising out of the planting of bamboo and/or installation of watering system in 2020" 19 Rejected. Production not required. 20 Production required of "Any survey report obtained by you since April 2020 whether in relation to your own property or adjoining properties" 21 Production required of "All "expert reports" of Mr Mead, Dr Lamb. HDC and Eplanning in relation to your development proposals at the property". 22 Amended. Production only required of "Any statement made by you or Mr Spencer has made: a. in relation to the planting of bamboo on the southern boundary of your property in about 2020; b. deleted; and c. to the NSW Police in relation or arising out of an investigation by them involving plans or statements made by you or Mr Spencer and which were lodged with Kiama Municipal Council" 23 Amended. Production only required of "3, 4, 5, 6, No receipts or quotes given, except for two estimates of the cost of the deck and a vanity drawing from Ian McGee. Work based on hourly rate. Cook Building Deck Estimated Cost 1/5/18 19/6/18 Vanity drawing Invoices from Cook Building: 22/1/18 (Incorrectly dated 20/12/18). 28/1/18 (Incorrectly dated 20/12/18) 14/2/18 22/3/18 23/4/18"

[94]

Annexure A 1. The Second Respondent is granted leave to act as the First Respondent's agent for the hearing on 28 July 2021; 2. The Applicant's motion is adjourned until 10.00 AM on Tuesday 17 August 2021 before Moore J for hearing (maximum 1 day) with the method of holding the hearing electronically to be notified to the parties by the close of business on Monday 16 August 2021; 3. Any submissions and other material from the Respondents on the Notice of Motion for leave to issue subpoenas is to be filed and served by 4.30 PM on Thursday 12 August 2021; 4. Any submissions in reply from the Applicant to submissions and material filed and served pursuant (3) is to be of a maximum of 10 A4 pages and is to be filed and served by 12 noon on 16 August 2021; 5. Service for the purpose of (3) or (4) may be effected by placing the material in an envelope and leaving it on the front doorstep of the other party; 6. Direction (1) made by the Registrar on 19 July 2021 that the application be the subject of a hearing in court on Friday, 19 November 2021 is vacated; 7. The matter is set down pursuant to s34C of the Land and Environment Court Act 1979 for a 2 day hearing in court on Thursday 18 and Friday 19 November 2021 ; 8. The matter is set down for a pre-trial mention on Wednesday 3 November 2021 at 4.15 PM with the method of holding the pre-trial mention electronically to be notified to the parties by the close of business on Monday 1 November 2021 (the necessity for, and timing of, a site inspection will be addressed at the pre-trial mention); 9. Any application to set aside any subpoena or notice to produce to the court issued in these proceedings, or any dispute concerning access to any material provided pursuant to such a subpoena or notice to produce to the court is to be set down before Moore J at 8:30 AM for a maximum of 45 minutes on a date that will be notified to the parties and to the person or entity making the application to set aside the subpoena or notice to produce to the court and/or restrict access to material lodged with the Court pursuant to a subpoena or notice to produce to the court; 10. Any photographic or other image-based material proposed to be relied upon at the hearing by a party is to be filed and served as a colour image if the original material is in colour; 11. If the Respondents are to be legally represented, their legal representative is to file and serve a Notice of Appearance by the close of business on Friday 6 August 2021; 12. If Second Respondent is to seek leave to act as the First Respondent's agent for the hearing on 17 August 2021 (or generally), letters in support of granting such leave are to be filed and served with the submissions and material in (3) ; and 13. The parties have liberty to relist the matter before Moore J at 8.30 AM on three working days' notice to the other party and to the Court. Justice Moore 28 July 2021

Joseph v Spencer

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (95 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (3)