Joseph v Spencer

The Court's aspiration for simple and uncomplicated tree dispute hearings

1. It was the Court's hope that the development of the earlier described plain English approach to matters requiring to be dealt with under the Trees Act would foster processes where the need for legal representation would be minimal and the hearings could be conducted with as much informality as would be possible. This resulted, pre-pandemic, in virtually all matters being dealt with by on-site hearings. This enabled tree dispute matters to be resolved in a fashion consistent with the primary objective for civil litigation in NSW - being the just, quick and cheap resolution of all issues genuinely in dispute between the parties.
2. For the very great part, the tree dispute hearing process over the some thousand or more tree dispute cases that have been heard and determined by the Court has been conducted in this fashion. Indeed, again pre-pandemic, it was not unusual for Commissioners or Acting Commissioners who were appointed to hear tree disputes to be able to hear and determine two separate matters per day during the course of on-site hearings.
3. To assist in this process, in addition to the wide range of plain English materials provided on the Court's website concerning the tree dispute process, the Court has developed and published a number of tree dispute principles that provide guidance to the approach likely to be taken concerning certain aspects frequently arising in tree dispute proceedings.
4. In addition, the Court has also developed and maintained an annotated copy of the Trees Act on its website. This annotated legislation illustrates how various provisions of the Trees Act have been approached since the inception of the legislation or, here relevantly, since the enactment of Pt 2A, to the application of the provisions concerning hedges (noting, however, that each case turns on the individual facts and circumstances engaged in considering any specific application under Pt 2 and/or Pt 2A of the Act).
5. This case is a stark outlier in contrast to that approach.
6. The reason for that observation is apparent from my setting out of the interlocutory procedural history and the matters with which it is now necessary to deal in addressing the matters giving rise to this decision - these being the orders proposed by the Further Amended Notice of Motion filed by Mr Joseph on 10 January 2022 and the Notice to Produce to the Court No 4 dated 29 December 2021 served by Mr Joseph on Ms Spencer.

The listing for the substantive hearing

1. As I have earlier noted, the vast majority of tree dispute applications are dealt with in short, comparatively informal hearings (often, pre-pandemic, being dealt with entirely on-site). That is not here the position.
2. This matter has been set down for a five day hearing commencing with a site inspection. The site inspection is to be undertaken on Monday 7 February by the presiding Commissioner (it is here to be noted that I am not the substantive decision-maker in these proceedings) with the following four days to be held in court in Sydney. That hearing will necessarily be conducted in accordance with the Court's COVID-19 Pandemic Arrangements Policy December 2021.
3. It is to be noted that the length of time allocated for this hearing (together with the extraordinary breadth of matters pursued by Mr Joseph during the interlocutory proceedings in this matter) go far, far beyond anything that might ordinarily be expected to have arisen concerning the bamboo located on the southern boundary of the Spencers' property.
4. It is to be noted that a substantive hearing of Mr Joseph's tree dispute application had originally been scheduled for early November 2021 with this hearing being vacated primarily because Ms Spencer was, at that time, located in Queensland and unable to attend a hearing in Sydney for Covid-19 related reasons.

Directions to seek pretrial procedural finality

1. On 30 November, I directed that any further pre-trial interlocutory applications concerning Mr Joseph's Notices to produce were required to be filed and served no later than 10 January 2022 and that the hearing of any such application, if made, was to be set down before me on Wednesday, 12 January 2022. The purpose of this foreclosing process was to ensure that all potentially engaged and foreseeable pre-trial processes would be completed in sufficient time to permit proper preparation for the hearing commencing on 7 February and to seek to avoid any application being made to vacate those dates.

Introduction

1. The matters arising for consideration in these interlocutory proceedings are informed by provisions arising in a framework derived from four separate legislative instruments. Those instruments are: 1. the relevant provisions in the Trees Act that set jurisdictional tests requiring to be satisfied for any application made pursuant to Pt 2A of that Act and, if those jurisdictional tests are satisfied, the non-exhaustive list of matters able to be considered by the Court in determining whether or not to order intervention with respect to any hedge where those jurisdictional tests have been satisfied; 2. the relevant provision in the Regulation bringing bamboo within the scope of the Trees Act; 3. provisions of the Civil Procedure Act 2005 (the Civil Procedure Act) that provide the framework set by the legislature for the conduct of civil litigation in this state (here, relevantly, in this Court); and 4. elements of the Uniform Civil Procedure Rules 2005 (the UCPR), the detailed subordinate legislation framework for, here relevantly, applications made pursuant to the Trees Act.
2. One provision of the Evidence Act 1995 (the Evidence Act) potentially arose but did not require consideration. It therefore does not require reproduction.

The Trees Act provisions

1. The relevant jurisdictional prerequisite provisions in Pt 2A of the Trees Act to which later reference requires to be made are in the following terms: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). (2) ... 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) …, and (b) …. (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) …, 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.
2. The relevant evaluative provisions in Pt 2A of the Trees Act which are engaged if the Court's jurisdiction is engaged are in the following terms: 14D Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of: (a) …, or (b) any view from a dwelling situated on the applicant's land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned. (2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may do any or all of the following: (a) require the taking of specified action to remedy the obstruction of sunlight or of a view, (b) require the taking of specified action to restrain or prevent the obstruction of sunlight or of a view, (c) require the taking of specified action to maintain a tree or trees at a certain height, width or shape, (d) require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree, (e) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), (f) authorise the applicant concerned to take specified action to remedy, restrain or prevent the obstruction of sunlight or of a view, (g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), (h) require the payment of costs associated with carrying out an order under this section. (3) However, the power to make an order under subsection (1) does not extend to an order that requires the payment of compensation. 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.

The Regulation

1. The Regulation brings bamboo within the scope of the Trees Act via cl 4(a), a deeming provision in the following terms: 4 Prescribed plants For the purposes of the definition of tree in section 3(1) of the Act, the following plants are prescribed - (a) bamboo, (b) …, (c) ….

The Civil Procedure Act

1. The relevant provisions of the Civil Procedure Act to which later reference will need to be made are set out in Div 1 Guiding principles in Pt 6 Case management and interlocutory matters of the Act. The relevant provisions are in the following terms: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) …. (3A) (Repealed) (4) …. (5) …. (6) …. (7) (Repealed) 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) …, and (ii) …, and (iii) any other order of a procedural nature, and (iv) …, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) …, (ii) …, (iii) …, (iv) …, (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.

The UCPR

1. The UCPR provides, in Pt 34, the basis on which a party to civil litigation can serve a Notice to Produce to the Court on another party to that litigation, requiring that second party to produce documents or things to the Court. Such documents or things can, by subsequent order of the Court after their production, be made available for inspection and/or copying by the party who served the Notice in the first instance. It is not necessary, in for the purpose of this interlocutory decision, to repeat any element of Pt 34.
2. The UCPR, at the present time, does not require that self-represented litigants (as is here the position of Mr Joseph and the Spencers) seek and obtain leave of the Court prior to the issuing of any Notice to Produce to the Court for the service of such a Notice on another party to the litigation.
3. It is to be noted that, as is the case in matters later addressed, a party who has been served with a Notice to Produce to the Court can object to the requirement to comply that Notice, in whole or in part.
4. As will later become obvious, Ms Spencer objects to being required to comply with matters set out in Notice to Produce to the Court No 4 dated 29 December 2021, served on her by Mr Joseph and returnable before the Acting Registrar of this Court on 18 January 2022.
5. On the other hand, Mr Joseph seeks, by item 16 in his Further Amended Notice of Motion, to add a further dozen or so obligation creating paragraphs to the existing paragraphs contained in Notice to Produce to the Court No 4.
6. However, a different position obtains where a self-represented party wishes to serve a subpoena on an individual or entity requiring that individual or entity to produce documents or things to the Court for inspection by the parties to the litigation where, subject to any objections from the individual or entity served with such subpoena, the material may be relied upon by a party to the litigation for evidentiary purposes.
7. A self-represented litigant requires leave of the Court before being able to initiate such a subpoena process concerning an individual or entity not a party to the proceedings. The requirement for such consent arises as a consequence of the terms of r 7.3 of the UCPR, a rule in the following terms: 7.3 Issue of subpoena in certain circumstances requires leave (1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings. (2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas. (3) ….

Evidence v Submissions

1. In my decision of 15 September 2021 in Joseph No 1, I wrote at [95]: 95. One of the matters I explained to Ms Spencer was the difference between evidence and submissions, given that, on my preliminary reading of her affidavit filed in support of her Notice of Motion, there was clearly material contained in that document which was potentially evidence but there was also other material that was clearly submissions. When it came to the issue of what elements of her affidavit were to be regarded as evidence and what were to be regarded as submissions, I explained to her which paragraphs fell in each category.
2. I have approached Ms Spencer's material in this fashion throughout all the interlocutory proceedings.

Representation

1. Although Mr Joseph is a retired Senior Counsel, he no longer holds a practising certificate and thus appears as a self-represented litigant. Mr and Mrs Spencer have not had any lawyer file a Notice of Appearance in these proceedings. And no lawyer has appeared to act as an advocate on their behalf during any of the interlocutory hearings before me.
2. Since the commencement of my dealings with interlocutory matters arising in these proceedings, I have granted Ms Spencer leave pursuant to s 63 of the Land and Environment Court Act 1979 (the Court Act) and r 7.7 of the Land and Environment Court Rules 2007 for her to act as Mr Spencer's agent. That leave continues and will be the position applying at the substantive hearing if the Spencers wish that position to continue.
3. It is to be noted that Mr and Ms Spencer are dentists (Ms Spencer having retired from that profession). Each of them is entitled to be referred to by the honorific "Doctor" (abbreviated as "Dr" as an ante-nominal). I have been referring to the second respondent as Ms Spencer throughout the various interlocutory hearings and decisions I have given. I have not meant any disrespect in doing so, it is simply a convenient way of distinguishing between the two "Doctors Spencer" when necessary to refer to them individually. I propose to continue, in this decision, to refer to them in that fashion.
4. I have had to inspect more than 1000 pages of documents and rule upon them during the course of assessing whether or not any of these documents produced by Ms Spencer to the Court were subject to valid claims of privilege pursuant to either ss 118 or 120 of the Evidence Act. Those documentary examinations (necessitating several days of my attention examining documents including at least one weekend) revealed that the Spencers have received some legal advice concerning aspects of the proceedings and have also had correspondence which, separately, falls within the scope of privilege arising for self-represented litigants pursuant to s 120 of the Evidence Act.
5. Ms Spencer was successful in her claim for privilege pursuant to ss 118 or 120 of the Evidence Act with respect to a limited range of those documents. It is to be observed that the rulings made by me concerning whether Ms Spencer's claims for privilege were successful were not encompassed in any of the published interlocutory decisions earlier set out. My consideration of, and rulings upon, Ms Spencer's claims for privilege were dealt with in chambers (without any objection by the parties to this process).
6. It is to be observed that there have also been numerous attendances in the Registrar's list for these proceedings - again, a position contrary to the ordinary processes of the Court in such matters when it is expected that there will be a single pre-trial appearance (when appropriate elements of the standard tree dispute directions are made) prior to the substantive hearing of the relevant tree dispute application.
7. Finally, for completeness, it is to be noted that two of the interlocutory decisions I have given (Joseph No 2 and Joseph No 3) followed subpoenas to Mr Rasa and Ms Spencer respectively, requiring them to attend and be cross-examined as to their failure to comply with the terms of obligations imposed on them by court order to produce documents to the Court. I am unaware of any other tree dispute application where such a process has been necessary to be invoked - let alone invoked twice.

Mr Joseph's Further Amended Notice of Motion of 10 January 2022

Introduction

1. On 24 December 2021, Mr Joseph filed a Notice of Motion and a supporting affidavit (and annexures to it) for the purposes of this Notice of Motion being listed before me for hearing on 12 January 2022. This Notice of Motion constituted the matter, therefore, to be set down for hearing.
2. On 7 January 2022, Mr Joseph filed an Amended Notice of Motion. He did so without seeking leave to substitute this for the original Notice of Motion. The change sought to be made by the amendment was, on my assessment, of minor consequence.
3. On 10 January 2022, Mr Joseph filed a Further Amended Notice of Motion, again proposing changes (these being of far greater consequence than that proposed by the first amended version). Included in these amendments was the parachuting into this proposed Notice of Motion of a proposal that leave be given to issue an Amended Notice to Produce to the Court No 4 addressed to Ms Spencer, a proposal for which Mr Joseph had sought acceptance for issuance without filing a Notice of Motion seeking consent for this to occur. This had resulted in the Acting Registrar rejecting this document and, thus, Mr Joseph seeking to insert this further procedural outcome into the omnibus Further Amended Notice of Motion upon which he proposed to move on 12 January.

The terms of the Further Amended Notice of Motion

1. Reproduced below are, as filed with the Court (spelling errors being as in the original document), the terms of the orders sought by Mr Joseph's Further Amended Notice of Motion: Requirement to file and serve Affidavit of Compliance by Second Respondent of Notice to Produce 15 November 2021 Pursuant to s61 and s68 of Civil Procedure Act, s38(4) of Land and Environment Court Act, the Court orders: 1. That the Second Respondent file and serve on the Applicant and affidavit verifying complete production of documents required to be produced as ordered by Moore J on 15 November 2021 (order 3) identifying each search undertaken to ensure compliance. 2. Such affidavit shall include the following information in relation to order 2(1); a. The date of emails produced in response to order 2(1) b. The description of the attachment in response to order 2(1) c. The sender and address of each email produced in response to order 2(1) In relation to order 2(2) d. The name of the computer file produced and the device it was sourced from e. The description of all computer devices searched f. The server(s) searched on each device. In relation to order 2(3) g. The origin/source of the photographs and photomontages. h. A description of the photograph and/or photomontage i. The date of the photograph and photomontage j. The source from which the photograph photomontage was obtained from what server or how obtained. In relation to order 2(4) k. The date of each emails produced to order 2(4) and server of each email l. description of the source of each email, from which device, and how obtained m. A description of any attachments to each email In relation to order 2(5) n. The date of each email produced to order 2(5) and the server of each email o. A description of the source of each email, from which device and how obtained p. A description of any attachment to each email. DELETE [3)-[6] Second Respondent to Produce documents with declaration 3. The Applicant be granted leave to file and serve subpoena on Second Respondent to produce documents with declaration in form attached to affidavit the Applicant in support of motion. 4. The return date of this subpoena be appointed by this court. Alternatively Leave to file and serve Notice to Produce documents and thing on Second Respondent with Declaration pursuant to UCPR 21.10 and/or UCPR 34.1 5. The Applicant is granted leave to file and serve Notice to Produce on Second Respondent with declaration in terms of that attached to affidavit of Applicant in support of this motion. 6. The return date of this notice to be appointed by this court. Leave to issue Subpoena on Mr Rasa to Produce documents and thing with declaration 7. That the Applicant be granted leave to issue subpoena to produce documents on Mr Rasa as director of Rabebi Pty Ltd, annexed to this notice of motion 8. The return date of this subpoena to be appointed by this court. Mr Rasa be ordered to attend for cross examination at trial. 9. That the Respondents to advise the Applicant if Mr Rasa's report of 16 December 2021 is to be relied upon within 7 days. 10. If such reliance is advanced, the Respondents that it be a term that Mr Rasa be available for cross examination. Leave to issue subpoena on NSW Police 11. That the Applicant be granted leave to issue subpoena to produce documents on the NSW Police annexed to this notice of motion. 12. The return date of this subpoena to be appointed by this court. First Respondent to file and serve Affidavit of Compliance 13. First Respondent be ordered to file and serve Affidavit of Compliance in respect of Court ordered Notice to Produce ordered on 15 November 2021 within time specified by this Court. Mr Rasa be ordered to be available for cross examination of hearing. 14. This court ordered that Mr Rasa be available for cross examination at hearing of tis matter in week of 7th February 2022 ADDED ORDER Respondents ordered to advise of Persons, if any, required for cross-examination 15. The Respondents within seven days of this order advise the Applicant by email as to which of the following persons are required for cross-examination. a. The applicant b. Mr Leftwich c. Ms D O'Connor FURTHER ADDED d. Mr Cook FURTHER ADDED 16. The Applicant be given leave to amend Notice to Produce No 4 ANNEXED HERETO filed but rejected by Registrar on 10 January 2022 Other orders 17. Such other order(s) as the court thinks fit.

The proposed amendments to Notice to Produce to the Court No 4

1. The proposed amendments to Notice to Produce to the Court No 4 seeking to add a range of further obligations to be imposed on Ms Spencer are set out below. It is to be observed that, following this material, the relevant paragraphs of Notice to Produce to the Court No 4, which had already been served on Ms Spencer by Mr Joseph (the Notice being dated 29 December 2021) are also set out (as they require consideration in the context of Ms Spencer's objections to being required to comply with Notice to Produce to the Court No 4). The proposed added obligations are in the following terms: 8. Any document being the response by the company to the email dated 1 September 2021 at 2.49pm (attached) sent by Mrs Spencer to Mr Rasa. 9. All documents as to any financial arrangement between the company and the Respondent(s) in respect of the production of "the report" including any invoices and/or receipts in relation to same. 10. All documents in relation to financial arrangement between the company and the Respondents for its work in respect of development application it lodged with Kiama Municipal Council in relation to the property including any documents evidencing any outstanding monies owning. 11. Any photographs or photomontages in relation to views or impacts from either 108 and/or from 110 North Kiama Drive in respect to developments at the property. 12. AII documents being correspondence/communications between Mrs Spencer and Digitalline pty Ltd (Mr Medvedskiy) between March 2020 and October 2021 including any attachments including documents evidencing the forwarding of such documents to advisors of the respondents. 13. AII photomontages/photographs provided to the Respondents by Digitalline Pty Ltd during period March 2020 and October 2021 including those sent by email from the Respondents to their consultant planners/architects after receipt. 14. All documents being originals of the "copied" emails provided by the Respondents to the court, under heading "emails from server" being a response to item 15 of Notice to Produce served.(p193annexure A to affidavit of M Joseph of 24 December 2021) and the original emails dated 2nd and 3rd October 2021 (p172-173a annexure A of affidavit of Mr Joseph of 24 December 2021)). 16. Photograph of 110 North Kiama taken from the east in about April 2018 showing the enclosure removed on upper level (at p 31 of Annexure A to Affidavit of M Joseph 20 October 2021). 17. The "phone" referred to in transcript identified at p 43 and 48 (p171c and p171q of annexure A to affidavit of Mr Joseph of 24 December 2021) and to be opened at the mailbox in relation to address jenniferspencer@outlook.com. 18. The email and any documents attached to in email from Eplanning to Mrs Spencer dated 4 February 2021. 19. Any report provided to you in response to your email requesting same in email from Mrs Spencer to Eplanning dated 25 January 2021. 20. An document identifying the log in password for the server account in the name jenniferspencer@outlook.com. 21. Any document evidencing the production by first or second respondent of documents to Land and Environment Court pursuant to Notice to Produce ordered on the First Respondent prior to 16 December 2021, including any emails sent by the First or Second Respondent to the Court in relation to the production of same in the week of 13 December 2021 including any document evidencing "express post" of such documents to the Court. 22. All 5 emails (and attachments) dated 8/3/2018 identified in list headed "List as given to me by Jennifer of what she holds -attachments where mentioned" annexed hereto.(p126 Annexure A of affidavit of M Joseph 20 October 2021).

The original terms of Notice to Produce to the Court No 4

1. As foreshadowed above, I now set out the terms of Notice to Produce to the Court No 4 as signed by Mr Joseph on 29 December 2021 and subsequently served on Ms Spencer. In doing this, it is to be noted that paragraph 8 in the terms reproduced below has been sought to be amended by the terms of paragraph 8 of the amendments proposed by Mr Joseph to be permitted as a consequence of order 16 in his Further Amended Notice of Motion. The terms of paragraphs 1 to 13 of the 29 December 2021 version of Notice to Produce to the Court No 4 are: Without limiting the generality of the meaning of the word "Documents" where that word appears in this subpoena it includes letters, correspondence, electronic mails, attachments to any emails, text messages facsimile transmissions, file notes memoranda, accounting records statements, order forms, invoices, receipts, drawings, plans, sketches and specifications, notes of meetings, dealings, authorities, consents and anything from which sounds, images or writings can be reproduced with or without the aid of anything else, any drafts and any attachments to emails, advising from any experts or any copies thereof; "documents" includes any documents in your possession or in possession of Mr Spencer "the property" is `110 North Kiama Drive "the report" is that dated 16 December 2021 being Job Ref 20-23 sent to Mr and Mrs Spencer authored by Mr Rasa. "the company" PRD Architects a division of Radebi Pty Ltd ACN 002557842 ABN 24002557824, its servants and agents and Mr Rasa "you" means Mrs J Spencer either in her own name, or joint name, or in Mrs Spencer's sole possession or joint possession with Mr R Spencer. The documents or things you must produce are as follows; 1. This subpoena 2. All "documents" in relation to the provision of "the report" including all documents as to the "instructions" provided by Mr and Mrs Spencer concerning the same. 3. All documents being communications between the company and Mr and Mrs Spencer in respect of the provision "the report" including any requests for information. 4. All literature or other materials sent to the company or Mr Rasa by the Respondents for the provisions of "the report". 5. Any draft(s) of "the report". 6. All photographs taken by Mr Rasa on any visit to the property and on his visit to 108 North Kiama Drive. 7. All documents in relation to instructions to the company and Mr Rasa in relation to; a. The provision of Architectural plans. b. Provision of the development application lodged with KMC in 2021 in respect of the property c. Provision of the report. 8. Any response by the company to the email dated 1 September 2021 at 2.49pm sent by Mrs Spencer to Mr Rasa. 9. Any document in relation to any inquiry made by Mr Rasa seeking any documentation to assist in the making of the report. 10. All documents considered provided by the Respondents in relation to the content of the report. 11. All documents as to the financial arrangement between the company and the Respondents in respect of the production of the report including any invoices and/or receipts in relation to same. 12. Documentation in relation to accounting between the company and the Respondents for its work in respect of development application it lodged with Kiama Municipal Council including any outstanding monies owning. 13. Any photographs or photomontages in relation to 108 and/or 110 North Kiama Drive.

Ms Spencer's proposed Notice of Motion

1. Late on the afternoon of 10 January, Ms Spencer sought to file a Notice of Motion and an affidavit supporting it. The orders sought in her proposed Notice of Motion were: 1. I seek to have Notice to Produce Number 4 set aside. 2. I seek to have this Tree Dispute referred to as a "hearing", not as a "trial".
2. The Acting Registrar did not accept this Notice of Motion and advised Ms Spencer that she should raise the matter with me at the hearing on 12 January. As can be seen from the terms of the first order she proposed, that which she sought was capable of being addressed by her opposing the entirety of Notice to Produce to the Court No 4 - as the whole of the Notice was in play by virtue of Mr Joseph's proposed order 16, not merely the amendments that which Mr Joseph proposed on 12 January be made to Notice to Produce to the Court No 4 by the effect of his order 16 of his Further Amended Notice of Motion.
3. It is to be observed that the second order proposed to be sought by Ms Spencer demonstrates a, perhaps, understandable misapprehension of the nature of court processes. In broad terms, the words "trial" and "hearing" are capable of interchangeable use in the present context.
4. As later noted in my setting out of the evidence for the hearing of 12 and 13 January, Ms Spencer's affidavit became part of the evidence at this hearing.

The state of the evidence as at 12 January 2022 for the substantive hearing

1. As at the commencement of the interlocutory hearing on 12 January, the evidentiary position for the substantive hearing was, as I recollect it, that: 1. Mr Joseph had filed substantial documentation as part of his original tree dispute application (from memory comprising nearly 300 pages of material); 2. Mr Joseph had subsequently filed an affidavit in October 2021 which also had annexed to it a further substantial volume of documentary material; and 3. Mr Joseph had filed a further affidavit (of some 39 pages), together with an annexure comprising nearly 230 pages of documents with this affidavit and its annexures being dated 24 December 2021. Although the Acting Registrar originally rejected the affidavit (as she considered it had not been appropriately executed), the defects she had identified were rectified by Mr Joseph and this affidavit and its annexed material have been filed.
2. All of the above material, as I understand it, has been served on Mr and Ms Spencer.
3. In addition, there have been a range of submissions and other documentary material provided by Mr Joseph during the course of the earlier interlocutory proceedings. It may well be that Mr Joseph will seek to rely on some or all of that material at the substantive hearing. This, however, is a matter for him to pursue with the presiding Commissioner at that time.
4. It is also to be observed that a significant amount of documentary material has been produced (primarily electronically) in response to earlier Notices to Produce to the Court served on Mr or Ms Spencer as well as material produced pursuant to subpoenas for which leave was given by me in September 2021 as dealt with in Joseph No 1.
5. The time for Mr Joseph to file his primary evidence for the purposes of the substantive hearing has now passed.
6. The pre-trial timetable set 21 January 2022 as the date by which the Spencers were to file and serve the evidence upon which they propose to rely for the purposes of the substantive hearing.
7. Whether or not the Spencers will comply with that timetabling order is not a matter arising for consideration in this decision. It is sufficient to note that, on 11 January 2022, an affidavit of Mr Peter Rasa and an annexed document entitled "View analysis - 108 North Kiama Drive, Kiama Downs" was sought to be filed electronically on behalf of the Spencers. This affidavit was rejected by the Acting Registrar as it was undated. Whether or not a dated version of the affidavit has now been filed is also not a matter of relevance in my consideration of the matters addressed during interlocutory hearing of 12 and 13 January.
8. However, a document authored by Mr Rasa dated 16 December 2021 and entitled "View analysis - 108 North Kiama Drive, Kiama Downs" formed pages 40 to 45 inclusive of the annexures to the "affidavit" of Mr Joseph of 6 January 2022 relied upon by him in support of his Further Amended Notice of Motion.
9. I have not undertaken any comparison of the document forming part of the annexure to Mr Joseph's "affidavit" with that filed by the Spencers as the attachment to Mr Rasa's rejected affidavit.
10. It is sufficient, for present purposes, to note that the document prepared by Mr Rasa as annexed to Mr Joseph's 6 January "affidavit" is referenced as "the report" by Mr Joseph for the purposes of these interlocutory proceedings.

The evidence for the interlocutory hearing on 12 and 13 January

Mr Joseph's evidence

1. Mr Joseph read an "affidavit" deposed by him on 6 January 2022, an "affidavit" of eight pages accompanied by 54 pages of annexures. The eight pages of the "affidavit" included significant elements which were properly to be characterised as submissions rather than evidence and also included a number of inappropriate uses of intemperate and/or florid language.
2. Although, as earlier noted, Ms Spencer had provided similarly composite "affidavits", I should have been entitled to assume that a recently retired member of the Inner Bar would know the difference between evidence and submissions and, in addition, what was not language appropriate to be used in such a document. This turned out to be a seriously misplaced expectation.
3. I indicated to Mr Joseph that I proposed to treat the material in his "affidavit" that was properly evidence in that fashion; that I would treat material properly to be characterised as submissions as being submissions; and that I proposed to ignore the intemperate and/or florid elements of the language inappropriately used in the document. As can be seen from the earlier reproduced extract from my decision in Joseph No 1 concerning the approach I advised Ms Spencer I was taking in those earlier interlocutory proceedings, I have thus treated Mr Joseph in the same fashion.
4. Mr Joseph also tendered a copy of an email sent by Ms Spencer to Dr Richard Lamb on 21 April 2020 (at 12.47 PM) concerning the bamboo that she had planted. This email was accompanied by three colour photographs. An email from Dr Lamb to Mr and Ms Spencer sent earlier on 21 April 2020 and an accompanying marked up photograph taken from inside Mr Joseph's playroom at the lower level of his dwelling comprised the second element of this tendered document. This material was tendered without objection and became Exhibit A on Mr Joseph's Further Amended Notice of Motion.
5. To provide some contextual understanding of the nature of the vegetation that lies at the heart of this dispute, I reproduce, at Annexure A to this decision, the photograph which is the second page of Exhibit A. It is taken from the Spencers' property toward Mr Joseph's dwelling and shows the extent, as at the date it was taken, of the bamboo which is the subject of Mr Joseph's tree dispute application.

Ms Spencer's evidence

1. Ms Spencer sought to read an affidavit of 10 January 2022. Mr Joseph objected to paragraphs 19 and 28 of the affidavit on the basis that they contained material expressed in the plural with Ms Spencer speaking, in that fashion, on behalf of herself and her husband. With a minor adjustment to the wording of each of the paragraphs to make it clear that she was expressing her opinion and what she understood to be the position with respect to her husband, the affidavit was read.
2. Ms Spencer did not seek to tender any material.
3. It is to be observed, however, that Ms Spencer did provide written submissions in support of her objection to being required to comply with Notice to Produce to the Court No 4.

Consideration of the evidence and submissions

1. In my consideration of the issues arising in these interlocutory proceedings concerning Mr Joseph's Further Amended Notice of Motion; Mr Joseph's original Notice to Produce to the Court No 4 as served on Ms Spencer; and Mr Joseph's proposed Amended Notice to Produce to the Court No 4, I have had regard to all of the evidence noted above and to the written and oral submissions made concerning those matters.

The hearing on 12 January

1. The hearing on 12 January was conducted with Mr Joseph appearing remotely by telephone and Ms Spencer appearing remotely by AVL link. The hearing was primarily taken up with formal matters and by cross-examination of Ms Spencer by Mr Joseph. This cross-examination was wide ranging. However, I am satisfied that it is not necessary for me to reproduce in any detail matters arising during the course of that cross-examination. This is because the matters requiring to be addressed can be dealt with generally at the level of broad principle for the most part as later discussed in my consideration of matters arising under Pt 6 of the Civil Procedure Act.
2. The hearing did not occupy the entirety of the available time that day as I had not been provided with a copy of Mr Joseph's Notice to Produce to the Court No 4 in its original form as signed by him on 29 December 2021 and served on Ms Spencer. Having access to a copy of this document was essential to enable me to understand the scope of the amendments to it sought by Mr Joseph's proposed order 16 in his Further Amended Notice of Motion and to understand the basis of Ms Spencer's objections to compliance with the Notice to Produce.
3. Mr Joseph was requested to email Word documents to the Court's general email address, noted for my attention, these being not only a copy of the original version of Notice to Produce to the Court No 4 but also the terms of his proposed subpoenas to Mr Rasa and to the NSW Police. He agreed to provide these and subsequently did so. Provision of this material in Word format has assisted in my speedy preparation of these reasons for decision.
4. The hearing on 12 January was therefore adjourned until 11 AM on 13 January (as I had in earlier duty judge matter listed for 9 AM that day) for the purposes of my hearing from Mr Joseph as to the reasons for, and any submissions by him or Ms Spencer on, Mr Joseph's proposed amendments to Notice to Produce to the Court No 4.

The hearing on 13 January

1. At 11 AM on 13 January, Mr Joseph attended by telephone link (as he had done the previous day). Ms Spencer was not in attendance by AVL link (as she had attended on the previous day) nor was she in attendance by telephone. I waited some minutes to see if Ms Spencer joined the hearing, but she did not. After waiting what I considered to be an appropriate period and formally calling the matter several times, I invited Mr Joseph to address each of the matters in his proposed amendments to Notice to Produce to the Court No 4. He did so and, in the course of this, indicated that he did not press the matters in paragraphs 12, 21 and 22 of the amended version.
2. At the conclusion of hearing from Mr Joseph, I reserved my decision (Ms Spencer not having joined the hearing by that time).

Legal principles

1. In earlier interlocutory decisions in these proceedings, it has been necessary to reference a range of legal principles to be applied in assessing whether all or parts of Subpoenas or Notices to Produce should be permitted to stand (as dealt with recently in cases such as Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 and Rinehart v Rinehart [2018] NSWSC 1102). However, for reasons later made obvious, such matters of specific assessment do not require to be addressed in the context of the matters requiring consideration in these interlocutory proceedings.
2. The sole matter of evidentiary principle, which does require comment, is the prohibition on using pre-trial processes for the purposes of conducting "fishing expeditions" (Commissioner for Railways v Small (1938) 38 SR (NSW) 564). This prohibition expressly arises as being applicable concerning several of the elements proposed by Mr Joseph in his proposed amendments to Notice to Produce to the Court No 4.

Introduction

1. I now turn to address the various elements engaged for consideration arising out of: 1. Mr Joseph's Further Amended Notice of Motion (noting that proposed orders (3) to (6) inclusive were not pressed by Mr Joseph); 2. Notice to Produce to the Court No 4 in the form signed by Mr Joseph on 29 December 2021 and served on Ms Spencer; and 3. Mr Joseph's proposed amendments to Notice to Produce to the Court No 4.
2. The various elements of the matters dealt with by this decision can be divided, conveniently, into a number of categories. These categories are: 1. requirements of an administrative nature; 2. requirements of a pre-trial procedural nature; 3. requirements seeking tidying up of earlier responses by Mr and/or Ms Spencer to produce documents; 4. requirements of an appropriate pre-trial nature; 5. requirements sought to be imposed on Ms Spencer to produce further documents or things to the Court to be available for inspection by Mr Joseph. These requirements comprised the matters in Notice to Produce to the Court No 4 to Ms Spencer as served on her and matters sought to be added by Mr Joseph to that Notice by the operation of his proposed order (16) of his Further Amended Notice of Motion; and 6. proposed requirements sought to be imposed, by new subpoenas, on third parties to produce documents to the Court for inspection by Mr Joseph; and 7. Other matters not earlier dealt with.
3. Matters in the first, second, third, fourth and seventh categories are later dealt with on their merits.
4. Matters in the fourth and fifth categories are to be dealt with on the basis of general principle, given the time that has elapsed since the commencement of these proceedings, the extensive earlier interlocutory proceedings and the limited time which now remains prior to the substantive hearing scheduled to commence on 7 February.

Introduction

1. Before giving such specific rulings as are necessary concerning matters in first, second, third, fourth and seventh categories, it is appropriate, first, to address matters of general principle concerning matters in categories (5) and (6) arising out of the provisions earlier set out at [35] contained in Div 1 Guiding principles in Pt 6 Case management and interlocutory matters of the Civil Procedure Act.
2. As earlier noted, Mr Joseph's tree dispute application was filed on 17 June 2021. I have also earlier noted the various interlocutory decisions that I have given arising out of the various pre-trial applications as a consequence of Mr Joseph seeking to require Mr and/or Ms Spencer or third parties to produce material to the Court for his inspection and consideration as to whether he wished to seek any of that produced material for evidentiary purposes at the substantive hearing.
3. It is not necessary now to address in detail any of the matters dealt with in Joseph No 1 to Joseph No 5. It is sufficient to note that, as even a cursory examination of those decisions will reveal, there have been extensive and vigorously contested interlocutory disputes about the very wide range of information which Mr Joseph has sought be required to be produced. Nor can it be doubted that Mr Joseph has already sought to make extensive use of pre-trial processes to seek access to potential evidentiary material.
4. In addition, I have also set out, without attempting to go into any detail as to the contents of the material, the extent of the three tranches of affidavit and annexed documentary material filed and served by Mr Joseph for the purposes of the substantive hearing.
5. All of the above has, self-evidently taken place over a period of approximately seven months.
6. As at 10 January 2022, by filing of his Further Amended Notice of Motion, Mr Joseph makes, relevantly to matters requiring consideration on the basis of general principle, extensive applications for the creation of new obligations on Mr and/or Ms Spencer and on third parties to produce swathes of new and additional material (these falling within categories (5) and (6) noted above) less than a month prior to the commencement of the scheduled five-day substantive hearing of Mr Joseph's tree dispute application.
7. I am satisfied, at a broad level of generality, that to permit Mr Joseph to be allowed to impose the requirements for provision of information falling within these two categories would be contrary to the overriding purpose of the Civil Procedure Act set out in s 56(1) of that Act. Permitting creation of these new obligations (particularly the issuing of a subpoena to the NSW Police) creates the potential for further interlocutory proceedings and a very real risk that the trial dates would not be able to be held if there was any material slippage in compliance with these proposed obligations.
8. In addition to this broad basis upon which I consider it appropriate to reject permitting Mr Joseph to impose the obligations in these categories, I am satisfied that to permit him to do so would be contrary to the second and third objects of case management for civil litigation set out in s 57(1) of the Civil Procedure Act and the requirement with respect to those case management principles set out in s 57(2) of the Act.
9. It is also to be noted that s 58 of the Civil Procedure Act is entitled "Court to follow dictates of justice". This provision requires, in s 58(1)(a)(iii) and (b) that, here, relevantly, I must seek to act in accordance with the dictates of justice. Section 58(2)(a) requires that I must have regard to the provisions of ss 56 and 57. This I have done in my discussion immediately above.
10. Further, s 59 of the Civil Procedure Act is entitled "Elimination of delay". Although earlier reproduced at [35] with the other relevant provisions of the Civil Procedure Act now referenced, it is appropriate to repeat the terms of this provision. It reads: In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
11. I am satisfied, in the context of the extensive interlocutory proceedings already rendered necessary to enable Mr Joseph's tree dispute application to be brought to determination through the substantive hearing scheduled to commence on 7 February, that the interlocutory activities which have already taken place comprise (indeed, some might regard as exceed) those reasonably required as necessary for the fair determination of the issues in dispute between the parties and for the parties' preparation of the case for trial.
12. Finally, s 60 of the Civil Procedure Act requires that: In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
13. Although Mr Joseph and the Spencers are not legally represented and thus issues of legal costs do not appear to arise, issues of non-legal costs to the parties are also potentially engaged (Cachia v Hanes (1994) 179 CLR 403). In this matter, I am satisfied that permitting the further imposition of obligations on the Spencers to produce further extensive material would be entirely disproportionate to the importance and complexity of the subject-matter arising for consideration by Mr Joseph's tree dispute application.
14. For the above reasons derived from the application of general principles arising from Pt 6, Div 1 of the Civil Procedure Act, I am satisfied that: 1. proposed orders 7, 8, 11, 12 and 16 of Mr Joseph's Further Amended Notice of Motion of 10 January 2022; and 2. paragraph 8 of the Notice to Produce to the Court No 4 dated 29 December 2021 and served by Mr Joseph on Ms Spencer must be dismissed.

Matters of an administrative nature (category 1)

1. Proposed orders (1) and (13) of Mr Joseph's Further Amended Notice of Motion sought requirements that Ms Spencer (proposed order (1)), and Mr Spencer (proposed order (13)) provide affidavits of compliance verifying that they have completely satisfied the Notices to Produce earlier served on them by Mr Joseph and responded to by each of them.
2. Proposed order (1) (as can earlier be seen from its terms set out) seeks to impose an extraordinarily detailed range of obligations (contained in proposed order (2)) on Ms Spencer to specify how she has complied with the obligations to produce documents ordered by me on 15 November 2021 arising from Joseph No 3.
3. I was satisfied that to impose the detailed requirements set out in Mr Joseph's proposed order (2) of his Further Amended Notice of Motion would impose an entirely inappropriate onus in circumstances where the Spencers' obligation to file and serve their evidence proposed to be relied upon at the substantive hearing was imminent.
4. However, I did consider that it was appropriate to require Ms Spencer to provide an affidavit that verified her compliance with the varying requirements to produce documents to the Court without the necessity to do so in the detail proposed by Mr Joseph. As the orders that I was to make also imposed limited additional obligations on Ms Spencer to produce material, order (4) of the orders I made on 14 January required that an affidavit from Ms Spencer to verify her satisfaction of all requirements to produce documents was appropriate.
5. This order was in substitution for proposed orders (1) and (2) of Mr Joseph's Further Amended notice of Motion. It therefore follows that those aspects sought by Mr Joseph are to be dismissed.
6. For similar reasons, order (5) of my orders made on 14 January required Mr Spencer to file and serve and affidavit verifying his complete satisfaction of requirements to produce documents to the Court.
7. The terms of this order were in substitution for those in order (13) proposed by Mr Joseph. It is therefore appropriate that Mr Joseph's proposed order (13) also be dismissed.
8. As a matter of abundant caution, I considered it appropriate to ensure that that Ms and Mr Spencer's satisfaction of these orders to provide affidavits of verification were not in conflict with any earlier order requiring either of them to provide verification of the extent of compliance with obligations to produce material to the Court. I therefore also ordered that, to the extent that there might be any such inconsistency with any such earlier order addressed to either of them, such earlier order was, to the extent of any such inconsistency, vacated. This was effected by order (6) of my orders of 14 January.

Mr Joseph's witnesses

1. As can be seen from its terms earlier reproduced, Mr Joseph's proposed order (15) sought that I require the Spencers to notify him as to which of four persons nominated by him as his proposed witnesses at the substantive hearing would be required for cross-examination. He proposed that this information be provided to him within seven days of the making of my orders in these interlocutory proceedings.
2. The requirement for notification of witnesses required for cross-examination is a conventional one and an order to reflect this requirement was made on 14 January. However, I was not satisfied that an imprecise "seven days" was an appropriate time period for this requirement given that specifying a date would be more appropriate and avoid uncertainty. The date specified in order (8) of my orders of 14 January imposed that requirement and nominated the date seven days thereafter as the appropriate time within which this was to occur. As a consequence, Mr Joseph's order (8) has been made in amended terms to the effect sought in the original proposed order.

Mr Joseph's proposed orders concerning Mr Rasa and his report

1. Mr Joseph's proposed orders (9) and (10) also fall within this procedural category. They addressed, as can earlier be seen from their earlier reproduced terms, Mr Rasa's report and a requirement for him to be available for cross-examination if the Spencers proposed to seek to rely on his report.
2. Mr Joseph's proposed order (14) sought that Mr Rasa be available for cross-examination at the substantive hearing, whether or not the Spencers proposed to seek to rely upon his report. The element of my 14 January orders addressing whether or not Mr Rasa should be required to attend for cross-examination was dealt with by the general framework of the filing and serving by the Spencers of their proposed evidence for the substantive hearing and, specifically, notification of those persons proposed by the Spencers to be their witnesses at that hearing.
3. My orders (9) and (10) made on 14 January dealt with this matter in general terms, thus encompassing addressing Mr Rasa's availability for cross examination if he was a witness proposed to be relied upon by the Spencers.
4. As a consequence, orders (9), (10) and (14) of Mr Joseph's Further Amended Notice of Motion were dismissed.
5. I expressly note that, during the course of this interlocutory hearing, I asked Mr Joseph whether or not he wished me to grant him leave, pursuant to r 7.3 of the UCPR, to issue a subpoena to Mr Rasa requiring him to attend the hearing as a witness to be called in Mr Joseph's case (with the potential of Mr Rasa's evidence being declared "unfavourable" to Mr Joseph pursuant to s 38 of the Evidence Act and Mr Rasa being cross-examined as a consequence), but Mr Joseph expressly disavowed any desire to pursue such a course.

Tidying up of earlier responses (category 3)

1. During the course of the various earlier interlocutory proceedings (and in these interlocutory proceedings), there has been confusion as to the extent and completeness of production by the Spencers of photographs or photomontages in their possession or control where those images are ones toward the Spencers' property where such photograph (or photomontage derived from such a photograph) was from inside Mr Joseph's playroom on the lower level of his dwelling or from immediately outside that playroom.
2. In order to resolve this ongoing controversy, my orders of 14 January provided that any such photographs or photomontages of this nature where those photographs or photomontages had not already been produced to the Court should be required so to be produced by 4 PM on 25 January. I also ordered that any such photographs or photomontages be subject of a general access order (including uplift access) in Mr Joseph's favour.
3. This matter was, therefore, dealt with in orders (1) and (2) of my orders of 14 January.

Matters of an appropriate pre-trial nature (category 4)

1. Requiring production of Mr Rasa's instructions for preparation of his report of 16 December 2021 is appropriate and paragraph 2 of the Notice to Produce to the Court No 4 dated 29 December 2021 and served by Mr Joseph on Ms Spencer was amended by order (2)(a) of my orders of 14 January to reflect this.

Other matters not earlier dealt with (category 7)

1. Paragraphs 4 and 10 to 12 of the Notice to Produce to the Court No 4 dated 29 December 2021 and served by Mr Joseph on Ms Spencer were deleted as they are matters capable of, and potentially appropriate for, being dealt with in any cross-examination of Mr Rasa at the substantive hearing.
2. Paragraph 6 of the Notice to Produce to the Court No 4 dated 29 December 2021 and served by Mr Joseph on Ms Spencer was amended by order (2)(c) of my orders of 14 January to confine the requirement to produce photographs to those apparently relevant in the proceedings.
3. Paragraph 7 of the Notice to Produce to the Court No 4 dated 29 December 2021 and served by Mr Joseph on Ms Spencer was amended by order (2)(d) of my orders of 14 January to confine it to those matters apparently relevant in the proceedings. Two elements of paragraph 7 of the Notice to Produce to the Court No 4 seeking production of material not apparently relevant in the proceedings were deleted.
4. Paragraph 13 of the Notice to Produce to the Court No 4 dated 29 December 2021 and served by Mr Joseph on Ms Spencer was deleted as it was appropriately encompassed in the scope of order 1 of my orders of 14 January.

Additional comments concerning the two proposed subpoenas

The proposed subpoena to Mr Rasa

1. As can be seen from proposed order (7) of Mr Joseph's Further Amended Notice of Motion, he sought leave pursuant to r 7.3 of the UCPR to issue a subpoena to Mr Rasa. The operative provisions of the proposed subpoena were in evidence as pages 48 and 49 of the material annexed to Mr Joseph's "affidavit" of 6 January.
2. The operative provisions of the proposed subpoena to Mr Rasa were in the following terms (formatting and spelling etc are as provided electronically by Mr Joseph): SCHEDULE Without limiting the generality of the meaning of the word "Documents" where that word appears in this subpoena it includes letters, correspondence, electronic mails, attachments to any emails, text messages facsimile transmissions, file notes memoranda, accounting records statements, order forms, invoices, receipts, drawings, plans and specifications, notes of meetings, dealings, authorities, consents and anything from which sounds, images or writings can be reproduced with or without the aid of anything else, any drafts and any attachments to emails, or any copies thereof; "documents" includes any documents in possession of "the company" as defined herein. "the property" is 110 North Kiama Drive. "the company" is Radebi Pty Ltd and includes subsidiaries, and associated businesses including PRD Architects ABN 002002557842. Includes its servants or agents, and Mr P Rasa, and Mr Hyden Sully. "the report" is that dated 16 December 2021 being Job Ref 20-23 sent to Mr and Mrs Spencer. The documents or things you must produce are as follows: 1. This subpoena 2. All "documents" in relation to and arising out of the provision of "the report" including all documents as to the "instructions" by Mr and Mrs Spencer concerning the same. 3. All documents being communications between the company and Mr and Mrs Spencer in respect of the provision "the report". 4. All literature or other materials utilised by Mr Rasa in support of opinions expressed in "the report". 5. Any draft(s) of "the report". 6. All photographs taken by Mr Rasa on any visit to the property and to 108 North Kiama Drive. 7. All documents in relation to instructions to the Respondent in relation to; a. Architectural plans. b. Development application lodged with KMC in 2021 c. Provision of the report. 8. Any response by the company to the email dated 1 September 2021 at 2.49pm sent by Mrs Spencer to Mr Rasa. 9. Any document in relation to any inquiry made by Mr Rasa seeking any documentation to assist in the making of the report. 10. All documents considered by the author of the Report in relation to the content of the report. 11. All documents as to the financial arrangement between the company and the Respondents in respect of the production of the report. 12. Documentation in relation to accounting between the company and the Respondents for its work in respect of development application it lodged with Kiama Municipal Council including any outstanding monies owning. 13. Any photographs or photomontages in relation to 108 and/or 110 North Kiama Drive. 14. Any visual assessment report prepared by "the company" in the last 5 years. 15. All documents in relation to "Job 20-23". 16. Any "visual assessment" report prepared for the Respondents other than that of December 2021.
3. I have earlier noted the filing of a proposed affidavit and report from Mr Rasa. I have also earlier noted that Mr Joseph reproduced, at 40 to 45 of the annexures to his 6 January "affidavit", a document dated 16 December which was a report from Mr Rasa.
4. Mr Joseph's "affidavit" of 6 January noted, at paragraphs 34 to 36, matters concerning his intention to challenge any evidence from Mr Rasa proposed to be relied upon by the Spencers. These paragraphs (referring to his annexed document dated 16 December 2020 prepared by Mr Rasa) were in the following terms: 34. I will challenge the admissibility of the report, relevantly; i. The report is not "relevant". ii. Mr Rasa does not satisfy the provision of ss 76 and 79 of the Evidence Act. iii. The report does not comply with the UCPR. iv. The report does not comply with directions of this court. v. That as a matter of discretion, the report should be excluded. 35. Each of these grounds will require both a voir dire and, if unsuccessful cross examination of Mr Rasa. In support of this are Mr Rasa's admissions as to his lack of expertise in respect in tree dispute [sic] (T4.12); his belief all he was attending my property for was to take some photos (T 4.22). However when "advised/corrected" by Mrs Spencer by way of interruption, he reformulated his intention, that he was attending for a view analysis (T4 .27). Even after this improper intervention, the highest Mr Rasa adopted as his role as an "expert" was to assert that going to my property was not out of the realm of my expertise (T5 .15). The terms of this report fails [sic] to justify this asserted role. The more specific role of assessing view corridors (T5 .15) does not even get a mention in the report. 36. Each of the above stated grounds of challenge in respect of the report require access to the "documents" set out in the draft subpoena annexed hereto and Notices to Produce on both Mr and Mrs Spencer.
5. The above matters may potentially warrant exploration on the voir dire Mr Joseph proposes be permitted by the presiding Commissioner. He may be permitted by the presiding Commissioner to cross-examine Mr Rasa concerning all the matters sought to be encompassed by the proposed subpoena (subject to any issues of relevance requiring to be considered by the presiding Commissioner). These are properly matters within the range of matters falling within the scope of matters to be dealt by the presiding Commissioner. Although the terms of the proposed subpoena reflect, in great part, requirements proposed to be imposed on Mr Rasa where I have ruled in this decision on the appropriateness of requirements in Notice to the Court No 4 imposing many identical or near identical requirements on Ms Spencer, the process engaged in that consideration is quite dissimilar to that which may arise at the substantive hearing on evidentiary issues (as opposed to proposed interlocutory obligations) concerning these matters.
6. As a consequence, although I am satisfied as a matter of general principle that this proposed subpoena should be rejected, I am satisfied that Mr Joseph is unlikely to be prejudiced by my rejection of it.

The proposed subpoena to the NSW Police

1. As can be seen from proposed order (11) of Mr Joseph's Further Amended Notice of Motion, he sought leave pursuant to r 7.3 of the UCPR to issue a subpoena to NSW Police. The terms of the proposed subpoena were in evidence as pages 24 and 25 of the material annexed to Mr Joseph's "affidavit" of 6 January.
2. In order to understand why I have concluded that it would be appropriate to refuse Mr Joseph permission to issue this subpoena, it is necessary, first, to reproduce the terms of the material Mr Joseph proposed be required to be produced by NSW Police and the contextual foundation said by Mr Joseph to provide an appropriate basis why such permission should be granted.
3. The relevant operative provisions of the proposed subpoena were in the following terms (formatting and spelling etc are as provided electronically by Mr Joseph): SCHEDULE Without limiting the generality of the meaning of the word "Documents" where that word appears in this subpoena it includes letters, correspondence, electronic mails, attachments to any emails, text messages facsimile transmissions, file notes memoranda, accounting records statements, order forms, invoices, receipts, drawings, plans and specifications, notes of meetings, dealings, authorities, consents and anything from which sounds, images or writings can be reproduced with or without the aid of anything else, any drafts and any attachments to emails, or any copies thereof; "Document" in this subpoena include any drafts and/or plans and/or computer-generated documents, body cam images, video recordings, hand written notes, computer generated notes, telephone recordings, emails and any attachments to same, photographs, any saved computer generated documents, telephone records or any copies of same; "the property" is 110 North Kiama Drive Kiama Downs "Informant" includes NSW Police, Mr or Mrs Spencer of 110 North Kiama Drive Kiama Downs NSW The documents or things you must produce are as follows; 1. This subpoena 2. All "documents" in relation to, touching upon or arising out of the investigation by NSW Police of matter(s) pertaining to possible breaches of the law upon or at 110 North Kiama Drive, Kiama Downs in period 19 April 2020 to 30 April 2020 including in respect of these events; a) Police notebooks (PB.28), and duty books (PB.20) of the Informant, and all members of the New South Wales Police Service, who: i) Recorded particulars of the events or witnesses; or ii) Participated in the investigation of these allegations; b) Statements (Forms P.190, P.190A), descriptions, handwritten notes (whether in official police notebooks or not) and reports, prepared by police, or produced to police by other persons, during this investigation; c) The following documents and computer-generated records: i) Computerised Operational Policing System Computerised Incident Dispatch System ("CIDS") details; ii) Computerised Operational Policing System "event"' "incident" and "occurrence only" entries; iii) Emails, notes, reports and records of conversations with between investigators and officers from the NSW Police and Mr R Spencer and/or Mrs Jennifer Spencer whenever and where ever they occurred d) Videotapes (originals or copies) of any E.R.I.S.P or Record(s) of Interview or conversations containing information from any interviewee pertaining to this investigation; e) Exhibit Book (PAB.7) records and Computerised Operational Policing System event records pertaining to entries in this Exhibit Book; f) Data, including, but not limited to, messages, documents, photographs, retrieved from the telephone services and social media platforms of the Informant; g) All documents in relation to or arising out of any assessment(s) by NSW Police or any other person as to the whether a prosecution in relation to the reported incidents(s) ought or ought not be commenced and all responses to this assessment. 2) All documents in relation to Police Report no E85855086.
4. As part of Mr Joseph's case at the substantive hearing, he proposes to seek to rely on evidence from Mr Leftwich, a resident of 112 North Kiama Drive, the property to the immediate north of the property owned by Mr and Ms Spencer.
5. Ms Spencer has made a complaint to NSW Police concerning Mr Leftwich's alleged conduct. She has been required to provide Mr Joseph with a copy of this complaint. Mr Joseph seeks, as can be seen from the terms of the above reproduced proposed operative elements of the subpoena for which he seeks leave, an extensive range of material to be provided concerning the NSW Police response to Ms Spencer's complaint concerning Mr Leftwich.
6. During the course of her oral evidence given on 12 January, Ms Spencer stated that she had had no response from NSW Police to her complaints concerning Mr Leftwich's alleged activities. Mr Leftwich's proposed evidence and Ms Spencer's complaint to NSW Police concerning his alleged conduct are not in evidence before me in these interlocutory proceedings.
7. What use might be permitted by the presiding Commissioner (at the substantive hearing) by Mr Joseph of Mr Leftwich's proposed evidence and what rulings might be made on any objections (if such objections are taken) to reliance on that evidence are matters which must necessarily await the substantive hearing. In this context, I am not to be taken to be expressing any conclusions about, or making any comment concerning, such matters.
8. However, as can be seen from the nature of the operative provisions of the proposed subpoena for which Mr Joseph seeks leave, the obligation that would be imposed on NSW Police to comply with its terms would require the diversion of extensive policing resources to enable its satisfaction.
9. In circumstances where it is reasonable to infer that policing resources of this state are presently significantly occupied, in addition to ordinarily arising policing responsibilities, in responding to law enforcement exigencies arising out of, or in connection with, the present COVID-19 pandemic, diversion of any policing resources to the extent which would be necessary to satisfy such a subpoena would be completely and unequivocally entirely contrary to the public interest. This, in itself, is a sufficient basis upon which to refuse Mr Joseph leave to issue this subpoena.
10. However, as a matter of general principle, it is also the position that, given the nature of the tree dispute the subject of this litigation (no matter how vigorously contested this litigation might be), the fact that relevant evidentiary issues (if arising at the hearing) will be able to be addressed by the presiding Commissioner in circumstances where NSW Police have not provided Ms Spencer with any response to her complaint, self-evidently, renders the breadth of Mr Joseph's proposed subpoena an abuse of process if he was to be permitted to issue the subpoena.
11. This constitutes a second, separate and sufficient reason why it is entirely inappropriate to grant him consent pursuant to r 7.3 of the UCPR to issue this proposed subpoena.

Comments on proposed additions to Notice to Produce to the Court No 4

1. Had it been necessary to give specific rulings on the proposed paragraphs sought by Mr Joseph to be added to Notice to Produce to the Court No 4, each of paragraphs17 and 20 would have been rejected on the following separate and sufficient bases: 1. each of these proposed paragraphs was an abuse of process; 2. each of these proposed paragraphs had no apparent relevance to any issue genuinely in dispute in the proceedings; and 3. each of these proposed paragraphs constituted a "fishing expedition" in the sense discussed in, and rejected by, the decision in Commissioner for Railways v Small.

Proposed order 17

1. Proposed order 17 in Mr Joseph's Further Amended Notice of Motion is merely a conventional formality and is generally to be ignored for present purposes (although it does provide a proper basis for my reserving costs in order (11) of my orders of 14 January).

Costs

1. I have earlier explained why Mr Joseph's "affidavit" of 6 January in these interlocutory proceedings included material properly to be regarded as submissions. An element, in paragraph 1 of Mr Joseph's "affidavit" (which element is properly to be regarded as a submission rather than evidence), is a sentence in the following terms: The court should not assume because Mrs Spencer appears representing herself, that Mrs Spencer has not obtained, or relies on legal advice be it from "friends", "ex-barristers", "barristers", or members of the legal profession.
2. This submission was not supported by any evidence.
3. During the course of Mr Joseph's cross-examination of Ms Spencer on 12 January, Ms Spencer expressly disavowed having received any assistance from any Australian lawyer for the purposes of her preparation relating to these interlocutory proceedings.
4. As a consequence, it is not appropriate to contemplate making any order for costs of any nature concerning these interlocutory proceedings. However, for abundant caution, I have concluded that it would be appropriate formally to reserve costs with respect to these interlocutory proceedings against the possibility that some future costs application might be made concerning them.

Orders

1. It is for the reasons outlined above that, on Friday 14 January, I made the following orders disposing of these interlocutory proceedings: 1 The First and Second Respondents are to produce to the Court, by 4.00 pm on 25 January 2022, any photomontages or photographs in their possession or control from inside the Applicant's playroom and/or outside but in the vicinity of the Applicant's playroom toward the Respondents' property (including but not confined to any such photomontages prepared in or prior to 2020) where such photomontages or photographs have not already been produced to the Court pursuant to orders of the Court already made or any Notice to Produce to the Court served on either Respondent prior to 28 December 2021; 2 Any photomontages or photographs produced by either Respondent pursuant to order 1 are ordered to be subject to general access (including uplift access) by the Applicant from 9.00 am on 27 January 2022; 3 With respect to Notice to Produce to the Court No 4 in the form signed by the Applicant on 29 December 2021, issued by the Court (being made returnable before the Acting Registrar on 18 January 2022) and served on the Second Respondent, the list of documents set out on page 2 of that Notice to Produce is amended as follows: (a) paragraph 2 is amended to read 'All documents as to the instructions provided by Mr and Mrs Spencer concerning "the report"'; (b) paragraph 4 is deleted; (c) paragraph 6 is amended to read 'Any photographs taken by Mr Rasa of, or from, 108 North Kiama Drive on any visit by him to the property and on his visit to 108 North Kiama Drive'; (d) paragraph 7 is amended to read 'All documents in relation to instructions to the company and Mr Rasa in relation to the provision of the report'; (e) paragraph 8 is deleted; (f) paragraph 10 is deleted (as it does not make sense); (g) paragraph 11 is deleted; (h) paragraph 12 is deleted; (i) paragraph 13 is deleted (as it is now appropriately encompassed in the scope of order 1 of these orders dated 14 January 2022); 4 By 4.00 pm on 27 January 2022, the Second Respondent is to file and serve an affidavit verifying complete production of documents that have been required to be produced pursuant to orders made by Moore J on 15 November 2021 and as required by Notice to Produce No 4 served by the applicant on the Second Respondent as amended by order 3 of these orders and as required to be produced to the Court pursuant to these orders; 5 By 4.00 pm on 27 January 2022, the First Respondent is to file and serve an affidavit verifying complete production of documents that have been required to be produced pursuant to orders made by Moore J on 15 November 2021 and as required to be produced to the Court pursuant to these orders; 6 To the extent that orders 4 and/or 5 could be interpreted as being in conflict with any earlier order made by the Court requiring the First and/or Second Respondent to verify the extent of compliance with any Notice to Produce to the Court already served by the Applicant on that Respondent and/or imposed by order of the Court on that Respondent, any such earlier order is, to the extent of any such inconsistency, vacated; 7 Any application concerning compliance or otherwise with orders 1, 4 and/or 5 is to be set down for hearing before Moore J at 8.30 am on Wednesday 2 February 2022; 8 The Respondents are to advise the Applicant, by e-mail by 4.00 pm on 21 January 2022, which of the Applicant's proposed witnesses listed below are required for cross-examination: • the Applicant; • Mr Leftwich; • Ms O'Connor; and • Mr Cook; 9 The Respondents are to advise the Applicant, by e-mail at the time of service on the Applicant of the Respondents' evidence for the substantive hearing, the names of those persons who are proposed by the Respondents to be their witnesses at the substantive hearing; 10 The Applicant is to advise the Respondents, within 48 hours of the filing and service on the Applicant of the Respondents' evidence for the substantive hearing, which of the Respondents' proposed witnesses notified to the Applicant pursuant to order 9 are required for cross-examination; 11 The Applicant's Further Amended Notice of Motion filed on 10 January 2022 is otherwise dismissed; and 12 Costs of the Applicant's Further Amended Notice of Motion are reserved.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2022