Anthony Damian v Suzana Hulak

Land and Environment Court

New South Wales

Medium Neutral Citation:

Anthony Damian v Suzana Hulak & Ors [2016] NSWLEC 1112

Hearing dates:

30 March 2016

Date of orders:

01 April 2016

Decision date:

01 April 2016

Jurisdiction:

Class 4

Before:

Gray R

Decision:

(1)   Paragraphs 2 and 3(a) of the Notices to Produce issued on 19 January 2016 to the first, second, third and fourth respondent are set aside.
(2)   The costs of the notice of motion filed 17 March 2016 are reserved.

Catchwords:

Notice to Produce; Relevance; Legitimate forensic purpose; Substitute for discovery.

Legislation Cited:

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Uniform Civil Procedure Rules 2005

Cases Cited:

Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65
Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869

Category:

Consequential orders (other than Costs)

Parties:

Antony Robert Damian (Applicant)
Suzana Hulak (First Respondent)
Peter Taras Hulak (Second Respondent)
Peter Marian Hull (Third Respondent)
Oksana Hull (Fourth Respondent)
Anthony Protas (Fifth Respondent)

Representation:

Counsel:
Mr M Astill (Applicant)

 

Ms J Reid (First, Second, Third, Fourth Respondent)

  Solicitors:

File Number(s):

41246 of 2015

Judgment

1. In these proceedings, the Applicant seeks to review the decision of a private certifier, the Fifth Respondent, Mr Anthony Protas, to issue a Complying Development Certificate. Mr Protas has filed a submitting appearance in the proceedings. The First, Second, Third and Fourth respondents (“the active respondents”) are the owners of the property that benefits from the certificate. In the course of the proceedings, the Applicant served on each of the First, Second, Third and Fourth Respondents Notices to Produce certain documents to the Court. By way of Notice of Motion filed 17 March 2016, the active respondents seek to set aside those Notices to Produce. Conversely, the Applicant also filed a Notice of Motion on 16 March 2016 seeking orders for examination of the active respondents in relation to compliance with the notices. The parties agreed that the application to set aside the notices ought to proceed first, and it is that application that has come before me for consideration. I have determined that parts of those notices ought to be set aside.

Background

2. In June 2015 a Development Application was lodged with North Sydney Council for development consent for the erection of a dual occupancy on the property that is the subject of these proceedings. The Applicant objected to the development application on a number of grounds. The Council advised the First Respondent, who was the applicant on the development application, that the application was unlikely to be approved for a number of reasons. These reasons included issues regarding the bulk and scale of the proposed dual occupancy.

3. Subsequently, in October 2015, the First Respondent made an application to the Fifth Respondent under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“the…