Joseph v Spencer

[2021] NSWLEC 99

Land and Environment Court

New South Wales

Medium Neutral Citation:

Joseph v Spencer [2021] NSWLEC 99

Hearing dates:

28 July and 17 August 2021

Date of orders:

15 September 2021

Decision date:

15 September 2021

Jurisdiction:

Class 2

Before:

Moore J

Decision:

See orders at [273]

Catchwords:

TREE DISPUTE - application to amend relief sought - application not opposed - leave to amend granted

TREE DISPUTE - application for leave to issue subpoenas - application to validate, nunc pro tunc, two subpoenas issued in error - low threshold for leave to issue subpoenas - leave granted - return date before Registrar set for all subpoenas

TREE DISPUTE - Applicant serves Notice to Produce to the Court on Second Respondent - application to set aside Notice to Produce - legal principles requiring test of apparent relevance to be applied - consideration of categories of documents listed in Notice to Produce - some categories not opposed - some opposed categories permitted - some opposed categories permitted in part - some opposed categories rejected - modified list of documents to be produced determined - Second Respondent self-represented - Second Respondent presently located in Queensland - impact of COVID-19 travel restrictions on ability to comply with the Notice to Produce - appropriate to have regard to travel restrictions in setting date for compliance with Notice to Produce - matter set down for four‑day hearing commencing in mid-November 2021- appropriate to allow longer time for production - modified list of documents ordered to be produced to the Court by the end of October 2021

Legislation Cited:

Australian Soldiers Repatriation Act 1920-1922, s 45W(2)

Civil Procedure Act 2005

Environmental Planning and Assessment Act 1979, s 4.15(1)

Evidence Act 1995 (NSW), s 97 and Dictionary

Kiama Development Control Plan 2011

Kiama Development Control Plan 2020

Kiama Local Environmental Plan 2011

Trees (Disputes Between Neighbours) Act 2006, ss 14E and 14F

Trees (Disputes Between Neighbours) Regulation 2019

Uniform Civil Procedure Rules 2005

Cases Cited:

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 125

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Tenacity Consulting v Waringah [2004] NSWLEC 140

Category:

Procedural rulings

Parties:

Michael Joseph (Applicant)
Ricardo Spencer (First Respondent)
Jennifer Spencer (Second Respondent)

Representation:

Counsel:
Mr M Joseph (in person - Applicant)
Ms J Spencer (Second Respondent in person and agent for the First Respondent)

File Number(s):

174119 of 2021

Publication restriction:

No

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

Judgment

Introduction

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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).

7. 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.

Mr Joseph's Trees Act Application

8. Mr Joseph, a retired barrister, has made an application pursuant to Pt 2A of the Trees Act concerning bamboo growing on the property located immediately to the north of his own. The two properties are in a residential zone, thus satisfying that jurisdictional prerequisite.

9. Mr Joseph's application has been made as he claims that the bamboo on the property owned by his neighbours, Mr and Ms Spencer, is a hedge and that this hedge severely obstructs the view from the dwelling on his property.

10. Mr Joseph’s property is located to the immediate south of the property owned by the Spencers. These properties are located on the eastern side of North Kiama Drive, Kiama Downs, between that thoroughfare and an ocean‑front reserve running a considerable distance to both the north and the south of the location of the two properties.

11. It is evident from material filed by Mr Joseph in support of his Trees Act Application that each of the dwellings enjoys (setting aside matters arising from the bamboo requiring consideration in these proceedings) extensive coastal and/or ocean views to the north, east and south of each of them.

12. Mr Joseph’s application pursuant to Pt 2A of the Trees Act is directed to what he considers to be the severe obstruction of the views from his dwelling occasioned by bamboo planted by the Spencers along the southern boundary of their property.

13. It was also made clear by Mr Joseph, during the course of his submissions to me, that Mr Joseph also objects to any proposal by the Spencers seeking development consent from Kiama Council (the Council) for the construction of a deck on the eastern side of their dwelling, to the extent that such a deck, if constructed, would adversely impact on views from Mr Joseph’s dwelling in a fashion which he considers unacceptable.

Mr Joseph’s Notice to Produce

14. 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.

2. A list, with 23 entries on it, setting out that which Mr Joseph sought be produced to the Court by Ms Spencer.

3. 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.

The relevant statutory provisions

Introduction

15. As earlier noted, the UCPR makes provision for two different types of Notice to Produce. Only one of them, a Notice to Produce to the Court, is here involved for consideration. In addition, raised in submissions by Mr Joseph as to why all the items in his Notice to Produce addressed to Ms Spencer should be permitted to stand, reference was made to a number of provisions of the Trees Act. I set out below, the terms of r 34.1 of the UCPR, and those provisions of the Trees Act referred to by Mr Joseph.

16. In addition, during the course of submissions addressing the application to have Mr Joseph's Notice to Produce set aside, Ms Spencer and Mr Joseph both referred to provisions in the Land and Environment Court Act 1979 (the Court Act). It is also appropriate to reproduce these provisions.

17. Finally, Mr Joseph also referred to tendency evidence (s 97 of the Evidence Act being the provision dealing with this). This provision is also reproduced to provide context for its invocation by Mr Joseph with respect to documents in the list in his Notice to Produce.

Rule 34.1 of the UCPR

18. Rule 34.1 is in the following terms:

34.1   Notice to produce to court

(1)   A party may, by notice served on another party, require the other party to produce to the court, or to any examiner—

(a)   at any hearing in the proceedings or before any such examiner, or

(a1)   at any time fixed by the court for the return of subpoenas, or

(b)   by leave of the court, at some other specified time,

any specified document or thing.

(2)   The other party must comply with a Notice to Produce—

(a)   by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or

(b)   by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.

The Trees Act provisions

The Trees Act legislation structure

19. 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?

20. 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.

21. 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).

22. 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).

The Trees Act provisions

23. 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.

The Court Act

24. As later discussed, s 38(2) of the Court Act was referred to by both Ms Spencer and Mr Joseph. The terms of s 38(1) and (2) are:

38   Procedure

(1)   Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

The Evidence Act

25. The provision in the Evidence Act relating to tendency evidence is in the following terms:

97   The tendency rule

(1)   Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a)   the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)   the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)   Subsection (1) (a) does not apply if—

(a)   the evidence is adduced in accordance with any directions made by the court under section 100, or

(b)   the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Legislative provisions concerning development approvals

26. 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.

27. 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).

28. 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.

29. 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.

30. 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".

Mr Joseph’s Class 4 proceedings

The 2018 proceedings

31. In 2017, the Spencers lodged a development application with the Council seeking approval for the construction of a deck on the eastern side of their dwelling. The Council determined that development application by the grant of consent for such a deck (DA 10.2017.307.1). The dimensions of the deck and the conditions imposed by the Council are not matters in contest before me in these interlocutory proceedings.

32. In 2018, Mr Joseph commenced Class 4 proceedings seeking to have the Council's grant of consent to the Spencers’ 2017 development application set aside. The Respondents to Mr Joseph’s 2018 Class 4 proceedings were Mr Spencer and the Council. On 15 March 2019, Sheahan J made orders by consent that had the effect of setting aside the consent granted by the Council to the Spencers’ 2017 development application. The orders made by his Honour were in the following terms:

BY CONSENT

1)   The Court declares that Development Consent No. 10.2017.307.1 dated 16 October 2018 for demolition of existing deck and construction of new decks at Lot 859 DP 231616, 110 North Kiama Drive, Kiama Downs issued by the second respondent is invalid and is set aside.

2)   The parties agree that there is to be no order as to costs as against the first respondent.

3)   The second respondent to pay the Plaintiff’s reasonable disbursements of the proceedings as agreed or assessed and liberty to apply to the plaintiff to seek an order that the second respondent pay the plaintiff’s reasonable professional costs of the proceedings following the determination by the High Court of Proceedings No S 205 of 2018 Bell Lawyers Pty Ltd v Pentelow and another.

The 2021 proceedings

33. In 2021, the Spencers lodged a further development application with the Council (DA 2021 45.1) seeking a new approval for the construction of a deck on the eastern side of their dwelling. This development application has not yet been determined by the Council. The extent to which the development sought in this application may differ from that which was the subject of the 2017 development application is not a matter requiring consideration in these interlocutory proceedings.

34. On 7 June 2021, Mr Joseph commenced fresh Class 4 proceedings against the Council and Ms Spencer concerning the Spencers’ 2021 development application. However, these fresh Class 4 proceedings were discontinued on 6 September 2021 and require no further consideration.

Chronology

35. 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.

The hearing processes

The hearing before the Registrar

36. On 19 July, Mr Joseph’s Tree Dispute Application was listed before the Registrar for the making of pre‑trial and other procedural directions. As earlier noted, a suite of standard plain English directions has been developed to be considered for such applications. On that occasion, the Registrar did not make a direction granting Mr Joseph leave to issue subpoenas in these proceedings. However, two subpoenas were authorised by Registry staff in error. Mr Joseph subsequently applied for leave to issue further subpoenas and to have those issued in error retrospectively validated nunc pro tunc.

The 28 July 2021 hearing

37. The initial hearing before me to address Mr Joseph’s application to issue subpoenas was held on 28 July 2021. It was conducted as a hybrid one, with Ms Spencer appearing by audio-visual link, and Mr Joseph having dialled in on a telephone connection. Ms Spencer was granted leave, without objection from Mr Joseph, to act as her husband’s agent at this hearing.

38. Ms Spencer provided written submissions dated 27 July 2021 opposing leave being granted to Mr Joseph to issue subpoenas in these tree dispute proceedings.

39. Those submissions adverted to the fact that Mr Joseph had already issued two subpoenas without leave (as a result of an inadvertent error in the Court’s Registry). Ms Spencer set out a list of documents recently served on her by Mr Joseph. She also noted that Mr Joseph had, at that time, commenced separate Class 4 proceedings against the Council and her, as previously noted. Her written submissions, in paragraph 8, asked the Court to “adjourn consideration of Mr Joseph’s leave application for 14 days to allow me time to formulate my position”.

40. Mr Joseph did not oppose the granting of an adjournment for that purpose. As a consequence, Mr Joseph’s leave application was stood over for hearing on 17 August 2021. The directions which I made following the 28 July hearing are attached as Annexure A to this decision.

The 17 August 2021 hearing

41. Although Ms Spencer had not complied with paragraph 12 of the directions I made on 28 July 2021 to formalise her continuing to appear as agent for her husband, Mr Joseph raised no objection to me permitting her to do so at the further hearing on 17 August 2021.

42. Although a hybrid process was appropriate for the purely limited procedural matters which were dealt with on 28 July 2021, the hearing on 17 August 2021 was initially conducted by audio-visual link with Mr Joseph, Ms Spencer and I being joined to the audio-visual link system in Court 1A (me being linked because I was conducting the hearing remotely pursuant to authorisation executed by the Chief Judge permitting that to occur).

43. Using this system proved somewhat problematic during the course of the morning hearing as it became obvious that likely bandwidth restrictions were meaning that Mr Joseph was intermittently unable to hear or be heard clearly (as the transcript subsequently established).

44. I was concerned that this did not permit me to have a complete understanding of the matters being put by Mr Joseph with respect to elements of Ms Spencer's submissions about the items set out in the list of documents set out in Mr Joseph’s Notice to Produce. As a consequence, I proposed that the proceedings be transferred to a purely audio link using the Court’s telephone conferencing facility. Ms Spencer and Mr Joseph agreed to this. When the hearing resumed on that basis, there was no difficulty in all three of us being able to hear, clearly, everything that was said and, as a consequence, the transcript of the proceedings was of significantly higher quality than that which had been able to be prepared from the first part of the day’s hearing.

The issues arising at the hearing on 17 August 2021

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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.

51. 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.

The evidence

52. The chronology earlier set out includes a list of the material filed by Mr Joseph and Ms Spencer concerning Mr Joseph's Trees Act Application. Filed material was referred to during the course of the submissions made on various aspects of Ms Spencer's Notice of Motion to set aside Mr Joseph's Notice to Produce. I have read all of that material. To the extent that the material contains evidence or submissions relevant to the issues with which I am dealing, I have had regard to that evidence and those submissions.

53. It is not necessary to quote extensively from that material as, with the exception of a single, specific paragraph cited by Mr Joseph and later set out, what was said during the course of the submissions was sufficient for me to address matters arising to be considered in determining Ms Spencer's Notice of Motion.

Mr Joseph’s application for leave to amend

54. As earlier noted, Mr Joseph had foreshadowed, in his written submissions of 16 August 2021, that he wished to seek leave to amend the relief he sought in his Tree Dispute Application. The amendment which Mr Joseph sought to make was to delete the words "no greater than 2.4 metres from ground level" in proposed order 2 and inserting the words "no greater than 1 metre from ground level".

55. I enquired of Ms Spencer whether she had seen that document containing the proposed amendment. She indicated that she had seen it. In response to a question from me, she indicated that she did not have any objection to the proposed amendment.

56. As a consequence, I granted Mr Joseph leave to amend his application in that fashion and that is recorded in the first order at the conclusion of this judgment.

Mr Joseph’s application for leave to issue subpoenas

57. 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.

58. 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.

59. 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.

60. 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.

61. 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).

62. 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.

General legal principles

63. 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).

64. 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.

65. 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.

66. 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.

67. 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.

68. 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.

69. 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.

70. 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.

71. 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.

72. 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).

73. 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.

74. As these proceedings are in Class 2, s 38(2) of the Court Act applies to them. That provision has earlier been set out.

75. 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.

76. 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."

77. The provision considered by his Honour is, relevantly, to the same effect as s 38(2) of the Court Act.

78. 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.

79. 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.

80. 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.

81. 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.

82. 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.

83. 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.

Cross‑examination as to credit

84. As can be seen from the concluding sentences in [80] of the judgment of Bell P and [89] of the judgment of Brereton JA in Blacktown, seeking material for the purpose of cross‑examining a potential witness as to credit is a legitimate basis upon which to require the production of documents.

85. As will later be seen from my detailed consideration of the items in the list in Mr Joseph’s Notice to Produce, a number of the documents sought by Mr Joseph are in anticipation of him being able to cross‑examine Ms and/or Mr Spencer as to their credit and truthfulness. Where I am satisfied that Mr Joseph has demonstrated an apparent relevance of the documents sought for this purpose, Ms Spencer will be required to produce them if they exist.

84. However, it is to be observed that such cross‑examination as to credit and the availability for Mr Joseph to make submissions on that point will only arise if either or both of the Spencers choose to enter the witness box.

Jurisdictional differences - the Trees Act and the EPA Act

87. 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).

88. 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).

89. 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.

90. 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.

Ms Spencer’s Notice of Motion

Introduction

91. On 16 August 2021, Ms Spencer filed a Notice of Motion seeking an order that Mr Joseph’s Notice to Produce be set aside. She also filed an affidavit in support of this. It will later be necessary to address the nature of various elements of her affidavit in some detail. At this point, it is sufficient to note that, as the matter had been set down for hearing on 17 August 2021 to address the question of whether or not Mr Joseph should be granted leave to issue subpoenas, it was convenient to also to deal with Ms Spencer's Notice of Motion on that day (given that, at the first hearing before me on 28 July 2021, Ms Spencer had foreshadowed filing such a Notice of Motion and it being indicated, on that occasion, that such a motion would be dealt with on 17 August 2021). It is to be noted that Mr Joseph did not object to this course of events.

Procedural assistance to self-represented parties

92. I had indicated, at the hearing on 28 July 2021, that I had an obligation, as I explained to Ms Spencer, to assist her in a limited fashion with respect to matters of procedure but that I was not permitted to assist her with the merits of any matters which she might seek to raise with me. I indicated to Mr Joseph, at that time, that I did not consider it appropriate that I treat him in that fashion as he had only comparatively recently relinquished his right to practice as a Senior Counsel at the New South Wales Bar. Mr Joseph did not demur from that position.

93. I note that, during the course of the hearing on 17 August 2021, it was appropriate that I explain a range of purely procedural matters to Ms Spencer (an example being that if she was to be required to produce documents which she considered should be regarded as protected by legal professional privilege, she should place those in a sealed envelope and note on that envelope that such privilege was claimed concerning its enclosures).

94. On the various occasions when I did need to give such explanations to Ms Spencer, I warned Mr Joseph that I intended to do so in order to alert him and to enable him to raise any objection which he might choose to make to what I was explaining to Ms Spencer. On the occasions when I felt I needed to give such explanations to Ms Spencer, Mr Joseph raised no objection to the content of any those explanations.

Evidence v Submissions

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.

The powers of the Court on Ms Spencer's motion

96. Ms Spencer's motion seeks that the entirety of Mr Joseph’s Notice to Produce should be set aside. It is appropriate to note, at this point, that the Notice to Produce sets out a list of 23 categories of documents (“document” being a term defined in the Notice to Produce by reference to the definition of that word contained in the Dictionary to the Evidence Act).

97. Each of the 23 categories of documents, as set out in the list, are later reproduced in my detailed analysis of those categories and whether they should be struck out or, if not struck out, modified. At this point, it is sufficient to note that category 23 on the list seeks documents referred to in another document, the derivation of which is there set out. It is to be observed that the terms of that document were reproduced in an eight‑page annexure attached to the Notice to Produce.

Ms Spencer's affidavit

98. 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.

99. 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.

100. 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.

101. 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.

102. 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.

103. 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.

The implied undertaking not to use produced material

104. As can be seen from paragraphs 12 to 14 of Ms Spencer's affidavit set out above, she is concerned that any documents produced by her in response to Mr Joseph’s Notice to Produce, if released to him by the Court, would be used by him for the purposes of his then pending hearing in Class 4 proceedings (the case to which she refers in paragraph 12) or for the purposes of some other yet uncommenced litigation to be initiated by Mr Joseph. That fear held by her can be addressed simply and at a general level.

105. Mr Joseph is subject to an implied undertaking only to use any of the subpoenaed material or material made available pursuant to the Notice to Produce to Ms Spencer for the purpose of these Trees Act proceedings unless leave of the Court was obtained to use it in some other proceedings (the Harman restriction - see Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; [2008] HCA 125).

106. As a consequence, there is no reason to reject any of the elements in Mr Joseph’s Notice to Produce on the basis that they might be used for some unrelated, collateral litigation purpose. He is simply not permitted to use any documents in that fashion unless and until he is released from the obligations of the implied undertaking.

Consideration of the items listed in Mr Joseph’s Notice to Produce

Introduction

107. As can be seen from that which follows, Mr Joseph's Notice to Produce proposes that Ms Spencer be required to produce a very extensive range of documents (particularly with respect to the material encompassed by item 23 and its associated Annexure A). The hearing on 17 August 2021 was conducted on the basis of going through the entirety of this list and providing Ms Spencer the opportunity to explain her objections to the item and to provide Mr Joseph with an opportunity to respond (including addressing, where he considered it appropriate, relevant matters set out earlier in the general legal principles portion of this judgment).

108. The hearing on 17 August 2021 took a significant portion of the day (the hearing concluding after 4.00 pm). The transcript of this part of the hearing comprised some nearly 54 pages (and would have been significantly longer had we not been, for the first portion of the hearing, plagued by poor bandwidth issues rendering significant portions of what was said to be “not transcribable”).

109. For much of that which took place, I am satisfied that the appropriate course is to reproduce what I consider to be the relevant portion of the transcript where an extract from what was said by Ms Spencer and/or Mr Joseph can provide an adequate understanding of each party is relevant position before I turn to provide a ruling with respect to that item. However, in a number of instances, it is more appropriate to provide a summary.

Mr Joseph’s general submissions

110. 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.

111. 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?

112. 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.

Item 1

113. Item 1 in Mr Joseph’s Notice to Produce is in the following terms:

1   This Notice to Produce

114. I explained to Ms Spencer that this item was a purely formal requirement. She accepted that she should comply with it.

Item 2

115. Item 2 in Mr Joseph’s Notice to Produce is in the following terms:

2   All "documents" in relation to and arising out of the purchase and supply of bamboo plants and/or irrigation system and/or security cameras 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 cameras and/or irrigation system

Ms Spencer’s response

116. 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:

Comment: Partially relevant - only documents relating to the supply of bamboo plants are relevant.

117. My note of what was said by Ms Spencer in a “not transcribable” portion of the transcript on this topic was that she conceded at least the possibility that the irrigation system documents might have some relevance.

Mr Joseph’s submissions

118. 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.

119. 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.

120. 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

121. Ms Spencer's response (Transcript 17 August 2021, page 10, lines 44 to 49) was:

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

236. 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.

237. With respect to (a), its apparent relevance is self-evident, and it is to remain.

238. 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.

239. 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.

Item 23

240. 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"

241. 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.

242. 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).

243. 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).

244. The hearing, then progressed to a consideration of the various groupings of documents listed in the annexure to the Notice to Produce.

245. 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.

246. 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.

247. 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).

248. 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.

249. 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.

250. 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).

251. 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.

252. 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.

253. 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.

254. 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.

255. 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.

The text messages with Mr Leftwich

256. The second item (class of documents) on the list in Annexure A arising pursuant to item 23 is described as “text message to John Leftwich on 26/1/18 and reply 29/1/18”.

257. No specific explanation was provided by Mr Joseph as to why any documents within this description would be apparently relevant for the purposes of his Tree Dispute Application. This item is, therefore, rejected.

The e-mails in the schedule to item 23

258. 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.

259. 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.

260. 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.

261. 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.

262. 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.

263. As a result, the remainder of Annexure A as imported by virtue of item 23 is rejected.

Time for compliance with modified Notice to Produce

264. 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.

265. 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.

266. 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.

Conclusion

267. It is first appropriate to note that the orders set out below will grant leave to Mr Joseph to amend the orders he seeks as the outcome of his Tree Dispute Application.

268. Second, I have addressed each of the 23 items in the list of documents set out in Mr Joseph’s Notice to Produce. Some of them have been retained unaltered. Some of them have been amended by me for reasons explained with respect to each item so amended. Some of them have been rejected in their entirety for reasons also explained with respect to the relevant item.

269. I have concluded that it is appropriate, where Mr Joseph has provided a sufficient basis for requiring Ms Spencer to produce documents to enable him to cross‑examine her and/or her husband as to credit, that production of those documents (if they exist) is to be required. However, the tendering of documents, which are required to be produced for the purposes of attacking the credibility of evidence given by either of the Spencers, will be dependent on whether or not either or both of them elects to give evidence at the substantive hearing.

270. With respect to the eight-page annexure imported into item 23 of the list in Mr Joseph’s Notice to Produce, I have allowed the first group of items on that list but have rejected the remainder of the list in that annexure for the reasons explained concerning it.

271. As a result, I have produced, as Schedule A to the orders made below, a revised list of documents to replace those set out in the original list in Mr Joseph’s Notice to Produce.

272. Finally, for reasons I have explained, I have concluded that the appropriate date by which Ms Spencer is to be required to produce to the Court the documents that she remains obliged to produce are to be provided to the Court before 29 October 2021. Mr Joseph’s Notice to Produce is to be listed before the Registrar on that date.

Orders

273. 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”

**********

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

Annexure B

1.   The Applicant is granted leave, nunc pro tunc, to issue subpoenas to:

●   the Proper Officer, Rabebi Pty Ltd trading as PRD Architects

●   the Proper Officer, Bamboo South Coast Pty Ltd

2.   The Applicant is granted leave to issue subpoenas to:

●   the Proper Officer, Digital Line Pty Ltd

●   the General Manager, Kiama Municipal Council

●   Mr G de Chalain (Haskew Planning & Partnership)

●   the Proper Officer, Eplanning Pty Ltd

●   Dr Richard Lamb

●   Mr Stafford Watts

3.   The Applicant is to advise the recipients of the subpoenas in (1) by 8 September that those subpoenas are now returnable before the Registrar on Wednesday 29 September 2021

4.   Leave is granted to serve the subpoenas in (2) electronically provided a copy is also sent to each recipient by Express Post with such service to be effected by 8 September.

5.   The subpoenas in (2) are to be made returnable before the Registrar on Wednesday 29 September 2021

Justice Tim Moore

26 August 2021

Decision last updated: 16 September 2021