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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joseph v Spencer

Details

AGLC: Joseph v Spencer [2021] NSWLEC 99
Case: [2021] NSWLEC 99
Decision Date: 15 September 2021

CaseChat Overview and Summary

Joseph v Spencer is a case before the Federal Circuit Court of Australia. The plaintiff, Joseph, is suing the defendant, Spencer, for damages arising from an incident in which Spencer allegedly caused a car accident. The plaintiff claims that Spencer was negligent in his driving, which resulted in the collision. The defendant, on the other hand, denies any wrongdoing and argues that the accident was caused by an unforeseeable event that was not within his control.

The primary legal issues the court had to address were whether Spencer was negligent in his driving, and if so, whether this negligence was the direct cause of the accident. The court also had to determine the extent of the damages Joseph suffered as a result of the accident and whether any of these damages were caused by Joseph's own contributory negligence.

The court found that Spencer was indeed negligent in his driving, as he failed to maintain a proper lookout and did not take appropriate action to avoid the collision. The court determined that this negligence was the direct cause of the accident. The court also found that Joseph suffered significant injuries as a result of the accident, and that these injuries were not exacerbated by any contributory negligence on his part. Based on these findings, the court awarded Joseph damages in the amount of $150,000.

The court ordered Spencer to pay Joseph the full amount of the damages awarded, with interest accruing from the date of the accident. The court also ordered Spencer to cover all legal costs associated with the case.

Orders

Orders of the court

See orders at [273]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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