Joseph v Spencer (No 3)

[2021] NSWLEC 137

Land and Environment Court

New South Wales

Medium Neutral Citation:	Joseph v Spencer (No 3) [2021] NSWLEC 137
Hearing dates:	29 October, 11 and 12 November 2021
Date of orders:	12 November 2021
Decision date:	12 November 2021
Jurisdiction:	Class 2
Before:	Moore J
Decision:	See orders at [16]
Catchwords:	SUBPOENA - subpoena to attend and give evidence - inadequate compliance with notice to produce documents to the court - evidence required to explain failure to produce documents - further orders for compliance
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

EXTEMPORE Judgment

1. HIS HONOUR: I have had the advantage of hearing cross‑examination by Mr Joseph of Ms Jennifer Spencer, the Second Respondent to these proceedings. That cross‑examination has taken place as a consequence of me granting leave to Mr Joseph to issue a subpoena to attend and give evidence on Ms Spencer, such leave being granted pursuant to a Further Amended Notice of Motion that I have earlier dealt with. Paragraph 4 of that Notice of Motion was in the following terms:

That leave be granted to the Applicant to issue a subpoena on Ms Jennifer Spencer, the Second Respondent to attend and give evidence to this Court on a date appointed by the Court in relation to the Notice to Produce served on her by the Applicant.

2. The order that I made was in those terms.

3. Following Mr Joseph’s cross‑examination of Ms Spencer yesterday afternoon, I invited Mr Joseph to provide, to my Associate and to Ms Spencer, a copy of the terms of such orders as he might wish to seek that I make today, as arising out of her cross‑examination yesterday. Mr Joseph has provided a draft of those orders and those orders have been the subject of submissions from him and from Ms Spencer this morning.

4. Prior to Mr Joseph addressing me on those matters, I raised a number of matters with him.

5. The first, relevantly, concerned his proposed order 1, which related to legal advice. I indicated to him that the order which I had made orally yesterday, and which I proposed to confirm in writing in the orders which I make today, had already resolved that issue by my ruling that any legal professional privilege of Ms Spencer, concerning a limited element of a document produced with respect to which privilege had been claimed, had been waived as a result of the submissions which she had made leading up to my delivering of my judgment concerning her application to set aside the Notice to Produce, which judgment was given on 15 September 2021.

6. In light of that discussion, Mr Joseph indicated that he did not press his proposed order 1.

7. The second matter which I raised with Mr Joseph was my concern that several of the orders which he proposed sought that I make orders requiring Mr Spencer to take some action and produce documents or electronic files in circumstances where the leave which had been given to subpoena Ms Spencer was leave addressed to her personally and not in her capacity of Mr Spencer’s agent in these proceedings.

8. I expressed the concern that, under those circumstances, she was not appearing to be cross‑examined in her capacity as agent for Mr Spencer and that it would be a denial of procedural fairness to Mr Spencer if I was to make orders requiring him to undertake any action as a consequence of the cross‑examination of Ms Spencer.

9. I invited Mr Joseph to address those matters. Mr Joseph did so and submitted that I did have power to make orders binding Mr Spencer, both as a consequence of the fact that Ms Spencer was his agent in the proceedings, and that order 6 of Mr Joseph’s Further Amended Notice of Motion contained the conventionally sought ancillary order of seeking “such other orders as the Court thinks fit” in these proceedings concerning the subpoena addressed to Ms Spencer.

10. I am satisfied that it is not appropriate, absent providing Mr Spencer with some basis upon which he has the opportunity to address the Court, to make any orders requiring him to do anything arising out of the subpoena issued to Ms Spencer, in her personal capacity rather than in her capacity as an agent of Dr Spencer. I am therefore satisfied that I should make the following orders to address matters which Ms Spencer admitted during the course of her cross‑examination had not resulted in the provision of material specified in the Annexure A, setting out the terms of the Amended Notice to Produce in my judgment of 15 September 2021.

11. I will come to the terms of those orders in a short time. It is appropriate to observe, however, with respect to Mr Joseph’s proposed order 4, seeking the production of any photographs or photomontages from the interior of his playroom towards Mr and Ms Spencer’s property, that it was Ms Spencer’s uncontested evidence before me yesterday that she had provided those photographs to her husband and had asked him to print them and produce them to the Court.

12. It is also not a matter of contest that, in the material which was transferred from me from the “privilege claimed” envelopes in the relevant subpoena packet to the general access information packet in another subpoena packet, the only photographs which had been produced on Ms Spencer’s behalf in response to that element of the Notice to Produce that is contained in item 10 of the amended schedule at Annexure A to my judgment of 15 September were photographs taken from the upper level of Mr Joseph’s dwelling.

13. Ms Spencer, having admitted that there were photographs that were taken from the lower level (photographs which were not provided to the Court), it is appropriate that she be required to provide those. It is my understanding that they can be provided electronically directly to the Court as computer image files and their production can be addressed by the Registrar on 29 November 2021 when I propose to have the Notice to Produce to the Court, as amended by me on 15 September 2021, listed before the Registrar for further procedural directions.

14. Similarly, it is my understanding that relevant documents that will be required to be produced by Ms Spencer to the Court can be provided electronically to the Court and do not need to go through her husband as an intermediary for that purpose.

15. I now turn to the question of the specific remaining orders sought by Mr Joseph and proposed to be renumbered by me, reflecting the removal, by withdrawal, of the proposed order 1 in Mr Joseph’s e‑mail of seven‑minutes‑past 6.00 last night to my Associate and to Ms Spencer.

16. I make the following orders:

1. Any legal professional privilege in respect to advice received by the Second Respondent has been waived in relation to that legal advice concerning submissions to be made to this Court relating to the Notice to Produce addressed to the Second Respondent;

2. The Second Respondent is ordered to produce to the Court, by 26 November 2021, the following documents including copies:

1. all e‑mails and any attachments thereto from the Second Respondent to the First Respondent in relation to the Notice to Produce as amended including any sent to the First Respondent after 19 September 2021 in relation to that Notice to Produce;

2. all computer files on any computer device in the possession of the Second Respondent in relation to any or all of the e‑mails identified in the amended Notice to Produce as specified in the judgment of Moore J of 15 September 2021 at Annexure A;

3. any photographs or photomontages from inside the Applicant's playroom towards the Respondents' property;

4. all e‑mails to Natalie Allen from the Second Respondent as specified in 15(e) of the amended schedule to the Notice to Produce set out in the judgment of Moore J on 15 September 2021 at Annexure A; and

5. all e‑mails to Mr S Watts from the Second Respondent as specified in 15(c) and (d) of the amended schedule to the Notice to Produce set out in the judgment of Moore J on 15 September 2021 at Annexure A.

3. An affidavit verifying complete production of the required documents; and

4. The Notice to Produce to the Court (as amended by Moore J on 15 September 2021) is listed before the Registrar on 29 November 2021.

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Decision last updated: 24 November 2021