Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council

[2013] NSWLEC 1055

Land and Environment Court

New South Wales

Medium Neutral Citation:

Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council [2013] NSWLEC 1055

Hearing dates:

14 March 2013

Decision date:

14 March 2013

Jurisdiction:

Class 3

Before:

Moore SC

Decision:

Scope of notice confined

Catchwords:

Notice to Produce: Scope of notice

Category:

Procedural and other rulings

Parties:

Peabody Pastoral Holdings Pty Limited (Applicant)

Mid-Western Regional Council (Respondent)

Representation:

Mr C Ireland (Applicant and applicant on motion)

Mr M Seymour (Respondent and respondent on motion)
McCullough Robertson Lawyers

Crennan Legal

File Number(s):

31293 of 2012 31295 of 2012

Judgment

1. SENIOR COMMISSIONER: The applicant in the substantive proceedings moves to set aside a Notice to Produce to the Court that has been served on it by the respondent. The Notice to Produce sets out a list of documents but has as a chapeau to that list a very broadly cast categorisation in very general terms of those matters that are to be brought within the purview of the notice.

1. There are a variety of bases upon which the application on the motion seeks to have the Notice to Produce set aside.

1. The Notice to Produce also includes reference at (ii) and (iii) to matters that, on the uncontested evidence of Mr Holland, do not exist - but that would be appropriately dealt with by a "not produced" annotation at the time of production of documents.

1. The proceedings that are being dealt with are those in Class 3 of the Court's jurisdiction, one where there is a deal of procedural elasticity provided at hearing on the merits. It is possible from the terms of exhibit B on the Notice of Motion that there might, and I express no inferred and certainly no concluded opinion on this (and I do not anticipate to be dealing with the substantive proceedings), that matters are potentially relevant arising from some of the documents.

1. I am, however, concerned that the chapeau is far too wide and that if the documents are capable of being made relevant they are likely to be able to be made relevant from the primary document only.

1. As a consequence, although I do not intend to try and draft the terms of a revised Notice to Produce, (that can be left to the parties and it made returnable at a time and date agreed to by the parties before the Registrar in not more than eight working days from now), the foundational documents only should be the documents that are required to be produced pursuant to the revised Notice to Produce.

1. One or other of you should bring in short minutes to reflect this decision and they should come in by the close of business on Monday. I will then initial them and place them on the file.

1. I give you liberty on twenty-four hours if there is a dispute about the final terms of the order to give effect to my decision.

Tim Moore

Senior Commissioner