3. Set aside the order made by Pain J dismissing the applicants’ notice of motion seeking access to the first respondent’s property.
4. Pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) order that the first respondent within 28 days provide access to the Property to a structural engineer appointed by the applicants, for the purpose of that structural engineer inspecting the areas referred to in these reasons as the Northern Slab and Southern Slab areas and taking photographs or other records of the inspection.
5. For the purpose of the inspection the subject of Order 4, the structural engineer may remove any topsoil, debris or building materials that are in place over the top of the areas of inspection and may (using reasonable care not to damage the area below any such topsoil, debris or building materials) take reasonable steps to identify the structure and characteristics of any material below the surface of any such topsoil, debris or building materials. Any material so removed must be replaced in as near as possible the same location and condition as when it was removed.
Catchwords:
ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure — order for access — where concurrent contempt proceedings — privilege against self-exposure to penalty — waiver of privilege against self-exposure to penalty — where affidavit served but not read.
Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No 2) [1989] 2 Qd R 537
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 Sader v Elgammal
Sign in free to access the full text
Details
AGLC
Sader v Elgammal [2024] NSWCA 20
Case
[2024] NSWCA 20
Decision Date
CaseChat Overview and Summary
The applicants, Sader and Elgammal, sought leave to appeal from an order of the Land and Environment Court of New South Wales, which had dismissed their notice of motion seeking access to the first respondent's property. The appeal concerned the interplay between an order for access to property and concurrent contempt proceedings, specifically the privilege against self-exposure to penalty and its potential waiver.
The central legal issue before the Court of Appeal was whether the applicants had waived their privilege against self-exposure to penalty by serving an affidavit in support of their access application, even though that affidavit had not been read to the court. The court was required to determine if the act of serving the affidavit, without it being formally presented or relied upon in court, constituted a waiver of the privilege.
The Court of Appeal found that the privilege against self-exposure to penalty is not automatically waived by the mere filing or service of an affidavit. It held that a waiver occurs only when the party relying on the privilege has voluntarily disclosed the information or has taken a step that clearly indicates an intention to abandon the privilege. In this instance, the court determined that serving the affidavit, without it being read or relied upon, did not amount to a voluntary disclosure or an abandonment of the privilege. Consequently, the appeal was allowed, the order dismissing the applicants' notice of motion was set aside, and the court made orders granting the applicants access to the property for the purpose of a structural inspection.
Orders
Orders of the court
1. Leave to appeal be granted pursuant to s 58(3)(a) of the Land and Environment Court Act 1979 (NSW).
2. The appeal be allowed with costs.
3. Set aside the order made by Pain J dismissing the applicants’ notice of motion seeking access to the first respondent’s property.
4. Pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) order that the first respondent within 28 days provide access to the Property to a structural engineer appointed by the applicants, for the purpose of that structural engineer inspecting the areas referred to in these reasons as the Northern Slab and Southern Slab areas and taking photographs or other records of the inspection.
5. For the purpose of the inspection the subject of Order 4, the structural engineer may remove any topsoil, debris or building materials that are in place over the top of the areas of inspection and may (using reasonable care not to damage the area below any such topsoil, debris or building materials) take reasonable steps to identify the structure and characteristics of any material below the surface of any such topsoil, debris or building materials. Any material so removed must be replaced in as near as possible the same location and condition as when it was removed.