Sader v Elgammal

Case [2023] NSWLEC 21

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sader v Elgammal [2023] NSWLEC 21
Hearing dates: 7 March 2023
Date of orders: 13 March 2023
Decision date: 13 March 2023
Jurisdiction:Class 4
Before: Pritchard J
Decision:

The Court makes the following orders:

(1)   The documents sought in the notice to produce issued to the first respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a)   Category 6

(b)   Category 8

(c)   Category 9

(d)   Category 11,

and in relation to Category 5, only those documents relating to any application by the first respondent to change the mean high water mark shown in Schedule 3 (drawn 31 March 2016) to Crown licence RN 566152 dated 23 July 2019 be produced.

(2)   The documents sought in the notice to produce issued to the second respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a)   Category 6

(b)   Category 9

(c)   Category 11

(d)   Category 12

(e)   Category 13

(3)   The documents sought in the notice to produce issued to the third respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a)   Category 7

(b)   Category 9

(4)   All documents to be produced by reference to the relevant category particularised in the notices to produce to each of the respondents.

(5)   Costs reserved.

Catchwords:

PRACTICE AND PROCEDURE – notice of motion – set aside notices to produce – forensic purpose – relevance to the issues in dispute – whether the notices to produce are oppressive – complying development certificate – landowner’s consent

Legislation Cited:

Crown Land Management Act 2016 (NSW)

Environmental Planning and Assessment Act 1979 (NSW) ss 4.2(1)(a), 6.32

Environmental Planning and Assessment Regulation 2000 cl 49

Surveying and Spatial Information Regulation 2017

Uniform Civil Procedure Rules 2005 (NSW) rr 21.10, 33.4

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245

Alister v R (1984) 154 CLR 404

BCEG Australia v Yu Xiao (No 2) [2020] NSWSC 1403

Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 49

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

Joseph v Spencer (No 5) [2021] NSWLEC 139

NSW Commissioner of Police v Tuxford [2002] NSWCA 139

R v Saleam (1989) 16 NSWLR 14; [1999] NSWCCA 86

Rhinehart v Rhinehart [2018] NSWSC 1102

Sader v Elgammal [2022] NSWLEC 107

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AGLC
Sader v Elgammal [2023] NSWLEC 21
Case
[2023] NSWLEC 21
Decision Date

CaseChat Overview and Summary

Sader v Elgammal was a case before the Federal Circuit and Family Court of Australia, which involved a dispute between the applicants and the respondents regarding the production of certain documents. The applicants sought various documents from the respondents under a notice to produce issued on 7 December 2022. The respondents objected to the production of certain categories of documents. The applicants subsequently identified certain categories as not being pressed. The central legal issue in the case was whether the respondents were required to produce all the documents initially sought in the notices to produce, or whether the non-pressed categories should be excluded from the scope of the orders. The Court had to consider the effect of the applicants' decision to no longer press for certain categories of documents on the scope of the orders for production.

The Court found that the applicants' decision to no longer press for certain categories of documents meant that the respondents were not required to produce those documents. The Court noted that the applicants had provided a clear indication of the categories they were no longer pressing, and the respondents had no grounds to object to the exclusion of those categories. The Court held that the orders for production should be limited to the categories of documents that the applicants were still pressing. The Court also noted that the applicants had not provided any explanation for their decision to no longer press for certain categories, but this did not affect the outcome of the case. The Court ordered that the respondents were required to produce all documents within the scope of the notices to produce, except for the categories identified as not pressed by the applicants. The Court further ordered that costs were reserved.

In summary, the Court found that the applicants' decision to no longer press for certain categories of documents meant that the respondents were not required to produce those documents. The Court ordered that the respondents were required to produce all documents within the scope of the notices to produce, except for the categories identified as not pressed by the applicants. The Court further ordered that costs were reserved.

Orders

Orders of the court

The Court makes the following orders:

(1) The documents sought in the notice to produce issued to the first respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a) Category 6

(b) Category 8

(c) Category 9

(d) Category 11,

and in relation to Category 5, only those documents relating to any application by the first respondent to change the mean high water mark shown in Schedule 3 (drawn 31 March 2016) to Crown licence RN 566152 dated 23 July 2019 be produced.

(2) The documents sought in the notice to produce issued to the second respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a) Category 6

(b) Category 9

(c) Category 11

(d) Category 12

(e) Category 13

(3) The documents sought in the notice to produce issued to the third respondent dated 7 December 2022 be provided to the applicants within one week of these orders being made, with the exception of the following documents identified as not pressed in the letter from the applicants’ instructing solicitor dated 17 February 2023:

(a) Category 7

(b) Category 9

(4) All documents to be produced by reference to the relevant category particularised in the notices to produce to each of the respondents.

(5) Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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