WILLOUGHBY CITY COUNCIL v. GOODBRAIN PTY LIMITED No. 40025 of 1997 [1997] NSWLEC 151 (10 October 1997)

Land and Environment Court of New South Wales

Record of hearing

Judge Pearlman J

Number 40025 of 1997

Parties Applicant Willoughby City Council

First Respondent Goodbran Pty Limited

Second Respondent Nicholas Andrews

Key issues
* Development consent - notice to produce

Hearing date 10 October 1997

Judgment Extempore

Date of judgment 10 October 1997

Appearances Applicant Mr C R Blackwell, Solicitor

First and Second Ms S A Duggan, Barrister

Respondents

Solicitors Applicant Cowley Hearne

First and Second Gadens Ridgeway

Respondents

Number of pages 2

Summary of orders

* Notice to produce set aside

IN    THE    LAND     AND 						40025 of 1997

ENVIRONMENT COURT 						Pearlman J 

OF NEW SOUTH WALES						10 October 1997

WILLOUGHBY CITY COUNCIL

Applicant

v

GOODBRAN PTY LIMITED

First Respondent

NICHOLAS ANDREWS

Second Respondent

EXTEMPORE JUDGMENT

The application is to set aside, in effect, the whole of a notice to produce filed on behalf of the respondents. The applicant asks for paragraphs (1) and (2) of the notice to produce to be set aside. The basis of the application is twofold - first, that the documents which are the subject of the notice to produce are irrelevant to the questions that have been raised and, secondly, that the notice to produce is oppressive.

The notice of motion is supported by an affidavit of Mr C R Blackwell who sets out in para (3) the question which he understands is the question to be considered by the Court. That question is whether the respondents are trading as a wholesaler as opposed to a retail shop and whether such trading is outside the terms of the development consent.

In her submission, Ms Duggan on behalf of the respondents, says that the evidence shows that the issues are wider than I have mentioned and that some questions of nuisance impact arise. Therefore, she submits these proceedings also raise, as they always do, a question of discretion.

I am not, however, persuaded that the production of the documents that are set out in this notice to produce, that is:

"All files, reports, memoranda, notes, drawings, sketches, photographs, models, correspondence and minutes, including but not limited to any or all drafts of the above, which relate to any development application on any property at 270-316 (even numbers) Willoughby Road Naremburn."

has any possible relevance to the case. On that basis I am prepared to make the order that is sought in the notice of motion.

I order that the paragraphs (1) and (2) of the first and second respondents' notice to produce dated 15 September 1997 be set aside.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING PAGE 1 ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

Associate