Transport for NSW v Boensch (No 2)

The plaintiff/cross-defendant, Transport for New South Wales (TfNSW), is the registered proprietor of the land in Certificate of Title Volume 5018 Folio 1, commonly known as Sydney Harbour. Sydney Harbour is a body of tidal water, which includes all bays, rivers and tributaries, within the tidal boundaries. Parramatta River is a river which forms part of Sydney Harbour. Subiaco Creek, at least up to the point at which it passes under Victoria Road at Rydalmere, is a tidal tributary of the Parramatta River. As a result, the tidal portion of Subiaco Creek forms part of Sydney Harbour.

The first defendant/cross-claimant, Franz Boensch, is the registered proprietor of Certificate of Title Folio Identifier 38/14244, known as 255 Victoria Road, Rydalmere, New South Wales (Rydalmere Property). The Rydalmere Property adjoins Subiaco Creek.

The second defendant, Go Green Systems Pty Limited trading as Big Toys, is a corporation that carries on business from the Rydalmere Property and has not played an active role in the proceedings.

The claims by TfNSW against Mr Boensch and Big Toys are now made in the further amended statement of claim filed 4 August 2023 (FASC). They concern alleged trespass to the bank of Subiaco Creek by Mr Boensch and Big Toys, which TfNSW alleges forms part of Sydney Harbour and is its land.

In the defence to the amended statement of claim filed 21 October 2021, amongst other matters, Mr Boensch has raised issues concerning the boundary between Subiaco Creek and the Rydalmere Property.

In the statement of cross-claim filed 15 September 2021, Mr Boensch has also raised issues concerning the boundary between Subiaco Creek and the Rydalmere Property and has alleged breaches of duty by TfNSW arising from alleged flooding events that have affected the Rydalmere Property.

I have dealt with the matters raised by the FASC, the defence and the cross-claim in significantly more detail below.

The applications to be determined by me in these proceedings were made by TfNSW in two notices of motion, which can be summarised as follows:

At the hearing, Ms G Keesing of counsel, instructed by Holding Redlich, appeared for TfNSW. Mr Boensch was self-represented.

TfNSW relied on the following evidence:

Mr Boensch relied on the following evidence:

Before considering each of the motions, I will outline the issues that are raised in the substantive proceedings.

The substantive proceedings were first commenced by TfNSW filing the statement of claim on 29 June 2021.

The principal issue in the substantive proceedings is the location of the boundary between Subiaco Creek and the Rydalmere Property. This issue has a long and hard-fought history between the parties.

The location of that boundary was the subject of an application in 1996 by Mr Boensch to the Registrar General of New South Wales for a determination under Part 14A of the Real Property Act 1900 (NSW) (RPA) of the position of the common boundary between TfNSW’s land and the Rydalmere Property.

On 10 July 1996, the Registrar General determined the boundary to be the position ascertained by the ground survey undertaken in 1952 by the Maritime Services Board (a predecessor in title to Sydney Harbour), whereby the common boundary was found as being the mean high-water mark (MHWM) as identified in the Maritime Services Board Field Book 199 at pages 128-140, particularly at page 133 (1996 boundary determination).

Section 135K(1) of the RPA provides:

Section 135J(3) of the RPA provides a 28 day period within which particular persons dissatisfied with the 1996 boundary determination (including Mr Boensch as an owner of land adjoining the boundary) could request that the Registrar General refer the matter to the Land and Environment Court (LEC) for determination of the position of the boundary by the LEC. No such referral to the LEC in relation to the 1996 boundary determination was sought by any party.

Section 135L of the RPA provides:

Despite the 1996 boundary determination and the operation of s 135L of the RPA that it is to be taken as determined “for all purposes”, Mr Boensch continued (and continues) to contend that the boundary is the toe of the bank of Subiaco Creek, which is below the MHWM.

On 1 March 2022, Mr Boensch filed a notice of motion in these proceedings seeking various orders, including for the hearing of preliminary questions concerning the position of the common boundary between Subiaco Creek and the Rydalmere Property (March 2022 Notice of Motion).

On 6 May 2022, Darke J made orders (by consent) to resolve the March 2022 Notice of Motion, requiring Mr Boensch to seek a determination under s 135B of the RPA from the Registrar General of the common boundary between Sydney Harbour and the Rydalmere Property. Those orders included the provision that if the Registrar General refused to make a new boundary determination on the basis that there was no doubt as to the position of the boundary, then the motion would be dismissed.

On 8 June 2022, Robert Harrison, a registered surveyor acting for Mr Boensch, applied to the Registrar General for a boundary determination in respect of the common boundary.

On 14 July 2022, TfNSW provided material to the Registrar General setting out its position on the common boundary.

On 29 July 2022, the Registrar General informed the parties that in accordance with s 135D(2) of the RPA, he refused to make a determination because the boundary had previously been determined in the 1996 boundary determination and there was no new information provided which would compel the Registrar General to reconsider the 1996 boundary determination (2022 boundary refusal).

On 25 August 2022, Mr Boensch commenced proceedings in the LEC seeking leave to appeal the 1996 boundary determination, an appeal against the 2022 boundary refusal, and various other orders (LEC proceedings). TfNSW and the Registrar General applied for orders that the LEC proceedings be summarily dismissed pursuant to r 13.4 of the UCPR.

On 23 July 2023, the LEC proceedings were dismissed by Robson J on the basis that they did not disclose a reasonable cause of action: see Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82. There is no evidence before me of any appeal of that decision by any party.

The claims made by TfNSW are now expressed in the FASC. In summary, TfNSW alleges that it is the registered proprietor of Sydney Harbour, the boundary of which is up to and including the MHWM where Subiaco Creek adjoins the Rydalmere Property, and Mr Boensch has trespassed by placing a number of items (including shipping containers, a metal shed, car parts and other miscellaneous items) and erected a retaining wall on TfNSW’s land (Retaining Wall).

The relief sought in the FASC is damages and that between Mr Boensch and Big Toys they must within 28 days remove the items and the Retaining Wall from the bank of Subiaco Creek adjacent to and contiguous with the Rydalmere Property, remediate TfNSW’s land, and be enjoined from placing any further items on TfNSW’s land.

The latest form of the pleadings which have been filed by Mr Boensch are contained in each of the defence and the cross-claim.

Mr Boensch continues to contest the location of the common boundary in the substantive proceedings. The cross-claim seeks extensive declaratory relief relating to the position of the common boundary, and claims that TfNSW has neglected to maintain Subiaco Creek and is consequently liable for damage to the Rydalmere Property.

The substantive proceedings have not yet been listed for hearing.

On 4 September 2023, in advance of the hearing, Mr Boensch foreshadowed that he would be making an application to adjourn the hearing of the Dismissal Motion and the Notice to Produce Motion on the basis that the Court Book was not served on him with sufficient time to adequately prepare for the hearing. Mr Boensch also raised various complaints about the conduct of TfNSW’s solicitor, including that they were deliberately withholding his evidence.

The adjournment application was heard by me on 5 September 2023, on which occasion I gave an ex tempore judgment refusing the adjournment – Transport for NSW v Boensch [2023] NSWSC 1200.

I then proceeded to hear the two notices of motions concurrently.

By the Notice to Produce Motion, TfNSW seeks the following orders:

The notice to produce was served on TfNSW on 4 May 2023. The third and final sentence of paragraph 1 of the notice to produce and paragraphs 2 to 13 seek production of TfNSW’s records, including records:

The Dismissal Motion seeks the following orders in relation to the cross-claim:

I will deal with the issues raised by the Dismissal Motion before turning to consider the Notice to Produce Motion because the manner in which I propose to deal with the Dismissal Motion affects the scope of the issues to be determined in relation to the Notice to Produce Motion.

The court’s power to summarily dismiss proceedings is contained in r 13.4 of the UCPR. Relevantly, subrr 13.4(1) and (2) provide:

For many decades, the shorthand expression of the applicable principles for the determination of an application to summarily dismiss proceedings has been described as the “General Steel test”, which derives from the decision in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129; [1964] HCA 69, in which it was held by Barwick CJ that:

In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], Gaudron, McHugh, Gummow and Hayne JJ commented on the General Steel test in the following way:

This expression of principle was endorsed in Batistatos v Roads & Traffic Authority New South Wales (2006) 226 CLR 256; [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ at [46] (where it was also said that the General Steel test should not be given “canonical force”) and Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, by French CJ and Gummow J at [24].

In Shaw v State of New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ in CL agreed) at [32] elaborated on the relevant General Steel test for summary dismissal as follows:

This assessment is to be made taking the party making the claim at its highest, meaning that the party applying for summary dismissal must accept the truth of all allegations in the claim, and the ranges of meaning which assertions in the claim are capable of bearing: see Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405, Gleeson JA (with whom Beazley P and Barrett JA agreed) at [200], citing Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].

The recent Court of Appeal decision in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 similarly dealt with an interlocutory application for summary dismissal, with Adamson JA observing at [123]:

The power of the court to strike out the whole or any part of a pleading is contained in r 14.28(1) of the UCPR, which provides:

In relation to the power to strike out a pleading, the court must give consideration to the importance of pleadings for the conduct of a case, particularly to enable the opponent to know the case they have to meet. But the court does not treat them as rigid boundaries beyond which the parties may never stray.

In Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490; [1916] HCA 81, Isaacs and Rich JJ at 517, wrote (reading past the gender inappropriate use of “man” from more than 100 years ago):

These themes were emphasised in Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, Dawson J at 296–297, who stated (authorities omitted):

In Banque Commerciale, Brennan J added at 288:

Pleadings not only inform the opponent of the case to be met but also facilitate the just, quick and cheap determination of the real issues in the proceedings.

These matters were emphasised by Adamson J (as her Honour then was) in Dickens v New South Wales (No 3) [2018] NSWSC 485 at [36] and [38]-[39]:

The concept of whether a pleading is embarrassing has also been the subject of extensive judicial consideration, drawn together in McGuirk v The University of New South Wales [2009] NSWSC 1424, Johnson J at [32]–[35], as follows:

The court may receive evidence on the hearing of an application for a summary dismissal under r 13.4 of the UCPR or the strike out of a pleading under r 14.28 of the UCPR: r 13.4(2) and r 14.28(2) of the UCPR.

TfNSW submits that the cross-claim does not disclose a reasonable cause of action, seeks relief which is beyond the jurisdiction of the Court and otherwise contrary to law, and is bound to fail.

Drawing on r 13.4(2) of the UCPR, TfNSW also submits that in determining the Dismissal Motion, the court should have regard to the 1996 boundary determination as evidence in that the document is incorporated in the pleadings and goes to the reasonable prospects of the cross-claim.

TfNSW’s primary submissions on the Dismissal Motion are as follows:

The crux of TfNSW’s argument is that in seeking relief (particularly declaratory relief) in relation to the location of the boundary, the cross-claim amounts to a collateral attack upon the 1996 boundary determination.

It should also be noted that in its defence to the cross-claim, TfNSW pleaded the following, or words to the following effect, in response to majority of Mr Boensch’s allegations:

Mr Boensch’s submissions on the Dismissal Motion can be summarised as follows:

On 23 September 2023, Mr Boensch sent an email to my chambers providing the citation to a judgment handed down by Richmond J in separate proceedings involving himself: Boensch v Bingham [2023] NSWSC 1152. Mr Boensch said that he believed the judgment would be of guidance in these proceedings and in a second email that same day, specifically noted Boensch v Bingham at [47]-[48], [50]-[54] and [93]-[94]. In those paragraphs, Richmond J drew attention to the application of striking out principles in the case of a self-represented litigant in following way:

On 4 October 2023, TfNSW sent an email to my chambers requesting an opportunity to provide short written submissions in the event that I proposed to consider Boensch v Bingham in any adverse way to TfNSW.

On 5 October 2023, I granted leave to both parties to prepare short written submissions addressing the effect (if any) of the principles identified in the relevant paragraphs from Boensch v Bingham. These were received in due course.

Mr Boensch’s supplementary submissions are grounded in the principle that the court’s power to strike out or summarily dismiss a pleading should be exercised cautiously, particularly in proceedings involving a litigant in person. Mr Boensch makes specific reference to the cases cited in Boensch v Bingham that support the principle that the court should grant leave to amend a defective pleading in circumstances where a viable cause of action can be identified. Mr Boensch submits that the court should be guided by the decision in Boensch v Bingham in granting him leave to amend the cross-claim, re-iterating his submissions on the Dismissal Motion as evidence that the cross-claim is not “manifestly groundless”.

In TfNSW’s supplementary submissions, it embraces the principles outlined in the relevant paragraphs of Boensch v Bingham but maintains that the cross-claim is “manifestly groundless” and cannot be cured by amendment. TfNSW’s arguments can be summarised as follows:

Separately, TfNSW submitted that Boensch v Bingham revealed that Mr Boensch has been subject to numerous bankruptcy petitions, both before and after he filed the cross-claim and if he was, or is, a bankrupt, is precluded from bringing or maintaining the cross-claim: see Bankruptcy Act 1966 (Cth) ss 58, 59 and 60(2)-(3).

In response, Mr Boensch submits that there are no records indicating that he is, or was, a bankrupt over the course of these proceedings.

I do not propose to make any determination in relation to this new issue of Mr Boensch’s alleged bankruptcy. Should TfNSW wish to pursue the matter, it is open to them to bring an application to the court with appropriate supporting material.

In applying the General Steel test as described in Shaw of “whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial”, I am conscious that the cross-claim is drafted by a litigant in person.

The court’s role in dealing with litigants in person is a careful balancing act. At the forefront of the court’s duty is judicial impartiality and procedural fairness. It is not for the court to assist in formulating a party’s case, nor is it the court’s role to confer a positive advantage over the represented opponent: see Boensch v Bingham at [54]. However, it is recognised that litigants in person, being persons unfamiliar with the drafting of pleadings in permissible legal form, may suffer from a significant disadvantage so as to deprive them of the opportunity to have their claim determined according to law: see Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536, cited in Boensch v Bingham at [50]. In such circumstances, courts should be mindful to carefully consider the question of whether a defective pleading can be cured by amendment.

This was observed by Kirby P (as his Honour then was) in Wentworth at 536 in the following emphasised passage in Boensch v Bingham at [50]:

Courts dealing with litigants in person must always be conscious that “concealed in the lay rhetoric and inefficient presentation may be a just case”: Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138, Kirby P at [2].

To apply the relevant principles, it is necessary to consider the cross-claim in detail. The cross-claim is in the following terms:

At the hearing, I was informed by TfNSW that it was served with a proposed amended cross-claim on which Mr Boensch no longer intends to rely. Mr Boensch invited me to consider a further proposed amended cross-claim contained in the exhibit to the affidavit of Franz Boensch sworn 27 July 2023. In his written submissions, Mr Boensch stated that his causes of action were “clarified” in the further proposed amended cross-claim. However, Mr Boensch did not submit that he intends to put that exhibit in proper form or file an amended cross-claim.

Whilst the form and structure of the further proposed amended cross-claim appear different to the cross-claim, the substance is very similar. The most prominent difference appears to be that Mr Boensch has articulated the legal cause of action underpinning each of his claims. I have set out my observations on them below:

On this application, I only propose to decide the Dismissal Motion as it applies to the cross-claim, not the further proposed amended cross-claim. As such, it is not necessary to evaluate the further proposed amended cross-claim in any greater detail, given Mr Boensch’s lack of any expressed intention to seek to file it.

It appears that the relief sought in the cross-claim (under the heading “Relief Claimed” nearly all of which is expressed as declarations) can be divided into two distinct sections. The first section deals with what seems to be claims in the nature of negligence (paragraphs 1 to 11) and the second section disputes the location of the boundary (paragraphs 12 to 19). I will assess the two sections (and their associated parts of the pleadings and particulars) respectively.

As is evident, paragraphs 1 to 9 and 11 of the relief claimed in the cross-claim broadly seek declaratory relief arising from the alleged failure of TfNSW to maintain the tidal section of Subiaco Creek, resulting in flooding and consequent damage to the Rydalmere Property. Paragraph 10 of the relief claimed in the cross-claim seeks an order for the payment of money by TfNSW to Mr Boensch in the nature of compensatory damages. The relief in paragraphs 1 to 11 appears to be supported by paragraphs 6 to 21 and 42 under the heading “Pleadings and particulars”.

More specifically, paragraphs 1 and 9 of the relief seem to allege that TfNSW owed a duty of care to Mr Boensch, paragraphs 2 and 3 identify the ways in which TfNSW allegedly breached that duty, and paragraphs 4, 5, 6, 7, 8 and 10 claim damages for the losses allegedly suffered as a result of the alleged breaches. This loss is alleged to extend to material, time and effort spent maintaining the tidal section on behalf of TfNSW, including emergency maintenance of Subiaco Creek, as well as the building of a “protection wall”, being the Retaining Wall erected by Mr Boensch (which TfNSW says has been placed on its land without consent).

Paragraphs 6 to 21 of the pleadings and particulars in the cross-claim are under the heading “Flooding” and convey information about flooding and tides at Subiaco Creek. Paragraph 42 of the pleadings and particulars concerns an alleged lack of maintenance of Subiaco Creek demonstrated by the presence of a shopping trolley for 10 years. Whilst they are somewhat lacking in particularity, as submitted by TfNSW, they function to support paragraphs 1 to 11 of the relief claimed and plead TfNSW’s alleged failure to maintain the “cross section” of Subiaco Creek.

Whilst the claims in this first section are somewhat disorganised, discursive, overlapping and repetitive at times, to my mind, they reflect a lay person’s description of a cause of action in negligence against TfNSW for multiple flooding events that are said to have impacted on the Rydalmere Property and Mr Boensch. On all the evidence before me, I am not satisfied that there is a high degree of certainty that the claims made in paragraphs 1 to 11 of the relief and paragraphs 6 to 21 and 42 of the pleadings and particulars in the cross-claim will fail, nor do they stand to involve useless expense.

I note that paragraphs 6 to 21 and 42 of the pleadings and particulars in the cross-claim are not substantial or particular, but I consider that they have within them sufficient material to lay the ground for the alleged legal liability of TfNSW for the flooding events to be properly considered at trial. However, as presently drafted, they have a tendency to cause embarrassment, given the general and discursive narrative of them that would make it very difficult for TfNSW to appropriately respond by way of defence and would cause undue delay and expense, contrary to the objective for the just, quick and cheap resolution of the real issues to be determined in the proceedings. It is not the function of the court to re-draft or settle a further form of the cross-claim.

I propose to strike out paragraphs 1 to 9 and 11 of the relief claimed in the cross-claim and paragraphs 6 to 21 and 42 of the pleadings and particulars in the cross-claim pursuant to r 14.28(1)(b) of the UCPR but grant Mr Boensch leave to re-plead them within a reasonable period of time.

As to TfNSW’s submission that any claim in negligence against them by Mr Boensch would be statute barred under s 14 of the Limitation Act, having occurred some 30 or more years ago, it is generally undesirable that contested issues of this nature be dealt with on an interlocutory basis. In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533; [1992] HCA 55, Mason CJ, Dawson, Gaudron and McHugh JJ said:

In all of the circumstances, I do not consider this to be the clearest of cases. There appears to be some dispute as to when the cause of action accrued, particularly given that Mr Boensch contends that flooding occurred across multiple years, including in 2020 and 2022. In the event that the damage occurred outside the limitation period (which may or may not be the case in respect of flooding alleged to have occurred in 2007, 2012 and 2016), there is also insufficient material before me to determine whether Mr Boensch has an answer to any limitation defence that might be raised by TfNSW.

Given that I consider that Mr Boensch has articulated a reasonable cause of action in paragraphs 1 to 11 of the relief claimed and paragraphs 6 to 21 and 42 of the pleadings and particulars in the cross-claim (albeit it is one which must be re-drafted in an amended form), it would be inappropriate to speculate when and how the damage was caused to the Rydalmere Property and whether separate causes of action arise in respect of each flooding event. As the caution of Adamson JA in GR reminds me, issues of fact are pre-eminently matters for final hearing.

I consider that buried in “lay rhetoric and inefficient presentation” is a triable issue to be determined. Any limitation defences are properly matters for final hearing.

Accordingly, I consider that:

Moving to the second section of the cross-claim, paragraphs 12 to 19 of the relief claimed in the cross-claim under the heading “Further” are all dependent on the issue of the location of the boundary between Subiaco Creek and the Rydalmere Property. They appear to derive from the content in paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim.

As outlined above, the location of the boundary is an issue that has been previously litigated and is the essential integer in the second section of claims. It was first addressed in the 1996 boundary determination, followed by the 2022 boundary refusal, with both decisions sought to be appealed in the LEC proceedings. I have had regard to the 1996 boundary determination in considering the prospects of the cross-claim, as pressed by TfNSW.

Relevantly, in the LEC proceedings, Robson J held that:

Mr Boensch has exhausted several avenues for review as to the position of the common boundary between Subiaco Creek and the Rydalmere Property. In essence, what Mr Boensch is seeking to do in the second section of the cross-claim is to overturn the already litigated and final 1996 boundary determination. The legality of the 1996 boundary determination and the 2022 boundary refusal were properly matters for the LEC proceedings. Mr Boensch did not seek to appeal the decision of Robson J in the LEC proceedings.

Should Mr Boensch have wished to appeal the decision in the LEC proceedings, s 48 of the Supreme Court Act 1970 (NSW) dictates that the appropriate forum is the Court of Appeal of this court. I do not understand the approach taken by Mr Boensch in the cross-claim to be one where he is endeavouring to appeal the decision in the LEC proceedings, as it was filed well in advance of the 2022 boundary refusal and the determination in the LEC proceedings. Instead, Mr Boensch is seeking to persist in claims about the boundary between Subiaco Creek and the Rydalmere Property which have now been resolved against him and from which he did not appeal.

Accordingly, unlike the characterisation of what was sought by GR to “impugn” guardianship orders made (see GR at [152]-[153] (Basten AJA)), there is nothing in the language of paragraphs 12 to 19 of the relief claimed in the cross-claim that would suggest that Mr Boensch seeks to avail himself of the right to appeal the decision in the LEC proceedings. Rather, the declaratory relief sought in paragraphs 12 to 19 only speaks to the incorrect location of the boundary. It is not appropriate for me to suggest any reformulation of the substance of the pleadings on this application to, in effect, craft a legal cause of action. To do so would confer positive advantage to Mr Boensch of the kind discouraged in both Wentworth and Boensch v Bingham.

Here, the difficulty facing Mr Boensch extends beyond mere “lay rhetoric and inefficient presentation”. Mr Boensch is effectively seeking to ignore the 1996 boundary determination, the 2022 boundary refusal and decision in the LEC proceedings. This court is not the appropriate forum to review any of these decisions. It is also not for this court to re-determine the location of the boundary as it sees fit.

The 1996 boundary determination has taken effect, so the boundary is “for all purposes to be taken to be in the position so shown”: s 135L of the RPA. Amongst “all those purposes” are the determination of these proceedings.

Paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim concern the location of the boundary and face the same flaws identified in relation to paragraphs 12 to 19 of the relief claimed in the cross-claim. The issues with these paragraphs can be summarised as follows:

In effect, these pleadings function both as a defence to the FASC, and a cross-claim. They are defective in both substance and form, failing to disclose a reasonable cause of action against TfNSW and being an abuse of process because they are seeking to dispute a matter which can no longer be the subject of dispute in this court.

Accordingly, I find that paragraphs 12 to 19 of the relief claimed and paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim fail to disclose a reasonable cause of action in the General Steel sense. They are properly an abuse of process and should be summarily dismissed.

I will now consider the Notice to Produce Motion.

The notice to produce is set out below:

The notice to produce relates to both sections of the cross-claim, namely, the claim in negligence and the disputed location of the boundary.

At the hearing, Mr Boensch submitted that even if the cross-claim were to be summarily dismissed, the documents in the notice to produce are nonetheless required for his defence in the substantive proceedings.

I will consider this issue in greater detail below when I address the specific paragraphs in the notice to produce.

Rule 21.10 of the UCPR governs the ability of parties to require production of documents pursuant to a notice to produce. The rule is set out below:

Rule 21.1(2) clarifies that:

In Norris v Kandiah [2007] NSWSC 1296, Brereton J (as his Honour then was) at [5] observed that it was not the intent of r 21.10 to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. In The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502, Stevenson J at [4]-[6] made clear that a notice to produce served pursuant to UCPR r 21.10 must identify specific documents, rather than merely classes of documents, no matter how specifically those classes are described.

The requirements under r 21.10(1)(b) that there be a “specific document” and that it be “clearly identified” were explained by Young CJ in Eq (as his Honour then was) in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182 at [8]-[9]. The words “clearly identified” mean that there must be something more than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The word “specific” denotes something which is identified and not merely identifiable.

Drawing on this, in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [11], Barrett J concluded:

Where a notice to produce is otherwise valid, it may still be set aside if it is oppressive. As Brereton J said in Azzi v Volvo [2006] NSWSC 283 at [6]:

The party issuing the notice to produce bears the onus of establishing a legitimate forensic purpose: see Rinehart v Rinehart [2019] NSWSC 759 at [27].

TfNSW opposes the orders in the Notice to Produce Motion on the bases that:

At the hearing, TfNSW also submitted that the notice to produce was a fishing expedition.

Mr Boensch’s submissions can be summarised as follows:

The balance of Mr Boensch’s submissions re-iterate the substance of his cross-claim and are not relevant to the determination of the Notice to Produce Motion.

Paragraph 1 refers to “highlights” of TfNSW’s letter to the Registrar General dated 14 July 2022 and “following a list of documents,” being Annexure A. I infer that the list of documents in Annexure A captures the documents being sought in relation to the letter.

Annexure A lists a series of documents that are inextricably linked to Mr Boensch’s contention that the 1996 boundary determination was incorrect. This is also true of paragraphs 2 and 5 to 10 of the notice to produce which similarly pertain to the location of the boundary. For the reasons stated above, I have summarily dismissed the relevant portions of the cross-claim that relate to this contention and they are therefore not relevant to a fact in issue arising from the cross-claim.

Mr Boensch contends, however, that the documents in the notice to produce are relevant to his defence in the substantive proceedings. In effect, the defence pleads a case in substantially similar terms to that contained in the cross-claim by disputing the location of the common boundary and asserting that the 1996 boundary determination is wrong. In light of the 1996 boundary determination, the 2022 boundary refusal and the decision in the LEC proceedings, none of those parts of the defence can be maintained. As a result, the documents sought in the third and final sentence of paragraph 1 (including Annexure A) and paragraphs 2 and 5 to 10 of the notice to produce have no relevance to a fact in issue and cannot be required to be produced.

For that reason, the third and final sentence of paragraph 1 (including Annexure A) and paragraphs 2 and 5 to 10 of the notice to produce must be set aside.

Paragraphs 3 and 4 of the notice to produce concern the “Subiaco Creek Bridge” that existed prior to the construction of the new bridge in 1963.

Mr Boensch articulated the relevance of the documents in paragraphs 3 and 4 of the notice to produce as follows:

This was further clarified by Mr Boensch’s oral submissions at the hearing. The relevant extracts are provided below:

From these matters, it can be inferred that Mr Boensch seeks to rely on documents relating to the new bridge to explain the source of flooding and justify the building of the Retaining Wall in his negligence claim against TfNSW.

The documents in paragraphs 3 and 4 of the notice to produce are specifically identified in the Penrith Rugby sense, being surveys and construction plans for the former Subiaco Creek Bridge within a specific period of time. The language used is distinct and free from confusion, imposing no difficulty, other than the task of retrieving the documents, on TfNSW.

TfNSW have suggested that the material requested would expose them to burdensome costs and time in searching for the documents, particularly given the archived records are offsite and would need to be located, reviewed and collated. There is no further evidence as to the extent of the burden cast on TfNSW in undertaking this process.

Contrary to TfNSW’s submissions, I do not believe the mere age of the documents, dating back some 70 years makes them unduly burdensome or oppressive to TfNSW to produce.

Regardless, applying the test in Azzi, the documents appear to possess a high degree of relevance to the issues in the proceedings as the bridge is an integral part of Mr Boensch’s claim that the flooding caused damage to the Rydalmere Property. Accordingly, I have determined not to set aside paragraphs 3 and 4 of the notice to produce.

Paragraphs 11 to 13 of the notice to produce seek documents that concern:

Again, the documents in paragraphs 11 to 13 of the notice to produce appear to be relevant to Mr Boensch’s claim in negligence and more specifically, the flooding of the Rydalmere Property.

Mr Boensch articulated the basis for seeking the documents as follows:

The references to “any report or document” in paragraph 11 and “any document” in paragraphs 12 and 13 are somewhat vague in identifying specific documents, or rather, could be deemed as referring to a class of documents. The test in Patonga Beach requires documents to be identified by characterises peculiar to themselves. The descriptions of the documents in paragraphs 11, 12 and 13 of the notice to produce do not do this and so should be set aside.

I make the following orders:

On a date to be fixed, I will hear the parties in relation to the period within which TfNSW is to produce the documents falling within paragraphs 3 and 4 of the notice to produce.

On the same date to be fixed, I will also hear the parties in relation to costs.