Abruzzese v David Jones Ltd (No.1)

In the matter of Abruzzese v David Jones Ltd (No.1), the plaintiff, Ms Abruzzese, sought to enforce a subpoena issued on 22 May 2003, directed to Maria Gerace, an intermediary in the proceedings. The dispute arose from a personal injury claim against David Jones Ltd, where Gerace held funds in trust for the plaintiff. The case was heard by the Supreme Court of New South Wales. The primary legal issues before the court were whether the subpoena should be set aside and whether the plaintiff was entitled to enforce the subpoena to compel the production of documents and payment of outstanding disbursements.

The court addressed the motion to set aside the subpoena, which was based on arguments about the appropriateness of the subpoena's issuance and the timing of its enforcement. The court found that the subpoena was properly issued and that there were no grounds for setting it aside. It was determined that the subpoena should be enforced to compel the production of documents and the payment of outstanding disbursements. The court emphasised the need for the plaintiff to manage the trust funds appropriately and ensure that all costs and disbursements were paid in a timely manner.

Consequently, the court dismissed the motion to set aside the subpoena without ordering costs. It directed that Maria Gerace must provide the documents sought by the subpoena by a specified date. Furthermore, any damages payable to Ms Abruzzese would be subject to a charge in favour of Maria Gerace for professional costs and disbursements reasonably and properly incurred. By consent, the court also ordered that Ms Abruzzese must provide direction to Ms Gerace to release all funds held in trust for the payment of outstanding disbursements, including counsel’s fees and professional costs, within seven days of the entry of these orders.