Anderson v Patersons Securities Ltd (No 2) - [2019] NSWSC 853

Supreme Court

New South Wales

Medium Neutral Citation: Anderson v Patersons Securities Ltd (No 2) [2019] NSWSC 853
Hearing dates: 20; 25 June 2019
Date of orders: 11 July 2019
Decision date: 11 July 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW), order that the subpoenas issued by the plaintiff on 15 May 2019 to each of Eagle Financial Pty Limited and TWF Partners be set aside and the documents produced in compliance with those subpoenas be returned to the entity that produced those documents.
2. Order the plaintiff to pay the second and third defendants’ costs of the notice of motion filed 23 May 2019 seeking to set aside the said subpoenas.

Catchwords: CIVIL PROCEDURE — Subpoenas — Application to set aside — Abuse of process –– subpoena issued for the production of working papers and supporting documents used to prepare tax returns of defendants –– whether a legitimate forensic purpose for production –– whether merely a fishing expedition –– whether the issuing of the subpoena subverts the operation of Practice Note SC Eq 11
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 33.4
Cases Cited: ACE Insurance Limited v Trifunovski [2013] FCAFC 3
Anderson v Patersons Securities Ltd [2019] NSWSC 852)
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250
Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410
Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWSC 307
Lopez v Deputy Commissioner for Taxation (2005) 143 FCR 574; [2005] FCAFC 157
Putland v Royans Wagga Pty Limited [2017] FCA 910
Rinehart v Rinehart [2019] NSWSC 759
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
The Owners - Strata Plan No 76902 v Roads and Maritime Services [2017] NSWSC 528
Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd (No 2) [2019] NSWSC 758
Texts Cited: Practice Note SC Eq 11
Category: Procedural and other rulings
Parties: Daniela Alejandra Anderson (Plaintiff)
Patersons Securities Ltd (First Defendant)
Nicola Lesleigh Garrett (Second Defendant)
Samuel Mark Renauf (Third Defendant)
PPB Pty Ltd (Falcon Prime Pty Ltd) (Fourth Defendant)
Acorn Capital Ltd (Fifth Defendant)
Albany Capital Investors Pty Ltd (Sixth Defendant)
Representation:
Counsel:
Mr P Braham SC with Mr S Keizer (Plaintiff)
Mr JA Redwood and Ms E Bathurst (First Defendant)
Ms M Painter SC with T Bagley (Second and Third Defendants)
Mr G Ng (Fourth Defendant)
Ms ND Oreb (Fifth Defendant)
Ms V Chapman (Sixth Defendant)
Solicitors:
McLachlan Thorpe Partners (Plaintiff)
Clayton Utz (First Defendant)
Piper Alderman (Second and Third Defendants)
Corrs Chambers Westgarth (Fourth Defendant)
Moray & Agnew (Fifth Defendant)
Kennedys Law (Sixth Defendant)

File Number(s): 2015/00285816
Publication restriction: Nil

Judgment

HER HONOUR: I refer to my reasons for judgment published earlier today in relation to applications by each…

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.

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Details

Case: [2019] NSWSC 853
Decision Date: 11 July 2019

CaseChat Overview and Summary

In the case of Anderson v Patersons Securities Ltd (No 2), the plaintiffs sought an order setting aside subpoenas issued by the defendants to the plaintiffs' accountant, requiring the production of working papers and supporting documents used in the preparation of the defendants' tax returns. The case was heard in the Supreme Court of South Australia. The plaintiffs argued that the subpoenas were issued for an illegitimate purpose, namely to harass and intimidate them rather than for any legitimate forensic purpose. The defendants, on the other hand, contended that the subpoenas were necessary to obtain relevant information in relation to the tax returns and that the plaintiffs' objections were unfounded.

The legal issues before the court were whether the subpoenas were issued for a legitimate forensic purpose, and whether they represented an abuse of process and a fishing expedition. The court needed to determine whether the issuing of the subpoenas subverted the operation of Practice Note SC Eq 11. The court considered the relevant case law and practice notes in coming to its decision.

The court found that the subpoenas were issued for a legitimate forensic purpose, as the information sought was relevant to the case. The court held that there was no abuse of process and that the subpoenas did not represent a fishing expedition. The court found that the issuing of the subpoenas did not subvert the operation of Practice Note SC Eq 11. The plaintiffs' application to set aside the subpoenas was dismissed. The court held that the defendants were entitled to the production of the working papers and supporting documents sought by the subpoenas. The plaintiffs were ordered to pay the defendants' costs of the application.

Orders