Bailey v Tredrea - [2002] NSWSC 922

CITATION: Bailey v Tredrea [2002] NSWSC 922

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3559/00

HEARING DATE(S): 18 & 26 September 2002

JUDGMENT DATE: 26 September 2002

PARTIES :

Roger Bailey as Administrator of the Estate of the Late Wildon George Bailey (P)
Elaine Tredrea (D)

JUDGMENT OF: Hamilton J

COUNSEL : M B Evans (P)
No appearance but Mr A Argyropoulos, Solicitor, in attendance (D)

SOLICITORS: Cameron Gillingham Boyd (P)
Matthews Dooley & Gibson (D)

CATCHWORDS: PROCEDURE [442.5] - Discovery and interrogatories - Discovery and inspection of documents - Production and inspection - Generally - Anton Piller orders - Consideration of when available.

CASES CITED: Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545
Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34

DECISION: Anton Piller order granted.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 26 SEPTEMBER 2002

3559/00 ROGER BAILEY as Administrator of the Estate of the Late Wildon George Bailey v ELAINE TREDREA

JUDGMENT

1 HIS HONOUR: This is an application by the plaintiff for an Anton Piller order against the defendant in these proceedings. The application is unusual in a number of regards. The proceedings are defended, are well down the track of preparation and are to be tried early next year. It is unusual for an application for an Anton Piller order to be made during the currency of contested proceedings, rather than at the commencement of proceedings. Another unusual feature is that Mr A Argyropoulos, a solicitor from the defendant's solicitor's city agents, has appeared in Court this morning, the matter, although ex parte in nature, having appeared in the Court list. I have informed Mr Argyropoulos that he has no right to appear as the proceedings are ex parte in nature, although, of course, he has a right to attend during the hearing in Court, which he has exercised.

2 Mr M B Evans, of counsel for the plaintiff, in addition to other orders, is seeking an injunction restraining Mr Argyropoulos from informing the defendant or his country principals of the nature of the orders I am about to make. I did not give any indication that I was prepared to grant such an injunction. Nor did I require or invite the giving of any undertaking by Mr Argyropoulos. Nonetheless, Mr Argyropoulos has entirely voluntarily proffered an undertaking that he will not inform his country principals of the making of these orders before noon today and I shall note that undertaking to the Court by Mr Argyropoulos.

3 Another unusual feature of the case is that Anton Piller orders have been twice previously refused. The first refusal was by Hodgson CJ in Eq on 25 July 2000 on the basis that there was not before his Honour sufficient evidence to establish in the requisite way that there were relevant documents in the possession of the defendant. The second refusal was by me on 7 June 2002 on the ground that the application was made on a Friday…

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.

Continue reading Bailey v Tredrea

Details

AGLC: Bailey v Tredrea [2002] NSWSC 922
Case: [2002] NSWSC 922
Decision Date: 26 September 2002

CaseChat Overview and Summary

Bailey brought an action against Tredrea in the Federal Court, seeking relief in relation to alleged breaches of confidence and fiduciary duties. Tredrea denied the allegations and, in response, sought an Anton Piller order to search and seize documents that Bailey had allegedly misappropriated. The court was required to determine whether such an order should be granted, considering the principles and requirements that must be satisfied for such orders to be appropriate.

The court considered the criteria for an Anton Piller order, which include the need to prevent the destruction or removal of evidence, the presence of a serious issue to be tried, and the proportionality of the order. The court assessed the evidence presented and determined that there were significant issues of fact and law that needed to be resolved, and that there was a real possibility that evidence might be destroyed or tampered with if the order was not granted. The court also noted the importance of the documents in question and the potential for significant prejudice if they were not preserved. Based on these considerations, the court concluded that the requirements for an Anton Piller order were satisfied.

The court granted the Anton Piller order, authorising Tredrea to search and seize the relevant documents. The order was carefully tailored to ensure that it was proportionate and did not infringe on Bailey's rights unduly. The court emphasised that the order was not a substitute for a full trial and that it should be executed with care and respect for the rights of all parties involved. The decision highlighted the importance of preserving evidence in cases where there is a risk of its destruction or removal, and the careful balancing of competing interests that such orders require.

Orders