Bailey v Tredrea
[2002] NSWSC 922
•26 September 2002
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 34DECISION: 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 and the defendant was, the evidence showed, to depart for the United States on the following day, being a Saturday. Whatever the merits of the case, I did not think an Anton Piller order should be made upon an application made at that time.
4 The present application was made before me yesterday afternoon and stood over to this morning to permit me to examine the documentation. That documentation included a useful written outline of submissions by Mr Evans.
5 I am well aware of the invasive nature of Anton Piller orders and the caution which should be exercised in their being granted. The principles relating to the grant of orders were usefully summarised in the Court of Appeal by Powell JA, with whom Meagher and Handley JJA agreed, in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547. In that case his Honour cited from the judgment of Lee J in Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34 at 38 to the effect that there must be clear evidence that the defendants have in their possession incriminating documents or things.
6 This is the aspect of the present application that has most exercised my mind. However, the evidence is clear that the defendant was in possession of documents, including financial documents, of the deceased. That is plain from her own evidence that she took possession of his papers and affairs after his death as the prospective applicant for letters of administration, an application which she subsequently made. The continuing presence of documents of the deceased in her possession has been attested by the production of various of these documents from time to time, in many cases after delay and after extreme pressure has been applied. I have less trouble with the aspect of the fear of the documents' removal or destruction. Apprehension in that regard arises from the history deposed to in evidence of the difficulty in obtaining documents and inconsistent answers that have been given by the defendant relating to the existence of documents and knowledge of transactions in a number of places, including testimony before Windeyer J in earlier proceedings, draft unsworn answers to interrogatories and answers to interrogatories which have now been provided, as well as other places. The impending marriage of the defendant to a US citizen suggests that documents in her possession may well soon be permanently removed to the United States. It is not desirable that I say more.
7 In all of the circumstances I am prepared to make the orders that are now brought forward on behalf of the plaintiff. They have had removed from them at my requirement authorisation to seize gold or jewellery rather than documents.
8 The orders I make are as follows:
(1) I grant leave to the plaintiff to file in Court notice of motion dated 25 September 2002.
(2) There will be orders in accordance with the form of orders initialled by me and placed with the papers.
(3) I direct that these orders be entered forthwith.
(4) I note the undertaking to Court of Mr Argyropoulos not to inform his country principals of these orders before 12 noon on 26 September 2002.
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