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Barkley v Barkley-Brown

Barkley v Barkley-Brown

Case [2010] NSWSC 746 15 July 2010

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CITATION: Barkley v Barkley-Brown [2010] NSWSC 746

HEARING DATE(S): 5 and 6 July 2010

JUDGMENT DATE :
15 July 2010

JUDGMENT OF: Ball J

DECISION: Application dismissed with costs.

CATCHWORDS: CONTEMPT - civil contempt - failure to comply with subpoena - applicant failed to prove respondent had documents in his possession or power - conduct engaged in by respondent not wilful. COSTS - whether costs should be awarded against a subpoenaed party - no factual basis for doing so in this case

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules (NSW)

CATEGORY: Principal judgment

CASES CITED: Ainsworth v Hanrahan (1991) 25 NSWLR 155
Anderson v Hassett [2007] NSWSC 1310
Athens v Randwick City Council (2005) 64 NSWLR 58
Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483
Australasian Meat Industries Employees’ Union v Mudginberri Station Pty Limited (1986) 161 CLR 98
Barkley v Barkley-Brown [2010] NSWSC 747
Harris v Harris [2001] 2 FLR 895, 922-3
J-Corp Pty Ltd v Australian Builders Labourers Union of Workers [1993] FCA 42
Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245
Re Bauhaus Pyrmont Pty Ltd (In Liq) [2006] NSWSC 879
Re Mileage Conference Group of the Tyre Manufacturers’ Conference Ltd’s Agreement [1966] 1 WLR 1137
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 98
Rochfort v Trade Practices Commission (1982) 153 CLR 134
Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190
Witham v Holloway (1995) 183 CLR 525

PARTIES: Paul Barkley (First Plaintiff)
John Hawkins (Second Plaintiff)
Vicki Barkley-Brown (Defendant/Applicant)
Lawrence Nelson (First Respondent)
Paul Henshaw (Second Respondent)

FILE NUMBER(S): SC 2007/257461

COUNSEL: Ms E Cohen (Defendant/Applicant)
Ms E Picker (Defendant//Applicant)
Mr V Gray (Respondents)

SOLICITORS: Peter Dawson & Associates (Defendant/Applicant)
Marsdens (Respondents)

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

15 JULY 2010

2007/257461 PAUL BARKLEY & ANOR v VICKI BARKLEY-BROWN

JUDGMENT

1 This judgment should be read together with the judgment I delivered on 6 July 2010 – Barkley v Barkley-Brown [2010] NSWSC 747.

Background

2 On 25 November 2009, the defendant in these proceedings filed a motion for contempt against Mr Lawrence Nelson and Mr John Henshaw. Mr Nelson had acted as the accountant for Mrs Rhonda Brenda Farrell (the deceased), who died in December 2005. Mr Henshaw originally acted as the solicitor for the plaintiffs who, on behalf of the deceased’s estate, brought a claim against the defendant alleging that she had misappropriated funds belonging to the deceased. That claim succeeded before Ward J. The alleged contempts relate to what is said to have been the failure by Mr Nelson and Mr Henshaw to comply with subpoenas served on them to produce documents relating to the affairs of the deceased.

3 The application came before me on 5 July 2010. On that day, the applicant sought to file an amended charge and later on that day sought to amend the notice of motion to…

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 Barkley v Barkley-Brown

Details

AGLC: Barkley v Barkley-Brown [2010] NSWSC 746
Case: [2010] NSWSC 746
Decision Date: 15 July 2010

CaseChat Overview and Summary

The case of Barkley v Barkley-Brown involved a dispute over civil contempt, specifically the failure of the respondent to comply with a subpoena. The applicant alleged that the respondent had documents in his possession or power and had failed to provide them as required. The case was heard in the Supreme Court of New South Wales. The applicant sought to hold the respondent in contempt and requested that costs be awarded against them.

The legal issues before the court included whether the respondent had documents in their possession or power, whether the respondent's conduct was wilful, and whether costs should be awarded against the subpoenaed party. The court considered the evidence presented by both parties and examined the relevant legal principles. The court found that the applicant had not provided sufficient evidence to prove that the respondent had the documents in their possession or power. Furthermore, the court determined that the respondent's conduct was not wilful, and therefore, the contempt application should be dismissed.

The court's reasoning was based on the lack of evidence provided by the applicant to establish the respondent's possession or power over the documents. The court also considered the respondent's explanation for their failure to comply with the subpoena and found that their conduct was not wilful. As a result, the court dismissed the contempt application and found that there was no factual basis to award costs against the subpoenaed party. The court ordered that no costs be awarded against the respondent.

Orders