Brennock v Brennock

[2005] NSWSC 1058

CITATION:	Brennock v Brennock [2005] NSWSC 1058 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	7 October 2005
JUDGMENT DATE :	7 October 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Party should be allowed to read but not be given paper copy of other party's confidential affidavit.

CATCHWORDS:	PROCEDURE [112] – Supreme Court procedure – Practice under Supreme Court Rules – Evidence – Other matters – Commercially sensitive information in affidavit – Order for restricted disclosure – Relevant considerations.
CASES CITED:	Idoport Pty Limited v NAB [1999] 1 NSWSC 686 Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 648
PARTIES:	Justin John Brennock (P) Bridget Marina Brennock (D)
FILE NUMBER(S):	SC 5310/04
COUNSEL:	A Gibbons (P) B Townsend (D)
SOLICITORS:	Archer & Archer (P) Horowitz & Bilinsky (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 7 OCTOBER 2005

5310/04 JUSTIN JOHN BRENNOCK v BRIDGET MARINA BRENNOCK – EXECUTOR AND TRUSTEE OF THE ESTATE OF CHRISTOPHER JOHN BRENNOCK

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982 between the plaintiff, who is the son of the testator, and the defendant, who is his stepmother. There is no doubt that the stepson and stepmother are embattled, but I make no finding as to the degree of dislike of either side for the other.

2 The application is for restrictions on the availability of certain of the stepmother’s evidence. The application does not concern all of the stepmother’s affidavits, nor even all of her financial affidavits. The application concerns an affidavit which sets out certain material which she says is confidential and commercially sensitive in relation to her affairs, so far as they concern certain joint venture real estate developments, which are part of the deceased’s estate.

3 This is not the usual sort of case that involves manufacturing processes or secrets from trade competitors. But, without discussing in this public judgment the precise nature of the transactions and financial matters traversed, I think it is fair to say that they may be characterised as confidential and commercially sensitive in the sense in which those terms are used in the relevant authorities: see the decisions of Rolfe J in Idoport Pty Limited v NAB [1999] 1 NSWSC 686 at [71] and of Einstein J in Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 648. They are certainly not highly confidential or extremely sensitive to the degree of much of the information that requires to be dealt with under these principles; but, on the other hand, the degree of restriction sought to be put upon them is such as could not be said seriously to interfere with the plaintiff’s ability to deal with the material or prepare his case for court.

4 It must be borne in mind, as I have already said, that there is only one affidavit that has to be dealt with in this way. The orders asked for are that it be served and available to the plaintiff’s counsel and solicitor, to an appropriate expert, if one be retained, and to the plaintiff himself for the purposes of reading it and discussing it with his lawyers. Furthermore, there is no doubt that the plaintiff is prepared to undertake that he will not communicate the contents of the affidavit orally to anyone and, if he be allowed to have a copy of it, not to recopy it or communicate that copy to anyone, apart from the other persons who have access to it.

5 In the end, the only real controversy is whether he should be allowed to have a paper copy in his possession. Whilst his lawyers will be anxious to obtain from him what they need to know about the factual matters stated in the affidavit, their real preparation in relation to those matters will be by way of subpoenaing the relevant people with whom the defendant has dealt and obtaining expert evidence, if deemed appropriate. The process of obtaining the plaintiff’s input will be short.

6 Ms Gibbons, for the plaintiff, has put to me that the matters in the affidavit are common knowledge in the relevant locality in any event. Whilst one has one’s suspicions about what might be known in a country town, there is no evidence of the degree to which this information is public and I do not assume it to be so. Furthermore, the defendant concedes that she must rely on the plaintiff’s undertaking in relation to oral repetition of the material. The decision of whether or not he should actually have a paper copy in his possession is close to the line.

7 I have come to the conclusion that the better result is that he should not. This restriction does not, in my view, impede the preparation of his case and, where the corralling of information is justified, each restriction that can be imposed without disadvantage helps ensure the captivity of the material. I should add that in coming to this conclusion I do not make any finding adverse to the character of the plaintiff. I do not find that there is anything in the evidence that would suggest that he would disseminate the material inappropriately. But, for the reasons I have given, it seems to me that the restrictions requested by the defendant, including the restriction as to possession of a paper copy of the affidavit, should be imposed.

(Mr Townsend sought an order that costs of the motion be costs in the cause.)

8 HIS HONOUR: That is a very fair attitude, Mr Townsend, the Court commends you and your client on taking that view of the matter. I make the following orders:

(1) Order as in prayer 1 of the defendant’s notice of motion dated 15 August 2005.
(2) Order that costs of the motion be costs in the proceedings.

**********

25/11/2005 - Typo in file number - Paragraph(s) Cover sheet