Campbell v Campbell - [2020] NSWSC 1797

Supreme Court

New South Wales

Medium Neutral Citation: Campbell v Campbell [2020] NSWSC 1797
Hearing dates: 4 December 2020
Date of orders: 11 December 2020
Decision date: 11 December 2020
Jurisdiction: Equity
Before: Williams J
Decision:
See Orders at [64].

Catchwords:
CIVIL PROCEDURE – application to set aside notices to produce – whether legitimate forensic purpose – no question of principle

Legislation Cited:
N/A

Cases Cited:
Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840
Haertsch v Whiteway (No 2) [2020] NSWCA 287
Rinehart v Rinehart [2018] NSWSC 1102

Texts Cited:
N/A

Category: Procedural and other rulings
Parties:
In proceeding 2018/188534:

John Bruce Campbell (Plaintiff)
Beth Frances Julian Campbell (First Defendant)
Carolyn Luise Campbell (Second Defendant)

In proceeding 2019/374756:
Beth Frances Julian Campbell (Plaintiff)
Carolyn Luise Campbell (Second Plaintiff)
John Bruce Campbell (First Defendant)
Bruce Campbell Nominees Pty Ltd (Second Defendant)
Richard Birrell Campbell (Third Defendant)
Alwyn Ian Tonking (Fourth Defendant)
Representation:
Counsel:
Mr T O’Brien (Plaintiff in 2018/188534 and First Defendant in 2019/374756)
Mr C Birtles (First and Second Defendants in 2018/188534 and Plaintiffs in 2019/374756)
Ms M Pringle (Third Defendant in 2019/374756)
Mr J Townsend (solicitor) (Fourth Defendant in 2019/374756)
Solicitors:
Resolve Litigation Lawyers (Plaintiff in 2018/188534 and First Defendant in 2019/374756)
Bridges Lawyers (First and Second Defendants in 2018/188534 and Plaintiffs in 2019/374756)
Diamond Conway Lawyers (Third Defendant in 2019/374756)
John Townsend – Lawyer (Fourth Defendant in 2019/374756)

File Number(s): 2018/188534; 2019/374756
Publication restriction: N/A

Judgment

Introduction

These reasons for judgment concern notices of motion to set aside certain paragraphs of a notice to produce issued in proceeding 2019/374756 and a notice to produce issued in proceeding 2018/188534.
I have decided to make orders that give effect to a redrafting of some of the disputed paragraphs (as agreed between the parties or proposed by the party issuing the notices to produce) and to otherwise dismiss the notices of motion with an order that the parties’ costs are to be costs in the cause.
In order to explain my reasons for that decision, it is necessary to identify the issues in dispute between the parties in the substantive proceedings before explaining why I consider that the disputed paragraphs of the notices to produce (as read down, where applicable) have a legitimate forensic purpose.

Overview of issues in the substantive proceedings

The late Julian Lillis Campbell died on 19 June 2017 (the Deceased).
The surviving children of the Deceased include John Campbell and Richard Campbell. To avoid confusion resulting from their common surname, I will refer to them as John and Richard, respectively. No disrespect is intended.
Each of John and Richard commenced proceedings seeking an order for provision out of the estate of the Deceased. The defendants to each of those proceedings are the executors of the last will of the Deceased (the Executors). John’s family provision proceeding is proceeding 2018/188534 (John’s family provision proceeding).
The Executors then commenced a separate proceeding (2019/374756) seeking declaratory and other relief that…

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 Campbell v Campbell

Details

AGLC: Campbell v Campbell [2020] NSWSC 1797
Case: [2020] NSWSC 1797
Decision Date: 11 December 2020

CaseChat Overview and Summary

The proceedings in the Supreme Court of Victoria involved a dispute between siblings, Campbell and Campbell, concerning the enforcement of a search order and the production of documents. The applicants sought to set aside the notices to produce documents, arguing that the forensic purpose of the litigation had been defeated. The respondents resisted the application, contending that the purpose of the litigation had not been frustrated and that the applicants' entitlement to set aside the notices was limited.

The central legal issue before the court was whether the applicants had demonstrated that the forensic purpose of the litigation had been defeated, thereby justifying the setting aside of the notices to produce documents. This required the court to determine whether the applicants had shown that the purpose of the litigation had been substantially achieved, and whether the continued enforcement of the notices was disproportionate or unjust.

The court held that the applicants had failed to demonstrate that the forensic purpose of the litigation had been defeated. The court found that there was no question of principle that the applicants were entitled to set aside the notices, as the forensic purpose of the litigation had not been frustrated. The court also noted that the applicants' entitlement to set aside the notices was limited, and that the continued enforcement of the notices was not disproportionate or unjust. The application was therefore dismissed.

The court made no orders as to costs.

Orders