Cohen v Morgans

Case [2019] NSWSC 608


Supreme Court


New South Wales

Medium Neutral Citation: Cohen v Morgans [2019] NSWSC 608
Hearing dates: 16 May 2019
Date of orders: 16 May 2019
Decision date: 24 May 2019
Jurisdiction:Equity
Before: Ward CJ in Eq
Decision:

1.   The subpoena to produce issued by the plaintiff addressed to Somerville Legal filed 26 February 2019 and returnable 29 March 2019 be set aside.
2.   The notice to produce issued by the plaintiff addressed to the defendant and Somerville Legal returnable 29 March 2019 be set aside.
3.   Direct the defendant to produce to the plaintiff within fourteen days any document contemporaneously recording the contents of the telephone conversation between Mr Matthew Gradidge and Mr Cohen at approximately 4pm on 21 August 2018.
4.   Note that the limitation by the word “contemporaneously” in O 3 is intended such that the requirement to produce any such document is limited to any document created on 21 August 2018 or in the period between 21 August 2018 and 19 September 2018.
5.   Direct the defendant to produce to the plaintiff within fourteen days any document created on 21 August 2018 or between 21 August 2018 and 19 September 2018 communicating the contents of the telephone conversation referred to in O 3 above.
6.   Note that the directions made in O 3 and O 5 for the production of the document(s) referred to therein is without prejudice to any claim by the defendant as to any legal professional privilege in those communications.
7.   Order the plaintiff to pay the defendant’s costs of the notice of motion filed 28 March 2019, including the costs of this hearing, on an indemnity basis.

Catchwords: CIVIL PROCEDURE — Subpoenas and Notices to Produce — Application to set aside ––where wording and timeframe were too broad and extended beyond a legitimate forensic purpose –– where breadth of documents sought in subpoena and notice to produce had tendency to subvert Practice Not SC Eq 11 –– subpoena and the notice to produce set aside
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 21.1., 33, 34.1
Cases Cited: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425
Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215
Director General, Dept of Community Services v D (2006) 66 NSWLR 582; [2006] NSWSC 827
Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
ICAP Pty Ltd v Moebes [2009] NSWSC 306
In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd (in liq) [2018] NSWSC 896
In the matter of Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241
In the matter of North Coast Transit Pty Limited [2013] NSWSC 1912
In the…

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Cohen v Morgans [2019] NSWSC 608
Case
[2019] NSWSC 608
Decision Date

CaseChat Overview and Summary

Cohen and Morgans were involved in a legal dispute, which was brought before the court. The issue at hand was whether the subpoenas and notices to produce issued by Cohen were too broad in their wording and timeframe, extending beyond a legitimate forensic purpose. The court was required to determine if the breadth of documents sought in the subpoena and notice to produce had a tendency to subvert the relevant practice note. The court had to assess if the subpoena and the notice to produce should be set aside due to the aforementioned issues.

The court examined the language and timeframe of the subpoena and notice to produce, finding them to be excessively broad. This breadth extended beyond what was considered a legitimate forensic purpose, as it encompassed a wide range of documents that were not necessarily relevant to the case. Furthermore, the court noted that the scope of the documents sought had the potential to undermine the relevant practice note. Consequently, the court concluded that the subpoena and the notice to produce should be set aside.

In light of the court's findings, it determined that the subpoena and the notice to produce issued by Cohen were too broad in their wording and timeframe, extending beyond a legitimate forensic purpose. The court held that the breadth of documents sought had a tendency to subvert the relevant practice note, and as such, the subpoena and the notice to produce were set aside. This decision ensured that the scope of discovery in the case remained focused on relevant and necessary documents, adhering to the principles of fairness and efficiency in legal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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