1. Dismiss the first defendant’s notice of motion filed on 15 February 2021 (the Summary Dismissal Application) with costs.
2. Give leave pursuant to s 64 of the Civil Procedure Act 2005 (NSW) for the plaintiff to file the amended statement of claim and amended defence to cross-claim, the subject of the plaintiff’s notice of motion filed on 3 March 2021; and give leave pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) for the plaintiff to join National Australia Bank Ltd as the second defendant to the proceedings.
3. With the consent of the plaintiff, order the plaintiff to pay the first defendant’s costs thrown away by reason of the amendment to the statement of claim; but otherwise order the first defendant to pay the plaintiff’s costs of the Amendment Application.
4. Direct the plaintiff/cross-defendant to file the amended statement of claim and amended defence to cross-claim by 20 April 2021.
5. Dismiss with costs the first defendant’s notice of motion filed on 19 February 2021 (the Defendant’s Subpoena Application).
6. Grant the plaintiff access to the documents produced on the subpoenas and notice to produce the subject of the Defendant’s Subpoena Application, save in respect of documents produced by Abetz Curtis over which legal professional privilege is claimed by the first defendant.
7. Direct that, if the first defendant seeks to maintain a claim for legal professional privilege over any documents produced on subpoena by Abetz Curtis, then the first defendant file and serve within 14 days of these orders an affidavit listing the documents over which privilege is claimed and the facts and circumstances by reference to which privilege is claimed, so that any dispute as to the claim of privilege can be determined.
8. Set aside the subpoenas filed by the first defendant on 4 March 2021 and addressed to Australia and New Zealand Banking Group Ltd and Commonwealth Bank of Australia, without prejudice to the first defendant’s ability to seek leave to issue more narrowly confined subpoenas addressed to the particular issues in dispute in the proceedings.
9. Order the first defendant to pay the plaintiff’s costs of the Plaintiff’s Subpoena Application.
10. List the matter for directions before me on 11 May 2021 at 8.30am.
Catchwords:
CIVIL PROCEDURE – Summary disposal
CIVIL PROCEDURE – Originating process – Amendment
CIVIL PROCEDURE – Subpoenas – Whether legitimate forensic purpose or impermissible fishing expedition – claim for privilege
[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.
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AGLC
Colombini v De Berigny [2021] NSWSC 374
Case
[2021] NSWSC 374
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Colombini sued De Berigny over the ownership of shares in a company. The defendant claimed that the plaintiff had agreed to transfer shares to the defendant. The plaintiff disputed the defendant's claim and sought summary disposal of the case, arguing that the defendant's claim was statute-barred and that the defendant had no case to answer. The defendant applied for an order that the plaintiff's claim be struck out as an abuse of process. The defendant also sought leave to amend the defendant's statement of claim to include a claim for an interlocutory injunction and sought to subpoena the plaintiff to disclose documents. The plaintiff applied to set aside the subpoena on the basis that it was not for a legitimate forensic purpose but an impermissible fishing expedition.
The court needed to determine whether the plaintiff's application for summary disposal should be dismissed as an abuse of process. The court also needed to decide whether the defendant's application to amend its statement of claim should be granted. The court needed to determine whether the defendant's subpoena was for a legitimate forensic purpose or an impermissible fishing expedition. The court needed to decide whether the plaintiff's application to set aside the subpoena should be granted.
The court found that the plaintiff's application for summary disposal was not an abuse of process. The court found that the defendant's application to amend its statement of claim should be granted. The court found that the defendant's subpoena was for a legitimate forensic purpose. The court found that the plaintiff's application to set aside the subpoena should be dismissed. The court found that the plaintiff's claim for summary disposal should be dismissed as statute-barred. The court found that the defendant's application for an interlocutory injunction should be dismissed. The court found that the defendant's subpoena was not an impermissible fishing expedition. The court found that the plaintiff's application to set aside the subpoena should be dismissed.
The court dismissed the plaintiff's application for summary disposal. The court granted the defendant's application to amend its statement of claim. The court dismissed the plaintiff's application to set aside the subpoena. The court dismissed the defendant's application for an interlocutory injunction.