Corry v NHB Enterprises Pty Limited - [2022] NSWCA 280

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Corry v NHB Enterprises Pty Limited [2022] NSWCA 280
Hearing dates: 5 October 2022
Date of orders: 19 December 2022
Decision date: 19 December 2022
Before: Simpson AJA
Decision:
(1) Amended Notice of Motion filed on 12 September 2022 dismissed;
(2) The applicant (Alexander Stephen Corry) pay the respondents costs of the Amended Notice of Motion.

Catchwords:
APPEALS — Procedural fairness — Hearing rule — where applicant alleged failure to disclose evidence which was central to findings of contempt — whether legitimate forensic purpose could be demonstrated in seeking leave to issue a subpoena

Legislation Cited:
Corporations Act 2001 (Cth)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183
NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741
NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97
NHB Enterprises Pty Ltd v Corry (No 2) [2020] NSWSC 272
Samootin v Shea [2002] NSWCA 115;
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Category: Principal judgment
Parties: Alexander Corry (1st Applicant)
Boriana Corry (2nd Applicant)
NHB Enterprises Pty Limited (1st Respondent)
Finn Pharmaceuticals Trust Pty Ltd (2nd Respondent)
Representation:
Counsel:
Applicant self represented
T Senior (Respondents)
Solicitors:
NM Wallman (Respondents)

File Number(s): 2022/49292
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2021] NSWSC 741

Date of Decision:

24 June 2021

Before:

Bell P

File Number(s):

2019/00054125

JUDGMENT

SIMPSON AJA: The applicant, Alexander Corry, is one of two appellants who have filed an appeal against declarations and orders made in the Equity Division of the Supreme Court by Bell P (as the Chief Justice then was) on 24 June 2021 and 11 February 2022. By Notice of Motion originally filed on 28 February 2022 and amended on 12 September 2022 Mr Corry seeks, with respect to the appeal, certain orders which I will outline below.
On 24 June 2021, after a 7 day hearing in a proceeding (the “contempt proceeding”) brought by the present respondents, NHB Enterprises Pty Ltd and Finn Pharmaceuticals Pty Ltd (collectively, “NHB”), Bell P declared that Mr Corry (then the first respondent) was guilty of three counts of contempt of the Supreme Court and that Mr Corry’s wife (Boriana Corry, then the second respondent) was guilty of one count of contempt: NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 (“the contempt judgment”). On 11 February 2021, after a further hearing (“the penalty proceeding”) Bell P ordered that Mr Corry be sentenced on each count to a term of imprisonment for, respectively, 3, 3 and 2 months, all to be served concurrently, and that a warrant for his committal be issued and executed forthwith. His Honour ordered that Boriana Corry (who is a party to the appeal, but not to the present application) pay a fine of $15,000. On the…

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.

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Details

Case: [2022] NSWCA 280
Decision Date: 19 December 2022

CaseChat Overview and Summary

In *Corry v NHB Enterprises Pty Limited*, the applicant, Alexander Stephen Corry, appealed to the Court of Appeal of the Supreme Court of New South Wales against orders made in the primary proceedings. The core of the dispute concerned allegations of contempt of court, with the applicant contending that a failure by the respondents to disclose certain evidence, which he argued was central to the findings of contempt, constituted a breach of procedural fairness. The applicant sought leave to issue a subpoena, asserting a legitimate forensic purpose for its request.

The primary legal issue before the Court of Appeal was whether the applicant had demonstrated a legitimate forensic purpose in seeking leave to issue a subpoena, particularly in circumstances where he alleged a failure to disclose evidence that was critical to the findings of contempt against him. This question necessitated an examination of the principles governing the disclosure of evidence in contempt proceedings and the requirements for obtaining leave to issue a subpoena for such evidence.

Simpson AJA considered the applicant's submissions regarding procedural fairness and the alleged non-disclosure of evidence. The Court analysed the requirements for establishing a legitimate forensic purpose for the issuance of a subpoena, which typically involves demonstrating that the evidence sought is relevant and necessary for the proper conduct of the proceedings. The Court found that the applicant had not satisfied the threshold for demonstrating such a purpose in relation to the subpoena he sought to issue.

Consequently, the Court of Appeal dismissed the applicant's amended Notice of Motion filed on 12 September 2022 and ordered that the applicant pay the respondents' costs of that motion.

Orders

Orders of the court

(1) Amended Notice of Motion filed on 12 September 2022 dismissed;

(2) The applicant (Alexander Stephen Corry) pay the respondents costs of the Amended Notice of Motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Corry v NHB Enterprises Pty Limited [2022] NSWCA 280
Hearing dates:	5 October 2022
Date of orders:	19 December 2022
Decision date:	19 December 2022
Before:	Simpson AJA
Decision:	(1) Amended Notice of Motion filed on 12 September 2022 dismissed; (2) The applicant (Alexander Stephen Corry) pay the respondents costs of the Amended Notice of Motion.
Catchwords:	APPEALS — Procedural fairness — Hearing rule — where applicant alleged failure to disclose evidence which was central to findings of contempt — whether legitimate forensic purpose could be demonstrated in seeking leave to issue a subpoena
Legislation Cited:	Corporations Act 2001 (Cth) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 NHB Enterprises Pty Ltd v Corry (No 2) [2020] NSWSC 272 Samootin v Shea [2002] NSWCA 115; Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Category:	Principal judgment
Parties:	Alexander Corry (1st Applicant) Boriana Corry (2nd Applicant) NHB Enterprises Pty Limited (1st Respondent) Finn Pharmaceuticals Trust Pty Ltd (2nd Respondent)
Representation:	Counsel: Applicant self represented T Senior (Respondents) Solicitors: NM Wallman (Respondents)
File Number(s):	2022/49292
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2021] NSWSC 741 Date of Decision: 24 June 2021 Before: Bell P File Number(s): 2019/00054125