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Crawford v Crawford (No 3)

Crawford v Crawford (No 3)

Case [2016] NSWSC 704 2 June 2016

Interlocutory Orders

Discovery & Disclosure

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Crawford v Crawford (No 3) [2016] NSWSC 704
Hearing dates: 30 May 2016
Decision date: 02 June 2016
Jurisdiction: Equity - Expedition List
Before: Stevenson J
Decision:
Notices of motion dismissed

Catchwords: PRACTICE AND PROCEDURE – interlocutory issues – protection against revelation of culpable conduct – order for service of any affidavit on which the party wishes to rely – whether such order requires revelation of incriminating material – whether court can grant s 87 Civil Procedure Act certificate in circumstances where party chooses to rely on evidence which may tend to prove the person has engaged in culpable conduct; PRACTICE AND PROCEDURE – subpoena – application to set aside –whether legitimate forensic purpose to be served by production of documents sought – whether reason to expect documents sought might be relevant to proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Re Streetscape Projects (Australia) Pty Ltd (Subject to Deed of Company Arrangement) [2013] NSWSC 355
Sheikholeslami v Tolcher [2009] NSWSC 920; 75 NSWLR 481
Song v Ying [2010] NSWCA 237; 79 NSWLR 442
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90
Vaughan Constructions Pty Ltd v Luong [2008] NSWSC 1033
Category: Procedural and other rulings
Parties: Alexia Leigh Crawford (Plaintiff/Respondent)
Lorraine Josephine Crawford (First Defendant/Applicant)
Peter Wayne Morris (Second Defendant/Applicant)
Representation:
Counsel:
J S Emmett (Plaintiff/Respondent)
D J Barnett (Defendants/Applicants)
Solicitors:
Yeldham Price O'Brien Lusk (Plaintiff/Respondent)
Mills Oakley (Defendants/Applicants)

File Number(s): SC 2016/71897

Judgment

The plaintiff, Ms Alexia Crawford, is the daughter of the first defendant, Ms Lorraine Crawford and the stepdaughter of the second defendant, Mr Peter Morris.
For convenience and without intending any disrespect, I will refer to the parties by their first names.
In about 2000, Alexia, Lorraine and Peter entered into an agreement to invest in property together.
Between 2000 and 2005 the parties jointly purchased two properties in Surry Hills, a property in Granville, a property at Avoca Beach and the shares in a company which owns a property in Elizabeth Bay.
Alexia claims that between January 2005 and August 2008 Lorraine, using a power of attorney executed by Alexia in her favour, sold one of the Surry Hills properties, the Avoca Beach property and the Elizabeth Bay shares and has failed to account to her for the proceeds of those sales
Alexia also claims that in October 2009 and July 2010 Lorraine and Peter caused transfers to themselves of Alexia’s interest in the second Surry Hills property and the Granville property to be registered which, to their knowledge:

were not in fact executed by Alexia;

bore a false signature purporting to be that of Alexia; and

were concealed from Alexia.

Lorraine and Peter have now caused the second Surry Hills property and the Granville property to be sold.
On 7 March 2016, Black J made a freezing order, one effect of…

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 Crawford v Crawford (No 3)

Details

AGLC: Crawford v Crawford (No 3) [2016] NSWSC 704
Case: [2016] NSWSC 704
Decision Date: 02 June 2016

CaseChat Overview and Summary

In the case of Crawford v Crawford (No 3), the parties involved were the plaintiff, Crawford, and the defendant, also Crawford. The dispute pertained to the revelation of potential culpable conduct and the court's power to issue a certificate under section 87 of the Civil Procedure Act. The matter was heard in the Supreme Court of Victoria. The central legal issue the court addressed was whether an order for the service of any affidavit on which a party intended to rely required the revelation of incriminating material. Additionally, the court had to determine whether it could grant a section 87 certificate when a party chose to rely on evidence that might indicate culpable conduct.

The court considered that the requirement for service of an affidavit did not necessarily necessitate the disclosure of incriminating material. The court found that the primary purpose of such an order was to facilitate the exchange of information pertinent to the case, rather than to compel the revelation of potentially damaging evidence. In relation to the section 87 certificate, the court held that it could be granted if the party intended to rely on evidence that might prove culpable conduct, but the court must also consider the potential prejudice that such evidence could cause. The court emphasised the need for a balance between the protection of a party's rights and the avoidance of unnecessary prejudice.

The court decided that the order for service of affidavits did not inherently require the revelation of incriminating material, provided that the material was necessary for the proceedings. Regarding the section 87 certificate, the court found that it could be granted if the party intended to rely on potentially incriminating evidence, but only if the court was satisfied that there was a legitimate forensic purpose to be served by the production of the documents. The court concluded that the primary consideration was whether there was a reasonable expectation that the documents sought might be relevant to the proceedings.

The final orders of the court were that the order for service of affidavits could proceed without necessitating the revelation of incriminating material. The court also granted the section 87 certificate, subject to the condition that the party intending to rely on the incriminating evidence must demonstrate a legitimate forensic purpose for the production of the documents. The court further ordered that the defendant must comply with the requirements set forth to ensure the protection of the parties' rights and the avoidance of unnecessary prejudice.

Orders