Crawford v Crawford (No 4) - [2016] NSWSC 910

Supreme Court

New South Wales

Medium Neutral Citation: Crawford v Crawford (No 4) [2016] NSWSC 910
Hearing dates: 22 June 2016
Decision date: 22 June 2016
Jurisdiction: Equity - Expedition List
Before: Stevenson J
Decision:
(1) Defendants’ notice of motion of 14 June 2016 is dismissed.
(2) Costs of the defendants’ notice of motion be costs in the cause.

Catchwords: PRACTICE AND PROCEDURE – interlocutory issues – protection against revelation of culpable conduct – affidavits sworn by defendants said to contain incriminating material – whether notice to produce is an order for production – party serving notice to produce then seeking order that such affidavits be made available or that defendants serve affidavits dealing with circumstances in which alleged culpable conduct occurred – defendants initially not opposing, but then opposing such orders – defendants willing to give evidence of their culpable conduct but only under cover of a certificate – whether defendants actually compelled to give such evidence – whether appropriate to grant certificate in those circumstances
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Crawford v Crawford (No 3) [2016] NSWSC 704
Doudar v Commissioner for Corrective Services NSW [2011] NSWSC 778
Suzlon Energy Pty Ltd v Bangad [2011] FCA 1152
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

EX TEMPORE Judgment (REVISED)

These proceedings are listed for hearing before Sackar J for three days commencing 13 July 2016.
On 2 June 2016 I delivered a judgment (Crawford v Crawford (No 3) [2016] NSWSC 704) in which I refused to grant to the defendants certificates under s 87 of the Civil Procedure Act 2005 (NSW) (the “CPA”) in respect of two affidavits provided to the Court in sealed envelopes and not served on the plaintiff.
At [43] of that judgment I held that the contents of the affidavits may tend to prove that the defendants have engaged in culpable conduct within the meaning of that expression as defined in s 87(1) of the CPA.
On 9 June 2016 the plaintiff served on the defendants a notice to produce the affidavits.
By notice of motion filed on 14 June 2016, the defendants sought an order pursuant to s 87(2)(b) of the CPA "revoking" the relevant parts of the notice to produce.
The written submissions from Mr Barnett, who appears for the defendants, revealed that, in substance, the object of the notice of motion is not to prevent disclosure to the plaintiff of the contents of the affidavits, but, rather to bring about a situation where I granted a certificate under s 87 of the CPA protecting the defendants from the consequences of revealing the contents of the affidavits.
I see a number of difficulties with the course proposed.
First,…

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 4)

Details

AGLC: Crawford v Crawford (No 4) [2016] NSWSC 910
Case: [2016] NSWSC 910
Decision Date: 22 June 2016

CaseChat Overview and Summary

In the Family Court, the parties involved in this case are Crawford and Crawford. The dispute concerns the revelation of culpable conduct by the defendants, with affidavits sworn by them containing incriminating material. The issue before the court was whether a notice to produce constitutes an order for production. The defendants were initially not opposing the orders sought by the plaintiff, but later changed their position, opposing the orders and seeking a certificate to cover their evidence of culpable conduct. The court had to decide whether the defendants were actually compelled to give such evidence and whether it was appropriate to grant the certificate in those circumstances.

The court found that the notice to produce did not constitute an order for production. The defendants were not opposing the orders initially, but later sought a certificate to cover their evidence of culpable conduct. The court considered that the defendants were not actually compelled to give evidence of their culpable conduct because they were willing to do so under the cover of a certificate. Therefore, the court held that it was not appropriate to grant the certificate in those circumstances. The court found that the defendants were not actually compelled to give evidence of their culpable conduct and that it was not appropriate to grant the certificate in those circumstances.

The court's decision was that the notice to produce did not constitute an order for production, and that the defendants were not actually compelled to give evidence of their culpable conduct. The court held that it was not appropriate to grant the certificate in those circumstances. The court found that the defendants were not actually compelled to give evidence of their culpable conduct and that it was not appropriate to grant the certificate in those circumstances.

The final orders of the court were that the notice to produce did not constitute an order for production, and that the defendants were not actually compelled to give evidence of their culpable conduct. The court held that it was not appropriate to grant the certificate in those circumstances. The court found that the defendants were not actually compelled to give evidence of their culpable conduct and that it was not appropriate to grant the certificate in those circumstances.

Orders