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)

1. These proceedings are listed for hearing before Sackar J for three days commencing 13 July 2016.

2. 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.

3. 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.

4. On 9 June 2016 the plaintiff served on the defendants a notice to produce the affidavits.

5. 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.

6. 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.

7. I see a number of difficulties with the course proposed.

8. First, a notice to produce is not a subpoena, and thus not an order of the court (for example see Suzlon Energy Pty Ltd v Bangad [2011] FCA 1152 per Rares J at [13]).

9. It is thus not an "interlocutory order" nor an "order for production" for the purposes of s 87(1).

10. The source of the obligation to comply with a notice to produce served pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 21.10 is r 21.11, which provides that a party served with a notice to produce "must" act in the manner set out in the rule. No order is necessary or appropriate.

11. Second, it follows from my finding at [43] of my judgment that the affidavits are "privileged documents" and contain "privileged information" for the purpose of the UCPR.

12. In my opinion, the effect of UCPR r 21.11 is that if a notice to produce calls for production of documents that are "privileged documents", there is no obligation under r 21.11(1)(a) to produce the documents. That is the effect of the parenthetical exception in that sub rule: "other than privileged documents”.

13. All that is required is that a notice be served under UCPR r 21.11(1)(b) stating that the documents called for are privileged. If the assertion of privilege is challenged, no doubt a judge of the Court can examine the documents to see if the claim is well made. That is not necessary in this case as I have examined the documents and found them to have the characteristics to which I have referred. To the extent Davies J expressed a different view about the effect of UCPR r 21.11 in Doudar v Commissioner for Corrective Services NSW [2011] NSWSC 778 at 21, I respectfully disagree.

14. It follows that the only obligation that the defendants have by reason of the notice to produce is to serve on the plaintiff a notice stating that the affidavits are privileged.

15. There is, therefore, no reason to make the order sought by the defendants, assuming such an order could be made; which I doubt (presumably what is intended is an order setting aside the notice to produce).

16. Evidently against the possibility that I took that view, the plaintiff now seeks an order:

1. under s 68 of the CPA that the defendants produce the affidavits to the Court;

2. under UCPR r 2.1, or the Court’s inherent jurisdiction, that the defendants produce the affidavits to the plaintiff’s solicitor; or

3. under UCPR r 2.1, or the Court’s inherent jurisdiction, that the defendants serve affidavit evidence in relation to the circumstances in which the disputed transfers came to be purportedly executed.

17. If the defendants objected to the making of such orders, the potential for s 87 to be enlivened would arise. But, as I now know what the contents of the affidavits are, and thus what evidence the defendants would adduce were the third of the proposed orders made, a serious question would arise as to whether I would make any such order over the defendants' objection.

18. However, in his written submissions of 21 June 2016, Mr Barnett said that the defendants "do not object" to the making of such orders provided that their notice of motion of 14 June 2016 was "treated as applying to that order"; by which I took Mr Barnett to mean that the defendants' notice of motion be treated as seeking revocation of the orders proposed by Mr Emmett.

19. Evidently, what the defendants then proposed was that:

1. the plaintiff seek an order for production on one of the bases set out at [16];

2. the defendants not oppose the making of such an order;

3. the defendants then seek revocation of the order under s 87(2)(b) of the CPA on the grounds that compliance might tend to prove engagement by them in culpable conduct;

4. I advise the defendants under s 87(3) that they need not give evidence but that if they do, I would give a certificate;

5. the defendants inform me that they would give the evidence if granted a certificate.

20. I am not prepared to permit this contrived course to be taken.

21. If the defendants did not oppose such an order being made, it would, obviously, not be one to which they "objected" for the purpose of s 87(2)(b) of the CPA.

22. And I would not entertain, as a matter of discretion, an application by the defendants to "revoke" such an order if, knowing that the order would require them to adduce evidence tending to prove their engagement in culpable conduct, and with a view to seeking a certificate, they had not objected to it being made in the first place.

23. During oral argument, the suggestion emerged that, contrary to the position set out in Mr Barnett's written submissions, the defendants might now object to the making of the orders currently proposed by Mr Emmett.

24. After the conclusion of oral argument, Mr Barnett sent a further submission in which he stated the defendants withdrew that part of their 21 June 2016 submissions as stated that they do not oppose the orders sought by Mr Emmett.

25. Those matters demonstrate to my mind the artificiality of the process that was proposed.

26. As I said in my judgment at [46] and [47], s 87 of the CPA (as well as s 128 and s 128A of the Evidence Act 1995 (NSW)) is directed to the circumstances where a person is "actually compelled" to give incriminating evidence. It is not designed to provide protection for a situation where a person is content to give incriminating evidence, but only under the cover of a certificate.

27. I do not agree with Mr Barnett's submission that "it is not to the point that the [defendants] may desire to give the evidence if they can do so safely". That is the entire point. Section 87 of the CPA, and ss 128 and 128A of the Evidence Act, are designed to protect the interests of a person who wishes not to give evidence, but is "actually compelled" to do so. That is not this case.

28. If the matter is explored in cross-examination at the hearing, the circumstances where a certificate is called for under s 128 of the Evidence Act may well arise. Having seen what is in the affidavits, I doubt this will cause any significant delay.

29. The defendants’ notice of motion of 14 June 2016 is dismissed.

30. I order that the costs of the defendants’ notice of motion be costs in the cause.

**********