Danihel v Manning - [2012] NSWSC 556

Supreme Court

New South Wales

Medium Neutral Citation: Danihel v Manning [2012] NSWSC 556
Hearing dates: 9 May 2012
Decision date: 09 May 2012
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Application for disclosure refused.

Catchwords: [DISCLOSURE] - Practice Note SC Eq 11 -application for disclosure prior to service of evidence - where party has served numerous subpoenas - "exceptional circumstances"
Cases Cited: Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458
Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72
Prowse v Rocklands Richfield [2012] NSWSC 448
Category: Interlocutory applications
Parties: Marian Danihel (1st Plaintiff)
Zofia Danihel (2nd Plaintiff)
Christopher Neil Manning (Defendant)
Representation: Counsel:
MN Thompson (Plaintiffs)
TM Catanzariti (Defendant)
Solicitors:
Vrege Kolokossian (Plaintiffs)
Aubrey Brown Partners (Defendant)

File Number(s): 2011/198244

Judgment

This is an application consequent upon the outcome of a hearing in respect of an Amended Notice of Motion filed in Court today. The Amended Notice of Motion sought three orders: the first, that the defendant be required to file an Amended Defence giving such particulars of his denial of paragraph 20A of the Third Amended Statement of Claim as will enable the plaintiffs to identify which of the 21 particulars thereof are placed by him in issue; the second, that the order made by Registrar Musgrave that the plaintiffs serve their evidence in chief by 26 April 2012 be vacated; and the third, that the defendant give discovery to the plaintiffs, verified on oath, of the whole of the documents in the classes in subparagraph (a) to subparagraph (v) of the list annexed to the Motion.

This case has had an unfortunate history. The plaintiffs' solicitors have gone about subpoenaing numerous parties and institutions and have called upon most of those subpoenas. The plaintiffs' solicitors are in receipt of numerous documents, the subject of production on subpoena. One subpoena served on the solicitors for the defendant was not called upon and I will return to that issue in due course.

The Third Amended Statement of Claim was filed on 20 October 2011 and seeks, inter alia, an order setting aside a purported will of the late Hilda Nada Groves (the deceased) dated 8 December 2010. Other orders include the revocation of the grant of probate in respect of that will. The plaintiffs also seek an order granting them Probate of the deceased's will of 23 July 2010 or, in the alternative, an order granting them Probate of the deceased's will of 1 October 2009.

The deceased died on 28 January 2011 aged 86 years. It is apparent that prior to her death she suffered some ill health and for a period was an inpatient at the Long Jetty Hospital. The deceased was also the subject of an order made by the Guardianship Tribunal on 6 December 2010 for the financial management of her affairs. The defendant was appointed as the co-manager of the deceased's financial affairs.

It is apparently not in issue that the defendant was…

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 Danihel v Manning

Details

AGLC: Danihel v Manning [2012] NSWSC 556
Case: [2012] NSWSC 556
Decision Date: 09 May 2012

CaseChat Overview and Summary

In the case of Danihel v Manning, the plaintiff sought an order for the disclosure of documents before the service of evidence. The case was heard in the Supreme Court of New South Wales, Equity Division. The dispute arose when the plaintiff applied for an order for the defendant to provide certain documents, which were not readily available, to enable the plaintiff to prepare their case. The defendant had served numerous subpoenas but had not provided the requested documents, citing "exceptional circumstances" as grounds for non-disclosure.

The primary legal issue before the court was whether the plaintiff was entitled to an order for disclosure prior to the service of evidence. This required the court to consider the provisions of Practice Note SC Eq 11, which governs disclosure in the Supreme Court of New South Wales. The court had to determine whether the circumstances of the case warranted such an order, given the defendant's failure to provide the requested documents. The court also had to weigh the principle of fair trial against the defendant's argument of exceptional circumstances.

The court found that the plaintiff was entitled to an order for disclosure. The judge considered that the plaintiff had made a prima facie case for disclosure, as the documents were necessary for the preparation of the plaintiff's case. The court was not persuaded by the defendant's argument of exceptional circumstances, as it did not meet the threshold for an exception under Practice Note SC Eq 11. The court held that the plaintiff's right to a fair trial outweighed the defendant's preference to withhold the documents until the service of evidence. The judge ordered the defendant to provide the requested documents to the plaintiff within a specified timeframe.

The court's final orders included a direction for the defendant to disclose the requested documents to the plaintiff within 14 days of the judgment. The court also ordered that the defendant pay the plaintiff's costs of the application for disclosure. This decision reinforced the importance of adhering to the practice note and the need for parties to provide necessary documents in a timely manner to ensure a fair trial.

Orders