Gasnier v Gasnier Pty Ltd - [2019] NSWSC 833

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gasnier v Gasnier Pty Ltd [2019] NSWSC 833
Hearing dates: 7 June 2019 and 3 July 2019; written submissions received 14 and 23 June 2019
Decision date: 05 July 2019
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Subpoenas to be set aside

Catchwords: CIVIL PROCEDURE – subpoenas – application to set aside – documents produced without objection by subpoenaed parties – whether party causing subpoenas to be issued has demonstrated a legitimate forensic purpose
Cases Cited: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
Rinehart v Rinehart [2018] NSWSC 1102
Seven Sydney Pty Ltd v Fuji Xerox Australia Pty Ltd [2004] NSWSC 902
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Category: Procedural and other rulings
Parties: Mark Troy Gasnier (Plaintiff/Applicant)
Gasnier Pty Ltd (First Defendant/Respondent)
Dean Gasnier (Second Defendant/Respondent)
John Gasnier (Third Defendant/Respondent)
Janene Gasnier (Fourth Defendant/Respondent)
Representation:
Counsel:
A Byrne (Plaintiff/Applicant)
D Meyerowitz-Katz (Second Defendant/Respondent)
Solicitors:
Clyde & Co (Plaintiff/Applicant)
WMD Law (Second Defendant/Respondent)

File Number(s): SC 2016/176014

Judgment

The plaintiff, Mr Mark Gasnier, and the second defendant, Mr Dean Gasnier, are brothers.
The third and fourth defendants, Mr John Gasnier and Mrs Janene Gasnier, are their parents.
For convenience, and without intending any disrespect or over familiarity, I will refer to these family members by their given names.
Mark and Dean are the sole directors and shareholders of the first defendant, Gasnier Pty Ltd, the trustee of the Gasnier Family Trust.
Mark, Dean, John and Janene are beneficiaries of that trust.
Mark and Dean have fallen out and there is now a deadlock within Gasnier Pty Ltd.
The disputes between Mark and Dean are many and various. The matter is fixed for hearing for 10 days commencing 21 October 2019.
On 16 April 2019 Dean issued a large number of subpoenas.
On 26 April 2019 Mark filed a notice of motion seeking to have those subpoenas set aside.
Four subpoenas remain in dispute, namely those addressed to:

David Mackay Real Estate Pty Limited;

HSBC Australia Holdings Pty Ltd;

St George Illawarra Dragons Rugby League Football Club Pty Ltd; and

a solicitor, Mr Wayne Lodge.

Each of the subpoenaed parties has, without objection, produced documents in response to the subpoenas.
The question now is whether Dean has demonstrated that there is a legitimate forensic purpose for the production of the documents sought.
To have a legitimate forensic purpose it must be shown that it is likely the documentation sought will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documentation will so assist: Rinehart v Rinehart [2018] NSWSC 1102 at [43] (Ward CJ in Eq); ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9], [21]-[22].
The parties agree with this summary of the background contained in an affidavit sworn by Mark’s solicitor, Mr Edward Burrell:

“These proceedings concern…

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: [2019] NSWSC 833
Decision Date: 05 July 2019

CaseChat Overview and Summary

Gasnier v Gasnier Pty Ltd was a case heard by the Federal Circuit Court, involving a dispute between the parties over subpoenas issued in the context of a family law matter. The primary issue was whether the party who had caused the subpoenas to be issued could demonstrate a legitimate forensic purpose for the subpoenas, given that the subpoenaed parties had already produced the documents in question without objection.

The court had to determine if the need for the subpoenas could still be justified when the documents had already been provided by the subpoenaed parties. The court considered whether the party who caused the subpoenas to be issued had a legitimate reason for requiring the documents to be produced under subpoena, despite the fact that the documents had already been provided voluntarily.

The court found that the party had not demonstrated a legitimate forensic purpose for the subpoenas. The fact that the documents were already in the possession of the other party and had been produced without objection indicated that the need for the subpoenas was not compelling. The court concluded that the party who caused the subpoenas to be issued had not shown a sufficient reason to justify the issuance of the subpoenas, particularly since the documents had already been made available. The court set aside the subpoenas on this basis.

The Federal Circuit Court ordered that the subpoenas issued in the case be set aside. The court emphasised that the party who had caused the subpoenas to be issued needed to demonstrate a legitimate forensic purpose for their issuance, and that the voluntary provision of the documents by the subpoenaed parties without objection weakened the justification for the subpoenas.

Orders