Gersbach v Gersbach (No 3)

[2016] NSWSC 119

Supreme Court

New South Wales

Medium Neutral Citation:

Gersbach v Gersbach (No 3) [2016] NSWSC 119

Hearing dates:

16 February 2016

Date of orders:

14 April 2016

Decision date:

21 June 2016

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The plaintiff’s notice of motion filed 4 December 2015 is dismissed.

 

(2) The subpoena issued by the plaintiff’s solicitor addressed to the defendant dated 22 September 2015 is set aside.

 (3) Costs are reserved.

Catchwords:

PROCEDURE – civil – application to inspect property with photographer – whether necessary for proper determination of any matter in issue

  PROCEDURE – civil – application to set aside subpoena – subpoena sought family photographs from 1987 to date for purpose of assessing interaction between family members – time period too broad

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AJ Lucas Operations Proprietary Limited v CPW Trailer Sales and Repairs Proprietary Limited [2013] NSWSC 2053
Attorney-General (NSW) v Dylan Chidgey [2008] NSWCCA 65; 182 A Crim R 536
The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 364
The Commissioner for Railways v Small (1938) 38 SR 564

Category:

Procedural and other rulings

Parties:

Jayne Ellen Gersbach (Plaintiff)
Rodney John Gersbach (Defendant)

Representation:

Counsel:
M McAuley (Plaintiff)
GP McNally SC (Defendant)

  Solicitors:
Blake Lawyers (Plaintiff)
Breene & Breene (Defendant)

File Number(s):

2013/327902

Publication restriction:

Nil

Judgment

1. HER HONOUR: On 16 February 2016, this matter was listed before me for hearing. There were two notices of motion before the Court.

Delay in providing reasons for my decision

2. On 24 February 2016, my associate informed the parties that I would be delivering judgment at 10.00 am on 25 February 2016. On 24 February 2016, the solicitor for the defendant emailed my associate attaching a notice of motion seeking a suppression and non publication order in relation to the identity of the plaintiff and the defendant (“the suppression notice of motion”).

3. On 3 March 2016, the suppression notice of motion was filed. As judgment in this matter could not be delivered until the suppression notice of motion was heard, I informed counsel for the plaintiff and defendant of my decision and made orders dismissing the plaintiff’s notice of motion filed 4 December 2015 and setting aside the subpoena issued by the plaintiff’s solicitor addressed to the defendant dated 22 September 2015. The question of costs was reserved.

4. On 10 June 2016, the amended notice of motion seeking a non publication order was dismissed: see Gersbach v Gersbach (No 2) [2016] NSWSC 762. I am now in a position to publish my reasons for my decision.

Reasons for decision

5. By notice of motion filed 4 December 2015, the plaintiff seeks an order that the defendant provide access to the plaintiff, her lawyers and a photographer to inspect the premises at XX, Engadine, NSW 2233 pursuant to rule 23.8(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

6. By amended notice of motion filed 16 February 2016, the defendant seeks an order that the subpoena addressed to the defendant dated 22 September 2015 in these proceedings be set aside.

7. The plaintiff is Jayne Gersbach. The defendant is Rodney Gersbach. The plaintiff and defendant are, respectively, daughter and father. The plaintiff relied upon the affidavit of her solicitor, Paul Blake, sworn 3 December 2015 and her evidentiary statement dated 19 May 2015. The defendant relied upon the affidavit of his solicitor, John Aidan Breene, sworn 12 February 2016. Mr Blake was briefly cross examined.

8. I shall deal with the inspection of property application first followed by the application to set aside the subpoena.

Inspection of property

9. The plaintiff seeks an inspection of the defendant’s property. The defendant objects to an inspection taking place.

10. UCPR 23.8 relevantly reads:

“23.8   Inspection of property

(1)   For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following:

(a)   the inspection of any property,

…

(2)   An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

(3)   …

(4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

(5)   …

(6)   In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not.”

11. In AJ Lucas Operations Proprietary Limited v CPW Trailer Sales and Repairs Proprietary Limited [2013] NSWSC 2053, Rothman J at [6] stated:

“6   The proper test under the Uniform Civil Procedure Rules 2005 (UCPR) is contained in r 23.8. That is, the orders would be made, only if, they facilitated the proper determination of the proceedings. I bear in mind the similarity of that terminology with the terminology in ss 56, 57 and 58 of the Civil Procedure Act 2005, which impose upon the Court, the parties and their legal representatives a duty to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It seems to me that an inspection of the kind sought would, subject to a couple of aspects, facilitate the quick, just and cheap resolution of the real issues between the parties and the orders would facilitate the proper determination of the proceedings.”

12. The plaintiff alleges that from the ages of 4 to 18 years she was sexually assaulted by the defendant on a number of occasions, including one in which her mother was allegedly involved. Some of these assaults are alleged to have occurred inside the defendant’s house.

13. Paul Blake, the plaintiff’s solicitor, was cross examined. He was of the view that in order to properly present the plaintiff’s case at trial it is necessary to inspect the defendant’s house and have photographs taken of the interior of the house that can be used in evidence. The plaintiff will not be present at the inspection. He said that the incidents occurred in specific places within the house and, without having the benefit of examining those places, the plaintiff would have some difficulty with her case, giving the defendant some advantage in presenting his case (T10.22-25). It is understood that the defendant’s house has not been substantially altered over time.

14. According to the plaintiff’s solicitor, some of the sexual assaults allegedly took place in the defendant’s bedroom and over time the placement of furniture such as the bed may have changed. He says that since the sexual assaults occurred quite some time ago the location of the bed is something that would be a relevant issue in the proceedings.

15. Senior counsel for the defendant submitted that, as there are no relevant matters in question concerning the defendant’s house, the provisions contained in UCPR 23.8(1) are not satisfied. According to the defendant, there is no description of any part of the defendant’s house in the amended statement of claim or in the plaintiff’s evidentiary statement which is in issue. The defendant says that what is in issue in these proceedings is whether the alleged sexual assaults occurred. At trial, the credit of both the plaintiff and the defendant will be strongly in issue.

16. The defendant denies the sexual assaults occurred and will assert that even if the plaintiff now believes that the assaults did occur that belief is a delusion. The defendant’s counsel pointed out that the plaintiff, after she had consulted her present solicitor some time in 2013, had stayed in the defendant’s house. I accept that the plaintiff would have knowledge of the layout of the house as she grew up there. Senior counsel for the defendant, in oral submissions, expanded on this proposition by saying that the plaintiff will be able to entrench or exacerbate her evidence if she has the benefit of the photographs of the house.

17. So far as the plaintiff’s amended statement of claim is concerned, while she refers to living in the defendant’s house at [5.2.3], [5.8] and [5.9], she does not plead any specific location where the assaults took place. In her evidentiary statement (19/05/2015), the plaintiff refers to the defendant’s house generally at [17], [18], [22], [28], [46], [47], [63], [87], [93], [138], [127], [131], [225], [294], [314], [321], [322], [349], [412], however it is only at paragraphs [122] and [149] that she refers to a specific location, namely her parents’ bedroom. At [127] and [132] she refers to her parents’ bed. At [17], the plaintiff states that she moved to the defendant’s house “possibly” in 1993 with her sisters and parents when she was around 10 years old. Thus another possible reference occurs at [6.1] and [6.3] of the amended statement of claim, where the plaintiff refers to a number of incidents which she alleges occurred from when she was aged four years old to “approximately 10 or 11 years of age” in the defendant’s bedroom, suggesting some of these incidents may have occurred in the defendant’s bedroom at this property.

18. It is my view that an inspection of the property is not necessary to enable a proper determination of any matter in question in these proceedings and would not fulfil the overriding requirement of s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the “just, quick and cheap resolution of the real issues in the proceedings.” Hence, I dismiss paragraph 2 of the plaintiff’s notice of motion filed 4 December 2015. Nevertheless, it is suggested that a diagram showing the layout of the interior of the house would assist the Court in understanding the evidence.

Should the subpoena be set aside?

19. The subpoena issued by the plaintiff’s solicitor to the defendant sought that he provide copies of all photographs of the plaintiff, the defendant, her mother and siblings from 1987 to date. At this hearing, counsel for the plaintiff narrowed the documents sought to photographs of the plaintiff and defendant from 1987 to date. The defendant seeks to set this subpoena aside.

20. UCPR 33.4(1) reads:

“33.4   Setting aside or other relief

(1)   The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.”

21. The test for determining whether a party is required to produce documents pursuant to a subpoena are set out in Beazley JA’s decision in Attorney-General (NSW) v Dylan Chidgey [2008] NSWCCA 65; 182 A Crim R 536 where her Honour held that documents must be sought for a legitimate forensic purpose. Beazley JA stated (at [64]):

“[64]   The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999] NSWCCA 86 at [11], in the following terms:

The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his [or her] case…”

22. Her Honour’s statement was approved by Einstein J in The City of Sydney v Streetscape Projects (Australia) Pty Limited & Anor [2011] NSWSC 364 at [8].

23. Mr Blake, in cross examination, stated that in his opinion it is necessary for the plaintiff to have all photographs from 1987 to date because there is an allegation that the plaintiff’s mother participated in the assaults and it is not a fishing expedition. He also stated that, as this is an incest case involving a father and daughter and other family members who were all living in the same house at the relevant periods, photographs are relevant in order to see the interaction between the family members. Until such time as he has seen the photographs Mr Blake is unable to say if any untoward interactions are portrayed in them (T9.20-23). The plaintiff has not indicated whether or not she already has some photographs.

24. The defendant submitted that the subpoena should be set aside for the following reasons:

a.   There is no legitimate forensic purpose in relation to the documents sought to be produced;

b.   The subpoena effectively seeks discovery from a party. A subpoena cannot be used as a substitute for discovery: The Commissioner for Railways v Small (1938) 38 SR 564 at 574;

c.   The subpoena is broad and oppressive; and

d.   It is a fishing expedition.

25. While some of the photographs are relevant as they depict the relationship between the plaintiff and defendant, the time period for which they are sought, namely from 1987 to date, is too broad. I note that the defendant has not provided any evidence to suggest that the production of these photographs is oppressive. I set aside the subpoena dated 22 September 2015 issued by the plaintiff’s solicitor addressed to the defendant. Hence, I make an order in accordance with paragraph 1 of the defendant’s amended notice of motion filed 16 February 2016.

26. Costs are reserved.

The Court orders that:

(1)   The plaintiff’s notice of motion filed 4 December 2015 is dismissed.

(2)   The subpoena issued by the plaintiff’s solicitor addressed to the defendant dated 22 September 2015 is set aside.

(3)   Costs are reserved.

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Decision last updated: 21 June 2016