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

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

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”).
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.
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

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”).
By…

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: [2016] NSWSC 119
Decision Date: 21 June 2016

CaseChat Overview and Summary

In this case, the parties involved were the applicant, Gersbach, and the respondent, also Gersbach. The dispute was of a civil nature and related to an application to inspect property with a photographer and an application to set aside a subpoena. The matter was heard in the Family Court of Australia. The applicant sought to inspect a property owned by the respondent, with the assistance of a photographer, to gather evidence relevant to the proceedings. Additionally, the applicant sought to set aside a subpoena that required the respondent to provide family photographs from 1987 to the present for the purpose of assessing the interaction between family members.

The legal issues the court had to decide were whether the inspection of the property with a photographer was necessary for the proper determination of any matter in issue, and whether the time period specified in the subpoena was too broad. The court had to balance the need for proper evidence with the potential invasion of privacy and the burden on the respondent. The court also needed to determine whether the subpoena was reasonable and proportionate to the needs of the case.

The court determined that the inspection of the property with a photographer was not necessary for the proper determination of any matter in issue. The court found that the applicant had already provided sufficient evidence through other means, and that the proposed inspection would not yield any significant new information. Furthermore, the court found that the subpoena was too broad, as it required the respondent to provide family photographs from a period of over thirty years. The court considered this to be an unreasonable and disproportionate burden on the respondent, as it would involve a significant invasion of privacy and an excessive amount of work. The court set aside the subpoena and ordered the applicant to file a new subpoena with a more specific and limited time period.

The court's final orders were that the application to inspect the property with a photographer was dismissed, and that the subpoena requiring the respondent to provide family photographs from 1987 to the present was set aside. The court ordered the applicant to file a new subpoena with a more specific and limited time period, and directed the parties to attend a further directions hearing to discuss the next steps in the proceedings.

Orders