Grace v Grace

[2010] NSWSC 1513

CITATION:	Grace v Grace [2010] NSWSC 1513
HEARING DATE(S):	2 November 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	2 November 2010
DECISION:	Notices to produce of 29 October 2010 set aside
CATCHWORDS:	PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – notice to produce – where extensive notices served during trial – where served in response to late served affidavits not yet admitted – whether oppressive – whether should be set aside
LEGISLATION CITED:	(CTH) Family Law Act 1975 (NSW) Family Provision Act 1982 (NSW) Uniform Civil Procedure Rules 2005 r 24.10, r 3.4.1
CATEGORY:	Procedural and other rulings
CASES CITED:	Azzi & Ors v Volvo [2009] NSWSC 283
PARTIES:	David Alexander Grace (plaintiff) Deborah Sharon Grace (first defendant) Julienne Grace (second defendant) Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant) Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant) Dutchie Pty Ltd (sixth defendant) Phoenix Rising Investments Pty Ltd (seventh defendant)
FILE NUMBER(S):	SC 06/259566
COUNSEL:	D Williams SC w S Goodman (plaintiff) A Moses SC w D Stewart (first, second & seventh defendants)
SOLICITORS:	James Tuite & Associates (plaintiff) Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 2 November 2010

2006/259566 David Alexander Grace v Deborah Sharon Grace & Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: By interlocutory process filed in court today, the defendants move for an order setting aside two notices to produce served on them by the plaintiff on 29 October 2010 after close of business that day, which itself was the fifth day of what is set down, and has for many months been set down, as a six week hearing. The notices in dispute extend to ten numbered paragraphs over five and a half printed pages. Although they purport to have been issued under (NSW) Uniform Civil Procedure Rules 2005 r 21.10, they are not notices within that rule, but are apparently intended to be Notices to Produce at Hearing under UCPR r 34.1.

2 The service of the disputed notices at this late stage has been provoked by the service by the defendants, on or about 22 October 2010, of affidavits by each of the first and second defendants as to their financial circumstances. Those affidavits purport to be financial disclosure, for the purposes of the defendants’ cross-claims brought under the (NSW) Family Provision Act 1982 and/or the (CTH) Family Law Act 1975, in the event that the plaintiff succeeds in the substantive proceedings in setting aside the transfer of property interests from the estate of Colin Grace to the defendants.

3 That cross-claim has been on foot since early 2008. It should have been evident to all parties, therefore, that the financial circumstances of the defendants would be relevant, and that should have been evident for nigh on two and three quarter years. The necessity for the defendants to give financial disclosure, and the entitlement of the plaintiff to explore their financial circumstances if so desired, should have long since been appreciated. The consequences of that, when it comes to whether the defendants’ late affidavits are permitted to be read will have to be seen, I am presently concerned with whether the defendants ought be required to respond to these extensive notices.

4 In circumstances of late service of their affidavits, it is quite understandable why the plaintiff ought to have taken the step that his advisers have, by serving these notices to produce, but that does not answer the question as to whether, in the present context, they ought to be set aside as oppressive.

5 For the defendants, it has been indicated that paragraphs 1, 4 and 7 of the notices could possibly be complied with by Friday of this week, but preferably by Monday of next week. Given that the court will not be sitting tomorrow, it seems to me this should be able to be attended to by Friday of this week. As to the balance of the notices, it is said that in the context of the ongoing trial, compliance could take weeks. There was a suggestion in cross-examination of the defendants’ solicitor that he could have been more diligent in inspecting his e-mail inbox last Friday evening, or over the weekend. While the hours that lawyers work are notorious enough, I do not think we have come to the position where courts assume that lawyers must check their e-mail after close of business on Friday and before commencement of business on Monday, nor that litigation proceeds on the assumption that lawyers will be working weekends. The court assumes, ordinarily, that legal business is transacted on days and during hours that the registry is open.

6 It seems to me that the notices call for documents within the scope of discovery (and thus go beyond the defendants’ discovery), and require such searches and such effort in such limited time as in the present context to be prima facie oppressive [cf Azzi & Ors v Volvo [2009] NSWSC 283 [8]].

7 If, however, the defendants wish to rely on their late affidavits, it will be necessary for them to demonstrate that no prejudice is occasioned to the plaintiff. As presently advised, there would seem to be a very strong case that the plaintiff could mount to the effect that, had the affidavits been served in a timely manner, they would have been able to serve these notices to produce at a time when they were not oppressive, and to obtain production of the documents referred to in them. It therefore seems to me, as presently advised, improbable that the defendants would be able to secure reception of their late affidavits, unless they can demonstrate compliance with what would otherwise have been sought in this notice.

8 On reflection, I think the better course is if I simply set aside the notices, having indicated what I have, and in due course the defendants will have the burden, if they wish to have their affidavits admitted, of proving there is no prejudice to the plaintiffs. If the documents called for in the notices are not produced, then there would seem, on the material presently available, little prospect of the affidavits being received.

9 I order that the notices to produce of 29 October 2010 be set aside, but as they been provoked by the late service of the defendants’ affidavits, costs of the motion will be costs in the proceedings.

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