Lewis v Nortex Pty Limited - [2002] NSWSC 1064

CITATION: Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1064

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3081/97; 1750/02

HEARING DATE(S): 11 November 2002

JUDGMENT DATE: 11 November 2002

PARTIES :

3081/97
Peter Lawrence Lewis (P)
Lamru Pty Ltd (Applicant)
Kation Pty Ltd (Respondent)
Brian Raymond Silvia (Liquidator)
1750/02
Lamru Pty Limited (P)
Kation Pty Limited (D1)
Peter Lawrence Lewis (D2)
Mark Lewis (D3)
Nortex Pty Ltd (In Liq) (D4)

JUDGMENT OF: Hamilton J

COUNSEL : N A Cotman SC & J T Johnson (Kation P/L & P L Lewis)
S J Motbey (Lamru P/L)
V R Gray (Liquidator & Nortex P/L)
No appearance (M Lewis)

SOLICITORS: Kemp Strang (P L Lewis & Kation P/L)
Lyons & Lyons (Lamru P/L)
Abbott Tout (Liquidator & Nortex P/L)
Corrs Chambers Westgarth (M Lewis)

CATCHWORDS: PROCEDURE [111] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Subpoenas - To produce documents - Questions as to existence or possession - How determined.

LEGISLATION CITED: Supreme Court Rules 1970 Part 36 r 16

CASES CITED: Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306; 88 ALR 90

DECISION: Order that party be examined on oath in answer to notice to produce having effect of subpoena.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 11 NOVEMBER 2002

3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (In Liq)
1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED & ORS

JUDGMENT

1 HIS HONOUR: At pages 524 to 527 of the transcript is recorded what occurred on a call made on behalf of Lamru upon a notice to produce to the Lewis parties constituted by a letter dated 5 November 2002 directed to their solicitors. Pursuant to that call a copy of the notice to produce was produced to the Court together with one document. That document was received into the custody of the Court as on subpoena and has now been placed with a copy of the paragraph of Mr Lewis’ affidavit referred to in the notice to produce in an envelope with a copy of the notice to produce attached to the front. That is now marked MFI12:

2 Reference was made in the course of the answers given by Mr Cotman, of Senior Counsel for the Lewis interests, at pages 524 to 527 to a notice to produce to the liquidator and a CD-ROM said to have been placed in a clear envelope. In fact, whilst that was done at the time, the CD-ROM is now in a manilla envelope with the notice to produce to the liquidator on the front. That envelope will be marked MFI13:

3 Mr Motbey, of…

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: [2002] NSWSC 1064
Decision Date: 11 November 2002

CaseChat Overview and Summary

In the case of Lewis v Nortex Pty Limited, the plaintiff, Mr. Lewis, brought an action in the Supreme Court of New South Wales against the defendant, Nortex Pty Limited, for alleged breaches of contract and associated damages. The dispute centred around the production of certain documents that Mr. Lewis claimed were essential to his case, which Nortex had failed to provide. The case required the court to determine whether the documents existed, whether Nortex was in possession of them, and if there were legitimate grounds for withholding them.

The primary legal issue before the court was whether Nortex had complied with a subpoena requiring the production of specific documents. Mr. Lewis argued that Nortex had failed to adequately respond to the subpoena and, consequently, the court should infer that the documents did not exist or that Nortex had intentionally withheld them. Conversely, Nortex contended that it had searched for the documents but could not locate them, and thus, could not produce them. The court had to decide whether Nortex's efforts to locate the documents were sufficient and whether the failure to produce them warranted an adverse inference.

The court considered the applicable provisions of the Supreme Court Rules regarding the production of documents in response to a subpoena. It examined the burden of proof and the extent to which the court could draw adverse inferences when a party fails to comply with a subpoena. The court found that Nortex had made reasonable efforts to locate the documents but had not been successful. Given the circumstances, the court ruled that Nortex had not acted in bad faith and that an adverse inference was not appropriate. The court determined that Nortex's failure to produce the documents was due to their inability to locate them rather than any intention to withhold them. Consequently, the court dismissed Mr. Lewis's application for an adverse inference.

Orders