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Morony v Reschke

Morony v Reschke

Case [2014] NSWSC 359 28 March 2014

Discovery & Disclosure

Legal Professional Privilege

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Morony & Ors v Reschke & Ors [2014] NSWSC 359
Hearing dates: 11 February, 19 March 2014
Decision date: 28 March 2014
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Certain discovery categories allowed; subpoena not set aside and access to documents permitted; Registrar to issue letter of request for production of Court files in respect of certain proceedings in South Australian Court; parties to bring in Short Minutes of Order to give effect to judgment.

Catchwords: PROCEDURE - discovery and interrogatories - discovery and inspection of documents - Practice Note SC Eq 11 - disclosure after evidence filed by plaintiffs - whether relevant categories of documents ought to be disclosed - whether disclosure of relevant categories of documents is necessary for resolution of real issues in dispute in proceedings.
PROCEDURE - subpoenas - application for subpoena to be set aside - where subpoena is for reports prepared by expert in interstate proceedings involving relevant defendants - whether production of reports is sufficiently relevant to matters in issue in proceedings.
EVIDENCE - legal professional privilege - where present plaintiffs seeking access to third party reports under subpoena to produce - where reports were filed and served on opposing parties in interstate proceedings under court order - whether question of access to be determined by statute or common law - whether service of reports in accordance with court order amounted to waiver of legal professional privilege - whether plaintiffs in interstate proceedings had an express or implied obligation to preserve confidentiality of relevant reports.
PROCEDURE - application for Registrar to request production of court files in interstate courts under Uniform Civil Procedure Rules 2005 (NSW) r 33.13 - whether direction for request should be made subject to relevant defendants having right of first access to make any potential claim for confidentiality or privilege.
Legislation Cited: - Australian Securities and Investments Commission Act 2001 (Cth) s 12DI
- Civil Procedure Act 2005 (NSW) s 56
- Corporations Act 2001 (Cth)
- Corporations Law ss 724, 728, 731, 731(1), 733, 765
- Evidence Act 1995 (NSW) s 131A
- Uniform Civil Procedure Rules 2005 (NSW) rr 1.9, 33.4, 33.9, 33.13
Cases Cited: - Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210
- Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 457
- Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678
- Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225; (2009) 74 NSWLR 469
- Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
- City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 364
- Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd & Ors [2004] NSWSC 40
- Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283
- Portal Software International Pty Ltd v Bodsworth [2005]…

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.

Continue reading Morony v Reschke

Details

AGLC: Morony v Reschke [2014] NSWSC 359
Case: [2014] NSWSC 359
Decision Date: 28 March 2014

CaseChat Overview and Summary

The matter before the Supreme Court of South Australia involved a dispute between the plaintiffs, Morony, and the defendants, Reschke. The plaintiffs sought discovery and inspection of certain documents, subpoenas for expert reports, and access to third-party reports under a subpoena, which were all resisted by the defendants. The court was required to determine whether certain categories of documents should be disclosed, whether the subpoenas were relevant to the proceedings, and whether the plaintiffs were entitled to access the third-party reports.

The legal issues before the court included whether the disclosure of relevant categories of documents was necessary for the resolution of the real issues in the dispute, whether the subpoenas were relevant to the matters in issue, and whether the service of the third-party reports in interstate proceedings amounted to a waiver of legal professional privilege. The court also had to consider whether the plaintiffs in the interstate proceedings had an obligation to preserve the confidentiality of the reports.

The court found that the disclosure of certain categories of documents was necessary for the resolution of the real issues in the dispute. The court also found that the subpoenas were relevant to the matters in issue and ordered their production. In relation to the third-party reports, the court held that the service of the reports in the interstate proceedings did not amount to a waiver of legal professional privilege, and that the plaintiffs in the interstate proceedings did not have an express or implied obligation to preserve the confidentiality of the reports. The court granted the plaintiffs' application for a direction to be made to the Registrar to request the production of court files in the interstate courts, subject to the relevant defendants having the right of first access to make any potential claim for confidentiality or privilege.

The court made orders for the disclosure of certain categories of documents, the production of the subpoenas, and the direction to the Registrar to request the production of court files in the interstate courts.

Orders