Nettleton v Rondeau - [2015] NSWSC 1490

Supreme Court

New South Wales

Medium Neutral Citation: Nettleton v Rondeau [2015] NSWSC 1490
Hearing dates: 2 October 2015
Date of orders: 13 October 2015
Decision date: 13 October 2015
Jurisdiction: Common Law
Before: Bellew J
Decision:
1. The subpoena filed by the defendant on 28 July 2015 and directed to the plaintiff is set aside.
2. The defendant is to pay the plaintiff’s costs of the notice of motion.
3. The matter is listed before me for directions on Monday 19 October 2015 at 9.15 am.

Catchwords: PRACTICE AND PROCEDURE – Application to set aside Subpoena - Where plaintiff brought proceedings for damages following motor vehicle accident – Plaintiff employed as a senior executive in the finance industry prior to the accident – Plaintiff gave history to a medical practitioner that he managed his own investments following the accident – Issue as to extent of plaintiff’s residual earning capacity – Defendant issued subpoena seeking documents in relation to the plaintiff’s investments – Where Subpoena sought documents dating back several years before the accident – Where subpoena sought documents which were not limited to transactions conducted by the plaintiff – Subpoena set aside
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Alister v R [1984] HCA 45; (1984) 154 CLR 404
Associated Dominions Assurance Society Pty Limited v John Fairfax & Sons Limited (1952) 72 WN (NSW) 250
Botany Bay Instrumentation and Control Pty Limited v Stewart [1984] 3 NSWLR 98
City of Sydney v Streetscape Projects (Aust) Pty Limited [2011] NSWSC 364
Commissioner for Railways v Small (1938) 38 SR NSW 564; 55 WN (NSW) 215
G B v Western Sydney Area Health Service [2010] NSWSC 181
National Employers’ Mutual General Insurance Association Limited v Waind and Hill [1978] 1 NSWLR 372
Nettleton v Rondeau [2014] NSWSC 903; (2014) 67 MVR 259
Tony Azzi Automobiles Pty Limited v Volvo Car Australia Pty Limited [2006] NSWSC 283 at [8]
White v Tulloch (1995) 19 Fam LR 696; (1995) 127 FLR 105
Category: Procedural and other rulings
Parties: Bruce Nettleton - Plaintiff
Jocelyn Germaine Rondeau - Defendant
Representation:
Counsel:
Dr A S Morrison SC – Plaintiff
Mr W Fitzsimmons - Defendant
Solicitors:
Stacks Goudkamp - Plaintiff
Moray and Agnew - Defendant

File Number(s): 2012/00308746-1
Publication restriction: Nil

Judgment

On 14 January 2012 the plaintiff, whilst riding a bicycle, was struck by a motor vehicle driven by the defendant and rendered a complete T10 paraplegic. He brought proceedings in this Court seeking damages for his injuries. On 8 July 2014 Hoeben CJ at CL entered a verdict in favour of the plaintiff, with damages to be assessed. His Honour further ordered that the plaintiff’s damages be reduced by 25% on account of contributory negligence: Nettleton v Rondeau [2014] NSWSC 903; (2014) 67 MVR 259. The assessment of damages is listed for hearing in March 2016.
On 28 July 2015 the defendant’s solicitor issued a subpoena directed to the plaintiff. The schedule to that subpoena was in (inter…

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 Nettleton v Rondeau

Details

AGLC: Nettleton v Rondeau [2015] NSWSC 1490
Case: [2015] NSWSC 1490
Decision Date: 13 October 2015

CaseChat Overview and Summary

In the matter of Nettleton v Rondeau, the Federal Court was called upon to consider an application by the defendant to set aside a subpoena issued by the plaintiff. The plaintiff, Nettleton, had initiated proceedings for damages arising from a motor vehicle accident. Prior to the accident, Nettleton was employed as a senior executive in the finance industry. Following the accident, he provided a medical practitioner with a history that he managed his own investments. The case centred on the extent of the plaintiff's residual earning capacity, and the defendant sought to obtain documents related to the plaintiff's investments through a subpoena. The subpoena sought documents dating back several years before the accident and was not limited to transactions conducted by the plaintiff.

The court was required to decide whether the subpoena was appropriate in scope and whether it was necessary for the purposes of the proceedings. The defendant argued that the subpoena was overly broad and sought documents that were not directly related to the plaintiff's earning capacity post-accident. The plaintiff, on the other hand, contended that the documents were relevant to understanding the plaintiff's financial situation and earning capacity both before and after the accident.

The court considered the nature and scope of the subpoena, along with its relevance to the issues in the case. It found that the subpoena was overly broad, as it sought documents from several years before the accident and not solely those related to the plaintiff's transactions. The court emphasised the need for subpoenas to be narrowly tailored to the issues in dispute and held that the subpoena in this case did not meet that standard. Consequently, the subpoena was set aside.

In conclusion, the court determined that the subpoena was not appropriately limited in scope and relevance to the issues in the case, and therefore set it aside. This decision underscores the importance of ensuring that subpoenas are narrowly tailored to the specific issues in the case and do not seek extraneous information that may not be pertinent to the proceedings.

Orders