Pritchard Lees Pty Ltd v Cathleen Heather - [2013] NSWSC 1521

Supreme Court

New South Wales

Medium Neutral Citation: Pritchard Lees Pty Ltd v Cathleen Heather [2013] NSWSC 1521
Hearing dates: 9 October 2013 & 16 October 2013
Decision date: 16 October 2013
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Application for preliminary discovery granted. Defendant to swear and serve on the plaintiff an affidavit setting out the details of persons from whom she received the identified confidential documents.

Catchwords: PROCEDURE - application for preliminary discovery under UCPR, r 1.4 - discovery sought in the form of an affidavit setting out the details of persons from whom the defendant received particular documents - a director of the plaintiff and the defendant are former spouses - the plaintiff company runs an accounting practice - the defendant revealed that she has in her possession documents of the practice - whether the documents are prima facie confidential - whether it should be inferred that the documents were provided to the defendant by a third person - whether the preliminary discovery sought offends the "mere witness rule" - whether preliminary discovery should be granted - whether the plaintiff should pay the defendant's costs.
Legislation Cited: Uniform Civil Procedure 2005, rr 5.1, 5.2
Cases Cited: Bio Transplant Inc v Bell Potter Securities Ltd [2008] NSWSC 694
Computershare Ltd v Perpetual Registrars Ltd & Ors (2000) 1 VR 626
Mercantile Group (Europe) AG v Aiyela [1994] QB 366; [1994] 1 All ER 110
McLean v Burns Philip Trustee Co Pty Ltd (1985) 2 NSWLR 623
Norwich Pharmacal Co v Customs and Excise Cmrs [1974] AC 133
Sega Enterprises Limited v ALCA Electronics [1982] FSR 516
Totalise plc v Motley Fool Ltd [2002] 1 WLR 1233
Category: Procedural and other rulings
Parties: Plaintiff:- Pritchard Lees Pty Ltd
Defendant:- Cathleen Heather
Representation:
Counsel:

Plaintiff:- J. O'Connor
Defendant:- A. Radojev
Solicitors:
Plaintiff:- Christopher Sydes, Pigott Stinson
Defendant:- Kenneth Richard Montague Stidwill, Stidwill Solicitors

File Number(s): 2013/203849
Publication restriction: No.

EX TEMPORE Judgment

Robin Raymond Lees and Douglas Pritchard conduct practice as chartered accountants in Annandale through the corporate entity Pritchard Lees Pty Limited ("Pritchard Lees"), the plaintiff in these proceedings. The defendant in the proceedings is the former wife of Mr Pritchard, Cathleen Heather. After unhappy matrimonial differences, Mr Pritchard and Ms Heather separated, apparently under the one roof, in March of 2011, and then separated entirely on or about 11 July 2011. There are proceedings in the Family Court of Australia between them which, I understand, are not fully resolved.

The plaintiff Pritchard Lees applies for preliminary discovery. The application arises out of exchanges that occurred between Mr Pritchard and his former wife on Australia Day this year. In short, she revealed to him, so the evidence shows at least to a prima facie level, that she had confidential documents of the plaintiff's practice. Ms Heather gave certain documents to Mr Pritchard and intimated indirectly that they had been obtained from the practice by persons other than her. The present application is brought under the Court's inherent power…

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: [2013] NSWSC 1521
Decision Date: 16 October 2013

CaseChat Overview and Summary

In this case, Pritchard Lees Pty Ltd, an accounting practice, sought a preliminary discovery order from Cathleen Heather, a former spouse of a director of the company. The plaintiff was pursuing information regarding documents in the defendant's possession that were related to the company's business. The primary issue before the court was whether the documents in question were confidential and if so, whether the plaintiff was entitled to the discovery of these documents from the defendant. Additionally, the court needed to determine if the plaintiff's application for preliminary discovery contravened the "mere witness rule," a principle that restricts a party from obtaining documents from a non-party witness before the witness is called to testify.

The court considered the nature of the documents and the relationship between the parties. It found that the documents were indeed confidential as they pertained to the plaintiff's business. The court was also of the opinion that it was highly likely that the defendant had received these documents from a third party, not directly from the plaintiff. Furthermore, the court held that the application for preliminary discovery did not breach the "mere witness rule" since the defendant was not merely a witness but had a direct connection to the documents through her former marital relationship with a company director. As a result, the court granted the plaintiff's application for preliminary discovery and ordered the defendant to provide the details of the documents in question in the form of an affidavit. The court also ruled that the plaintiff was not liable to pay the defendant's costs associated with the application.

Orders