Sogelease Australia Ltd v Griffin

CITATION:	Sogelease Australia Ltd & Anor v David James Griffin & Ors [2003] NSWSC 178
HEARING DATE(S):	6 March, 2003
JUDGMENT DATE:	24 March 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Discovery against First Defendant refused; Second Defendant ordered to make further discovery; directions for compliance given.
CATCHWORDS:	PRACTICE AND PROCEDURE - DISCOVERY AND INSPECTION - Plaintiffs sue First Defendant for fraudulently misappropriating funds - First Defendant enters no Defence - default judgment entered - Plaintiffs seek discovery against First Defendant for purpose of tracing funds and obtaining account of profits - First Defendant objects to giving discovery on ground that no issue remains between Plaintiffs and First Defendant - other Defendants file Defences. - HELD: Discovery may be ordered at any stage of proceedings in aid of the proper disposition of any issue as to final relief - discovery may be ordered against party if relevant to any issues between party seeking discovery and any other party to proceedings. - DISCOVERY AND INSPECTION - PRIVILEGE AGAINST SELF INCRIMINATION - First Defendant takes "blanket objection" to providing any list of documents on ground of self incrimination - general rule that "blanket objection" impermissible - principles discussed - exceptions to general rule. - HELD: On facts of this case, no discovery at all from First Defendant should be ordered. - DISCOVERY AND INSPECTION - DIRECTIONS - CONTEMPT - Discovery sought from Second Defendant, First Defendant's wife - Second Defendant does not claim privilege on ground of self incrimination - Second Defendant says that she has given discoverable documents to First Defendant who will not return them for purposes of her discovery - First Defendant refuses to return documents to Second Defendant on ground that to do so will incriminate him - power of Court to make directions under s.76A Supreme Court Act. - HELD: Documents of Second Defendant still in her "power" - Second Defendant has not discharged her obligation to give discovery - direction to Second Defendant to procure documents from First Defendant - direction to First Defendant to provide Second Defendant's documents to her for purpose of discovery - First Defendant has no claim to privilege against self incrimination in respect of documents of Second Defendant - contempt consequences if directions disobeyed. - DISCOVERY AND INSPECTION - PRIVILEGE AGAINST SELF INCRIMINATION - JOINTLY OWNED DOCUMENTS. Held: A party must discover and produce for inspection documents within the party's possession, custody or power regardless of whether that party owns or controls the documents solely or jointly with another - Second Defendant required to discover and produce documents owned jointly with First Defendant.
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) - s.76A Supreme Court Rules - Pt 17 r9, Pt 23 r3, Pt 36 r12, Pt 36 r16.
CASES CITED:	- Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 - Aetna Pacific Securities Ltd v Hong Kong Bank of Australia Ltd (unrep., NSWSC 29 April, 1993; BC9301701) - Attorney-General v North Metropolitan Tramways Co [1892] 3…