WENTWORTH v DE MONTFORT (on application to set aside subpoena duces tecum) [1989] NSWCA 227

WENTWORTH v DE MONTFORT (on application to set aside subpoena duces tecum)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and MAHONY JJA 1 May 1989

[1989] NSWCA 227

Hope JA The Court has before it an application to set aside a subpoena duces tecum served by the claimant, Ms Wentworth, and directed to S and R Nominees Pty Limited for the production of a great number of documents. The documents set out in the schedule to the subpoena are contained in nine paragraphs and range from share registers, minute books, notices of meetings of directors and of shareholders of the company, to profit and loss statements, bank statements, a mass of financial documents, records of disbursements, records of transfers of money, correspondence, notes of telephone conversations and other documents over a period commencing in 1982 until 1987.

S and R Nominees Pty Limited has moved to set aside the subpoena.

The claimant, Ms Wentworth, seeks to support the issue of the subpoena in this way. She claims that, in addition to the principal issues with which the appeal from the decision of Hodgson J has previously been regarded as being concerned, namely, whether there were documents belonging to her which have not been returned to her by the opponents and whether the moneys which Hodgson J did not order the opponents to return to her should have been returned to her, there was an additional issue, namely, that of damages. She claims that she was entitled to obtain from Hodgson J an order for damages and she submits that the subject-matter of the subpoena is relevant to that claim.

As regards the matter presently before the Court, the notices of appeal and cross-appeal in the proceedings are from a judgment given by Hodgson J on 23 February 1987. That judgment was made upon a reference by this Court to the Equity Division of a notice of motion brought by the claimant in this Court asking for orders, none of which related to damages. In the course of the hearing before Hodgson J, it appears that the claimant sought damages, and the order which Hodgson J made in relation to that matter was that the applicant's notice of motion stand over to 27 April 1987 before him to decide whether, among other things, she should be permitted to claim damages and/or compensation in those proceedings.