WENTWORTH v DE MONTFORT (on application to set aside pars 7 and 9 of notice to produce) [1989] NSWCA 226

WENTWORTH v DE MONTFORT (on application to set aside pars 7 and 9 of notice to produce)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and MAHONY JJA

1 May 1989

[1989] NSWCA 226

Hope and Samuels and Mahony JJA The opponent has sought to set aside two paragraphs of a notice to produce a schedule of documents served by the claimant Ms Wentworth. The two paragraphs are these:

"(7) Financial records for the company S and R Nominees Pty Ltd for the period 1/11/1982 to 1/7/1987, including bank statements, cheque butts, taxation returns, balance sheets, for the years 1985, 1986 and 1987, share register, minute book and all records showing income to that company for photocopying done at Sly and Russell (Weigall) but charged to S and R Nominees Pty Limited.

(9) Audit trails for the period 1/11/1982 to 1 July 1987 in relation to K Wentworth."

The Court has previously set aside a subpoena duces tecum addressed to S and R Nominees Pty Limited in terms which in part were similar to the provisions of par 7 of the schedule of notice to produce, and for the reasons which the court then gave, the court sets aside par 7 of the schedule of notice to produce.

As regards par 9 an audit trail, according to the only material about it before the court, is the term used to describe a document which records every transaction posted on to the opponent's computer during the course of the particular day for which the audit control was created. It usually consists of thirty to forty pages - that is, each day's trail comprises that number of pages - with the audit trail being split into various sections within which all the transaction on that day falling within a particular section are listed.

It is also said that the volume of audit controls over the five to six year period would be enormous. Mere simple arithmetic shows that to be the case.