WENTWORTH v WENTWORTH; WENTWORTH v WENTWORTH EXECUTOR OF THE ESTATE OF THE LATE G. N. WENTWORTH; WENTWORTH v WENTWORTH; WENTWORTH v WENTWORTH; WENTWORTH v WENTWORTH [1995] NSWCA 500

WENTWORTH v WENTWORTH; WENTWORTH v WENTWORTH EXECUTOR OF THE ESTATE OF THE LATE G. N. WENTWORTH; WENTWORTH v WENTWORTH; WENTWORTH v WENTWORTH; WENTWORTH v WENTWORTH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 11 October 1995

[1995] NSWCA 500

Priestley JA. (On notice to produce — see page 86 of transcript)

The question has arisen concerning what should be done in relation to a notice to produce which has been treated as served by the plaintiff on the defendant. The particular question relates to the response to paragraphs 3 and 4 of the notice to produce. When the notice to produce was first called on on Monday, a number of documents were produced and a good many of them were tendered in evidence. I indicated that I thought further production was required and further documents were produced I think both on Tuesday and also today. Paragraph 3 called for bank statements as specified in the paragraph from 30 January 1994 to the date of the notice. There have now been produced bank statements falling within the descriptionin paragraph 3 extending back to 1994 but not going right back to 30 January 1994.

The plaintiff seeks production of the remaining documents and paragraph 3 has been the particular focus of her submission. Senior counsel for the defendant has told the Court that his client or his solicitors have made what he says are reasonable inquiries and reasonable efforts to get hold of the documents not yet obtained. He seeks that the Court should make an order under r 16 subr | Pt 36 of the Supreme Court rules which will relieve his client of producing further documents in response to the notice to produce.

The plaintiff opposes this application on two bases. One is that the order the Court can make under the sub-rule does not permit the Court to do what is asked on behalf of the defendant. In my opinion it does. The other submission the plaintiff makes is that the defendant should be treated by the Court as deliberately withholding documents for sinister reasons to conceal dealings which he wishes to conceal in order that the case made on his behalf in these proceedings, which is that he is under commercial pressure to go ahead with certain transactions which he cannot, as he says, go ahead with if stays are granted as the plaintiff asks, would be shown not to be as it presently appears on the materials before the Court.