MARONIS HOLDINGS LTD & ANOR v. NIPPON CREDIT AUSTRALIA LTD & ORS [2000] NSWSC 894

New South Wales Supreme Court

CITATION : MARONIS HOLDINGS LTD & ANOR v. NIPPON CREDIT AUSTRALIA LTD & ORS [2000] NSWSC 894 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 1946/94 HEARING DATE(S) : 05/09/2000 JUDGMENT DATE : 6 September 2000

PARTIES : Warren Duncan - Applicant (Third Defendant) Maronis Holdings Ltd & Anor - Respondent (Plaintiff) JUDGMENT OF : Bryson J at 1

Mr Anforth - Applicant (Third Defendant) COUNSEL : Mr Kennett - Respondent (Plaintiff)

Peter Hopkins - Applicant (Third Defendant) SOLICITORS : Henry Davis York - Respondent (Plaintiff)

CATCHWORDS : PRACTICE AND PROCEDURE - notice to produce evidence of communication with witness - whether witness should have been called by plaintiffs - refuse to enforce production of documents which would show whether plainitffs' solicitor has contacted named potential witness. Evidence Act 1995 s 119 LEGISLATION CITED : Supreme Court Rules 1970 Pt 36 rr 13, 16 Supreme Court Rules Amendment No 332 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Payne v Parker (1976) 1 NSWLR 191 West v Conway (1923) 23 SR(NSW) 344 DECISION : Compliance refused.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

WEDNESDAY 6 SEPTEMBER 2000

1946/94 MARONIS HOLDINGS LIMITED & ANOR v. NIPPON CREDIT AUSTRALIA LIMITED & ORS

JUDGMENT 1 HIS HONOUR: On 5 September after hearing argument I refused to require compliance by the plaintiffs with the Notice to Produce dated 22 August 2000 served on the plaintiffs by the third defendant. I have filed the Notice to Produce. Shortly, it requires production of documents which record or evidence the fact of any meetings or communications between the plaintiffs' representatives and Mr Bruce Hill, but does not require production of documents which record the content of any meetings or other communications. The documents described could only be relevant in whatever bearing they may have on the availability to the third defendant of the comment associated with Jones v. Dunkell (1959) 101 CLR 298 on the plaintiffs' not having called Mr Hill as a witness. 2 In the evidence so far there is no material which could show that Mr Hill is associated with the plaintiffs in any way on which that comment could be based. There is no basis for thinking that Mr Hill is in the plaintiffs' camp or that he would be expected to be called by the plaintiffs rather than any other party, for example by having any particular standing in the confidence of the plaintiffs: see Payne v Parker [1976] 1 NSWLR 191 at 201-202 (Glass JA). If it were proved that in fact there have been meetings and communications with Mr Hill since the commencement of these proceedings, that would not furnish a basis for so thinking. There is thus far only the faintest ground for suggesting that Mr Hill is associated with the third defendant. (Counsel for the fourth defendant made some observations on such evidence as there is of an association between Mr Hill and the fourth defendant, but as the fourth defendant is not a party to the Notice to Produce I will not rule on the fourth defendant's position.) 3 The plaintiffs' response to the Notice to Produce did not include any showing by evidence or assertion whether or not there are any such documents, or whether, if there are any, they are within client legal privilege under s119 of the Evidence Act 1995, made applicable to inspection of documents produced on subpoenas and notices to produce by Pt 36 r 13. The plaintiffs take a stance anterior to reliance on client legal privilege and resist the enforcement of the Notice to Produce to any extent. It is very likely that, if any documents were produced, they would fall within client legal privilege, at least as to the contents of the communications; however the process of producing them and claiming client legal privilege would reveal whether or not there have been any communications with Mr Hill, and that would achieve some of the object of the Notice to Produce. 4 A party's preparations for the hearing of proceedings, including not only the contents of the communications with potential witnesses but also the fact that they have communicated with a nominated potential witness, are outside the range of matters with respect to which discovery of facts and documents, whether by discovery of documents or by interrogatories, is usually allowed. See West v Conway (1923) 23 SRNSW 344 at 346-347. Enforcement of the Notice to Produce would achieve much the same result as would be achieved if the plaintiff were required to answer an interrogatory about whether the plaintiff had been in communication with Mr Hill, or to produce documents on discovery dealing with that subject matter. The third defendant's call on the Notice to Produce, which implies a request that the court enforce the call, raises the same discretionary considerations as would be raised by seeking the information by discovery of documents or by interrogatories, and in my view should receive the same answer. While the power in Pt 36 r 16 is discretionary and there could conceivably be circumstances in which a different approach would be taken, there is in my opinion no reason of substance why I should allow the court's process to be used to compel the plaintiffs to give information relating to the plaintiffs' preparations for the hearing. For this reason I refused to require compliance. **********