New South Wales Supreme Court CITATION : Short v Crawley [2004] NSWSC 1031 HEARING DATE(S) : 1 November 2004 JUDGMENT DATE : 1 November 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Plaintiffs allowed access to subpoenaed documents. CATCHWORDS : PROCEDURE [111] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Subpoenas - To produce documents - Application for access - Whether documents relate to matter in issue in proceedings. Warwick Short (P1 & 1XD) Nabatu Pty Limited (P2 & 2XD) Christopher Crawley (D1 & 3XC) Marsico Holdings Pty Limited (D2 & 1 XC) J & J O'Brien Pty Limited (D3 & 2XC) PARTIES : Vensel Pty Limited (4D) Trudale Pty Limited (5D & 4 XC) Judith Crawley (6D) Aldonet Pty Limited (7D) Springsley Holdings Pty Limited (8D) Gladewood Enterprises Pty Limited (9D) Athann Pty Limited (10D) FILE NUMBER(S) : SC 2824/98 I M Jackman SC and T M Thawley (Ps & XDs) A J L Bannon SC and D B Studdy (1-6Ds & XCs) COUNSEL : J M Miller (1D) P M Wood & G K Rich (7-9Ds) No appearance (10D) Kemp Strang (Ps & XDs) SOLICITORS : Blake Dawson Waldron (1-6Ds & XCs) James Tuite & Associates (7-9Ds) A Davis, Director (10D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J MONDAY, 1 NOVEMBER 2004 2824/98 ROSLYN SHORT as Executrix of the Estate of the Late WARWICK GORDON SHORT & ANOR v CHRISTOPHER CRAWLEY & 9 ORS JUDGMENT (On plaintiffs' application for access to documents produced on subpoena by the ANZ Bank) 1 HIS HONOUR: This is an application by the plaintiffs for access to documents produced on subpoena by the ANZ Banking Group Limited. The objection is on the ground that if one looks at the face of the subpoena, it cannot be seen that the documents relate to any matter in issue in the proceedings, or have any sufficient relationship to any such matter, for their production and inspection to be appropriate, so that the requirement for production and now inspection, is to be taken to be an abuse of process. 2 Objection was not taken to the production of the documents on that ground, but objection is taken to access and inspection on that ground. Whilst this is rather a strange course to follow, I do not think that the fact that objection was not taken to the production necessarily prevents the objection being taken to access and inspection. 3 Mr Jackman, of Senior Counsel for the plaintiffs, says that the documents have a relationship to, or bear on, two matters that are relevant in the proceedings. The first is in relation to the receivership application propounded by his clients. He has brought forward written submissions which specifically rely upon what is called the "cross guarantees" issue in relation to that application. That is an allegation that borrowings of Mr Crawley which were personal or unrelated to the affairs of the companies the subject of these proceedings were supported by guarantees of the companies. This complaint is not at this stage the subject of allegations in the amended statement of claim. 4 Mr Jackman says that allegations may be relied on to support an application for a receiver by demonstrating that the affairs of a company are being so conducted as to call for a receiver, even if they are not the subject of pleaded allegations in the proceedings. Mr Bannon, of Senior Counsel for the first to sixth defendants, supported by Mr P M Wood, of counsel for the seventh to ninth defendants, controverts that proposition and says that the allegations cannot be relied on on the receivership application if not alleged as breaches of duty or otherwise in the pleadings. 5 I should add that Mr Jackman has also pointed out by reference to documents produced on an earlier subpoena to the ANZ Banking Group that subpoenas with requisitions cast in the terms of the present subpoena are also likely to produce documents relevant to an issue that is undoubtedly raised on the pleadings, namely, an issue that has been called in this case the third party payments issue 6 I reject the proposition Mr Bannon has put, namely, that matters cannot be relied on in support of a receivership application that do not fall within breaches of duty pleaded in the substantive proceedings. It is plain how the plaintiffs seek to rely upon the cross guarantees in support (whether successfully or not) of the receivership application. The material Mr Jackman has brought forward also indicates that material of the kind sought by the subpoena may well contain material relevant to the third party payment allegations that are in the pleadings. 7 An examination of the terms of the subpoena under consideration and also of the evidentiary material brought forward by Mr Jackman leads me to the conclusion that there is sufficient forensic justification shown for the production and for the inspection of the documents sought by the subpoena and I propose to allow the plaintiffs access to those documents. ********** Last Modified: 12/06/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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