Sogelease Australia Ltd & Anor v David James Griffin & Ors [2003] NSWSC 178

New South Wales Supreme Court

CITATION : Sogelease Australia Ltd & Anor v David James Griffin & Ors [2003] NSWSC 178 HEARING DATE(S) : 6 March, 2003 JUDGMENT DATE : 24 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Discovery against First Defendant refused; Second Defendant ordered to make further discovery; directions for compliance given.

CATCHWORDS : PRACTICE AND PROCEDURE - DISCOVERY AND INSPECTION - Plaintiffs sue First Defendant for fraudulently misappropriating funds - First Defendant enters no Defence - default judgment entered - Plaintiffs seek discovery against First Defendant for purpose of tracing funds and obtaining account of profits - First Defendant objects to giving discovery on ground that no issue remains between Plaintiffs and First Defendant - other Defendants file Defences. - HELD: Discovery may be ordered at any stage of proceedings in aid of the proper disposition of any issue as to final relief - discovery may be ordered against party if relevant to any issues between party seeking discovery and any other party to proceedings. - DISCOVERY AND INSPECTION - PRIVILEGE AGAINST SELF INCRIMINATION - First Defendant takes "blanket objection" to providing any list of documents on ground of self incrimination - general rule that "blanket objection" impermissible - principles discussed - exceptions to general rule. - HELD: On facts of this case, no discovery at all from First Defendant should be ordered. - DISCOVERY AND INSPECTION - DIRECTIONS - CONTEMPT - Discovery sought from Second Defendant, First Defendant's wife - Second Defendant does not claim privilege on ground of self incrimination - Second Defendant says that she has given discoverable documents to First Defendant who will not return them for purposes of her discovery - First Defendant refuses to return documents to Second Defendant on ground that to do so will incriminate him - power of Court to make directions under s.76A Supreme Court Act. - HELD: Documents of Second Defendant still in her "power" - Second Defendant has not discharged her obligation to give discovery - direction to Second Defendant to procure documents from First Defendant - direction to First Defendant to provide Second Defendant's documents to her for purpose of discovery - First Defendant has no claim to privilege against self incrimination in respect of documents of Second Defendant - contempt consequences if directions disobeyed. - DISCOVERY AND INSPECTION - PRIVILEGE AGAINST SELF INCRIMINATION - JOINTLY OWNED DOCUMENTS. Held: A party must discover and produce for inspection documents within the party's possession, custody or power regardless of whether that party owns or controls the documents solely or jointly with another - Second Defendant required to discover and produce documents owned jointly with First Defendant. LEGISLATION CITED : Supreme Court Act 1970 (NSW) - s.76A Supreme Court Rules - Pt 17 r9, Pt 23 r3, Pt 36 r12, Pt 36 r16. - Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 - Aetna Pacific Securities Ltd v Hong Kong Bank of Australia Ltd (unrep., NSWSC 29 April, 1993; BC9301701) - Attorney-General v North Metropolitan Tramways Co [1892] 3 Ch 70 - Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (unrep., Federal Court 21 February 1990 per Foster J; BC9003178) - C v National Crime Authority (1987) 78 ALR 338 - Chantrey Martin & Co v Martin [1953] 2 QB 286 - Coomes & Son v Hayward [1913] 1 KB 150 - Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2) [1974] AC 405 - EMI (Australia) Ltd v Bay Imports Pty Ltd [1980] FSR Vol 6 - Gollin Holdings Limited v Adcock [1981] 1 NSWLR 691 CASES CITED : - Kearsley v Philips (1882) 10 QBD 36 - Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 - McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 - Palmdale Insurance Ltd (in liq) v L. Grollo & Co Pty Ltd [1987] VR 113 - R v Associated Northern Collieries (1910) 11 CLR 738 - Sorby v Commonwealth (1983) 152 CLR 281 - Spokes v Grosvenor Hotel Co [1897] 2 QB 124 - Theodore v Australian Postal Commission [1988] VR 272 - Turner v Davies [1981] 2 NSWLR 324 - Vasil v National Australia Bank Ltd (1999) 46 NSWLR 207 - Bray on Discovery (1885) Sogelease Australia Limited - First Plaintiff SG Australia Ltd (formerly Society Generale Australia Ltd) - Second Plaintiff David James Griffin - First Defendant Maree Leigh Griffin - Second Defendant PARTIES : Michael Sullivan - Third Defendant Cindy Sullivan - Fourth Defendant Sportingbet Australia Pty Ltd - Fifth Defendant Donald Harry (t/a Number One Betting Shop Agents) - Sixth Defendant Number One Betting Shop Limited - Seventh Defendant Iasbet.com Pty Ltd - Eighth Defendant FILE NUMBER(S) : SC 2105/02 G.C. Lindsay SC, A.S. McGrath - First and Second Plaintiffs A.S. Street SC - First Defendant COUNSEL : P.H. Blackburn-Hart - Second Defendant K.L. Andronos - 3rd, 4th, 5th and 7th Defendants N. Manousaridis - Eighth Defendant Piper Alderman - First and Second Plaintiffs North & Badgery - First Defendant SOLICITORS : Watts McCray - Second Defendant MWA Lawyers Pty Ltd - 3rd, 4th, 5th and 7th Defendants Corrs Chambers Westgarth - Eighth Defendant