New South Wales Supreme Court CITATION : Short v Crawley [2004] NSWSC 1032 HEARING DATE(S) : 1 November 2004 JUDGMENT DATE : 1 November 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Refuse to set aside subpoena on basis certain documents will not be called for. CATCHWORDS : PROCEDURE [111] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Subpoenas - To produce documents - Application to set aside - Sufficiency of forensic purpose to justify production. 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 (Re setting aside of subpoena directed to Borough Mazars) 1 HIS HONOUR: There is before me an application by notice of motion to set aside a subpoena directed to Borough Mazars, accountants, issued on 8 October 2004. That motion is moved by Mr Bannon, of Senior Counsel for the first to sixth defendants, for whom Borough Mazars have done accounting work. 2 The plaintiffs will not call for production of the documents in requisitions 4 and 6, which are only slightly and too subtly differentiated from requisitions 3 and 5 respectively. The distinction is so fine as in my view to have no function but that of causing confusion. 3 Paragraph 2 seeks documents relating generally to the preparation and lodgment of income tax returns for three companies for the years ended 30 June 1988 and 30 June 1989. For a long time there was a complaint that those income tax returns had not been lodged, but now they have been. There are still some complaints to be made in the receivership application about the form of those tax returns. Although requisition 2 is cast in wide terms, I gather that it is common ground that there is only a small number of documents which would in fact be caught by requisition 2 and the application to set it aside is not on the ground of width or oppression. It is principally on the ground that this complaint about the tax returns is not encompassed in pleadings and, therefore, should not be allowed to be entertained on the hearing of the receivership application. However, written submissions have been lodged by the plaintiffs, which set out how they propose to rely on the form of the tax returns on that application. In these circumstances, it seems to me that requisition 2 does not require the subpoena to be set aside. 4 Requisitions 3 and 5 again seem to be in small compass as to the number of documents required. They relate to Mr Wearne of Borough Mazars acting as an alternative director to Judith Crawley, and as the proxy of Springsley Holdings Pty Ltd, at certain meetings of J & J O'Brien Pty Limited and Marsico Holdings Pty Limited. Again, the objection is taken that there is no complaint made in the pleadings about the role of Mr Wearne as alternative director or its exercise. It is put on the part of the plaintiffs, however, that his actions in those offices may have a relevance to its general case of oppression carried out in part through the meetings referred to. In the circumstances, it is my view that there is sufficient connection for there to be a valid forensic purpose in those requisitions of the subpoena. The order of the Court therefore is that the application to set aside the subpoena to Borough Mazars of 8 October 2004, is refused, but on the basis that no call will be made under requisitions 4 or 6 of that subpoena. 5 Documents are produced to the Court in answer to the subpoena by Mr Bannon, who does not act for Borough Mazars. The application by Borough Mazars for $930 additional expenses, made by letter with the produced documents, is reserved. Access is granted to all parties, and the application by Borough Mazars for an additional $930 is reserved. ********** 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. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.