IceTV Pty Ltd v Ross & ors [2009] NSWSC 832

New South Wales Supreme Court

CITATION : IceTV Pty Ltd v Ross & ors [2009] NSWSC 832

HEARING DATE(S) : 8 April 2009 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 8 April 2009

DECISION : Notice to Produce set aside

CATCHWORDS : PROCEDURE – Notice to Produce – documents in categories excluded from discovery – documents already covered by order for discovery – categories so broad as to necessarily catch relevant material – served shortly before trial – does not comply with requirement for specificity – abuse of process

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005 r 21.10

CATEGORY : Procedural and other rulings

Azzi v Volvo [2006] NSWSC 283 CASES CITED : Norris v Kandiah [2007] NSWSC 1296 Penrith Rugby League Club Limited v Brown [2004] NSWSC 1182

IceTV Pty Ltd (plaintiff) PARTIES : Duncan Ross (first defendant) Peter Vogel (second defendant) Vogel Ross Pty Ltd (third defendant)

FILE NUMBER(S) : SC 2577/07

Mr M Petrucco (sol) (plaintiff) COUNSEL : Mr D Ross (first defendant) (in person) Mr P Vogel (second defendant) (in person)

SOLICITORS : Bartier Perry (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

Wednesday 8 April 2009

2577/07 IceTV Ltd v Duncan Ross & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: On 13 March 2009 I set these proceedings down for final hearing before Rein J for three days commencing 27 April 2009 and made pre-trial directions in the form I usually use. Deleted from them was any provision for subpoenas, for the reason that the case was said to be ready for hearing and it was not envisaged there would be any requirement for further subpoenas or Notices to Produce. This is to be contrasted with the situation when the matter was previously set down by Palmer J, to be heard before me in February this year, when the directions made by his Honour, otherwise in similar form, provided for subpoenas to be made returnable before the Registrar on 6 February, in anticipation of a hearing commencing on 23 February. 2 Accordingly, the first relevant matter is that at the final pretrial directions hearing there was no indication or contemplation that the matter was other than ready and that further production would be required. 3 On 10 July 2007, the Court, by consent, made an order that the parties exchange categories of discovery by 20 July and provide verified discovery by 17 August. On 16 August 2001, an order was made that the parties provide verified discovery of the agreed categories on or before 31 August. The only evidence before me of what the categories were, so far as the discovery required of the defendants is concerned, is a letter from the plaintiff's solicitors Argyle Partnership to the defendants' then solicitors, of 19 July 2007. It specifies 8 categories, as follows: 1. Any document with respect to any bank account held by First, Second and/or Third Defendants, collectively referred to as the Defendants, for the period 4 July 2006 to the present. 2. Any document with respect to any bank account held by Ross Trading Pty Limited for the period 4 July 2006 to the present. 3. Any document, including but not limited to diary entries and file notes, relating to appointments, conferences, meetings and/or attendances by the First and/or Second Defendant with any organisation referred to in the "Departure Notes" that were prepared by Duncan Ross and which are Exhibit COB-Confidential-2 to the affidavit of Colin O'Brien sworn 4 May 2007.