Morony & Ors v Reschke & Ors [2014] NSWSC 359

Supreme Court New South Wales

Medium Neutral Citation: Morony & Ors v Reschke & Ors [2014] NSWSC 359 Hearing dates: 11 February, 19 March 2014 Decision date: 28 March 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Certain discovery categories allowed; subpoena not set aside and access to documents permitted; Registrar to issue letter of request for production of Court files in respect of certain proceedings in South Australian Court; parties to bring in Short Minutes of Order to give effect to judgment. Catchwords: PROCEDURE - discovery and interrogatories - discovery and inspection of documents - Practice Note SC Eq 11 - disclosure after evidence filed by plaintiffs - whether relevant categories of documents ought to be disclosed - whether disclosure of relevant categories of documents is necessary for resolution of real issues in dispute in proceedings. PROCEDURE - subpoenas - application for subpoena to be set aside - where subpoena is for reports prepared by expert in interstate proceedings involving relevant defendants - whether production of reports is sufficiently relevant to matters in issue in proceedings. EVIDENCE - legal professional privilege - where present plaintiffs seeking access to third party reports under subpoena to produce - where reports were filed and served on opposing parties in interstate proceedings under court order - whether question of access to be determined by statute or common law - whether service of reports in accordance with court order amounted to waiver of legal professional privilege - whether plaintiffs in interstate proceedings had an express or implied obligation to preserve confidentiality of relevant reports. PROCEDURE - application for Registrar to request production of court files in interstate courts under Uniform Civil Procedure Rules 2005 (NSW) r 33.13 - whether direction for request should be made subject to relevant defendants having right of first access to make any potential claim for confidentiality or privilege. Legislation Cited: - Australian Securities and Investments Commission Act 2001 (Cth) s 12DI - Civil Procedure Act 2005 (NSW) s 56 - Corporations Act 2001 (Cth) - Corporations Law ss 724, 728, 731, 731(1), 733, 765 - Evidence Act 1995 (NSW) s 131A - Uniform Civil Procedure Rules 2005 (NSW) rr 1.9, 33.4, 33.9, 33.13 Cases Cited: - Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210 - Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 457 - Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 - Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd [2009] NSWSC 225; (2009) 74 NSWLR 469 - Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 - City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 364 - Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd & Ors [2004] NSWSC 40 - Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 - Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 - Re North Coast Transit Pty Ltd [2013] NSWSC 1912 - Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 - State Bank of South Australia v Smoothdale No 2 Ltd (1995) 64 SASR 224 - Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 Category: Interlocutory applications Parties: Andre Morony (First Plaintiff) Joseph Edward Duggan (Second Plaintiff) Richard William Turner (Third Plaintiff) Chanturn Pty Ltd atf Staff Superannuation Fund (Fourth Plaintiff) Tadeusz Skoczek (Fifth Plaintiff) Helkad Pty Ltd atf Staff Superannuation Fund (Sixth Plaintiff) Lynbar Pty Ltd atf Roberts Super Fund (Seventh Plaintiff) Rosa Genovesi (Eighth Plaintiff) Denis William Sullivan (Ninth Plaintiff) Anna Lee (Tenth Plaintiff) Barry John Callanan (Eleventh Plaintiff) Hugh Ronald Alexander Millikin (Twelfth Plaintiff) Benjamin David Kirkpatrick (Thirteenth Plaintiff) Stanley Norman Berry (Fourteenth Plaintiff) Ian David McMurtie (Fifteenth Plaintiff) Tolmer Products Pty Ltd (Sixteenth Plaintiff) Peter Charles Thomas (Seventeenth Plaintiff) Burke Robert Stanley Reschke (First Defendant) Coonawarra Property Holdings Pty Ltd (formerly Coonawarra Property Holdings Ltd) (Second Defendant) Koonara Management Pty Ltd (Third Defendant) Rocky Castle Finance Pty Ltd (Fourth Defendant) Advanced Horticultural Management Ltd (formerly Australian Hardwood Management Ltd) (Fifth Defendant) Alan Jessup (Sixth Defendant) Fergus Robert McLachlan (Seventh Defendant) Ian Dugald Murray McLachlan (Eighth Defendant) Ian Murray McLachlan (Ninth Defendant) Representation: Counsel: P Newton (Plaintiffs) No appearance (First-Fourth Defendants) J McDonald (Fifth, Seventh-Ninth Defendants) F McClay (Sixth Defendant) Solicitors: Rockliffs (Plaintiffs) No appearance (First-Fourth Defendants) William Roberts (Fifth, Seventh-Ninth Defendants) Harris Friedman (Sixth Defendant) File Number(s): 2011/110080