Moss v SAS Trustee Corporation (No 1) [2016] NSWDC 286

District Court New South Wales

Medium Neutral Citation: Moss v SAS Trustee Corporation (No 1) [2016] NSWDC 286 Hearing dates: 1 August 2016 Date of orders: 01 August 2016 Decision date: 01 August 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Notice of motion filed 29 July 2016 dismissed

Each party pay his or its own costs of the notice of motion Catchwords: POLICE SUPERANNUATION – Application to increase allowance from 74.32% to 85% - Application to set aside subpoena for production addressed to plaintiff's wife (a solicitor) – Evidence suggested plaintiff was doing some (voluntary) work for his wife – Application refused Category: Procedural and other rulings Parties: Mathew Robert Moss (Plaintiff/Applicant) SAS Trustee Corporation (Defendant/Respondent) Representation: Counsel: Mr M Best (Plaintiff/Applicant) Ms S McLean (Solicitor) (Defendant/Respondent)

Solicitors: Walter Madden Jenkins (Plaintiff/Applicant) Rodney Blume (Defendant/Respondent) File Number(s): RJ355/15 Publication restriction: No

Judgment 1. HIS HONOUR: By a statement of claim filed on 3 August 2015 the plaintiff makes an application to set aside a decision of the defendant to increase his superannuation allowance to 74.32% of the salary of his office and asks the Court to increase his superannuation allowance to 85% of the salary of his office. The issue raised in the statement of claim is the extent of the plaintiff's incapacity for work generally. 2. The decision of the defendant that the plaintiff seeks to set aside was made in response to an application made by the plaintiff on 23 July 2014 to the defendant to increase his superannuation allowance. It appears from the statement of claim the plaintiff was medically discharged on or about 20 December 2012 from the New South Wales Police, and the pension increase is probably sought from that time. 3. The plaintiff's wife is a sole legal practitioner. She carries on her practice from their matrimonial home. The defendant has served the plaintiff's wife with a subpoena for production. That subpoena requires Mrs Moss to produce her personal income tax records and assessment notices for each of the financial years ending 30 June 2013 to the 30 June 2015 and all preparatory papers pertaining to the intended lodgement of an income tax return for the financial year ending 30 June 2016. 4. The plaintiff has seen various experts from time to time. On 21 May 2012 he saw Dr Peter Whetton, a psychiatrist. Dr Whetton's report of that date contains this history: "He has a small business together with his wife called 'Table for Ten' which is operating but more on a hobby than a true commercial basis." That history indicates some partnership arrangement between the plaintiff and his spouse. On 25 August 2014 the plaintiff again saw Dr Peter Whetton. In a report bearing that date Dr Whetton set out this history: "His wife is a lawyer who practices from home. He assists her in her legal practice, largely in delivery of contracts as a courier for her." 1. On 25 November 2014 the plaintiff saw Mr OJ Burchett, a vocational psychologist, for an assessment as to his vocational capacity. Mr Burchett's history contains two matters which need to be considered. The first is this: "Since his retirement, Mr Moss has kept himself busy with a variety of activities of interest to him. He has undertaken training in commercial cookery and takes on himself home responsibilities that allow his wife to spend more time in her business. He has also undertaken routine administrative type tasks to assist in that business." Further in the same history is this: "Mr Moss' wife conducts her property law business from home. Mr Moss now undertakes some simple administrative duties, on a voluntary basis, to assist his wife. He takes care of mailing and he delivers contracts." 1. The histories do suggest that the plaintiff is actively involved in his wife's business. Whether he receives payment for that activity is an interesting point but it is one clearly that the defendant is entitled to explore and the subpoena in the form that has been issued might produce appropriate documents. 2. It is not the recipient of the subpoena, Mrs Moss, who moves to set it aside but her husband, the plaintiff, and the plaintiff seeks to set it aside on the basis that there is no forensic purpose for the issue of the subpoena. There is a forensic purpose to explore the relationship of the plaintiff to his wife's business and as to whether the work which he does for his wife's business is remunerated in any way. If it were merely the breadth of the subpoena for production which was thought to be excessive or oppressive then that would be a consideration for the addressee of the subpoena, Mrs Moss, to move the Court to have it set aside or modified in some way. 3. For those reasons, the notice of motion filed on 29 July 2016 is dismissed. I order that each party pay his or its own costs for the notice of motion.