Commissioner for Fair Trading v Jonval Builders Pty Limited & Ors [2017] NSWSC 1045

Supreme Court New South Wales

Medium Neutral Citation: Commissioner for Fair Trading v Jonval Builders Pty Limited & Ors [2017] NSWSC 1045 Hearing dates: 27 July 2017 Date of orders: 10 August 2017 Decision date: 10 August 2017 Jurisdiction: Common Law Before: Wilson J Decision: (1) The subpoena issued on behalf of the defendants directed to The Trustee of the Hodson Family Superannuation Fund ABN 54 360 224 623 dated 5 April 2017 is set aside. (2) The subpoena issued on behalf of the defendants directed to Tweed Shire Council dated 23 April 2017 is set aside, insofar as it requires production of the documents referred to in paragraph 3 of the schedule thereto. (3) The plaintiff is to be granted first access for seven days to the envelope produced by the Tweed Shire Council in response to the balance of the subpoena dated 23 April 2017 issued on it, containing correspondence between the plaintiff and Tweed Shire Council. (4) The subpoena issued on behalf of the plaintiff directed to Corrs Chambers Westgarth dated 20 March 2017 is set aside. (5) The notice to produce served on the defendants on behalf of the plaintiff on 15 May 2017 is set aside. (6) Each party is to bear its own costs of the motions. Catchwords: Interlocutory Motions – setting aside subpoenas – setting aside notice to produce – question of legitimate forensic purpose – legal professional privilege – question of waiver of legal professional privilege – s 117 – 126 Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW) Fair Trading Act 1987 (NSW). Uniform Civil Procedure Rules 2005 Cases Cited: Air Canada v Secretary of State for Trade [1983] 2 AC 394 Attorney General (NSW) v Dylan Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 Fitzgerald v Magistrate's Court of Victoria (2001) 34 MVR 448; [2001] VSC 348 GB v Greater Western Sydney Health Service [2010] NSWSC 181 Grant v Downs (1976) 135 CLR 674 In the Matter of North Coast Transit Pty Limited [2013] NSWSC 1912 Mann v Carnell (1999) 20 CLR 1; [1999] HCA 66 NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 R v Saleam (1989) 16 NSWLR 14 Roads & Traffic Authority (NSW) v Connolly (2003) 57 NSWLR 310 The Commissioner for Railways v Small (1938) 38 SR 564 Category: Principal judgment Parties: Commissioner for Fair Trading – Plaintiff Jonval Builders Pty Ltd – First Defendant Hacienda Caravan Park Pty Ltd – Second Defendant John Allan Willmott – Third Defendant Representation: Counsel: Ms R Francois with Ms K Jones - Plaintiff Mr M Gunning – First to Third Defendants