Cohen v Morgans [2019] NSWSC 608

Supreme Court New South Wales

Medium Neutral Citation: Cohen v Morgans [2019] NSWSC 608 Hearing dates: 16 May 2019 Date of orders: 16 May 2019 Decision date: 24 May 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. The subpoena to produce issued by the plaintiff addressed to Somerville Legal filed 26 February 2019 and returnable 29 March 2019 be set aside. 2. The notice to produce issued by the plaintiff addressed to the defendant and Somerville Legal returnable 29 March 2019 be set aside. 3. Direct the defendant to produce to the plaintiff within fourteen days any document contemporaneously recording the contents of the telephone conversation between Mr Matthew Gradidge and Mr Cohen at approximately 4pm on 21 August 2018. 4. Note that the limitation by the word "contemporaneously" in O 3 is intended such that the requirement to produce any such document is limited to any document created on 21 August 2018 or in the period between 21 August 2018 and 19 September 2018. 5. Direct the defendant to produce to the plaintiff within fourteen days any document created on 21 August 2018 or between 21 August 2018 and 19 September 2018 communicating the contents of the telephone conversation referred to in O 3 above. 6. Note that the directions made in O 3 and O 5 for the production of the document(s) referred to therein is without prejudice to any claim by the defendant as to any legal professional privilege in those communications. 7. Order the plaintiff to pay the defendant's costs of the notice of motion filed 28 March 2019, including the costs of this hearing, on an indemnity basis. Catchwords: CIVIL PROCEDURE — Subpoenas and Notices to Produce — Application to set aside ––where wording and timeframe were too broad and extended beyond a legitimate forensic purpose –– where breadth of documents sought in subpoena and notice to produce had tendency to subvert Practice Not SC Eq 11 –– subpoena and the notice to produce set aside Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 21.1., 33, 34.1 Cases Cited: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425 Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215 Director General, Dept of Community Services v D (2006) 66 NSWLR 582; [2006] NSWSC 827 Fried v National Australia Bank Ltd [2000] FCA 911; (2000) 175 ALR 194 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 ICAP Pty Ltd v Moebes [2009] NSWSC 306 In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd (in liq) [2018] NSWSC 896 In the matter of Gerard Cassegrain & Co Pty Ltd [2011] NSWSC 241 In the matter of North Coast Transit Pty Limited [2013] NSWSC 1912 In the matter of One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245 at 259; [1981] HCA 35 Liristis v Gadelrabb [2009] NSWSC 441 National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 New Price Retail Services Pty Ltd v Hanna; Australian Pharmaceutical Industries v Hanna [2012] NSWSC 422 Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 Portal Software International Ply Ltd v Bodsworth [2005] NSWSC 1115 Rinehart v Rinehart [2018] NSWSC 1102 The Owners - Strata Plan No 76902 v Roads and Maritime Services [2017] NSWSC 528 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; [1989] FCA 340 Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 428; [2005] FCAFC 115 White v Tulloch (1995) 127 FLR 105; (1995) 19 Fam LR 696 Yes Family Pty Ltd v Sphere Healthcare Pty Ltd [2016] NSWSC 393 Texts Cited: Practice Note SC Eq 11 Category: Procedural and other rulings Parties: Nada Morgans (Applicant on motion/Defendant) Andrew Cohen (Respondent on motion/Plaintiff) Representation: Counsel: B Hemsworth (Solicitor) (Applicant on motion) El-Hage (Respondent on motion)