Sader v Elgammal (No 2) [2023] NSWLEC 92

Sader v Elgammal (No 2) [2023] NSWLEC 92

The Court refused to exercise its discretion to order access under r 23.8. The existence of a factual dispute did not justify the order, the Applicants bore the onus of proving contempt, the proposed expert evidence application under r 31.19 was late, and the common law presumptions of privacy and quiet enjoyment of property weighed against compelling access. In adversarial contempt proceedings the First Respondent had no obligation to cooperate with the Applicants. Although the authorities concerned discovery or answers rather than physical access, the proposed orders would require the First Respondent to make his property available so that the Applicants' expert could obtain evidence...

Jurisdiction
Australia
Judgment Date
08 September 2023
Procedural Posture
Class 4 Contempt Proceedings / Procedural Ruling on the Applicants' Notice of Motion Dated 25 July 2023 Seeking Access to the First Respondent's Property for Expert Inspection Under R 23.8 of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
The Applicants' notice of motion dated 25 July 2023 was dismissed and costs were reserved.
Legal Topics
['inspection of Property' 'expert Evidence' 'privilege Against Self Exposure to Penalty' 'common Law Privacy and Quiet Enjoyment of Property' 'onus of Proof in Contempt Proceedings']
['civil Procedure' 'contempt' 'evidence' 'property'] ['inspection of Property' 'expert Evidence' 'privilege Against Self Exposure to Penalty' 'common Law Privacy and Quiet Enjoyment of Property' 'onus of Proof in Contempt Proceedings']

Case Brief

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Procedural Posture

Class 4 Contempt Proceedings / Procedural Ruling on the Applicants' Notice of Motion Dated 25 July 2023 Seeking Access to the First Respondent's Property for Expert Inspection Under R 23.8 of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ["Whether the Court should exercise its discretion under r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) to order access to the First Respondent's property for an expert inspection in contempt proceedings." 'Whether the privilege against self-exposure to penalty applied to resist an access order requiring the First Respondent to make his property available for evidence that may be used against him.' 'Whether leave to rely on expert evidence had been sought in accordance with r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether privacy, quiet enjoyment of property, delay, cost and the Applicants' onus in contempt proceedings weighed against the access order."]

Ratio Decidendi

The Court refused to exercise its discretion to order access under r 23.8. The existence of a factual dispute did not justify the order, the Applicants bore the onus of proving contempt, the proposed expert evidence application under r 31.19 was late, and the common law presumptions of privacy and quiet enjoyment of property weighed against compelling access. In adversarial contempt proceedings the First Respondent had no obligation to cooperate with the Applicants. Although the authorities concerned discovery or answers rather than physical access, the proposed orders would require the First Respondent to make his property available so that the Applicants' expert could obtain evidence...

Court Disposition

The Applicants' notice of motion dated 25 July 2023 was dismissed and costs were reserved.

Orders

  • ["The Applicants' notice of motion dated 25 July 2023 is dismissed." 'Costs reserved.']