Crawford v Crawford (No 4) [2016] NSWSC 910

Crawford v Crawford (No 4) [2016] NSWSC 910

The defendants' motion was dismissed because the notice to produce was not an order capable of enlivening s 87 of the Civil Procedure Act 2005 (NSW), the affidavits were privileged documents so the defendants' only obligation under UCPR r 21.11 was to give notice asserting privilege, and the proposed process for obtaining a certificate was contrived and did not involve the defendants being actually compelled to give incriminating evidence.

Jurisdiction
Australia
Judgment Date
22 June 2016
Procedural Posture
Equity Expedition List; Procedural and Other Ruling / Interlocutory Notice of Motion by Defendants Filed 14 June 2016 Seeking an Order in Relation to a Notice to Produce and Protection Under S 87 of the Civil Procedure Act 2005 (nsw)
Outcome
Defendants' notice of motion dismissed; costs of the notice of motion to be costs in the cause.
Legal Topics
['interlocutory Applications' 'notice to Produce' 'privilege Against Self Incrimination' 'certificates for Culpable Conduct' 'privileged Documents']
['practice and Procedure' 'evidence'] ['interlocutory Applications' 'notice to Produce' 'privilege Against Self Incrimination' 'certificates for Culpable Conduct' 'privileged Documents']

Case Brief

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Procedural Posture

Equity Expedition List; Procedural and Other Ruling / Interlocutory Notice of Motion by Defendants Filed 14 June 2016 Seeking an Order in Relation to a Notice to Produce and Protection Under S 87 of the Civil Procedure Act 2005 (nsw)

Legal Issues

  1. 1 ['Whether a notice to produce is an interlocutory order or order for production for the purposes of s 87 of the Civil Procedure Act 2005 (NSW).' 'Whether the defendants were obliged under UCPR r 21.11 to produce affidavits found to contain privileged information or only to serve a notice asserting privilege.' 'Whether a certificate under s 87 of the Civil Procedure Act 2005 (NSW) should be granted where the defendants were willing to give evidence of culpable conduct only under cover of a certificate rather than being actually compelled to give it.']

Ratio Decidendi

The defendants' motion was dismissed because the notice to produce was not an order capable of enlivening s 87 of the Civil Procedure Act 2005 (NSW), the affidavits were privileged documents so the defendants' only obligation under UCPR r 21.11 was to give notice asserting privilege, and the proposed process for obtaining a certificate was contrived and did not involve the defendants being actually compelled to give incriminating evidence.

Court Disposition

Defendants' notice of motion dismissed; costs of the notice of motion to be costs in the cause.

Orders

  • ["Defendants' notice of motion of 14 June 2016 is dismissed." "Costs of the defendants' notice of motion be costs in the cause."]