Campbell v Campbell [2020] NSWSC 1797

Campbell v Campbell [2020] NSWSC 1797

The disputed paragraphs of the notices to produce, as read down where applicable, had a legitimate forensic purpose because there was a reasonable basis for thinking the documents sought were likely to materially assist on pleaded issues concerning the ownership and dealings with water licences, alleged unauthorised water use, the capacity in which BCN held Mundooie, and Richard's financial circumstances in the family provision proceedings. The objections based on breadth, oppression and privilege did not justify setting aside the notices beyond the agreed or proposed limitations, particularly where there was no evidence of oppression and privileged documents were protected by UCPR r 1.9.

Jurisdiction
Australia
Judgment Date
11 December 2020
Procedural Posture
Civil Procedure; Notices of Motion to Set Aside Notices to Produce in Equity Proceedings / Determination of Notices of Motion Concerning Disputed Paragraphs of Amended Notices to Produce
Outcome
The disputed paragraphs were set aside only to the limited extent reflected in the narrowed formulations; the notices of motion were otherwise dismissed, with costs to be costs in the cause.
Legal Topics
['notices to Produce' 'legitimate Forensic Purpose' 'subpoena Principles' 'production of Documents' 'family Provision Proceedings' 'trusts' 'water Access Licences' 'costs in the Cause']
['civil Procedure' 'equity' 'succession' 'family Provision'] ['notices to Produce' 'legitimate Forensic Purpose' 'subpoena Principles' 'production of Documents' 'family Provision Proceedings' 'trusts' 'water Access Licences' 'costs in the Cause']

Case Brief

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Procedural Posture

Civil Procedure; Notices of Motion to Set Aside Notices to Produce in Equity Proceedings / Determination of Notices of Motion Concerning Disputed Paragraphs of Amended Notices to Produce

Legal Issues

  1. 1 ['Whether disputed paragraphs of notices to produce had a legitimate forensic purpose.' 'Whether paragraph 1, seeking documents referring to any water access licence owned by the Deceased and/or John Campbell from 1 October 2016, was too broad or oppressive.' "Whether paragraph 2, seeking documents referring to communications with WaterNSW about water access licences owned by or registered in John's name, had a legitimate forensic purpose." 'Whether paragraph 3 should be set aside or read down to transactional documents involving BCN expressly as trustee for a family or discretionary trust.' 'Whether paragraph 4 should be set aside or read down to documents concerning a specified email and documents held by Bryson Turnbull Lawyers on behalf of the Deceased.' "Whether paragraph 20 in John's family provision proceeding should be set aside or confined to documents concerning expenses paid by the Campbell Partnership for the past five years." 'What costs order should be made on the notices of motion.']

Ratio Decidendi

The disputed paragraphs of the notices to produce, as read down where applicable, had a legitimate forensic purpose because there was a reasonable basis for thinking the documents sought were likely to materially assist on pleaded issues concerning the ownership and dealings with water licences, alleged unauthorised water use, the capacity in which BCN held Mundooie, and Richard's financial circumstances in the family provision proceedings. The objections based on breadth, oppression and privilege did not justify setting aside the notices beyond the agreed or proposed limitations, particularly where there was no evidence of oppression and privileged documents were protected by UCPR r 1.9.

Court Disposition

The disputed paragraphs were set aside only to the limited extent reflected in the narrowed formulations; the notices of motion were otherwise dismissed, with costs to be costs in the cause.

Orders

  • ['In proceeding 2019/374756, paragraph 3 of the First Defendant\'s amended notice to produce dated 5 November 2020 was set aside except insofar as it requires production of: "All documents recording any transactions entered into between BCN, expressly as trustee for a family or discretionary trust: (a) with Cardenu...