HARRISON & ORS v SCHIPP & ORS [1999] NSWCA 443

HARRISON & ORS v SCHIPP & ORS [1999] NSWCA 443

The applications were dismissed because, although the alleged contact with the media raised serious professional conduct concerns, it was not appropriate on this stay application to determine that the examination orders were procured by abuse of process; that issue could be raised by substantive motion before the Registrar. The continuation of public examination did not justify a stay on the basis of embarrassment, the Deputy Registrar's refusal to order an in camera hearing was consistent with open justice, and Mrs Schipp was entitled under Pt 43 to examine the judgment debtors because the examinations retained utility notwithstanding affidavits, undertakings, and the pending appeals.

Jurisdiction
Australia
Judgment Date
03 December 1999
Procedural Posture
Application for Stay of Examination Summons/examination Proceedings Pending Appeal / Interlocutory Application in the New South Wales Court of Appeal After Final Orders in the Equity Division and Before Hearing of the Appeals
Outcome
Applications dismissed with costs.
Legal Topics
['stay of Execution' 'examination Summons' 'discovery in Aid of Enforcement' 'abuse of Process' 'improper Purpose' 'public Examination' 'in Camera Hearing' "solicitor's Duties"]
['civil Procedure' 'appellate Procedure' 'equity' 'open Justice' 'professional Conduct'] ['stay of Execution' 'examination Summons' 'discovery in Aid of Enforcement' 'abuse of Process' 'improper Purpose' 'public Examination' 'in Camera Hearing' "solicitor's Duties"]

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Procedural Posture

Application for Stay of Examination Summons/examination Proceedings Pending Appeal / Interlocutory Application in the New South Wales Court of Appeal After Final Orders in the Equity Division and Before Hearing of the Appeals

Legal Issues

  1. 1 ['Whether the examination summonses should be stayed until disposal of the appeals on the basis that they were issued or continued for an improper purpose or were an abuse of process.' 'Whether the examination proceedings lacked sufficient utility pending the expedited appeals.' 'Whether fear of public humiliation, embarrassment, or media coverage justified deferring the examinations or requiring them to be conducted in the absence of the public.' 'Whether the judgment creditor should be prevented from pursuing examination under Pt 43 of the Supreme Court Rules after the judgment debtors provided affidavits, undertakings, and offered written interrogatories.']

Ratio Decidendi

The applications were dismissed because, although the alleged contact with the media raised serious professional conduct concerns, it was not appropriate on this stay application to determine that the examination orders were procured by abuse of process; that issue could be raised by substantive motion before the Registrar. The continuation of public examination did not justify a stay on the basis of embarrassment, the Deputy Registrar's refusal to order an in camera hearing was consistent with open justice, and Mrs Schipp was entitled under Pt 43 to examine the judgment debtors because the examinations retained utility notwithstanding affidavits, undertakings, and the pending appeals.

Court Disposition

Applications dismissed with costs.

Orders

  • ['The applications by the claimants are dismissed with costs.' 'The prospective intervener should pay its own costs.']