Cohen v Morgans [2019] NSWSC 608

Cohen v Morgans [2019] NSWSC 608

The subpoena and notice to produce were set aside because their breadth, lack of specificity, and speculative nature extended beyond any legitimate forensic purpose and subverted the disclosure practice mandated by Practice Note SC Eq 11. While some document categories may have relevance (i.e., documents contemporaneous with the disputed conversation), the sweeping language and time frames called for a search effectively amounting to discovery, which is impermissible. Only limited and narrowly defined classes of documents were permitted for production, and indemnity costs awarded due to the plaintiff's persistence in pursuing overbroad compulsory process despite warnings.

Parties
Applicant on Motion/defendant: Nada Morgans; Respondent on Motion/plaintiff: Andrew Cohen
Jurisdiction
Australia
Judgment Date
24 May 2019
Procedural Posture
Application to Set Aside Subpoena and Notice to Produce in Equity Proceedings / Interlocutory Application; Procedural Ruling Before Substantive Hearing
Outcome
Application granted; subpoena and notice to produce set aside; directions for production of a limited set of documents; costs awarded against plaintiff on indemnity basis.
Legal Topics
Subpoenas, Notices to Produce, Discovery/substitution, Disclosure, Costs
Civil Procedure Equity Subpoenas Notices to Produce Discovery/substitution Disclosure Costs

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Parties

Nada Morgans

Applicant on Motion/defendant

Andrew Cohen

Respondent on Motion/plaintiff

Procedural Posture

Application to Set Aside Subpoena and Notice to Produce in Equity Proceedings / Interlocutory Application; Procedural Ruling Before Substantive Hearing

Legal Issues

  1. 1 Whether the subpoena and notice to produce issued by the plaintiff should be set aside for lack of specificity, overbreadth, irrelevance, or as an abuse of process
  2. 2 Whether issuing the subpoenas was impermissibly speculative or amounted to 'fishing' or an attempt to obtain discovery outside approved procedures
  3. 3 What constitutes a legitimate forensic purpose for court compulsion of document production under subpoenas/notices to produce

Ratio Decidendi

The subpoena and notice to produce were set aside because their breadth, lack of specificity, and speculative nature extended beyond any legitimate forensic purpose and subverted the disclosure practice mandated by Practice Note SC Eq 11. While some document categories may have relevance (i.e., documents contemporaneous with the disputed conversation), the sweeping language and time frames called for a search effectively amounting to discovery, which is impermissible. Only limited and narrowly defined classes of documents were permitted for production, and indemnity costs awarded due to the plaintiff's persistence in pursuing overbroad compulsory process despite warnings.

Court Disposition

Application granted; subpoena and notice to produce set aside; directions for production of a limited set of documents; costs awarded against plaintiff on indemnity basis.

Orders

  • The subpoena to produce issued by the plaintiff addressed to Somerville Legal filed 26 February 2019 and returnable 29 March 2019 be set aside.
  • The notice to produce issued by the plaintiff addressed to the defendant and Somerville Legal returnable 29 March 2019 be set aside.