Crawford v Crawford (No 3) [2016] NSWSC 704

Crawford v Crawford (No 3) [2016] NSWSC 704

The subpoena was not set aside because there was at least a rational possibility that documents concerning the Callala Beach property and the estates could illuminate issues in the proceedings, including alleged fraud, sources of funds, and tracing. The s 87 certificates were refused because Pembroke J's order requiring Lorraine and Peter to serve any further affidavit evidence on which they relied did not compel them to provide the sealed affidavits or any incriminating evidence; s 87 of the Civil Procedure Act 2005 (NSW) was therefore not enlivened.

Jurisdiction
Australia
Judgment Date
02 June 2016
Procedural Posture
Equity Expedition List; Interlocutory Notices of Motion / Interlocutory Applications Concerning a Subpoena and S 87 Civil Procedure Act Certificates
Outcome
Notices of motion dismissed
Legal Topics
['subpoena to Produce Documents' 'legitimate Forensic Purpose' 'self Incrimination and Culpable Conduct' 'civil Procedure Act Certificate' 'freezing Orders' 'interlocutory Affidavit Evidence']
['practice and Procedure' 'civil Procedure' 'evidence'] ['subpoena to Produce Documents' 'legitimate Forensic Purpose' 'self Incrimination and Culpable Conduct' 'civil Procedure Act Certificate' 'freezing Orders' 'interlocutory Affidavit Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Expedition List; Interlocutory Notices of Motion / Interlocutory Applications Concerning a Subpoena and S 87 Civil Procedure Act Certificates

Legal Issues

  1. 1 ['Whether a subpoena issued to DoubleBay Law Pty Ltd trading as "& Legal" should be set aside for want of legitimate forensic purpose or relevance.' "Whether documents concerning the Callala Beach property and Lorraine's parents' estates might be relevant to the proceedings." 'Whether an order requiring Lorraine and Peter to serve any further affidavit evidence on which they rely was an order requiring them to provide evidence that may tend to prove culpable conduct for the purposes of s 87 of the Civil Procedure Act 2005 (NSW).' 'Whether certificates under s 87(4) of the Civil Procedure Act 2005 (NSW) should be issued in respect of sealed affidavits.']

Ratio Decidendi

The subpoena was not set aside because there was at least a rational possibility that documents concerning the Callala Beach property and the estates could illuminate issues in the proceedings, including alleged fraud, sources of funds, and tracing. The s 87 certificates were refused because Pembroke J's order requiring Lorraine and Peter to serve any further affidavit evidence on which they relied did not compel them to provide the sealed affidavits or any incriminating evidence; s 87 of the Civil Procedure Act 2005 (NSW) was therefore not enlivened.

Court Disposition

Notices of motion dismissed

Orders

  • ["Lorraine and Peter's notice of motion of 10 May 2016 should be dismissed." 'The notice of motion of 19 May 2016 should be dismissed.' 'The Court refused to grant the certificate sought under s 87 of the Civil Procedure Act 2005 (NSW).' 'The sealed affidavits were to be returned and submissions invited as to costs...