Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1064

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1064

The Court granted the application because it was enough that there be a real issue as to whether the production under the notice to produce was sufficient. No additional threshold of proving that particular documents once existed or were being withheld was required. In the circumstances, including controversy about computerised stock records and prior disputes about their content and admissibility, Lamru's non-acceptance that the notice had been fully answered was not trivial or illusory, so Mr Peter Lewis should be sworn and examined on the ancillary application.

Jurisdiction
Australia
Judgment Date
11 November 2002
Procedural Posture
Equity Division Proceeding Concerning a Notice to Produce Having the Force of a Subpoena / Ancillary Application by Lamru to Examine Mr Peter Lewis on Oath About the Response to a Notice to Produce
Outcome
Application granted; Mr Peter Lewis was permitted to be sworn and examined on oath to make further answer to the notice to produce in MFI12.
Legal Topics
['supreme Court Procedure' 'notice to Produce' 'subpoenas to Produce Documents' 'examination on Oath About Production of Documents' 'computerised Records']
['civil Procedure' 'evidence'] ['supreme Court Procedure' 'notice to Produce' 'subpoenas to Produce Documents' 'examination on Oath About Production of Documents' 'computerised Records']

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Procedural Posture

Equity Division Proceeding Concerning a Notice to Produce Having the Force of a Subpoena / Ancillary Application by Lamru to Examine Mr Peter Lewis on Oath About the Response to a Notice to Produce

Legal Issues

  1. 1 ["Whether the Court should permit Mr Peter Lewis to be sworn and examined on oath about whether the Lewis interests had fully answered Lamru's notice to produce dated 5 November 2002." 'Whether Lamru needed to show that a document once existed and was not produced, or that the subpoenaed person had a document but refused to produce it, before the examination procedure could be used.']

Ratio Decidendi

The Court granted the application because it was enough that there be a real issue as to whether the production under the notice to produce was sufficient. No additional threshold of proving that particular documents once existed or were being withheld was required. In the circumstances, including controversy about computerised stock records and prior disputes about their content and admissibility, Lamru's non-acceptance that the notice had been fully answered was not trivial or illusory, so Mr Peter Lewis should be sworn and examined on the ancillary application.

Court Disposition

Application granted; Mr Peter Lewis was permitted to be sworn and examined on oath to make further answer to the notice to produce in MFI12.

Orders

  • ['In respect of the call made on the notice to produce MFI12, Mr Peter Lewis should be sworn in this ancillary application.' 'Mr Lewis should then be examined by counsel for Lamru as a witness called by Lamru.' 'If he wishes, counsel for the Lewis interests may examine Mr Lewis further.' 'The evidence given on this...