Ballard v Multiplex Limited [2010] NSWSC 1038

Ballard v Multiplex Limited [2010] NSWSC 1038

Although Mr Widdup's credit was important, the matters identified in ASIC's announcement about failed companies owing substantial amounts to the ATO and failure to provide reports to liquidators were not shown to be likely to bear on the issues about Mr Widdup's alleged conversations and evidence in the proceeding. The subpoena was justified only by a bare credit assertion and no sufficient probable connection was established between the documents sought and the credit issues in the case, so the subpoena was set aside.

Jurisdiction
Australia
Judgment Date
13 September 2010
Procedural Posture
Motion to Set Aside Subpoena to ASIC in Supreme Court Civil Proceedings / Procedural Ruling
Outcome
Subpoena to ASIC set aside.
Legal Topics
['subpoena to Non Party' 'legitimate Forensic Purpose' 'documents Relevant to Credit' 'asic Confidentiality' 'disqualification From Managing Corporations']
['construction' 'civil Procedure' 'corporations'] ['subpoena to Non Party' 'legitimate Forensic Purpose' 'documents Relevant to Credit' 'asic Confidentiality' 'disqualification From Managing Corporations']

Case Brief

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Procedural Posture

Motion to Set Aside Subpoena to ASIC in Supreme Court Civil Proceedings / Procedural Ruling

Legal Issues

  1. 1 ['Whether the subpoena issued at the request of the first and second defendants to ASIC should be set aside.' "Whether documents concerning Mr Ian Widdup's ASIC disqualification had a legitimate forensic purpose because they might bear on his credit." 'Whether there was a probable connection between the ASIC documents sought and the issues or evidence in the proceeding.']

Ratio Decidendi

Although Mr Widdup's credit was important, the matters identified in ASIC's announcement about failed companies owing substantial amounts to the ATO and failure to provide reports to liquidators were not shown to be likely to bear on the issues about Mr Widdup's alleged conversations and evidence in the proceeding. The subpoena was justified only by a bare credit assertion and no sufficient probable connection was established between the documents sought and the credit issues in the case, so the subpoena was set aside.

Court Disposition

Subpoena to ASIC set aside.

Orders

  • ['The subpoena issued at the request of the first and second defendants directed to ASIC is set aside.' "The first and second defendants are to pay ASIC's costs of moving to set aside the subpoena."]