Great Lakes Council v N & S Keerie & Anor [2001] NSWLEC 94

Great Lakes Council v N & S Keerie & Anor [2001] NSWLEC 94

The notice to produce was not invalid merely because it cited Part 13 rule 32 of the Land and Environment Court Rules 1996, because Part 36 rule 16 of the Supreme Court Rules 1970 provided an alternative source of power. Although contempt proceedings expose the first respondent to penal sanctions and the privilege against self-exposure to penalty exists, a notice to produce can validly be used to lay the foundation for proof by secondary evidence and should not be set aside in advance. Part 36 rule 13(2)(c) did not assist because section 128 of the Evidence Act does not apply to production of documents. Any objection based on privilege may be taken at the hearing if the documents are...

Jurisdiction
Australia
Judgment Date
22 May 2001
Procedural Posture
Contempt Proceedings / First Respondent's Notice of Motion to Set Aside a Notice to Produce
Outcome
The first respondent's notice of motion to set aside the notice to produce was dismissed.
Legal Topics
['notice to Produce' 'privilege Against Self Incrimination' 'privilege Against Self Exposure to Penalty' 'wrong Source of Power' 'production of Documents' 'secondary Evidence']
['practice and Procedure' 'contempt of Court' 'evidence'] ['notice to Produce' 'privilege Against Self Incrimination' 'privilege Against Self Exposure to Penalty' 'wrong Source of Power' 'production of Documents' 'secondary Evidence']

Case Brief

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Procedural Posture

Contempt Proceedings / First Respondent's Notice of Motion to Set Aside a Notice to Produce

Legal Issues

  1. 1 ['Whether a notice to produce served under the wrong rule was invalid where another source of power was available.' 'Whether the notice to produce should be set aside because the documents may tend to incriminate the first respondent or expose him to a penalty in contempt proceedings.' 'Whether Part 36 rule 13(2)(c) of the Supreme Court Rules 1970 prevented production of the documents.']

Ratio Decidendi

The notice to produce was not invalid merely because it cited Part 13 rule 32 of the Land and Environment Court Rules 1996, because Part 36 rule 16 of the Supreme Court Rules 1970 provided an alternative source of power. Although contempt proceedings expose the first respondent to penal sanctions and the privilege against self-exposure to penalty exists, a notice to produce can validly be used to lay the foundation for proof by secondary evidence and should not be set aside in advance. Part 36 rule 13(2)(c) did not assist because section 128 of the Evidence Act does not apply to production of documents. Any objection based on privilege may be taken at the hearing if the documents are...

Court Disposition

The first respondent's notice of motion to set aside the notice to produce was dismissed.

Orders

  • ["The first respondent's notice of motion dated 2 March 2001 is dismissed." "The costs of the notice of motion shall be the applicant's costs in the hearing of the motion for contempt."]