Gersbach v Gersbach (No 3) [2016] NSWSC 119

Gersbach v Gersbach (No 3) [2016] NSWSC 119

The inspection order was refused because inspection and photography of the defendant's property were not necessary to enable the proper determination of any matter in question in the proceedings and would not fulfil the overriding requirement of just, quick and cheap resolution of the real issues. The subpoena was set aside because, although some photographs depicting the relationship between the plaintiff and defendant may be relevant, the period sought from 1987 to date was too broad.

Jurisdiction
Australia
Judgment Date
21 June 2016
Procedural Posture
Common Law Civil Procedure Ruling / Hearing of the Plaintiff's Notice of Motion Filed 4 December 2015 for Inspection of Property and the Defendant's Amended Notice of Motion Filed 16 February 2016 to Set Aside a Subpoena
Outcome
The plaintiff's notice of motion was dismissed, the subpoena was set aside, and costs were reserved.
Legal Topics
['inspection of Property' 'subpoena' 'legitimate Forensic Purpose' 'setting Aside Subpoena']
['civil Procedure'] ['inspection of Property' 'subpoena' 'legitimate Forensic Purpose' 'setting Aside Subpoena']

Case Brief

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Procedural Posture

Common Law Civil Procedure Ruling / Hearing of the Plaintiff's Notice of Motion Filed 4 December 2015 for Inspection of Property and the Defendant's Amended Notice of Motion Filed 16 February 2016 to Set Aside a Subpoena

Legal Issues

  1. 1 ["Whether an order should be made under r 23.8(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) allowing inspection and photography of the defendant's property." 'Whether the subpoena addressed to the defendant dated 22 September 2015 should be set aside.']

Ratio Decidendi

The inspection order was refused because inspection and photography of the defendant's property were not necessary to enable the proper determination of any matter in question in the proceedings and would not fulfil the overriding requirement of just, quick and cheap resolution of the real issues. The subpoena was set aside because, although some photographs depicting the relationship between the plaintiff and defendant may be relevant, the period sought from 1987 to date was too broad.

Court Disposition

The plaintiff's notice of motion was dismissed, the subpoena was set aside, and costs were reserved.

Orders

  • ["The plaintiff's notice of motion filed 4 December 2015 is dismissed." "The subpoena issued by the plaintiff's solicitor addressed to the defendant dated 22 September 2015 is set aside." 'Costs are reserved.']