Sharon Y Eubanks, being the person nominated by the United States District Court for the District of Columbia in proceedings United States of America v Phillip Morris Incorporated et al Civil Action No.99-CV-2496 (GK), for the purposes of applying for orders under section 33 of the Evidence on Commission Act 1995 [2003] NSWSC 386

Sharon Y Eubanks, being the person nominated by the United States District Court for the District of Columbia in proceedings United States of America v Phillip Morris Incorporated et al Civil Action No.99-CV-2496 (GK), for the purposes of applying for orders under section 33 of the Evidence on Commission Act 1995 [2003] NSWSC 386

The notice to produce was properly set aside as it amounted to fishing, lacked a legitimate forensic purpose, and imposed an onerous and oppressive burden. No sufficient case was established to show that the Letter of Request had an improper broader investigatory purpose or that documents sought were relevant to oppression or improper use. The additional evidence did not warrant disturbing the Registrar's order.

Parties
Plaintiff/respondent: Sharon Y Eubanks, being the person nominated by the United States District Court for the District of Columbia in proceedings United States of America v Phillip Morris Incorporated et al Civil Action No.99-CV-2496 (GK), for the purposes of applying for orders under section 33 of the Evidence on Commission Act 1995; Applicant: Nicholas Basil Cannar (the applicant)
Jurisdiction
Australia
Judgment Date
09 May 2003
Procedural Posture
Motion for Review of Order Setting Aside Notice to Produce / Hearing De Novo Before Bell J
Outcome
Motion dismissed
Legal Topics
Notice to Produce, Subpoena Duces Tecum, Oppression, Improper Purpose, Evidence Act, Fishing Expeditions
Civil Procedure International Judicial Assistance Evidence Notice to Produce Subpoena Duces Tecum Oppression Improper Purpose Evidence Act +1 more

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 5 Authorities cited 20 Party arguments 2
Sign in to unlock

Parties

Sharon Y Eubanks, being the person nominated by the United States District Court for the District of Columbia in proceedings United States of America v Phillip Morris Incorporated et al Civil Action No.99-CV-2496 (GK), for the purposes of applying for orders under section 33 of the Evidence on Commission Act 1995

Plaintiff/respondent

Nicholas Basil Cannar (the applicant)

Applicant

Procedural Posture

Motion for Review of Order Setting Aside Notice to Produce / Hearing De Novo Before Bell J

Legal Issues

  1. 1 Whether the notice to produce should be set aside as an abuse of process or as a fishing expedition
  2. 2 Whether the orders enabling examination of the applicant should be set aside due to improper purpose or oppression
  3. 3 Whether documents requested were relevant and for a legitimate forensic purpose

Ratio Decidendi

The notice to produce was properly set aside as it amounted to fishing, lacked a legitimate forensic purpose, and imposed an onerous and oppressive burden. No sufficient case was established to show that the Letter of Request had an improper broader investigatory purpose or that documents sought were relevant to oppression or improper use. The additional evidence did not warrant disturbing the Registrar's order.

Court Disposition

Motion dismissed

Orders

  • Dismiss the motion
  • The applicant is to pay the plaintiff's costs of the motion