Attwells v White (No 3) [2021] NSWSC 144

Attwells v White (No 3) [2021] NSWSC 144

While there could be a legitimate forensic purpose for seeking the documents, the likelihood that the documents would materially assist the plaintiff's case was only speculative. The notice to produce amounted to a 'fishing expedition' with no real basis for inferring incriminating material would be found. The process for notice to produce does not allow for speculative or broad requests without a proper basis. The notice was accordingly set aside.

Jurisdiction
Australia
Judgment Date
25 February 2021
Procedural Posture
Civil / Interlocutory Application Notice to Produce (set Aside)
Outcome
Notice to produce set aside; costs awarded to first defendant
Legal Topics
['notices to Produce' 'forensic Purpose' 'abuse of Process' 'costs Orders']
['civil Procedure'] ['notices to Produce' 'forensic Purpose' 'abuse of Process' 'costs Orders']

Case Brief

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Procedural Posture

Civil / Interlocutory Application Notice to Produce (set Aside)

Legal Issues

  1. 1 ['Whether the notice to produce filed by the plaintiff on 22 December 2020 should be set aside for lack of legitimate forensic purpose or as an abuse of process' 'Whether the documents sought are relevant and will materially assist a fact in issue']

Ratio Decidendi

While there could be a legitimate forensic purpose for seeking the documents, the likelihood that the documents would materially assist the plaintiff's case was only speculative. The notice to produce amounted to a 'fishing expedition' with no real basis for inferring incriminating material would be found. The process for notice to produce does not allow for speculative or broad requests without a proper basis. The notice was accordingly set aside.

Court Disposition

Notice to produce set aside; costs awarded to first defendant

Orders

  • ['Set aside the notice to produce filed by the plaintiff on 22 December 2020 seeking production from the first defendant.' "Order the plaintiff to pay the first defendant's costs of the notice of motion filed on 12 February 2021."]