Tuu v Luu [2005] NSWLC 12

Tuu v Luu [2005] NSWLC 12

The court found that the August subpoenas were speculative and fell foul of the prohibition against fishing for evidence, lacking a legitimate forensic purpose. The June subpoenas were set aside in part: documents concerning personnel files were fishing expeditions and irrelevant, while documents evidencing...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
02 September 2005
Procedural Posture
Civil / Motion to Set Aside Subpoenas Prior to Hearing on Motion to Dismiss Statement of Claim
Outcome
August subpoenas set aside; June subpoenas set aside in part; costs to follow after submissions.
Legal Topics
['subpoena' 'abuse of Process' 'evidence' 'costs Orders' 'discovery Against Third Party']
['civil Procedure'] ['subpoena' 'abuse of Process' 'evidence' 'costs Orders' 'discovery Against Third Party']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Civil / Motion to Set Aside Subpoenas Prior to Hearing on Motion to Dismiss Statement of Claim

Legal Issues

  1. 1 ['Whether the subpoenas issued to third parties are fishing expeditions and amount to discovery against third parties' 'Whether the subpoenas are too wide or oppressive' 'Whether there is a legitimate forensic purpose for the documents sought under the subpoenas' 'Whether costs orders may be made against non-parties']

Ratio Decidendi

The court found that the August subpoenas were speculative and fell foul of the prohibition against fishing for evidence, lacking a legitimate forensic purpose. The June subpoenas were set aside in part: documents concerning personnel files were fishing expeditions and irrelevant, while documents evidencing contracts and correspondence with key parties were legitimate and relevant to the objection under s.138 of the Evidence Act 1995. Requests for affidavits unrelated to the case were also too wide and amounted to fishing.

Court Disposition

August subpoenas set aside; June subpoenas set aside in part; costs to follow after submissions.

Orders

  • ["Second respondent's subpoenas to applicants issued 5 August 2005 set aside." "Second respondent's subpoenas to applicants issued 28 June 2005 set aside in part (see paragraphs [52] ff)." 'Costs orders will follow submissions from parties.']