Norris v Kandiah

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005, r 21.11

CASES CITED : A Pty Ltd v Z [2007] NSWSC 899. Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182

PARTIES : Geoffrey Norris (plaintiff/cross-defendant) Nagasothey Kandiah (defendant/cross-claimant)

COUNSEL : R Horsley (plaintiff/cross-defendant) G Rich (defendant/cross-claimant)

SOLICITORS : S T Krishnar (plaintiff/cross-defendant) Harish Prasad & Associates (defendant/cross-claimant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3927/07 Geoffrey Norris v Nagasothey Kandiah JUDGMENT (ex tempore) 1 HIS HONOUR: On 12 October 2007 the defendant served on the plaintiff a Notice to Produce under (NSW) Uniform Civil Procedure Rules 2005, r 21.11, claiming production of the following: 1. All files, letters of demand, settlement statements, memoranda and other documents relating to the sale of any property owned by the plaintiff either solely or with any other person from 30 June 2004 to date.

All original and copy correspondence received by the plaintiff and/or your wife from and/or to Domain Financial Services Pty Limited between 30 June 2005 and to date.

All original and copy correspondence, notice or other document to or from Perpetual Trustee Victoria Ltd between 30/06/05 and to date.

Copies of all taxation returns and assessments, profit and loss statements, balance sheets in relation to the financial affairs or interests of the plaintiff from 30 June 2004 to date.

All correspondence between the plaintiff and the Australian Taxation Office from 30 June 2000 to date.

All notices of default, letters of demand, statements of account and other correspondence received by or on behalf of the plaintiff from 1 January 2005 to date.

All notices and correspondence and letters of demand and notices relating to the overdue payment of water and council rights and strata levies in respect of all properties owned by the plaintiff from 1 January 2005 to date.

All rental statements and other correspondence in relation to the management and/or rental of any property owned wholly or partly by the plaintiff including property outside Australia from 1 January 2005 to date.

All periodic statements, letters of demand, notices of default and correspondence with credit suppliers and including the following from 30 June 2005 to date: a. Visa One b. NAB Visa c. Myers store card d. Buyers Edge e. G E Credit

All bank, building society and other financial statements, deposit books and cheque butts in relation to all accounts held or operated by plaintiff either alone or with any other person from 1 January 2005 to date.

All correspondence to and/or from the solicitor acting for you on the sale and all conveyancing and other files, memorandum and other documents relating to the sale of 14/64 Lambert Street Kangaroo Point to Shane Bernard McGrath.

Copy and/or original of any statement of affairs, schedule of assets and liabilities relate to the financial affairs of the plaintiff prepared by the plaintiff from 1 January 2005 to date.

Copies of all applications for finance, correspondence to or from any financier in relation to any application for finance made to any bank and/or other financial institution from 1 January 2005 to date.

2 By Notice of Motion filed 22 October 2007 the defendant moves for orders setting aside the Notice to Produce, or alternatively an "otherwise order" to the effect that the plaintiff is not required to produce documents in answer to it. Rule 21.10 relevantly provides as follows: 21.10 Notice to produce for inspection by parties

(1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (A) any document or thing that is referred to in any , pleading, affidavit or witness statement filed or served by party B, and

(B) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.

3 There are important and fundamental distinctions between a notice to produce under r 21.10 and a notice to produce under r 34.1. Rule 21.10, appearing as it does in Pt 21 of the Rules, is a process of discovery. A notice under r 34.1, appearing in Pt 34 entitled Notice to Produce to Court and following notices to produce at the hearing including opinions is a process akin to a subpoena for production. I endeavoured to explain the differences between the process of discovery and that of a subpoena for production in A Pty Ltd v Z [2007] NSWSC 899. One of the critical differences is that the touchstone of discovery is the concept of relevance to a fact in issue in the proceedings, whereas subpoenas for production are not necessarily limited to documents relevant to a fact in issue, but may extend to documents relevant to credit. 4 Part 21 r 10 authorises service of a notice to produce, in respect of documents referred to in originating processes, pleadings, affidavits and witness statements, and "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by Young CJ in Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. As his Honour explained, the rule was not intended to subject a recipient to any kind of general discovery obligation. The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required. 5 In my view, this notice does not clearly identify specific documents, but calls for classes of documents. It was not the intent of this rule to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. Accordingly, in my view, this notice is not a valid exercise of the power to serve a notice to produce under r 21.10, and I would set it aside on that basis. 6 However, counsel for the defendant has indicated that, if I were to reach that view, he would seek an order for discovery of documents in the same classes. Counsel for the plaintiff has submitted that the notice should be set aside on the alternative basis that the documents for which it calls do not relate to a fact in issue in the proceedings, and that submission, if sustained, would be an answer to any such application for discovery. 7 Where the sustainability on grounds of relevance of a notice to produce is called into question, the issuer bears at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case. A document relates to a fact in issue if it bears on the probability of that fact. 8 It was first submitted on behalf of the defendant that the documents were relevant to credit, in that they showed that the defendant had not been full and frank with the plaintiff about his financial position. Documents which relate to credit do not, for the purposes of discovery - including for the purposes of r 21.10 - relate to a fact in issue in the proceedings. Accordingly, that is not a basis on which the notice could be sustained. 9 It is next said that the documents are relevant to show that the plaintiff had no other option but to enter into an agreement with the defendant of the type for which the defendant contends. In particular, it is said that the documents relate to the fact alleged in paragraph 19 of the amended cross-claim, which is denied by the plaintiff/cross-defendant, that: 19. At the request of the cross-defendant the cross-claimant agreed to proceed with the purchase of the property at Kangaroo Point. 10 However, when one examines the evidence on this topic, there is not a large difference between the parties' position (except as to certain of the words used, some of which may be important). However, what does not appear substantially to be in issue is that the plaintiff was encountering enormous financial pressures, which were deteriorating, and had explored other options, none of which could be brought to fruition. It does not seem to be a fact in issue, in light of the pleadings and the affidavit evidence, that the plaintiff was in a desperate financial position. I do not see how the material called for by the Notice to Produce - which comprises, in substance, four years of his financial records, intended to show what was his financial position throughout those four years - will increase or reduce the likelihood of the allegation in paragraph 19 of the cross-claim. 11 The defendant has also referred to a conversation asserted by the defendant in paragraph 21 of the defendant's affidavit of 15 August 2007 in which the plaintiff is said to have made disclosures to the defendant of his financial position. Although it is correct that the plaintiff does not admit that conversation took place on the day when the defendant says it did, the plaintiff does admit that a conversation to substantially the effect alleged by the defendant took place. In those circumstances, I do not see how the plaintiff's financial material for four years is going to influence resolution of the only remaining issue on that point, which is when the conversation took place, as distinct from the content of the conversation. 12 I would not exclude the possibility that the plaintiff's financial circumstances on a particular date and at a particular time might somehow relate to a fact in issue in the proceedings, but I am quite satisfied that his financial position over a period of four years as called for in this notice does not. 13 I order that the Notice to Produce dated 12 October 2007 be set aside. I order that the defendant pay the plaintiff's costs of the motion. **********

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