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austlii:nsw/NSWDDT/2026/2
General information, not legal advice.
NSWDDT
2026-04-08
Original judgment source is linked above.
(1) Dismiss the defendant's Notice of Motion filed on 25 March 2026 seeking to strike out the plaintiff's pleading.
(2) Order the defendant to pay the plaintiff's costs of that motion.
(3) Order the defendant to provide by 20 April 2026 verified discovery of the classes of documents set out in Annexure "A" to the plaintiff's Notice of Motion filed on 12 March 2026.
(4) Order the defendant to pay the plaintiff's costs of the motion for discovery.
(5) Stand over to the Dust List on 13 April 2026 for directions and to appoint a hearing date.
(1) Dismiss the defendant's Notice of Motion filed on 25 March 2026 seeking to strike out the plaintiff's pleading.
(2) Order the defendant to pay the plaintiff's costs of that motion.
(3) Order the defendant to provide by 20 April 2026 verified discovery of the classes of documents set out in Annexure "A" to the plaintiff's Notice of Motion filed on 20 March 2026.
(4) Order the defendant to pay the plaintiff's costs of the motion for discovery.
(5) Stand over to the Dust List on 13 April 2026 for directions and to appoint a hearing date.
Charlie Carter Pty Ltd v Shop Distributive and Allied Employees' Association of Western Australia [1987] FCA 135; (1987) 13 FCR 413
Commonwealth Bank of Australia v Goater [2016] NWSC 710
Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788
McGuirk v University of New South Wales [2009] NSWSC 1424
New South Wales Department of Housing v Hume [2007] NSWCA 69
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
St Paul's College Limited v Allen [2026] NSWCA 22
Trade Practices Commission v David Jones (Aust) Pty Ltd [1985] FCA 228; (1985) 7 FCR 109
"(1) Discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22];
(2) The facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23;
(3) For the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138;
(4) The relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentious fact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181;
(5) Discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan's Fisheries Pty Ltd [2017] NSWSC 1262;
(1987) 13 FCR 413
(2000) 205 CLR 166
(1998) 193 CLR 72
(1985) 7 FCR 109
(1959) 103 CLR 341
(2013) 250 CLR 303
(6) Discovery involves an "inroad", in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338;
(7) The discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative: Expense Reduction Analysts Group Pty Ltd (supra);
(8) Although proper compliance with a party's obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200;
(9) There is no entitlement to "chain of enquiry" discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it: Palavi v Radio 2UE Sydney Pty Limited [2011] NSWCA 264."