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File Number(s): 2020/00365289

Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

1. The Court has before it a notice of motion seeking orders under rr 5.2(2)(a) and 5.2(3)(b) of the Uniform Civil Procedure Rules 2005 (‘UCPR’) for two named individuals to attend court and be examined as to the correct identity of the defendants to these proceedings – the two individuals being Mr Gavin Duffy and Mr John Yeldham.

2. While there was a question as to service, both proposed individuals have now been served, and are represented by counsel before me, being the first defendant’s counsel. The first defendant is Duffy Kennedy Constructions Pty Ltd (ABN 39 099 710 595). I propose to refer to corporate entities by the last three digits of their ABN in these reasons.

Nature of claim and procedural history

3. The plaintiff claims to have been injured at a construction site in Neutral Bay in January 2018. The plaintiff says he was employed by Auswide Formwork and Construction Pty Ltd but was under the supervision of, and took instructions from, the builder on site, known to the plaintiff as Duffy Kennedy.

4. The plaintiff commenced these proceedings in December 2020. As amended in 2023, the plaintiff’s allegations include:

3. At all material times, the Defendants were contractors at, and occupiers of, a building site at 1 Premier St, Neutral Bay in the state of New South Wales ("the building site").

…

5. At all material times, the Defendants contracted with the Plaintiff's employer for the provision of formwork services at the building site.

6. In accordance with such agreement, on 16 January 2018 the Plaintiff’s services as a formworker were placed at the building site.

…

11. At all material times the Defendants, as builders and occupiers of the building site, were under a duty to take precautions against the risk of harm to the Plaintiff which risks were foreseeable, not insignificant and that in the circumstances a reasonable person in the position of the Defendant would have taken.

5. It is common ground that, for today’s purposes, I should treat “occupier” as in effect a shorthand for the person or persons with care, control or management of the site.

6. The defendant, ABN …595, pleads that it at no time had any relationship with, control or connection with the building site.

7. In 2022, the plaintiff filed a notice of motion seeking orders that the defendant provide the identity of the party who was the principal contractor at the site, but that motion was not pursued by the plaintiff.

8. 29 May 2023, the plaintiff joined the second, third and fourth defendants:

9. Second defendant: TKT9M Pty Ltd (formerly Duffy Kennedy Payroll Pty Ltd), ABN 27 161 892 173 (“ABN …173”);

10. Third defendant: Capitol Property Services Pty Ltd (formerly DuffyKennedy Pty Ltd), ABN 11 140 517 362 (“ABN …362”); and

11. Fourth defendant: DuffyKennedy Pty Ltd (formerly Duffy Kennedy Pty Ltd), ABN 17 124 208 028 (“ABN …028”).

12. In September 2024, the first defendant served a statement by Mr Gavin Duffy, who was a principal of at least some and perhaps all of the Duffy Kennedy corporate entities that were referred to in evidence before me. Mr Duffy’s statement indicates that the first defendant (ABN …595) did not have a contractor licence until 25 February 2019 and was inactive prior to 1 April 2019. I accept the submission of the motion respondents that I would readily infer that, if examined about ABN …595, Mr Duffy would be likely to give similar evidence about that corporate entity.

13. On 25 February 2025, the plaintiff successfully applied to vacate the hearing date that had been set down for March 2025.

14. The application was based in part on the uncertainty as to the correct defendant or defendants. While I received some of the evidence that was before Faulkner J on the question of vacation, neither party has sought to re-litigate questions of vacation before me. That is appropriate and reflects the focused and constructive manner in which both counsel approached the hearing before me. It suffices to observe that the hearing date was vacated and there was clearly an expectation that this would enable steps to be taken to identify whether the correct entity or entities had been joined as a defendant.

15. On 25 March 2025, plaintiff wrote to first defendant’s solicitor requesting particulars as to who their client believed to be the entity that had the care, control and management of the site and who their client believed to be the head contractor of the job site.

16. The first defendant’s solicitor appears to have treated this as a request for information from Mr Duffy. That may reflect discussions between the parties about which I do not have evidence.

17. The first defendant’s solicitor replied on 11 April 2025 stating that his firm did not act directly for Mr Duffy, but that he had forwarded the letter to Mr Duffy and Mr Duffy had given the following response:

1. The name and ABN of who your client believes to be the correct entity that had the care, control and management of the job site and activity, in which the Plaintiff was injured, that being 1 Premier Street, Neutral Bay NSW 2089 as of 16 January 2018.

"DK Neutral Bay (ABN 73 616 870 627) was the entity paying suppliers and sub-contractors for the Neutral Bay project and Duffy Kennedy Payroll Pty Ltd (ABN 27 161 892 173) was the employer of all DuffyKennedy Pty Ltd employees on the site."

2. Who your client believes to be the head contractor of the job site located at 1 Premier Street, Neutral Bay NSW 2089 as of 16 January 2018. Please provide the name and ABN of this entity.

"DuffyKennedy Pty Ltd (ABN 11140 517 362)"

3. With respect to '1' and '2' above, If the abovementioned entities have subsequently been placed in liquidation or deregistration, what public liability insurance did these entities have in place as of 16 January 2018. Please provide a copy of the following:

a. Certificate of currency as of 16 January 2018; and

"We have located the Certificate of Currency for the QBE policy number 132N007530CAR for the Site."

"We have located no policies of insurance which refer to DK Neutral Bay nor Payroll"

b. Public Liability Insurance with any wording or annexures to the policy.

[no response was provided]

15. There followed correspondence between the lawyers which could not be regarded as a model of co-operative correspondence between legal practitioners. One of the letters referred to the observations of Kunc J in Tugrul v Tarrants Financial Consultants (No 5) [2014] NSWSC 437 at [64], that:

parties to proceedings in this Court and their lawyers are required to engage in prompt, courteous and genuine cooperation (including the provision of reasonably required information and explanations) with the firm intention of resolving interlocutory issues, as far as possible, without involving the processes of the Court.

16. I am not persuaded that the correspondence before the Court reflected a firm intention of resolving interlocutory issues without involving processes of the Court. However, I would add in fairness that Kunc J went on to say in the same paragraph that if resolution is not possible, “the parties’ conduct should at least ensure that only those issues that are really in dispute are submitted for adjudication”. This fairly characterises the approach of both counsel before me. The dispute having arisen, Mr Romaniuk SC for the plaintiff and Mr Perla for the first defendant made helpful submissions that distilled the scope of the dispute and significantly assisted the Court.

17. Returning to the letter of 11 May 2025 and Mr Duffy’s response, the first defendant’s solicitors, in their letter of 21 May 2025, appear to indicate that the response should be construed as Mr Duffy saying that there were three entities who were involved in the care, control and management of the site, being ABN …627, ABN …173 and ABN …362.

18. The difficulty is that this is not what the letter says.

19. Moreover, neither the solicitors nor Mr Duffy have confirmed that these are the only entities that were or might be involved in the care, control or management of the site. The response clearly indicated that multiple entities were involved but did not state that these were all of the entities involved. Indeed, there is force in the plaintiff’s point that Mr Duffy did not even state clearly that ABN …362 was involved in the care, control or management of the site.

20. Mr Duffy’s response is also unclear in its reference to “DuffyKennedy Pty Ltd employees” being employed by ABN …173. Read literally, it makes no sense. Read beneficially or charitably, it is apt to communicate that there was a corporate group with employees being directed or otherwise controlled by other entities – perhaps ABN …362 – and that notwithstanding that arrangement (the detail of which is undisclosed), the entity that had the contractual employment relationship with each employee was ABN …173.

21. I recognise that the lawyers who drafted the letter may not have been involved in drafting this language. They might have been the mere conduit for Mr Duffy, who they stressed was not their “direct” client, although they did not explain what his “indirect” role might be. Ultimately, in my view, the letter left the position unclear.

22. Counsel for the motion respondents stresses, and I accept, that this letter must not be read in a vacuum. The plaintiff has other information, including a certificate of currency of QBE Insurance (Australia) Ltd issued for public liability insurance on 27 January 2017 for the period including the date of the alleged injury. That certificate states that the insured is “DuffyKennedy Pty Ltd”, which I am told was the registered name of ABN …362 at the relevant time. The principal was stated in the certificate to be Lotus Fund No 9 Pty Ltd (“Lotus Fund”), which I was told was the developer of the project. Nobody has suggested, at least so far in these proceedings, that Lotus Fund might be a person with care, control or management of the site.

23. In August 2025, the matter was stood over to 31 October 2025 to allow the plaintiff time to review 21,000 pages of documents produced by North Sydney Council in order to identify who the correct defendant was, the solicitor for the first defendant having indicated that the identity of the head contractor was contained within those documents.

24. According to the affidavit of the plaintiff’s solicitor before me, amongst those documents the various names and ABNs used for the Duffy Kennedy entities were inconsistent and would interchange. This evidence was not challenged before me.

Examination as to the identity of the proposed defendant

25. An order for preliminary discovery involves an invasion of the prospective respondent’s private affairs in order to determine whether or not a case can properly be brought against the prospective respondent.

26. While I am mindful of that, the entities whose private affairs may be invaded in this case are the persons who formed part of a collection of companies carrying on business in connection with the construction site at which the plaintiff alleges he was injured or the principal of some of all of those companies. Mr Yeldham’s affairs are only being invaded so far as they concern those entities. That is in the context of extant proceedings in which the arrangements of the corporate group will necessarily be exposed to the scrutiny of the Court even on the current pleadings. While I do not discount the fact that the order involves an intrusion on privacy, I am not persuaded to place significant weight on that in the context of this matter.

27. In iSAM Securities (UK) v Press [2024] NSWSC 1036 at [36], Richmond J set out five requirements for preliminary discovery:

28. The plaintiff must have a desire to commence proceedings against as yet presently unidentified defendants.

29. The plaintiff must have made reasonable inquiries to identify the unidentified defendants.

30. The plaintiff must have been unable sufficiently to ascertain the identity of the unidentified defendants.

31. It must appear to the Court that the respondents to the motion “may” have information that “tends to assist” in ascertaining the identity of the unidentified defendants. The plaintiff does not need to establish that the documents or information sought will necessarily reveal the identity of the prospective defendant.

32. The Court has a discretion whether or not to make an order.

33. Justice Richmond also stressed at [37] – and this may loom large also before a registrar or other judicial officer before whom any examination is conducted – that an order made pursuant to r 5.2 is limited to the information which is objectively necessary to enable proceedings to be commenced. As it was put in R**oads and Traffic Authority of N**ew S**outh W**ales v Care Park Pty Ltd [2012] NSWCA 35 at [97], being one of the authorities which Richmond J cited for this proposition, the “purpose of commencing proceedings” is the yardstick against which sufficiency of information in the applicant’s possession is measured. However, that must be the purpose of commencing proceedings against a particular defendant.

34. While these observations are useful as guides, I do not propose to let this summary operate as a replacement for the statutory text, being the rule itself.

Position of the respondents to the motion

30. The motion respondents (Mr Duffy and Mr Yeldham) resist the motion on the following grounds:

31. First, it is said that the plaintiff has not complied with r 5.2(7)(a) because the plaintiff’s supporting affidavit does not specify the kinds of information, documents or things in respect of which the order is sought. I am unable to accept that. The affidavit in support of the notice of motion makes it adequately clear that the information in respect of which the order is sought is the identity of the correct defendant. That can readily be understood by reference to the pleadings, specifically, paragraphs 3, 5, 6 and 11, with “occupier” being understood in this context, as agreed before me, as a convenient shorthand for the person with the care, control or management of the site. The proposed examination is as to the identity of the person or persons who meet the descriptions.

32. Second, the motion respondents say that the plaintiff has already identified and joined the relevant parties. I do not accept that. There is doubt about whether the joined entities are the correct defendants, in the sense I have explained, or all of them. Neither the motion respondents nor the first defendant have cooperated in a way that shows the firm intention of resolving interlocutory disputes, as far as possible, without involving the processes of the Court. The possibility that there are other corporate entities associated with Mr Duffy at the relevant time that might meet the descriptions in paragraph 3, 5 or 11 of the amended statement of claim means that I am satisfied that the plaintiff wishes to commence proceedings against a possible defendant whose identity the plaintiff has been “unable to sufficiently ascertain”. That is the language used in the rule, and I note particularly the inclusion of the word “sufficiently”.

33. I recognise that, as the motion respondents submit, the plaintiff already has evidence that ABN …362 was the head contractor and an entity for which public indemnity insurance was procured in connection with the construction work. There is a prima facie case that ABN …362 was at least one of the entities with care, control and management of the site. But the evidence does not enable the plaintiff to conclude “sufficiently” that there are no other entities, as yet unidentified, nor does the evidence enable the plaintiff to understand whether ABN …362 is “sufficiently” identified to the exclusion of other possible defendants.

34. Third, the motion respondents say that the plaintiff has not undertaken all reasonable inquiries. I do not accept that a motion respondent is entitled to resist an order by pointing to particular inquiries which a respondent says might have been undertaken but which have not been undertaken. While I accept that that course may be appropriate and useful in some cases, the ultimate question is whether the plaintiff is a person who has “undertaken reasonable inquiries”. I am satisfied that the plaintiff is such a person.

35. While the proceedings to date have a regrettable history, and it is unfortunate that the plaintiff did not address this issue earlier, I do not accept that that is such as to disentitle the plaintiff or lead to a conclusion that the plaintiff has not, as matters presently stand, undertaken reasonable inquiries.

36. The motion respondents rely specifically on the plaintiff not having issued subpoenas against the Lotus Fund entity or QBE. I do not accept that “reasonable inquiries” in r 5.2 required those steps, at least in the circumstances of this case. Such steps would themselves involve invoking the compulsive powers of this Court and such steps might be resisted as an attempt to obtain preliminary discovery indirectly. The plaintiff was presented with different possible entities to pursue using the compulsive powers of the Court to identify “sufficiently” the appropriate defendant or defendants. I am satisfied that it was consistent with r 5.2 for the plaintiff to determine to pursue Mr Duffy and, subject to what I say below, Mr Yeldham.

37. Fourth, the motion respondents say that it is not enough that there is no present material available which identifies with any precision or with any evidential effect which entity had the care, control and management of the subject site. It seems to me it is perfectly permissible for an applicant to point to lack of precision and lack of reliability in the information obtained to date in support of an application under r 5.2(1). The question in r 5.2(1)(a) is whether the applicant is “unable to sufficiently identify” the identity of the proposed defendant. If the applicant only has imprecise or unreliable information on that topic, then the applicant may well be unable to identify the person “sufficiently”.

38. Fifth, the motion respondents say that the plaintiff’s evidence does not identify any proper basis why the Court’s discretion should be exercised, other than stating that the plaintiff is not satisfied with Mr Duffy’s response. As I have indicated, I accept that Mr Duffy’s response left scope for real doubt. The other information available to the plaintiff did not adequately allay that doubt.

39. Notwithstanding the regrettable history of the proceedings to date, I am satisfied that it is appropriate for the Court to exercise its discretion in favour of making orders for examination under r 5.2.

Order sought in respect of Mr Yeldham

40. As to the order sought against Mr Yeldham, the motion respondents say that the plaintiff has not identified what information is sought from Mr Yeldham or why it is considered that Mr Yeldham would hold relevant information. I do not accept that the plaintiff has failed to identify the information sought from Mr Yeldham. It is the same information that is sought from Mr Duffy.

41. However, I accept that the Court needs an evidentiary basis for concluding that Mr Yeldham might hold relevant information. The evidentiary basis is said to be provided by ASIC searches of a number of Duffy Kennedy entities that record Mr Yeldham’s firm and address as the registered office of the company, but not the principal place of business. This information, together with the known fact that Mr Yeldham is as accountant, provides a basis to infer that Mr Yeldham is or has been the accountant for some or all of the Duffy Kennedy companies. I am satisfied this provides a basis for inferring that Mr Yeldham is likely to hold relevant information. In that regard, I accept the force of the plaintiff’s submission that there is a real prospect of Mr Duffy himself saying he does not know the answer to particular questions, but that it would be a matter for his accountant.

42. In reaching this conclusion, I should not be understood to be allowing questions of either Mr Duffy or Mr Yeldham that go beyond the purpose of the preliminary discovery order, which as I have said is to enable the plaintiff to identify the identity of a defendant or defendants sufficiently for the purpose of commencing proceedings against that defendant.

43. Accordingly, I make the following orders:

44. Pursuant to rule 5.2(2)(a) and rule 5.2(3)(b) of the UCPR, the Court orders that the following persons be examined as to the person or persons with care, control or management of the building site at 1 Premier Street, Neutral Bay on 16 January 2018:

(a) Mr Gavin Duffy, director of the first defendant; and (b) Mr John Yeldham, accountant and taxation agent.

2. The parties’ costs to be costs in the cause.

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