Taylor v Saloniklis

REASONS FOR JUDGMENT 1 This is an application by the respondents in a proceeding for an order that the applicants give standard discovery under rr 20.13 and 20.14 of the Federal Court Rules 2011 (Cth). The application is opposed by the applicants. I made an order that the respondents' application be determined on written submissions. 2 The pleadings have closed. No orders have as yet been made for the filing of written evidence by the applicants and by the respondents. 3 The applicants in this proceeding make claims under the Trade Practices Act 1974 (Cth), Fair Trading Act 1987 (SA), Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) and for breaches of a partnership agreement and negligence. The period of time over which the claims are said to have arisen is substantial being from 1 July 2007 to March 2012. 4 The applicants' Second Amended Statement of Claim is a lengthy document of 140 pages and 245 paragraphs. It is quite particular in a number of respects and it pleads a large number of documents. In a handful of paragraphs it pleads that particulars will be provided after discovery. 5 The respondents' Defence to Second Amended Statement of Claim is also a lengthy and detailed document. 6 Finally, there is a Reply of 18 pages and 136 paragraphs. 7 Under the Federal Court Rules 2011 (Cth) discovery is not automatic or even ordered as a matter of course and even if the Court is persuaded to make an order, the Court will fashion the order to suit the particular circumstances of the case (rr 20.11, 20.12, 20.13, 20.14, 20.15 and Practice Note CM 5 Discovery). I also need to bear in mind the provisions of Part VB (Case Management in Civil Proceedings) of the Federal Court of Australia Act 1976 (Cth). 8 I think that there should be an order for discovery in this case. It is apparent that both parties rely heavily on documents and there does not seem to be any dispute that some form of discovery should be ordered. The questions are what discovery and when? 9 Taking the question of timing first, I think that discovery should be ordered now. I reject the applicants' submission that there is an advantage in waiting until the written evidence has been filed. I think the pleadings are detailed and the issues fairly clear. I see no appreciable benefit in waiting for the filing of written evidence and there is the risk of further or supplementary written evidence having to be filed after discovery. 10 The form which discovery should take is to my mind the difficult issue. As I worked my way through the applicants' Second Amended Statement of Claim it became apparent to me that standard discovery should be able to be given without too much difficulty. I do not think that discovery by categories is a better alternative because in the circumstances of this case it might well amount to something very similar to standard discovery with the added possibility of arguments about the appropriate categories. 11 I will make the order for standard discovery. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.