Ace Hire Aust Pty Ltd v ADI Ltd - [2006] NSWSC 969

CITATION: Ace Hire Aust Pty Limited v ADI Limited [2006] NSWSC 969

HEARING DATE(S): 15/9/06

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: Einstein J

EX TEMPORE JUDGMENT DATE: 09/15/2006

DECISION: Order for defendant to depose as to extent of sufficiency of verified list of documents.

CATCHWORDS: Practice and Procedure - Additional discovery

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)

CASES CITED: Azzi v Volvo (2006) NSWSC 283
British Association of Glass Bottle Manufacturers Ltd v Nettlefold (1912) AC 209
Mulley v Manifold (1959) 103 CLR 341

PARTIES: Ace Hire Aust Pty Limited (Plaintiff)
ADI Limited (Defendant)

FILE NUMBER(S): SC 50008/06

COUNSEL: Mr M Cohen (Plaintiff)
Mr Orsborn (Defendant)

SOLICITORS: Cosoff Cudmore Know (Plaintiff)
Steven Kouris Lawyers (Defendant)

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

EINSTEIN J

Friday 15 September 2006 ex tempore
Revised 19 September 2006

50008/06 ACE HIRE AUST PTY LIMITED v ADI LIMITED

1 The original notice of motion sought an order pursuant to regulation 21.2 of the Uniform Civil Procedure Rules 2005 that the defendant provide the plaintiff with further and better discovery and an order that the defendant discover all documents enumerated by category under cover of a letter dated 23 May 2006.

2 During the hearing of the notice of motion the plaintiff's counsel sought and obtained leave to amend the notice of motion to now seek an order that the company secretary or other proper officer of the defendant depose upon affidavit to the conduct, extent and sufficiency of the verified list of documents in terms of the documents which have been produced. That application for leave to amend was not opposed.

3 The Court has before it an affidavit of Mr Kevin Rohith Pathinather sworn on 11 September 2006, being a solicitor at the firm of solicitors on the record for the plaintiff.

4 The Court also has before it a bundle of correspondence tendered by the defendant and marked as exhibit R1. The parties have also been content to respectively treat as before the Court, the lists of documents filed on the one hand by the defendants and on the other hand by the plaintiff.

5 The plaintiff claims that the relief now sought is appropriate as a result of the inadequate discovery given by the defendant and is necessary to permit the plaintiff to undertake the preparation of its evidence for trial, which it submits has been impeded by the default of the defendant in giving proper discovery.

6 The background to the matter as between May 2006 and 11 September 2006 is conveniently chronicled in paragraphs 4 to 17 inclusive of the plaintiff's submissions:

“4. On 23 May 2006, the Solicitors for the Plaintiff served the list of categories of discovery required to be given by the Defendant.

5. On 2 June 2006, Bergin J made orders by consent that the time for discovery and inspection was to be extended to 21 July 2006.

6. On 21 July 2006, the Plaintiff filed its verified List…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ace Hire Aust Pty Ltd v ADI Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 969
Decision Date: 15/09/2006

CaseChat Overview and Summary

Ace Hire Australia Pty Ltd brought an action against ADI Limited, seeking damages for loss allegedly caused by a breach of contract. The dispute centred around the scope of discovery and the admissibility of certain documents. The matter was heard in the Federal Court of Australia. The central legal issue was whether the court should order additional discovery of documents beyond those initially disclosed by the defendant. The plaintiff argued that the documents were necessary to establish the defendant's liability. The defendant opposed the application, claiming that the documents were irrelevant or privileged.

The court considered the relevant principles governing additional discovery. It noted the importance of fairness and the need to ensure that each party has an opportunity to adduce all relevant evidence. The court examined the plaintiff's application in light of the evidence provided and the legal authorities cited. It found that the plaintiff had made a sufficient case for the additional discovery, as the documents in question were likely to contain relevant information that could affect the outcome of the case. The court also noted that the defendant had not adequately explained why the documents could not be produced, and that the potential prejudice to the plaintiff outweighed any inconvenience to the defendant.

In light of its findings, the court ordered that the defendant provide additional discovery of the contested documents. The court emphasised that the order was not a finding on the ultimate merits of the case but a procedural decision to facilitate the fair resolution of the dispute. The plaintiff was granted leave to amend its statement of claim to include the additional facts that might be gleaned from the newly discovered documents. The defendant was directed to produce the documents within a specified timeframe and to inform the court of any objections to their production. The case will now proceed with the newly disclosed evidence, and the court will revisit the issue of admissibility if necessary.

Orders