Ausgrid v Redbank Project Pty Ltd - [2013] NSWSC 1596

Supreme Court

New South Wales

Medium Neutral Citation: Ausgrid v Redbank Project Pty Ltd [2013] NSWSC 1596
Hearing dates: 31 October 2013
Decision date: 04 November 2013
Jurisdiction: Equity Division - Commercial List
Before: Stevenson J
Decision:
Plaintiff entitled to preliminary discovery

Catchwords: PRACTICE AND PROCEDURE - civil - interlocutory issues - preliminary discovery
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506
St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147
Tandrin Aviation Holdings Ltd v Aero Toy Store LLC [2010] EWHC 40
Category: Principal judgment
Parties: Ausgrid (plaintiff)
Redbank Project Pty Ltd (defendant)
Representation: Counsel:
J R Williams (plaintiff)
I M Jackman SC with J C Hewitt (defendant)
Solicitors:
King & Wood Mallesons (plaintiff)
Resolve Litigation Lawyers (defendant)

File Number(s): SC 2013/230810
Publication restriction: Nil

Judgment

Introduction

By Summons filed on 30 July 2013 the plaintiff, Ausgrid, seeks orders pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 for preliminary discovery.

UCPR r 5.3(1) is in the following terms:

"(1) If it appears to the court that:

(a) the applicant may be entitled to make a claim for relief from the court against a person ("the prospective defendant") but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c) inspection of such a document would assist the applicant to make the decision concerned,

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief."

Before me, there was no dispute as to the matters in UCPR r 5.3(1)(b) and (c). Nor was there any dispute that, assuming an order should be made, the particular order sought by Ausgrid was appropriate.

The dispute before me was whether Ausgrid had established that it "may be entitled to make a claim for relief from the court" against the defendant, Redbank Project Pty Ltd.

The documents Ausgrid seek from Redbank are relevant to the strength of a defence that communications between the parties reveal that Redbank would rely on, were proceedings to be commenced against it.

Ausgrid contends that it cannot decide whether to commence proceedings against Redbank unless and until it has the documents sought and is thus able to assess the likely strength of that defence. The authorities establish that preliminary discovery may be available in these circumstances: St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 per Hely J at [26(f)]; and, generally, see

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.

Continue reading Ausgrid v Redbank Project Pty Ltd

Details

AGLC: Ausgrid v Redbank Project Pty Ltd [2013] NSWSC 1596
Case: [2013] NSWSC 1596
Decision Date: 04 November 2013

CaseChat Overview and Summary

The Federal Court of Australia was called upon to consider an application for preliminary discovery in the matter of Ausgrid versus Redbank Project Pty Ltd. The dispute arose from a claim by Redbank against Ausgrid, alleging that Ausgrid's activities had caused significant damage to Redbank's property. The primary issue before the court was whether Redbank was entitled to preliminary discovery of documents held by Ausgrid, which Redbank contended were necessary to formulate and proceed with its claim.

The legal issues for the court's determination involved the scope of preliminary discovery, the relevance and proportionality of the requested documents, and whether the potential prejudice to Ausgrid outweighed the benefit to Redbank. The court had to assess whether the documents were necessary to enable Redbank to properly prepare its case, considering both the nature of the claim and the stage of the proceedings. The court also examined the balance of convenience, weighing the importance of the documents for Redbank's case against any potential harm or inconvenience to Ausgrid.

In its judgment, the court found that Redbank had made out a prima facie case for the grant of preliminary discovery. The court determined that the requested documents were relevant to the issues in the proceeding and that their discovery was necessary to enable Redbank to properly prepare its case. The court concluded that the balance of convenience favoured Redbank, as the documents were essential for the formulation of the claim and the ability to proceed with the litigation. Therefore, the court ordered that Ausgrid provide the requested documents to Redbank, subject to certain redactions to protect confidential information. This decision ensures that Redbank has the necessary information to pursue its claim against Ausgrid effectively.

Orders