Barach v University of New South Wales (No 2)

In the case of Barach v University of New South Wales (No 2), the dispute involved an application for an order that the University of New South Wales (UNSW) produce documents, in response to a notice to produce. The respondent, UNSW, argued that the court should exercise its discretion to stay the proceedings because the foreign defendant, who was not submitting to the jurisdiction, had not produced the documents in question. The matter was heard in the Supreme Court of New South Wales. The central legal issue before the court was whether the foreign defendant's affidavits could be considered as evidence of the documents' relevance and whether the court should order the production of those documents, despite the defendant's refusal to submit to the jurisdiction.

The court considered the provisions of Part 21 Rule 21.10 and Rule 21.11 of the Uniform Civil Procedure Rules 2005. It was established that the affidavits of the foreign defendant contained specific references to the documents in question, which were relevant to the proceedings. The court determined that the foreign defendant, by being a party to the proceedings and by filing affidavits that mentioned the documents, had effectively submitted to the jurisdiction concerning those documents. The court held that the documents were relevant and should be produced, rejecting UNSW's argument that the court should exercise its discretion to stay the proceedings. The court found that the affidavits provided sufficient evidence to warrant the production of the documents, and that the foreign defendant's failure to produce them did not preclude the court from ordering their production. The court's decision was that the documents in question should be produced as they were relevant and necessary for the fair resolution of the case.

Consequently, the court made an order that UNSW produce the specified documents within the timeframe set out in the notice to produce. This ruling emphasised the importance of relevance and the role of affidavits in establishing the need for document production, even when the defendant is a foreign party and has not formally submitted to the jurisdiction.