Burke v Plush Think Sofas Pty Ltd
[2024] FedCFamC2G 94
•9 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Burke v Plush Think Sofas Pty Ltd [2024] FedCFamC2G 94
File number(s): MLG 1812 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 9 February 2024 Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – interlocutory application to set aside Notice to Produce – consideration of r 16.16 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – consideration of whether documents requested are specific and relevant – consideration of whether Notice amounts to request for discovery – consideration of whether documents could be requested by application for discovery or subpoena – exercise of discretion under r 1.07 of Rules – application granted with respect to one category of documents – application otherwise dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 176, 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.07, 16.16
Uniform Civil Procedure Rules 2005 (NSW), rr 21.10, 34.1
Cases cited: Connelly v Bluescope Steel (AIS) Pty Ltd (No 3) [2020] FCCA 2902
EFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1609
Heraud v Roy Morgan Research Ltd (No 2) [2016] FCCA 1797
Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711
Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268
McAlister v Yara Australia Pty Ltd [2019] FCCA 2013
Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869
Self Care Corporation Pty Ltd v Green Forest International (No 4) [2021] FCCA 1504
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 30 January 2024 Date of hearing: 30 January 2024 Place: Melbourne Counsel for the Applicant: Mr R Glavas Solicitor for the Applicant: Gadens Counsel for the Respondents: Mr M Seck Solicitor for the Respondents: HintonFlynn Legal ORDERS
MLG 1812 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHRISTOPHER BURKE
Applicant
AND: PLUSH-THINK SOFAS PTY LTD
First Respondent
ANTHONY JOHN SCALI
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Paragraph 8 of the Notice to Produce dated 17 November 2023 issued by the respondents and directed to the applicant be set aside.
2.The balance of the Notice to Produce is returnable before Deputy Chief Judge Mercuri on 7 March 2024 at 9:30am.
3.The Application in a Proceeding to set aside the Notice to Produce filed by the applicant on 5 December 2023 otherwise be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an Application in a Proceeding to set aside a Notice to Produce issued by the respondents and directed to the applicant dated 17 November 2023.
NOTICE TO PRODUCE
The Notice to Produce (‘Notice’) was issued pursuant to rule 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’). The documents that were sought to be produced were:
(1)all bank statements of Mr Christopher Burke (‘Mr Burke’) for the period 10 March 2022 to date;
(2)all pay slips received by Mr Burke from Greenlit Brands for payment made in accordance with the Final Incentive Letter referred to in paragraph 19 of Mr Burke’s affidavit affirmed 6 April 2023;
(3)all applications for employment submitted by Mr Burke to executive search firms for the period 10 March 2022 to date;
(4)all correspondence sent to and received from prospective employers by Mr Burke regarding potential employment with the prospective employers for the period 10 March 2022 to date;
(5)all contracts for the performance of work by Mr Burke for the period 10 March 2022 to date;
(6)all documents regarding the engagement of Mr Burke for the performance of work as an independent contractor for the period 10 March 2022 to date;
(7)all payslips and PAYG payment summaries issued to Mr Burke during the period 10 March 2022 to date; and
(8)all invoices issued by Mr Burke, or by entities under his control, for the performance of work by Mr Burke in the period 10 March 2022 to date.[1]
[1] Notice to Produce filed on 17 November 2023.
On 5 December 2023, the applicant filed an Application in a Proceeding to have the Notice set aside.[2] In support of that application, the applicant relies upon an affidavit affirmed by his solicitor, Mr George Haros[3] Annexed to that affidavit, among other things, was correspondence between the parties’ respective solicitors regarding the issue of the validity of the Notice.[4]
[2] Applicant’s Application in a Proceeding filed on 5 December 2023.
[3] Affidavit of Mr George Haros sworn on 4 December 2023 and filed on 5 December 2023.
[4] Affidavit of Mr George Haros sworn on 4 December 2023 and filed on 5 December 2023 at Annexures GH-3 and GH-4.
The matter came before a Registrar and was then adjourned to a hearing before me which occurred on 30 January 2024.[5]
[5] Orders of Registrar J Burns dated 6 December 2023.
Put simply, the applicant seeks to have the Notice set aside on the basis that it does not comply with rule 16.16 of the Rules.[6] Relevantly, rule 16.16 provides that:
(1) A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of the other party.
(2)Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
[6] Applicant’s Outline of Submissions filed on 10 January 2024 at paragraph [2].
It is submitted for the applicant that the Notice is deficient in a number of respects.[7] In particular, it is submitted for the applicant that the Notice is deficient in that:
(a)it does not request ‘specified documents’;
(b)it is an impermissible request for discovery; and
(c)it seeks documents not relevant to the issues in dispute.
[7] Applicant’s Outline of Submissions filed on 10 January 2024 at paragraph [11] and following.
In response, the respondents dispute that the Notice was defective in the manner suggested or otherwise.[8]
[8] Respondents’ Outline of Submissions filed on 22 December 2023 at paragraph [19].
Before turning to the parties’ submissions in more detail, it is appropriate to say something about the substantive proceedings and the context which the Notice was issued.
SUBSTANTIVE PROCEEDINGS
The applicant was employed by the first respondent as the CEO of the first respondent, Plush-Think Sofas Pty Ltd.[9] His employment was terminated on 10 March 2022.[10]
[9] Affidavit of Mr Christopher Burke affirmed and filed on 6 April 2023 at paragraph [2].
[10] Affidavit of Mr Christopher Burke affirmed and filed on 6 April 2023 at paragraph [38].
The applicant has initiated proceedings alleging, among other things, that his dismissal was in contravention of a general protection, under section 545 of the Fair Work Act 2009 (Cth).[11] The respondents dispute the applicant’s claims and oppose the orders sought.[12]
[11] Statement of Claim filed on 4 August 2022.
[12] Defence filed on 28 October 2022.
It is submitted for the respondents, and I accept, that if the court determines that there has been a breach as alleged, the court will need to assess damages, if any, payable to the applicant. In assessing any such damages, the court must have regard to any income earned by the applicant since termination and/or any steps taken by the applicant to mitigate the loss accruing to him from the alleged breach.[13] Documents which can go to establishing the steps taken by the applicant to mitigate his loss and any income earned by him since termination are therefore apparently relevant to the determination of the issues in dispute.[14]
[13] See Heraud v Roy Morgan Research Ltd (No 2) [2016] FCCA 1797 at [2]-[4] and the cases referred to therein; Connelly v Bluescope Steel (AIS) Pty Ltd (No 3) [2020] FCCA 2902 at [6].
[14] See Respondents’ Outline of Submissions filed on 22 December 2023 at paragraph [6].
It was further submitted for the respondents that the determination of any loss that accrued to the applicant, if any, is not limited to an assessment of the evidence put forward by the applicant.[15] It is to this end that the respondents issued the Notice seeking the production of documents which they say are relevant to the determination of the question of any compensation payable, should that issue arise.[16]
[15] Respondents’ Outline of Submissions filed on 22 December 2023 at paragraph [8].
[16] Respondents’ Outline of Submissions filed on 22 December 2023 at paragraph [9].
The final hearing in this matter is listed for 8 April 2024 with an estimate of 4 days. The current timetable for hearing requires the applicant to file an outline of submissions by 11 March 2024 and the respondent to file an outline of submissions by 25 March 2024.[17]
[17] Orders of Judge Forbes dated 9 August 2023.
RELEVANT PRINCIPLES
Both parties acknowledge that the scope of rule 16.16 was recently the subject of judicial determination by Judge Baird in Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268 (‘Lift Shop’). Relevantly, in setting aside the Notice to Produce in that case, her Honour Judge Baird made the following observations in Lift Shop:
62.For present purposes it suffices to observe that r 16.16(1) is to be construed in aid of the objects set out in r 1.04 GFL Rules, and so is to be interpreted and applied in the way that best promotes the overarching purpose - as provided in s 190 of the FCFCOA Act, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
63.The word “specified” is to be given full weight in the phrase “a specified document”, and to be interpreted having regard to the ordinary meaning of the word. Thus, the Macquarie Dictionary Online defines “specify”:
“verb (t) 1. to mention or name specifically or definitely; state in detail.
2. to give a specific character to.
3 to name or state as a condition.
-verb (i) 4. to make a specific mention or statement.”
The Oxford English Dictionary. 2nd ed. Defines “‘specify’ similarly as meaning:
1.intr. To speak or make relation of some matter fully or in detail. Obsolete.
2.trans. To mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail. Usually said of persons, but sometimes of an act, document, etc.”
The OED defines “specified” as meaning “that is or has been definitely or specifically determined”, and the OED Online defines “specified” as “ … that is or has been definitely or specifically mentioned, determined, fixed or settled … ”.
Guided by the overarching purpose and the above definitions, I consider that the phrase “a specified document” in r 16.16 means that the notice to produce must mention or name the document specifically, definitely, or explicitly, and if more than one document is sought, the notice must mention or name each such document explicitly, albeit that the amount of detail or particularity with which each mentioned document is set out in the notice to produce may differ from case to case, depending upon the circumstances of the instant case.
…
65.It is well established that a notice to produce cannot be used as a substitute for discovery. To do so would defeat the purpose of the rules in this Court limiting discovery, and not to give full regard to the wording of r 16.16. In this Court, discovery is permitted only with leave. Before allowing any discovery, the Court must determine it is in the interests of the administration of justice to allow the particular discovery, having regard, inter alia, to whether allowing the discovery would be likely to contribute to the fair and expeditious conduct of the proceeding: ss 176(2) and (3) FCFCOA Act. Whilst discovery may be sought of specified documents, it is not uncommon for discovery to be permitted of targeted categories of documents.
…
70.… it does not follow that if classes, categories or types of documents to be reviewed may be able to be discerned upon reading a notice to produce, that the notice thereby seeks specified documents. It does not.
…
72.It may be accepted that a recipient party will approach a notice to produce sensibly, and thus having regard to the circumstances pertaining to the instant case, however it does not follow that the recipient party can, or should, construe it other than on its terms. A recipient party cannot unilaterally read down a notice that seeks all documents recording or referring to a subject matter, to a specified document. To do so is to invite argument and likely result in further expenditure of time and cost. (emphasis in original)
These observations about the scope of rule 16.16 were referred to and adopted by his Honour Judge Lucev in Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711. Relevantly, in that case, the Notice to Produce was ultimately not pressed and the applicant sought an order for discovery. Having said that, Judge Lucev indicated that had the Notice to Produce been pressed, all but one category sought in the Notice would have been set aside as not having complied with rule 16.16(1).[18] Judge Lucev then went on to consider whether an order for discovery ought be made.[19]
[18] Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711 at [17].
[19] Homes v Australian Carers Pty Ltd [2023] FedCFamC2G 711 at [18] and following.
I, respectfully, agree and adopt the statements of principle articulated by Judge Baird and set out above.
The applicant submits that, having regard to these principles, the Notice falls foul of rule 16.16 of the Rules, including because each of the categories of documents sought are broad categories of documents and do not specifically identify a document or documents as required by rule 16.16.[20] Consequently, the applicant submits that the Notice, in effect, seeks discovery without an express order permitting it.[21] In particular, the applicant points to the use of the word ‘all’ at the commencement of each of the categories sought.[22]
[20] Applicant’s Outline of Submissions filed on 10 January 2024 at paragraph [11].
[21] Applicant’s Outline of Submissions filed on 10 January 2024 at paragraph [16].
[22] Applicant’s Outline of Submissions filed on 10 January 2024 at paragraph [11].
As noted, the respondents do not take issue with the observations made by Judge Baird in Lift Shop set out above about the scope of rule 16.16. However, the respondents submit that that decision is distinguishable from the facts in the present case.
First of all, the respondents submit that the key reason for the conclusion reached in Lift Shop was the fact that the Notice to Produce in that case sought ‘all documents recording or referring to …’ various things.[23] It was submitted that the use of these words expanded the nature of the documents sought such that it could not be said that the Notice required the production of a ‘specified document’.
[23] Respondents’ Outline of Submissions filed on 22 December 2023 at paragraph [21].
It was also submitted for the respondents that the court could, in interpreting rule 16.16, have regard to similar provisions in other civil procedure rules.[24] Relevantly, the court was referred to a similar provision which is contained in the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).[25]
[24] Respondents’ Outline of Submissions filed on 22 December 2023 at paragraph [23].
[25] In McAlister v Yara Australia Pty Ltd [2019] FCCA 2013, Judge Barnes said at [13]: ‘… The concept of ‘specified’ document does not impose a requirement that the other party search for and produce all documents relating to a particular subject matter (see Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [12] – [15] per Barrett J in relation to the expression ‘specified’ documents in r 34.1 of the Uniform Civil Procedure Rules 2005 (NSW) … The term ‘specified’ in r 15A.17 of the FCC Rules must equate to ‘described’ or ‘identified’.’ (emphasis added)
In Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 (‘Patonga Beach’), the court considered whether a Notice to Produce issued under rule 21.10 of the UCPR ought be set aside. Rule 21.10 relevantly provides:
(1)Party A may, by notice served on party B, require party B to produce for inspection by part A:
(a)any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and
(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.
(2) …
The UCPR also contains rule 34.1, which relevantly provides:
(1)A party may, by notice served on another party, require the other party to produce to the court, or to any examiner:
(a) at any hearing in the proceedings or before any such examiner, or
(a1) at any time fixed by the court for return of subpoenas, or
(b) by leave of the court, at some other specified time, any specified document or thing.
(2) The other party must comply with a notice to produce:
(a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or
(b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.
The court in Patonga Beach noted the difference between rule 21.10 and rule 34.1, the former being a form of discovery where relevance to a fact in issue is the key consideration and the latter being more akin to a subpoena which also may extend to issues of credit as well as relevance. Relevantly, in Patonga Beach, the court noted at paragraphs [11] to [15]:
11.It is thus clear that, in rule 21.10, the combination of “specific document” and “clearly identified” means that a notice can relate only to a document describe by means of characteristics peculiar to itself, such as a letter of a given date written by X to Y, or the minutes of a meeting of directors of Z Limited held on a given date. A notice relating to all letters written by X to Y in 2008 or the minutes of all meetings of the directors of Z Limited held in 2008 would not be permitted because referring to a class of document as distinct from what Harrison AsJ in Douglas Corporation v Currico Nominees [2007] NSWSC 113 termed “the individual document sought” is not a permissible course.
12.The language used in rule 34.1. - “specified document” - is different. The word “specified” here means, in my view, the same as “described” or “identified”, so that a notice under rule 34.1 plays in relation to a party the role that is played under rule 33 by a subpoena in relation to a non-party.
13.The requirement under rule 33 is that a subpoena to produce documents “identify” the document to be produced … that is, cut the document out from the universe of documents by some description or specification.
14.It is permissible for a subpoena to call for, for example, all documents recording oral communications between A and B within a stated period and referring to a particular company: … Such a subpoena satisfies the requirement that there be “specified with reasonable particularity the documents that are required to be produced”. … What is impermissible, … is that a person be required to search for or produce all such documents as he or she may have in his or her possession or power relating to a particular subject matter. Jordan CJ continued:
“It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents.”
15.That observation was made in relation to a non-party but it holds good in the rule 34.1 context in relation to a party upon whom a notice under that rule is served. A like principle is that the recipient of a subpoena or rule 34.1 notice to produce must not be put into a position of having to judge the legal effect of a document or its capacity to prove something. Thus, it is impermissible to require the production of, for example, any document proving or tending to prove that X was in Sydney at any time on 1 January 2009.
In Patonga Beach, having found the Notice to Produce objectionable in part, the court set it aside.[26] It did, however, grant leave for the defendant to serve a different Notice to Produce on the plaintiff with the objectionable paragraphs removed.[27]
[26] Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [22].
[27] Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [23].
In addition, in EFM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1609, the court noted that:
57.The authorities are clear that notices to produce should not be used as an alternative to an application for discovery or for the purposes of “fishing” for evidence or documents …
58.Further… the fundamental principle which drives the statements of principle concerning notices to produce (and subpoenas) is “that the Court should not permit its processes to be abused and should guard against the use of its compulsive powers as an instrument of oppression …
CONSIDERATION AND FINDINGS
On balance, and accepting that rule 16.16 must be read in the context of a statutory framework that prohibits discovery without an express order of the court and a declaration by the court that it is in the interests of the administration of justice to order discovery (and therefore the reasons in Patonga Beach must be read with some caution), I nevertheless find that Lift Shop is largely distinguishable from the facts in this case.
Moreover, I also accept that the term ‘specified’ in rule 16.16 means ‘described’ or ‘identified’. Unlike the Notice in Lift Shop which sought production of documents ‘recording or referring to’ various things, the Notice in this case requires production of express documents which are readily identifiable, save for paragraph 8 which I deal with below. Nor do I accept that the Notice in this instance could properly be described as fishing for evidence.
Whether documents requested are specific and relevant
Unlike the documents sought in Lift Shop, the documents sought in paragraphs 1 to 7 of the Notice served by the respondents are, in my view, readily identified and specific.
Paragraph 1 requires the production of bank statements of the applicant for a specified period. That period is relevant as it is by reference to the applicant’s date of termination.
Similarly, paragraph 2 requires production of pay slips regarding payments made to the applicant in accordance with a document expressly referred to the applicant’s affidavit filed in these proceedings. These documents are similarly identifiable.
The same can be said for each of the documents in paragraphs 3 to 7 inclusive. Whilst rule 16.16 requires documents sought to be specified, that does not mean that where there is more than one document required of the same type that each document be individually identified. Indeed, it would not be possible for the respondents to have done so in circumstances where they do not have access to those documents.
Paragraph 8 does not fall into the same category. Paragraph 8 requires invoices issued by the applicant or ‘entities under his control’. It is not clear from that paragraph what is meant by an entity under his control. For example, whether it means an entity in which he has legal control or whether it extends to an entity in which he has no legal control, but in respect of which he has other influence. To that extent, the documents sought at paragraph 8 of the Notice do not fall within the scope of rule 16.16 and should be set aside.
Moreover, the documents sought at paragraphs 1 to 7 of the Notice appear to be relevant to the issue of what damages, if any, ought to be awarded to the applicant in the event that he is successful in his claim.
Whether Notice amounts to request for discovery
As noted, the second issue raised by the applicant is that the Notice ought be set aside as it, in effect, amounts to a request for discovery.
For the following reasons, I find that it does not. In Self Care Corporation Pty Ltd v Green Forest International (No 4) [2021] FCCA 1504, Judge Manousaridis summarised the principles which apply to proceedings in which an application is made to set aside a Notice to Produce at paragraphs [7] to [9]. Those principles are similar to those which apply to an application to set aside a subpoena, noting the well-settled proposition that a Notice to Produce ought not be used as a substitute for discovery.
As noted by Judge Manousaridis at paragraph [9] of his reasons in Self Care, in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710, Justice Clarke said:
I have been at pains in this judgment to point out that court procedures are designed to bring about, as far as possible, an efficient and expeditious resolution of disputes between parties. They are essentially practical matters. The subpoena, which is an important part of the process, requires a person, quite often a lay person, to bring to court documents which may be specified in particular or general terms. The recipient is not and should not be required to consult a dictionary and then carry out an exercise in construction of the document before embarking upon the collection of the documents. The court, in determining whether a subpoena is oppressive, is concerned with whether in all the circumstances the demand is, for relevant purposes, too wide or uncertain. For this purpose it must determine whether the terms of the subpoena convey to the recipient in relatively clear language the document or class of document called for.[28] …
[28] Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710, 720-721.
The fact that documents may have been able to be obtained through a process of discovery does not mean that the Notice is necessarily being used as a means to circumvent the limitations on discovery orders in this court. In this instance, the documents sought at paragraphs 1 to 7 of the Notice are all related to the issue of mitigation of loss. Whilst various documents are sought, they are confined to that one issue. The applicant himself has raised this issue in his affidavit material at paragraphs [48] to [51].[29]
[29] See Affidavit of Mr Christopher Burke affirmed and filed on 6 April 2023 at paragraphs [48] to [51].
For each of these reasons, I am satisfied that the Notice is not an attempt to obtain discovery without the need for a declaration under section 176 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCOA Act’). The documents sought are, other than paragraph 8, readily identifiable, apparently relevant to the issues that are likely to arise at trial and the Notice is not, in my view, oppressive.
Dispensation with Rules under r 1.07
For completeness, I note that if I am wrong about the interpretation of rule 16.16 of the Rules and its application to the Notice, in any event, I would have exercised my discretion under rule 1.07 and dispensed with the requirement to comply with that rule in this instance (save for paragraph 8 of the Notice).
I am satisfied that it is in the interests of justice for such dispensation in this case, for reasons given above, namely the documents sought are apparently relevant to the issues in dispute and are likely to assist the parties to confine the issues and the duration of the trial, particularly in relation to the question of mitigation if the applicant is successful.
In coming to this view, I have also had regard to the fact that I accept that these documents could be required to be produced in a number of other ways. It was submitted for the applicant that the appropriate course for the respondents would have been to make an application for discovery and seek a declaration under section 176 of the FCFCOA Act or by the respondents having served a subpoena.
Having regard to the overarching purpose of the Rules and section 190 of the FCFCOA Act, the Rules must be applied and interpreted in a way that would facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. On balance, having concluded that the documents sought are relevant, readily identifiable and not oppressive, I find that it would not be in the interests of justice for the respondents to be required to make a fresh application either for an order for discovery or to issue a subpoena.
CONCLUSION
For each of these reasons, I make the orders as set out at the commencement of these written reasons for judgment.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 9 February 2024
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